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Name: People v. Contreras
Case #: G047603
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 11/18/2013
Subsequent History: Review granted 1/29/2014: S215516

Defendant sentenced just prior to effective date of the Three Strikes Reform Act and whose case is not final is entitled to retroactive application of new law. A jury found appellant guilty of spousal battery (Pen. Code, § 273.5, subd. (a)) and misdemeanor assault (Pen. Code, § 240). The court found two prior “strikes” true. On October 19, 2012, the court imposed a 25-years-to-life sentence pursuant to the Three Strikes law. On appeal, appellant claimed that Proposition 36, the Three Strikes Reform Act, should preclude his life sentence. Held: Reversed. Under the Reform Act, effective November 7, 2012, a life sentence is applied only when the current offense is serious (Pen. Code, § 1197.2, subd. (c)) or violent (Pen. Code, § 667.5, subd. (c)), which does not apply in appellant’s case. Under the analysis set forth in In re Estrada (1965) 63 Cal.2d 740, the more lenient sentencing applies to appellant, whose judgment is not final. The Reform Act contains no express savings clause, and it lessened the punishment for appellant’s crime. Penal Code section 1170.126, which allows a qualified inmate serving an indeterminate Three Strikes life sentence to petition for resentencing, did not operate as the functional equivalent of a savings clause. The wording of section 1170.126 makes clear it was not intended to be the exclusive remedy available. Applying Estrada to cases not yet final serves the purposes of the Reform Act, which were public safety, imposition of fair sentences, reduction of prison overcrowding, and saving money. [Editor’s Note: There is a split in the Courts of Appeal on this issue and the Supreme Court has granted review. (See People v. Lewis (2013) 216 Cal.App.4th 468, review granted 8/14/2013 (S211494); People v. Conley (2013) 215 Cal.App.4th 1482, review granted 8/14/2013 (S211275); People v. Yearwood (2013) 213 Cal.App.4th 161, 167; People v. Lester (2013) 220 Cal.App.4th 291, 304.)]

Appellant is not entitled to more favorable credits under the Realignment Act of 2011. Appellant was arrested on September 12, 2011. The trial court calculated his presentence credits under the pre-October 1, 2011 version of Penal Code section 4019, according appellant one day of conduct credit for every two days in custody. The Realignment Act, operative October 1, 2011, provides for one day of conduct credit for every one day in custody. However, section 4019, subdivision (h) states the more generous formula should be applied prospectively to defendants confined for a crime committed on or after October 1. Because appellant committed his crime before this date, he was not entitled to have his conduct credit calculated under the more favorable formula.