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Name: People v. Conley
Case #: C070272
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 05/02/2013
Subsequent History: Review granted 8/14/2013: S211275

Defendant whose appeal was pending when the Three Strikes Reform Act of 2012 (Proposition 36) went into effect was not entitled to be resentenced under amended Penal Code section 1170.12 but may petition for recall of sentence. After the court filed its decision affirming Conley’s conviction for multiple vehicle offenses with two prior strikes, Conley filed a petition for rehearing seeking the benefit of the modification of the Three Strikes law via Proposition 36, relying on In re Estrada (1965) 63 Cal.2d 740. The appellate court found that Conley would not have been subject to a 25-to-life sentence under Proposition 36 today because he was not convicted of a serious or violent felony. However, Penal Code section 1170.126, a related statute added by Proposition 36, defeats the presumption of retroactivity set forth in Estrada and provides a specific procedure for a defendant to follow in the case where a prisoner was serving a three strikes sentence when the measure was enacted. Persons who have not yet been sentenced are entitled to the application of the mitigated punishment in amended section 1170.12. Conley’s recourse is to petition for a recall of sentence under section 1170.126.