For purposes of resentencing under the Three Strikes Reform Act, the classification of the current offense as serious or violent is based on the law as of November 7, 2012, the effective date of Proposition 36. In 1998, Johnson was convicted of two counts of attempting to dissuade a witness. (Pen. Code, § 136.1, subd. (a)(2).) Because he had prior strikes, the trial court sentenced him to two terms of 25 years to life under the Three Strikes law. After Proposition 36 passed, Johnson filed a recall petition. The petition was denied on the basis that his two convictions for attempting to dissuade a witness were serious or violent felonies, which rendered them ineligible for resentencing. But when Johnson committed his crimes in 1998, attempting to dissuade a witness was not classified as a serious or violent felony. Johnson appealed, arguing that the determination of whether a felony is serious or violent for purposes of Proposition 36 resentencing should be based on whether the offense was serious or violent at the time it was committed. The Court of Appeal affirmed. The Supreme Court granted review. Held: Affirmed. An inmate is only eligible for resentencing under the Act (Pen. Code, § 1170.126) if the inmate is serving an indeterminate Three Strikes sentence for a felony or felonies that are not serious and/or violent. The court here determined that “section 1170.126’s use of the present verb tense in describing the character of the current offense, the parallel structure of the sentencing and resentencing provisions, and the ballot arguments in support of Proposition 36 lead us to conclude that the classification of an offense as serious or violent for purposes of resentencing is based on the law as of November 7, 2012, the effective date of Proposition 36.” As a result, Johnson was not eligible for resentencing because the crime of attempting to dissuade a witness had been classified as a serious and violent felony prior to November 7, 2012.

Petitioner is eligible for resentencing of a current conviction that is not serious or violent even though he has another current conviction that is serious or violent. In 1998, Machado was convicted of first degree burglary and second degree burglary (Pen. Code, §§ 459, 460). Because he had two prior strikes for robbery the trial court sentenced him to two terms of 25 years to life under the Three Strikes law. After Proposition 36 passed, he filed a recall petition for his second degree burglary conviction. Even though his second degree burglary conviction was not a serious or violent felony, the trial court found him ineligible for resentencing because his other current offense, first degree burglary, was a serious felony. Machado appealed and the Court of Appeal reversed. The Supreme Court granted review. Held: Affirmed. Historically, sentencing under the Three Strikes law has focused on the sentence to be imposed on each count individually. “Considering section 1170.126 in the context of the history of sentencing under the Three Strikes law and Proposition 36’s amendments to the sentencing provisions, and construing it in accordance with the legislative history,” the court “conclude[d] that resentencing is allowed with respect to a count that is neither serious nor violent, despite the presence of another count that is serious or violent.” Reducing such a sentence will only result in earlier consideration for parole. However, the inmate will not be released until the Board of Parole Hearings concludes that he or she is not a threat to public safety.