In order to disqualify a defendant from Proposition 36 resentencing, a “super strike” prior must have occurred before the conviction resulting in the defendant’s third strike sentence. Spiller, who is serving a life Three Strikes sentence for a nonserious crime, filed a Proposition 36 petition for resentencing. The trial court found him ineligible for relief because he had a disqualifying “super strike” prior for attempted murder, which had occurred after the life commitment offense. Spiller appealed. Held: Reversed and remanded. The prospective component of Proposition 36 (Three Strikes Reform Act of 2012) reserves a Three Strikes life sentence for defendants whose current offense is serious or violent. The retrospective portion of the Reform Act created a postconviction release proceeding whereby inmates serving a Three Strikes life sentence for a nonserious/nonviolent felony may petition for resentencing (Pen. Code, § 1170.126). An inmate is ineligible for resentencing if he has prior convictions for so-called “super strikes” (Pen. Code, §§ 667, subd. (e)(2)(C)(4), 1170.12, subd. (c)(2)(C)(iv)). “Section 1170.126 is written so that statutory eligibility determinations are made as of the date the defendant was sentenced to his or her indeterminate third strike life sentence.” The fact that the resentencing provisions (Pen. Code, § 1170.126, subd. (e)(3)) use the word “has” (present tense) in the phrase “The inmate has no prior convictions,” is not dispositive. The strikes law (Pen. Code, § 667) also uses both past and present tenses, yet a strike offense must occur prior to, and not contemporaneous with or subsequent to, the defendant’s current conviction. Statutory terms must be interpreted to be consistent with the entire scheme of which they are a part. In any event, defendant’s eligibility for resentencing does not ensure his release from prison, as the trial court may deny relief if it finds that defendant would pose an unreasonable risk of danger to public safety if released (Pen. Code, § 1170.126, subd. (f)).

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/F070068.PDF