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Name: People v. Johnson
Case #: B249651
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 05/23/2014
Subsequent History: Review granted 7/30/2014: S219454

Determination of whether an inmate’s commitment offense is a serious or violent felony, rendering him ineligible for Proposition 36 resentencing, is based on whether the offense was so defined on November 7, 2012. Johnson’s Penal Code section 1170.126 petition for Three Strikes sentence recall and resentencing was denied because his witness intimidation commitment offense (Pen. Code, § 136.1, subd. (a)(2)) is a serious felony. Johnson appealed because when he was convicted of two counts of attempted witness intimidation in 1998 the offense was not defined as serious or violent (Pen. Code, §§ 1192.7, subd. (c); 667.5, subd. (c)). Held: Affirmed. On November 7, 2012, Proposition 36 amended Penal Code sections 667 and 1170.12 to allow a three strike sentence only where the current offense is serious or violent; it also added section 1170.126, which allows a qualified Three Strikes inmate to petition for resentencing. When referring to serious or violent felonies, section 1170.126 uses the present tense, which means only inmates whose commitment offense was not so defined as of Proposition 36’s effective date may petition for resentencing. Penal Code section 1170.125, which requires that new designations of serious/violent felonies are to be applied going forward, does not change this analysis because ineligibility for strike reform resentencing does not raise ex post facto concerns. Even if ambiguity exists as to sections 1170.125 and 1170.126, the intent of the voters in enacting Proposition 36 was to reduce prison overcrowding while maintaining public safety. It would not effectuate this intent to allow the determination of whether the commitment offense was serious or violent to be made as of the time of the offense. The court agreed with Braziel v. Superior Court (2014) 225 Cal.App.4th 933.