Filed 11/18/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

MARTIN CONTRERAS,

 Defendant and Appellant.

 G047603

 (Super. Ct. No. 11CF2494)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Sheila 

Hanson, Judge. Affirmed and remanded with directions to resentence.

Christian C. Buckley, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and 

Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.

* * *
2

A jury found defendant guilty of domestic battery resulting in a traumatic 

condition, a felony (Pen. Code, § 273.5, subd. (a)),

1

and misdemeanor assault (§ 240). In 

a bifurcated proceeding, the court found true that defendant was previously convicted of 

two prior strikes (§§ 667, subds. (d), (e)(2)(A), 1170.12, subd. (b)(C)(2)(A)), both of 

which were robberies (§ 211), and three prison priors (§ 667.5, subd. (b)). The court 

struck the prison priors and sentenced defendant to an indeterminate prison term of 25 

years to life pursuant to the ―Three Strikes‖ law then in effect.

This appeal concerns only defendant‘s sentencing. Less than one month 

after defendant was sentenced, and thus before the judgment was final, the California 

electorate approved Proposition 36, the Three Strikes Reform Act of 2012 (Reform Act), 

which provides that, with certain exceptions, a three strike term of 25 years to life may be 

imposed only if defendant‘s current offense is a serious or violent felony. Domestic 

battery resulting in a traumatic condition is not deemed a serious or violent felony. (see 

§§ 667.5, subd. (c), 1192.7, subd. (c).) Defendant contends that under the analysis set 

forth in In re Estrada (1965) 63 Cal.2d 740 (Estrada), the more lenient sentencing 

change applies retroactively to defendant and he is entitled to be resentenced. We agree 

and remand for resentencing.

Defendant also contends his presentence conduct credits for time served 

should have been calculated under the amendment to section 4019, effective October 1, 

2011, which provides a one-for-one ratio of time served to credit, as opposed to the 

previous one-for-two ratio. We disagree. 

 

1

All statutory references are to the Penal Code unless otherwise stated.
3

DISCUSSION

Defendant is Entitled to Resentencing Under the Amended Three Strikes Law

―On November 6, 2012, voters approved the Reform Act, and it went into 

effect the next day. [Citation.] The Reform Act amended the Three Strikes law so that 

an indeterminate term of 25 years to life in prison is applied only where the  ̳third strike‘

conviction is a serious or violent felony, or where the prosecution pleads and proves other 

specific factors.‖ (People v. Wortham (Oct. 24, 2013, A138769) ___ Cal.App.4th ___ 

[2013 Cal. App. LEXIS 850].) If the third strike conviction is not serious or violent, the 

defendant is sentenced as if it were a second strike, i.e., double the usual punishment. 

(§§ 667, subds. (e)(1), (e)(2)(C), 1170.12, subds. (c)(1), (c)(2)(C).)

Defendant was sentenced on October 19, 2012, just 19 days prior to the 

effective date of the Reform Act. The issue on appeal is whether the Reform Act 

operates retroactively in favor of defendants who have been sentenced prior to the 

effective date but whose judgments are not yet final. (See In re N.D. (2008) 167 

Cal.App.4th 885, 891 [―Cases in which judgment is not yet final include those in which a 

conviction has been entered and sentence imposed but an appeal is pending when the 

amendment becomes effective.‖].) Courts of Appeal are split on the issue, and the 

California Supreme Court has taken it up. (People v. Lewis (2013) 216 Cal.App.4th 468,

review granted Aug. 14, 2013, S211494 [holding the Reform Act applies retroactively]; 

People v. Conley (2013) 215 Cal.App.4th 1482, review granted Aug. 14, 2013, S211275

[holding the Reform Act is not retroactive]; People v. Yearwood (2013) 213 Cal.App.4th 

161, 167 (Yearwood) [not retroactive]; People v. Lester (2013) 220 Cal.App.4th 291, 304

(Lester) [same, but with a dissent].)

All agree the starting point in the analysis is Estrada, which is where we 

begin. In Estrada the defendant pleaded guilty to escape from a prison without force or 

violence in violation of section 4530. (Estrada, supra, 63 Cal.2d at pp. 742-743.) At the 
4

time he committed the crime, the applicable sentencing guideline provided for a 

minimum two-year sentence. After he committed the crime, but before he was sentenced, 

the guideline was amended to reduce the applicable minimum to six months. (Id. at p. 

743.) The court framed the issue as follows: ―A criminal statute is amended after the 

prohibited act is committed, but before final judgment, by mitigating the punishment. 

What statute prevails as to the punishment — the one in effect when the act was 

committed or the amendatory act?‖ (Id. at p. 742.) Answer: the amendatory act. ―If the 

amendatory statute lessening punishment becomes effective prior to the date the 

judgment of conviction becomes final then, in our opinion, it, and not the old statute in 

effect when the prohibited act was committed, applies.‖ (Id. at p. 744.) The court 

analyzed the issue as follows: 

―The problem, of course, is one of trying to ascertain the legislative intent

— did the Legislature intend the old or new statute to apply? Had the Legislature 

expressly stated which statute should apply, its determination, either way, would have 

been legal and constitutional. It has not done so. We must, therefore, attempt to 

determine the legislative intent from other factors.

―There is one consideration of paramount importance. It leads inevitably to 

the conclusion that the Legislature must have intended, and by necessary implication 

provided, that the amendatory statute should prevail. When the Legislature amends a 

statute so as to lessen the punishment it has obviously expressly determined that its 

former penalty was too severe and that a lighter punishment is proper as punishment for 

the commission of the prohibited act. It is an inevitable inference that the Legislature 

must have intended that the new statute imposing the new lighter penalty now deemed to 

be sufficient should apply to every case to which it constitutionally could apply. The 

amendatory act imposing the lighter punishment can be applied constitutionally to acts 

committed before its passage provided the judgment convicting the defendant of the act is 

not final. This intent seems obvious, because to hold otherwise would be to conclude that 
5

the Legislature was motivated by a desire for vengeance, a conclusion not permitted in 

view of modern theories of penology.‖ (Id. at pp. 744-745.) 

The exception to this rule is ―where the Legislature clearly signals its intent 

to make the amendment prospective, by the inclusion of either an express saving clause 

or its equivalent.‖ (People v. Nasalga (1996) 12 Cal.4th 784, 793.) 

Here, the Reform Act contains no express saving clause, and the People 

concede that the Reform Act lessened the punishment for defendant‘s crime. If the 

analysis ended there, it would be beyond dispute that, under Estrada, defendant would be 

entitled to resentencing. 

In addition to lessening the punishment for most three-strike offenses,

however, ―[t]he Reform Act also added section 1170.126, which allows inmates 

sentenced under the previous version of the Three Strikes law to petition for a recall of 

their sentence if they would not have been sentenced to an indeterminate life sentence 

under the Reform Act. [Citation.] An inmate is eligible for resentencing if various 

criteria are met, including that the inmate‘s commitment offense was not a serious or 

violent felony.‖ (People v. Wortham, supra, ___Cal.App.4th at p. ___ [2012 Cal. App. 

LEXIS at pp **2-3].) The trial court has discretion to deny resentencing if it finds the 

defendant ―would pose an unreasonable risk of danger to public safety.‖ (§ 1170.126, 

subd. (f).) 

Section 1170.126 does not have an express saving clause. Nonetheless, the 

courts finding the Reform Act prospective only have reasoned the section 1170.126 

petition procedure is the ―functional equivalent‖ of a saving clause. (Yearwood, supra, 

213 Cal.App.4th at p. 172; Lester, supra, 220 Cal.App.4th at pp. 303, 309.) We disagree.

We begin with the language of section 1170.126, the best indicator of the 

electorate‘s intent. Section 1170.126, subdivision (k), states, ―Nothing in this section is 

intended to diminish or abrogate any rights or remedies otherwise available to the 

defendant.‖ In other words, section 1170.126 was not meant to be an exclusive remedy. 
6

The Yearwood court came to the opposite conclusion: ―The voters intended a petition for 

recall of sentence to be the sole remedy available under the Act for prisoners who were 

serving an indeterminate life sentence imposed under the former three strikes law on the 

[Reform] Act‘s effective date without regard to the finality of the judgment.‖ (Yearwood, 

supra, 213 Cal.App.4th at p. 172.) These statements appear to us to be irreconcilable, 

and the statutory language must prevail. The Yearwood court dealt with subdivision (k) 

as follows, ―Section 1170.126[ subdivision (k)] protects prisoners from being forced to 

choose between filing a petition for a recall of sentence and pursuing other legal remedies 

to which they might be entitled (e.g., petition for habeas corpus). Section 

1170.126[ subdivision (k)] does not have any impact in determining if amended sections 

667 and 1170.12 operate retroactively.‖ (Yearwood, at p. 178.) But nothing in that 

subdivision suggests it is limited to deciding between a section 1170.126 petition and a 

habeas petition. The statute refers to ―any rights or remedies.‖ (Id., subd. (k), italics 

added.) The right to be resentenced under Estrada is a ―right[] or remed[y] otherwise 

available to the defendant‖ (§ 1170.126, subd. (k)) where the judgment is not final. In

our view, the analysis should end right there. (See Murphy v. Kenneth Cole Productions, 

Inc. (2007) 40 Cal.4th 1094, 1103 [―If the statutory language is clear and unambiguous 

our inquiry ends‖].)

But even if we look to the purposes of the Reform Act, they are served by 

applying Estrada. ―The Act‘s proponents advanced six arguments in favor of the Act in 

the Voter Information Guide. The argument headings were titled: (1)  ̳make the 

punishment fit the crime‘; (2)  ̳save California over $100 million every year‘; (3)  ̳make 

room in prison for dangerous felons‘; (4)  ̳law enforcement support‘; (5)  ̳taxpayer 

support‘; and (6)  ̳tough and smart on crime.‘‖ (Yearwood, supra, 213 Cal.App.4th at p. 

171.) The electorate was concerned that 25-year-to-life sentences for non-violent, nonserious offenses were unfair, the prisons were overcrowded, and the prisons were too 

expensive. All of these concerns support retroactive application of the Reform Act.
7

The Yearwood court supported its conclusion by emphasizing the public 

safety purpose of the Reform Act: ―Enhancing public safety was a key purpose of the 

[Reform] Act‖ (Yearwood, supra, 213 Cal.App.4th at p. 175), and then concluded, 

―Giving amended sections 667 and 1170.12 prospective-only application supports the

[Reform] Act‘s public safety purpose by reducing the likelihood that prisoners who are 

currently dangerous will be released from prison due to the [Reform] Act.‖ (Id. at p. 

176.) The only public safety argument advanced in support of the Reform Act, however, 

was that, due to the current state of prison overcrowding, violent criminals are being 

released early. The Reform Act would address that concern, the argument goes, by 

letting criminals whose third strike was non-serious and non-violent out earlier, thus 

making room for more violent criminals. (Yearwood, at p. 171.) From this it is clear the 

Yearwood court‘s logic was flawed: keeping the sort of prisoners who qualify for the 

Reform Act in prison longer defeats, not serves, the Reform Act‘s public safety purpose 

because it furthers prison overcrowding, leading to the release of more violent criminals. 

Thus the purposes of the Reform Act support retroactive application.

The Yearwood court also reasoned that application of Estrada would pose 

an unreasonable public safety risk: ―If amended sections 667 and 1170.12 are given 

retroactive application, prisoners in appellant‘s procedural posture would be entitled to 

automatic resentencing as second strike offenders without any judicial review to ensure 

they do not currently pose an unreasonable risk of danger to public safety. . . . It would 

be inconsistent with the public safety purpose of the [Reform] Act to create a loophole 

whereby prisoners who were sentenced years before the [Reform] Act‘s effective date are 

now entitled to automatic sentencing reduction even if they are currently dangerous and 

pose an unreasonable public safety risk.‖ (Yearwood, supra, 213 Cal.App.4th at p. 176.) 

But the Yearwood court‘s argument goes too far; it is an argument against 

the Reform Act itself. What Yearwood describes as a ―loophole‖ is precisely how the 

Reform Act works. At least in its prospective application, the Reform Act reduces 
8

sentences without any judicial discretion to lengthen the sentence based on a judge‘s

determination of dangerousness, even though the defendant has often spent significant 

presentence time in prison, and potentially developed a record of misbehavior there. 

Whatever the merits of the Yearwood court‘s concerns, therefore, the electorate was not 

persuaded. Further, to the extent Yearwood was concerned a defendant may have 

committed additional criminal conduct after sentencing but before the judgment has 

become final, the defendant can be tried and punished accordingly. There is no need to 

impose a 25-year-to-life sentence. 

The recently published decision, Lester, supra, 220 Cal.App.4th 291,

likewise concluded the Reform Act is prospective only. 

The Lester court reasoned that, based on arguments in the voter information 

guide, the electorate impliedly addressed application of the Reform Act to nonfinal 

judgments and rejected retroactive application: ―The voter information guide for the 

initiative stated,  ̳This measure reduces prison sentences served under the three strikes 

law by certain third strikers whose current offenses are nonserious, non-violent felonies. 

The measure also allows resentencing of certain third strikers who are currently serving 

life sentences for specified nonserious, non-violent felonies. . . . [¶] . . . [It] requires that 

an offender who has two or more prior serious or violent felony convictions and whose 

new offense is a nonserious, non-violent felony receive a prison sentence that is twice the 

usual term for the new offense, rather than a minimum sentence of 25–years–to–life as is 

currently required. . . . [¶] . . . [¶] . . . [It] allows certain third strikers to apply to be 

resentenced by the courts. . . . The court would be required to resentence eligible 

offenders unless it determines that resentencing the offenders would pose an 

unreasonable risk to public safety. In determining whether an offender poses such a risk, 

the court could consider any evidence it determines is relevant, such as the offender‘s 

criminal history, behavior in prison, and participation in rehabilitation programs. [It] 

requires resentenced offenders to receive twice the usual term for their most recent 
9

offense instead of the sentence previously imposed. Offenders whose requests for 

resentencing are denied by the courts would continue to serve out their life terms as they 

were originally sentenced.‘ [Citation.] In describing the correctional savings 

engendered by the initiative, the analysis stated,  ̳[It] would reduce state prison costs in 

two ways. First, fewer inmates would be incarcerated for life sentences under the three 

strikes law because of the measure‘s provisions requiring that such sentences be applied 

only to third strikers whose current offense is serious or violent. This would reduce the 

sentences of some future felony offenders. Second, the resentencing of third strikers 

could result in many existing inmates receiving shorter prison sentences.‘ [Citation.] We 

note the distinction clearly drawn in the analysis between the new offense committed by 

future felony offenders who are subject to the new twice-the-base-term sentence and the 

most recent offense committed by existing inmates who have already been sentenced to a 

25–year–to–life term under the old law. The analysis could not have been more clear in 

its distinction between the two and nowhere is there a reference to the possibility that 

some existing inmates would automatically receive a twice-the-base-term sentence 

merely because their judgments are not yet final.‖ (Lester, supra, 220 Cal.App.4th at p. 

302.)

2

In our view, the Lester court read too much into the ballot materials. It 

strains credulity to suppose that the vast majority of voters knew the difference between a 

final and nonfinal judgment, much less had an opinion about whether the Reform Act 

was to apply to nonfinal judgments. And certainly the ballot materials did not expressly 

address that distinction. Rather, the ballot materials here spoke in broad strokes and 

generalities, as is usually the case. It defies reality, therefore, to interpret the ballot 

materials as impliedly expressing an opinion on the Reform Act‘s application to nonfinal 

judgments. What the ballot materials do convey is the electorate‘s belief that some three 

 

2

The italics in the quote from the ballot materials were added by the Lester 

court, not the voter information guide.
10

strike sentences were unfairly harsh, the prisons were overcrowded, and they were too 

expensive. These are the intentions that ought to inform our interpretation of whether 

Estrada applies, and they all support its application. 

Next, Lester reasoned, ―If . . . inmates with Three-Strikes-law 

indeterminate terms whose judgments are not yet final, are entitled to the retroactive 

application of amendments to the Three Strikes law that reduced indeterminate terms to 

determinate ones, and, thus, to have his sentence automatically reduced, there would be 

no purpose served by the existence of Penal Code section 1170.126, except for inmates 

whose sentences were final as of November 6, 2012.‖ (Lester, supra, 220 Cal.App.4th at 

p. 301, italics added.) The italicized exception, however, represents the vast majority of 

defendants to whom section 1170.126 could apply. We fail to see how this renders 

section 1170.126 ineffective or redundant. 

Finally, the Lester court reasoned (and the People repeat this argument 

here) that the Reform Act ―states that a defendant who has two or more strike priors, but 

whose current offense is not a [serious or violent] strike, will receive a term of twice the 

sentence for the convicted offense unless the  ̳prosecution pleads and proves‘ a current 

conviction or a past conviction of specified crimes. [Citation.] As the People correctly 

point out, an inmate serving a Three-Strikes-law determinate term is long past the 

pleading and proof stage of proceedings.‖ (Lester, supra, 220 Cal.App.4th at p. 304; see 

§ 667, subd. (e)(2)(C)(i)-(iv).) In other words, the People may have elected not to plead 

and prove the strikes that disqualify a defendant from the benefit of the Reform Act, and 

it is too late to do so now. So, if we apply Estrada, some defendants who do not qualify 

for resentencing may receive a windfall. To similar effect: ―we cannot ignore the 

possibility that, under the old law, in more than one case, a prosecutor has elected not to 

retry a defendant on one or more counts on which the jury hung because the defendant 

was to receive a 25-year-to-life term on another count. To have such a defendant now 
11

have his or her sentence automatically reduced, without the safeguards of . . . section 

1170.126, would undermine the purpose of the initiative.‖ (Lester, at p. 304.)

We are not persuaded. Prosecutors already had sufficient incentive to plead 

and prove as many prior strikes as possible, and thus we are confident the present 

appellate record is sufficient to determine whether the defendant would have qualified for 

a shorter sentence under the Reform Act. Strikes are subject to being stricken on the 

court‘s own motion in the interest of justice. (People v. Superior Court (Romero) (1996) 

13 Cal.4th 497, 518; § 1385.) Thus prosecutors already had an incentive to plead and 

prove as many strikes as possible to avoid or mitigate the effect of strikes being stricken. 

They were especially incentivized to plead and prove the egregious disqualifying strikes 

that would disqualify a defendant from the benefits of the Reform Act, as such strikes are 

more likely to persuade a judge that striking a strike would not serve the interests of 

justice.

3

 Further, each strike resulting in a prison term would be a ―prison prior‖ under 

section 667.5, which is another incentive prosecutors had to plead and prove additional

 

3

The disqualifying strikes include: ―(I) A  ̳sexually violent offense‘ as 

defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code. [¶] (II) 

Oral copulation with a child who is under 14 years of age, and who is more than 10 years 

younger than he or she as defined by Section 288a, sodomy with another person who is 

under 14 years of age and more than 10 years younger than he or she as defined by 

Section 286, or sexual penetration with another person who is under 14 years of age, and 

who is more than 10 years younger than he or she, as defined by Section 289. [¶] (III) A 

lewd or lascivious act involving a child under 14 years of age, in violation of Section 288. 

[¶] (IV) Any homicide offense, including any attempted homicide offense, defined in 

Sections 187 to 191.5, inclusive. [¶] (V) Solicitation to commit murder as defined in 

Section 653f. [¶] (VI) Assault with a machine gun on a peace officer or firefighter, as 

defined in paragraph (3) of subdivision (d) of Section 245. [¶] (VII) Possession of a 

weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 

11418. [¶] (VIII) Any serious and/or violent felony offense punishable in California by 

life imprisonment or death.‖ (§ 667, subd. (e)(2)(C)(iv).)
12

prior strikes. In short, we are persuaded the prosecutor does not need a second bite at the 

apple to plead and prove relevant prior strikes.

4

The same is even more true of current offenses which resulted in a hung 

jury, and which the prosecutor decided not to retry. As we well know, any conviction is 

subject to being overturned on appeal. If a prosecutor elected not to retry the hung count, 

often it will be because the evidence is not strong enough. But if it was simply a desire 

not to do extra work, we feel no obligation to interpret the law around such decisions. 

In sum, we find no indication in the Reform Act that the electorate intended 

it solely to operate prospectively. Accordingly, under Estrada the Reform Act applies 

retroactively to all non final judgments, and defendant is entitled to be resentenced. 

Defendant’s Conduct Credits Were Appropriately Calculated Under Former Section 

4019; Defendant is Entitled to Two Additional Days of Credit

Defendant‘s presentence conduct credits were calculated under former 

section 4019, which provided for conduct credit at a ratio of one day credited for every 

two days actually served. The Criminal Justice Realignment Act of 2011 amended 

section 4019 to more generously award conduct credits at a ratio of one to one — double 

the prior rate. The amendment added subdivision (h), which states the more generous 

 

4

We note that Lester did not address whether People v. Figueroa (1993) 20 

Cal.App.4th 65 ameliorates its concern by permitting the People to hold an additional 

evidentiary hearing on remand to prove disqualifying strikes. In Figueroa the defendant 

was given a three-year sentencing enhancement for drug trafficking near school yards. 

After his conviction, the relevant statute was amended to add an additional requirement 

for the enhancement to apply. (Id. at p. 69.) The court held that, under Estrada, the 

amendment applied retroactively. But during the trial, the People had no occasion to 

present evidence on the additional requirement. (Figueroa, at p. 70.) Therefore, the 

Figueroa court held that the defendant was only potentially entitled to the benefit of the 

amended statute, and remanded to the trial court for an additional evidentiary hearing to 

make that determination. (Id. at pp. 71-72.) Figueroa at least arguably contradicts the 

Lester court‘s premise that it is too late now to plead and prove disqualifying strikes. 

Neither party has briefed the issue here, however, and thus we decline to decide whether 

Figueroa would apply.
13

formula ―shall apply prospectively and shall apply to prisoners who are confined . . . for a 

crime committed on or after October 1, 2011. Any days earned by a prisoner prior to 

October 1, 2011, shall be calculated at the rate required by the prior law.‖ Defendant was 

arrested on September 12, 2011. 

Defendant raises two issues on appeal. First, defendant contends 

subdivision (h) of section 4019 is ambiguous, and that, applying the rule of lenity, we 

should interpret it to apply the more generous formula to all of defendant‘s days served 

after October 1, 2011, even though he committed his crime prior to that date. Second, he 

contends interpreting subdivision (h) of section 4019 to exclude defendant‘s time in 

custody after October 1, 2011, violates his constitutional right to equal protection.

As defendant recognizes, this court recently rejected both of these 

arguments in People v. Rajanayagam (2012) 211 Cal.App.4th 42. Defendant explains, 

―Appellant raises these arguments for purposes of preservation and to petition for review 

in the California Supreme Court.‖ Defendant has done little more than register his 

disagreement with Rajanayagam, and thus he has not offered any persuasive reason for 

us to depart from it. Accordingly, we hold Rajanayagam is controlling and affirm the 

trial court‘s calculation of defendant‘s conduct credits under former section 4019. 

We note, however, that both parties agree the trial court miscalculated 

defendant‘s actual time in presentence custody. The trial court calculated 401 days 

between September 12, 2011, and October 19, 2012, when in fact there were 404 days in 

that period. 
14

DISPOSITION

The judgment of conviction is affirmed, but the matter is remanded to the 

trial court with directions to resentence defendant pursuant to the current versions of 

sections 667, subdivision (e)(1), (e)(2)(C) and 1170.12, subdivision (c)(1), (c)(2)(C), and 

to grant 606 days of presentence custody credits. 

IKOLA, J.

WE CONCUR:

MOORE, ACTING P. J.

FYBEL, J.