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Name: People v. Lewis
Case #: E055569
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 05/15/2013
Subsequent History: Review Granted 8/14/2013: S211494

The provisions of the Three Strikes Reform Act (Reform Act) are applicable to judgments not final as of its effective date. Appellant was sentenced to consecutive life sentences under the “Strikes” law for possession of a firearm by a convicted felon and receiving stolen property, counts 1 and 4. In Lewis I, the appellate court remanded the matter for resentencing after finding that the court had not understood its discretion to impose either concurrent or consecutive terms. At the resentencing hearing, the court again imposed consecutive sentences and appellant filed a notice of appeal. While the appeal was pending, the Reform Act of 2012 was passed. On appeal from the second sentence, the court ruled that the two counts fell within the provisions of Penal Code section 654 because the same firearm was the subject of both counts. In a similar scenario, the Supreme Court in People v. Jones (2012) 54 Cal.4th 350, held that the defendant could be punished only once for the multiple crimes that were based on the single physical act of possessing a single firearm. The court also ruled that Penal Code section 667, subdivision (e)(2)(C) applied to a defendant whose judgment was not final as of the effective date of the Reform Act [disagreeing with People v. Yearwood (2013) 213 Cal.App.4th 161, review denied May 1, 2013, S209069]. In reaching its conclusion, the court relied on the Estrada holding that where an “amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed.” (In re Estrada (1965) 63 Cal.2d 740, 748.) Despite the Estrada presumption, the court interpreting a statute ameliorating punishment must still determine the intent of the Legislature or the electorate in enacting the statute. With the Reform Act, there are no specific words in the statute indicating an intent that it be applied only prospectively or retroactively. The absence of such language is persuasive evidence it was intended that it apply to nonfinal judgments. This construction is consistent with the purposes of the Reform Act to reduce prison overcrowding; reduce resources expended on non-violent and less serious offenders; and enhance public safety by assuring that violent offenders remain in custody. The court determined that the language of section 1170.126, subdivision(a), stating that the resentencing provision “are intended to apply exclusively to persons presently serving an indeterminate term of imprisonment” is so ambiguous that it is not the functional equivalent of a saving clause. (People v. Nasalga (1996) 12 Cal.4th 784.) The matter was remanded with directions to impose a sentence pursuant to sections 667, subdivision (e)(2)(C) and 1170.12, subdivision (c)(2)(C) and stay sentence on either count 1 or 4.