Filed 2/26/14 P. v. Patlan CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. JERRY EDDIE PATLAN, Defendant and Appellant. H038200 (Santa Clara County Super. Ct. No. C1081130)

Defendant Jerry Eddie Patlan appeals his convictions for possession for sale of methamphetamine (Health & Saf. Code , § 11378) and tr ansportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) aris ing out of a traffic stop. Due to prior strike convictions , the Superior Court sentenced defendant to 25 years to life in prison pursuant to form er Penal Code section 667. 1 On appeal, defendant contends: (1) the trial court erred by failing to provide a pinpoint jury inst ruction proffered by defendant; (2) the People engaged in two in stances of prosecutorial misconduct; (3) one of his prior strike convicti ons was not proven beyond a re asonable doubt; and (4) he is entitled to “automatic, non-discretionary” rese ntencing due to Pro position 36, the Three Strikes Reform Act of 2012 (the Act), which California’s electors approved in November 2012. For the reasons stated here, we will affirm the judgment.

1 Unspecified statutory references are to the Penal Code. As discussed in part II.D., post, in November 2012 California’s voters passed Proposition 36, which made substantial changes to section 667.I. FACTUAL AND PROCED URAL BACKGROUND On the afternoon of June 28, 2010, Sa n Jose Police Officer Jenni Byrd was on patrol in a marked police car when she saw a black truck (later identified as a Toyota 4Runner) fail to stop completely at a stop sign. Officer Byrd followed the vehicle around a corner and activated her emergency lights to effect a traffic stop as the 4Runner turned into a driveway. After stopping her patrol car and partially blocking the driveway, Officer Byrd began to exit her patrol car a nd noticed the driver (later identified as defendant) of the 4Runner crouc h down with his head and ri ght shoulder in a movement consistent with reaching for something with his right arm. Almost simultaneously, the passenger, Robert Contreras, exited the 4Runner with a backpack in one hand and began walking away from the vehicle. As Contrera s exited the vehicle, Of ficer Byrd noticed a small blue object fall from the open passenger door onto the driveway. 2 Officer Byrd
ordered Contreras back into the vehicle and Contreras complied. When Officer Byrd went to the driver’s side window, she noticed defendant had a workbag on his lap that contai ned multiple pairs of blue latex gloves. There was also a single blue latex glove in the center console. Officer Byrd placed both men in handcuffs
and then moved defendant to another officer’s patrol car and Contreras to the curb. Officer Byrd then inves tigated the blue object, wh ich had fallen “within the swing” of the passenger door. The object turned out to be a blue latex glove, similar to those found in the workbag and on the center console. It was missing the middle finger 3 and contained eight ba ggies and one bindle. 4 The containers held an off-white crystalline
substance that was later identified as over 15 grams of methamphetamine.

2 During trial, Officer Byrd testified bo th that the blue object “fell” and that it followed a “directional angle” cons istent with it being thrown. 3 Officer Byrd eventua lly found the glove’s middle finger in a metal box underneath the front passenger seat.
4 Officer Byrd testified a bindle is a larg er plastic bag that can be tied off to hold drugs.Officer Byrd interviewed bo th occupants separately s hortly after the traffic stop and provided Miranda 5 warnings to each of them. T hough she had not actually seen whether either occupant discarded the blue ob ject, she informed both of them that she saw Contreras discard the drugs. Officer Byrd te stified at trial that this lie was part of an investigative technique to attempt to gain an admission from defendant that he was responsible for the methamphetamine. After learning that defendant and Contreras were cousins, she theorized that defendant would ac cept responsibility for the drugs rather than seeing his cousin get in trouble. Neither de fendant nor Contreras accepted responsibility. During the traffic stop and interviews, O fficer Byrd determin ed that defendant appeared to be under the influence of meth amphetamine but that Contreras did not.
Defendant also admitted to an other officer that he had “don e a line earlier” that day, which Officer Byrd understo od as meaning he had used methamphetamine. Based on defendant’s appearance, his admission of drug use, and the presence of blue gloves in defendant’s workbag that matched the glove containing the methamphetamine, Officer Byrd arrested defendant. He was la ter charged with possession for sale of methamphetamine (Health & Saf. Code , § 11378) and tr ansportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)).
Defendant’s first trial resulted in a mist rial. At defendant’s second trial, the People presented DNA eviden ce obtained from samples taken from the baggies and
bindle that determined defendant was a likel y contributor to the DNA on the baggies.
This evidence had not been presented at the first trial. At both trials, defendant’s theory was that the methamphetamine in the vehicl e belonged to Contreras, not defendant.
At the close of evidence in the second trial, defendan t requested a pinpoint jury instruction regarding the lega l definition of “control” for purposes of possession for sale of a controlled substance. After a hearing on the issue, the court found CALCRIM No.

5 Miranda v. Arizona (1966) 384 U.S. 436.2302 adequately defined the term “control.” The second jury convicted defendant of both possession for sale and tran sportation of methamphetami ne. After the jury was discharged, the bifurcated issue of defendant’s prior convictions was tried to the court, which found the existence of two prior st rikes. The court denied defendant’s Romero 6 motion, and sentenced defendant to 25 years to life in prison. Defendant timely appealed.
II. DISCUSSION
A. J URY I NSTRUCTIONS Defendant claims that by re fusing to give his requested pinpoint instruction, the trial court failed to define an element of po ssession of a controlled substance for sale and failed to instruct the jury on a defense theory. The tria l court included CALCRIM No.
2302 in the instruc tions read to the jury. This instruction lays ou t the following elements for possession for sale of methamphetamine: (1) possession of a controlled substance by defendant; (2) defendant’s knowledge of the presence of a controlled substance; (3) defendant’s knowledge that the substance was in fact a controlled substance; (4)
defendant’s intent to sell the substa nce; (5) the controlled substance was methamphetamine; and (6) the controlled subs tance was in a usable amount. (CALCRIM No. 2302.) Regarding possession and control, the court included bracketed language from the form instruction, sta ting: “A person does not have to actually hold or touch something to possess it. It is enough if th e person has control over it or the right to control it, either personally or through another person.”
In addition to this form instruction, defendant requested that the court provide a pinpoint instruction paraphr ased from the language of People v. Redrick (1961) 55 Cal.2d 282, 285. The proposed instruction stated, in relevant part, “the defendant cannot be convicted of unlawful possession merely because he had an op portunity to access a place
where controlled substances were found.” Defendant’s counsel claimed the pinpoint

6 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.instruction was necessary to differentiate between mere acc ess to the methamphetamine in a car driven by defendant an d the control necessary to cons titute a violation of Health and Safety Code section 11378. The trial court denied defendant ’s request, finding CALCRIM No. 2302 adequately and accuratel y described the crime of possession of methamphetamine for sale.
We review de novo whet her jury instructions corre ctly state the law. ( People v. Posey (2004) 32 Cal.4th 193, 218.) Jury inst ructions are adequate if they “ ‘fully and fairly instructed [the jury] on th e applicable law.’ [Citation.]” ( People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) Adequacy mu st be determined by considering all instructions provided to the jury and assuming jurors are “ ‘capable of understanding and correlating all jury instructions wh ich are given.’ [Citations.]” ( Ibid. ) Finally, we must interpret instructions to suppor t the judgment “ ‘if they are reasonably susceptible to such interpretation.’ [Citation.]” ( Ibid. ) 1. The Instructions Adequately Defi ned All Elements of Possession of Methamphetamine For Sale

Defendant claims the version of CA LCRIM No. 2302 provided to the jury was inadequate because a juror could have in correctly concluded defendant could be convicted based on his mere proximity a nd access to the methamphetamine in the
vehicle. An identical claim wa s considered and rejected in People v. Montero (2007) 155 Cal.App.4th 1170 ( Montero ). In Montero , after finding a baggie containing methamphetamine during a parole search of the defendant, officers searched the garage
where Montero had been sta nding and discovered three a dditional baggies containing methamphetamine that matched the first baggie recovered from the defendant. ( Id. at pp. 1173-1174.) On appeal fro m his conviction for possessi on for sale, the defendant
claimed that CALCRIM No. 2 302 erroneously omitted the el ements of “ ‘dominion and control’ ” from the definition of possession for sale. ( Montero, supra , at p. 1174.)In rejecting the defendant’s claim, the c ourt noted that the instruction “requires the defendant to have control over the substance.” ( Montero, supra , 155 Cal.App.4th at p. 1180.) Because of this contro l requirement, the court conclu ded “the jury could not find defendant guilty simply due to his proximity to the substance” and that “[n]o reasonable juror would have believed that proxi mity alone equaled control.” ( Ibid. ) We agree with Montero’s reasoning and find defendan t’s argument unpersuasive. The relevant language of CALCRIM No. 2 302 states that a defendant possesses a
controlled substance if he or she “has contro l over it or the right to control it . . . .” (CALCRIM No. 2302.) From this, a reasonable juror wo uld understand that possession
involves control over the substance and wo uld not encompass merely having control over
the vehicle in which the substance was located. To hold otherwise would assume jurors are incapable of understanding instructions pr ovided in plain English, which is something we cannot do. (See Ramos, supra, 163 Cal.App.4th at p. 1088.) If anything, the requested instruction would have been duplic ative of CALCRIM No. 2302. Courts may refuse to give instructions that are duplicative of other instructions. ( People v. Dieguez (2001) 89 Cal.App.4th 266, 277.)
2. The Instructions Informed the Jury of the Defense Theory We also find defendant’s “theory of the case” claim to be without merit. Defendant’s theory was that Contreras, not defendant, possessed the methamphetamine. Defendant’s proposed instructi on sought to further clarify the elements of Health and Safety Code section 11378 by informing th e jury that mere acc ess to a controlled substance does not prove possession for sale. However, as discussed in greater detail above, CALCRIM No. 2302 explains that posse ssion requires more than mere proximity by stating the defendant must have “control ov er it or the right to control it . . . .” (CALCRIM No. 2302; see Montero, supra, 155 Cal.App.4th at p. 1180.)While a specific additional instruction might have been warranted if defendant had raised a complex theory regarding his innocen ce, his theory - essentially, “the other guy did it” - is a commonly encountered defense. The definition of possession in CALCRIM No. 2302, coupled with defens e counsel’s closing argument, which focused on evidence supporting defendant’s theory that Contre ras possessed the methamphetamine, provided adequate information to the jury rega rding defendant’s theory of the case.
B. P ROSECUTORIAL M ISCONDUCT Prosecutors are held to a higher standa rd than other attorneys because they “exercise[] the sovereign po wers of the state.” ( People v. Herring (1993) 20 Cal.App.4th 1066, 1076.) For this reason, prosecutors mu st take special care to avoid “ ‘rude or intemperate behavior’ . . . . [Citation.]” ( Ibid. ) Prosecutorial misconduct implicates both
federal and California Constitutio nal due process rights. Th e Fifth Amendment right to due process, applicable to California via the Fourteenth Amendment, is violated when a prosecutor’s conduct is “so egregious that it in fects the trial with su ch unfairness as to make the conviction a denial of due process.” ( People v. Harris (1989) 47 Cal.3d 1047, 1084; People v. Ochoa (1998) 19 Cal.4th 353, 427.) Prosecutorial misconduct occurs under state law if the prosecutor uses “decep tive or reprehensible me thods to attempt to persuade either the court or the jury.” ( People v. Strickland (1974) 11 Cal. 3d 946, 955; Ochoa, supra, 19 Cal.4th at p. 427.)
1. The People’s Argument Regard ing the Role of Attorneys During her closing argument, the prosecuto r made the following statements: “It is my job as a district attorney to prove to you the case beyond a reasonable doubt. It is my job to present to you fact s, facts that lead you to an abiding conviction to [ sic ] the truth of the charge. [¶] The defense’s role is very diffe rent. The defense’s role is to cause you to doubt the truth.” Defense counsel objected to the foregoing statement as improperargument, which the court sustained. The court did not immediately provide the jury admonition requested by defense counsel. When the prosecutor continued the same line of argument by stating “they have
built the case around . . . what the defense belie ves that the evidence actually is,” defense counsel objected again and the court, after holding a sidebar, provided the following admonition to the jury: “Ladies and gentlemen of the jury, I want to remind you that it is your role as jurors to serve as independent judges of the facts, all right. That is, you are to determine from the evidence pr esented in this court and th e evidence alone what facts have been proven, and you will ultimately, from those fact s, determine whether or not the People have met their burden of proving the defendant’s guilt beyond a reasonable doubt. [¶] You are not to be sidetracked, confused or in any way to deviate from that role by your attempts to or in any attempt to evalua te how you feel either party may have done their job as an attorney in this trial, all right. Your only job is to deal with evidence and what it does or does not prove.” On appeal, defendant claims the pros ecutor’s remarks c onstitute misconduct requiring reversal of defenda nt’s conviction because they improperly disparaged defense counsel. “Personal attacks on the integrity of opposing counsel constitute prosecutorial misconduct.” ( Herring, supra, 20 Cal.App.4th at p. 1076.) Defendant claims the prosecutor’s conduct in this case is “almos t identical” to the prosecutor’s conduct in Herring and encourages us to follow that opinion and reverse defendant’s conviction. We disagree.
In Herring , the prosecutor stated during the closing argument: “ ‘ My people are victims. His people are rapists, murderers, robbers, child molesters. . . . He does not want you to hear the truth. ’ ” ( Herring, supra, 20 Cal.App.4th at p. 1073.) Based on these statements, as well as others targe ting the defendant using racially insensitive language, the Herring court reversed the defendant’s c onviction, holding that “[i]t isimproper for the prosecutor to imply that defe nse counsel has fabricat ed evidence or to otherwise malign defense counsel’s character.” ( Id. at p. 1075.) Unlike the prosecuto r’s statements in Herring , here the prosecutor’s main improper statement was that the role of de fense counsel “is to cause you to doubt the truth.” Her statement, while incorrect and im proper, is far from “identical” to those made
in Herring and did not make the trial so fundamen tally unfair as to require reversal. Further, the trial court here m itigated any damage by admonishing the jury soon after the prosecutor’s statement to “serve as independent judges of th e facts” and not “attempt to evaluate how you feel either part y may have done their job as an attorney . . . .” For these reasons, we find the prosecutor’s improper st atement did not rise to the level of misconduct requiring reversal.
2. The People’s Bolstering of Officer Byrd Defendant’s closing argument attacked Officer Byrd’s testimony by highlighting her inconsistent testimony re garding who threw the blue obj ect as well as her demeanor throughout her testimony. Specifically, th e defense focused on Officer Byrd’s testimony at trial regarding the interview with defend ant immediately after the traffic stop, where she told defendant she had seen Contreras, not defendant, throw the blue object. This testimony reflected only what Officer Byrd stated during the interview and did not address defendant’s responses to Officer Byrd’s questions. During the People’s rebuttal to defenda nt’s closing argument, the prosecutor stated: “And perhaps Officer Byrd was a little naive to think th at she could appeal to the defendant’s sense of family wh en she took the strategy, the interrogation strategy that she did. It clearly did not work. But that’s what she was trying to do. She was trying to say to Mr. Patlan, your cousin’s going to go do wn for this. She knew Mr. Contreras did not possess those drugs. She was hoping, naively, that he would step up and not let his
cousin take the fall.” The trial court overru led defendant’s objection that the prosecutorwas commenting on defendant’s post- Miranda silence in violation of the United States Supreme Court opinions of Griffin and Doyle

. 7 Focusing on the prosecutor’s statement that Officer Byrd ’s tactic of attempting to elicit a confession from defendant by cl aiming she saw Contreras throw the methamphetamine “did not work,” defendant argues the prosecution impermissibly relied on defendant’s post- Miranda silence and the trial court erre d in overruling his objection. Assuming defendant actually in voked his right to remain s ilent, his argument is without merit because, if anything, his silence raised an inference of innocence rather than guilt. Implicit in the Fifth Amendment’s right against self-incrimination as well as the
rationale behind Miranda warnings is an understanding “that exercise of the right of silence will not be penalized.” ( People v. Eshelman (1990) 225 Cal.App.3d 1513, 1520.)
Eshelman illustrates this concept. There, during both cross examinati on of the defendant and the prosecutor’s closing ar gument, the prosecutor focused on the defendant’s refusal to answer questions the murder victim’s mo ther had previously asked the defendant. ( Id. at p. 1519.) During the closing argument, th e prosecutor went so fa r as to ask the jury “What was [the defendant] trying to hide?” ( Ibid. ) The appellate court reversed the defendant’s conviction, holding “the imprope r purpose of the prosecutor’s questions was to utilize appellant’s silence to impeach his defense and thereby to solemnize the silence into evidence of guilt.” ( Id. at p. 1521.) Unlike the prosecuto r’s statements in Eshelman , which focused on defendant’s conduct, here the prosecutor discussed Office r Byrd’s interview strategy in order to rehabilitate the officer. The prosecutor’s rebu ttal came in response to attacks on Officer Byrd’s credibility during the defense’s closing argument. Moreover, as stated above, to the extent the prosecutor’s statem ents discussed defendant’s post- Miranda silence, that silence creates no inference of guilt. Officer Byrd’s statements imp licated Contreras, not

7 Griffin v. California (1965) 380 U.S. 609; Doyle v. Ohio (1976) 426 U.S. 610.defendant, as the person resp onsible for the methamphetamine. Because the prosecutor did not rely on post- Miranda silence to defendant’s detrim ent, we find no prosecutorial
misconduct.
3. Ineffective Assistance of Counsel

Defendant claims his trial counsel erre d by failing to object to the prosecutor’s statements in closing and rebuttal arguments be cause they assumed facts not in evidence. To prevail, defendant must show his trial counsel’s performance was deficient and that the deficiency prejud iced defendant. ( People v. Ledesma (1987) 43 Cal.3d 171, 216- 217.) To prove prejudice, defendant must affirmatively show a reasonable probability that, but for his trial counsel’s errors, th e result would have been different. ( Id. at pp. 217-218.) A reasonable probability is one “ ‘sufficient to undermine confidence in the outcome.’ ” ( Id. at p. 218, quoting Strickland v. Washington (1984) 466 U.S. 668, 693- 694.) Finally, “[i]f a claim of ineffective a ssistance of counsel can be determined on the ground of lack of prejudice, a court need not decide whet her counsel’s performance was deficient.” ( In re Crew (2011) 52 Cal.4th 126, 150, citing Strickland, supra, at p. 697.) Defendant argues the prosecutor’s statemen t that the defense’s role was to make the jury “doubt the truth” assumed facts not in evidence because it suggested that the prosecutor knew what “the truth” was. Ev en assuming counsel wa s deficient for not objecting on that basis, defendant can show no prejudice because, as discussed above, the
trial court sustained counsel’s objection as it was presented and admonished the jury to be “independent judges of the facts . . . .” In essence, the court’ s admonition, which it related to the jurors soon after the objectionabl e statement, reminded them that they were responsible for determining “the truth.” As such, defendant suffered no prejudice from this omission. ( People v. Pigage (2003) 112 Cal.App.4t h 1359, 1375 [“a timely admonition from the court gene rally cures any harm”].)Defendant also claims defe nse counsel was deficient fo r failing to object to the prosecutor’s reference to fact s not in evidence to bolster Officer Byrd’s credibility. Defense counsel spent the majo rity of his closing argument assailing Officer Byrd’s credibility by pointing out inconsistencies in her statements at various points during the investigation and the two trials. In partic ular, defendant argued Officer Byrd’s testimony could not be trusted because she initially told both defendant and Contreras that she saw Contreras throw the methamphetamine-filled glov e out of the vehicle but later testified that she did not actually see who discarded the glove. The prosecutor’s rebutta l argument attempted to rehabilitate the officer’s credibility. The prosecutor refe rred to Officer Byrd’s testimony that the inconsistent statements were part of a tact ical lie designed to elicit a confession from defendant. Had the prosecutor developed this explanati on herself, argument on that point would constitute improper vouc hing. However, because the pros ecutor was merely relating an explanation offered by Officer Byrd in her testimony, the prosecution’s conduct involved permissible “argument from facts in the record directed to the credibility of witnesses . . . .” ( People v. Sully (1991) 53 Cal.3d 1195 , 1235-1236 [rejecting claim of improper vouching when prosecutor relie d on facts in the record to bo lster witness credibility].) A prosecutor may not refer to evidence outside the record to vouch for the credibility of witnesses or bolster the veracity of witnesses’ testimony. ( People v. Cook (2006) 39 Cal.4th 566, 593.) But this prohibition is not implicated wh ere, as here, the prosecutor
relies on evidence in the record. Because we find no error, defendant’s cumulative error clai m fails by necessity.
C. P RIOR S TRIKE F INDINGS Defendant claims the prosecution did no t provide sufficient ev idence to prove the existence of two prior qualifying convic tions beyond a reasonable doubt.Section 667 governs sentence enhancements fo r habitual criminals. As in effect in
2012 when the trial court sentenced defendant, secti on 667, subdivision (e)(2)(A) provided for “an indefinite term of life impr isonment” for defendants with “two or more prior felony convictions as defined in subdivis ion (d) that have been pled and proved . . . .” (Former § 667, subd. (e)(2)(A ), Stats. 1994, ch. 12, § 1.) Section 667, subdivision (d) provides that prior felony convictions include d “[a]ny offense defined in subdivision (c) of section 667.5 as a violent felony or any offense defined in subdivision (c) of section 1192.7 as a serious felony in this state. ” (§ 667, subd. (d)(1).) These prior felony convictions are commonly refe rred to as “strikes.” To prove prior strikes, “[t]he People must prove each element of an alleged sentence enhancement beyond reasonable doubt.” ( People v. Delgado (2008) 43 Cal.4th 1059, 1065 ( Delgado )

. ) While this can often be accomp lished by reference to the statute upon which the defendant’s prio r conviction is based, where it is unclear from a specified
statute whether the conviction was for a serious or violent felony, “otherwise admissible
evidence from the entire record of the conviction may be ex amined to resolve the issue.” ( Ibid. ) Such evidence can include “certified documents fro m the record of the prior court proceeding . . . including the abstract of j udgment describing the prior offense.” ( Id. at p. 1066

. ) Certified documents create a presumption of conviction that can only be overcome by evidence calling into questi on “ ‘the authenticity, accuracy, or sufficiency of the prior
conviction records . . . .’ [Citation.]” ( Delgado, supra, 43 Cal.4th at p. 1066

. ) “[I]f the prior conviction was for an offense that can be committed in mu ltiple ways, and the
record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the leas t serious form of the offense.” ( Ibid. ) Once a trial court has found the existence of a prio r strike conviction, however, on appeal “we
examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence.” ( Id. at p. 1067

. )While defendant concedes the existence of one strike, he argues the record does not adequately establish his 1982 convic tion under section 2 45, subdivision (a) 8 was a strike. During the sentencing phase of defe ndant’s current possessi on for sale case, the prosecution introduced an abstract of judgme nt from 1982 (Santa Cl ara County Super. Ct. Case No. 82018) (1982 Felony) indicating defendant pleaded gu ilty to “PC 245(a) Assault with a Deadly Weapon. ” The criminal complaint from the 1982 Felony was also
entered into evidence. Count two of that complaint char ged defendant with violating section 245, subdivision (a) by committing “an assault upon the person . . . with a deadly weapon or instrument, to wit: a TIRE IRON, and by means of force likely to produce great bodily injury.” Defendant claims the inconsistency between the complaint and abstract made it impossible to determine wh ether defendant’s prior conviction was for assault with a deadly weapon - a serious fel ony pursuant to section 1192.7, subdivision (c)(31) - or merely assault by means of force likely to produce grea t bodily injury, which
is not serious or violent for purposes of section 667. (See Delgado, supra, 43 Cal.4th at p. 1065 [“assa ult merely by means likely to produce [great bodily injury], without the additional element of personal infliction, is not in cluded in the list of seri ous felonies”].) In support, defendant relies on Delgado , where the Supreme Court considered a prior conviction for a violation of a version of section 245 similar to that in effect in 1982. ( Delgado, supra, 43 Cal.4th at p. 1065.) To determine whether substantial evidence supported the prior strike finding, the court turned to the official abstract of judgment for the defendant’s section 245, su bdivision (a) prior felony. That official abstract “first identifie[d] the statute under which the conviction occurred as ‘PC’ ‘245(A)(1),’ then separate ly describe[d] the offens e as ‘Asslt w DWpn.’ ” ( Delgado,

supra, at p. 1069.) The court rejected the de fendant’s assertion that the foregoing

8 In 1982, section 245, subdivision (a) prohibited “assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury . . . .” (Former § 245, subd. (a).)description was ambiguous an d concluded it “tracks one, but only one, of the two specific, discrete, disjunctive, an d easily encapsulated forms of aggravated assault . . . .” ( Ibid. )
Like the abstract in Delgado , the abstract for defe ndant’s 1982 conviction unambiguously states the conviction was for “A ssault with a Deadly Weapon.” Applying Delgado , the abstract provides substantial eviden ce to support the trial court’s finding that defendant’s 1982 conviction was a qualif ying strike. Defendant attempts to overcome this result by pointing to the alleged inconsistenc y between the abstract of judgment and the complaint, which charged de fendant with both a ssault with a deadly weapon and assault by means of force likely to produce great bodily injury. Defendant relies on a line of cases where ambiguities in ab stracts of judgment led courts to overturn prior strike findings. (See, e.g., People v. Rodriguez (1998) 17 Cal.4th 253, 261-262 [overturning prior strike finding when abst ract of judgment ambiguously listed § 245 violation as “ASLT GBI/DLY WPN”].) He re, however, because the abstract is unambiguous, we find thes e authorities inapposite. We also find defendant’s more general inconsistency argument unavailing. The complaint and abstract arose at different junctures in the case. The 1982 Felony complaint charged defendant with assault with a deadly weapon and assault by means of force likely to produce great bod ily injury, which may be view ed as alternative bases for the charged offense. But the abstract of judgment unambiguously identified the single type of assault for which defendant was conv icted and no evidence ca lls into question its “ ‘authenticity, accuracy, or sufficiency.’ ” ( Delgado, supra, 43 Cal.4th at p. 1066, quoting People v. Epps (2001) 25 Cal.4th 19, 27.) The trial court’s strike finding is therefore supported by su bstantial evidence.D. T HE T HREE S TRIKES R EFORM A CT In April 2012, the trial court sentenced defendant to an indeterminate term of 25 years to life in prison pursuant to secti on 667 after finding the existence of two prior serious or violent felony convictions. In N ovember 2012, California’s electors passed the Three Strikes Reform Act, whic h, as described in greater detail below, generally requires three serious or violent felonies to trigger an indeterminate sentence of 25 years to life. Defendant claims we should apply the Act re troactively and remand this matter to the trial court for “automatic, non-discretionary” re sentencing. To decide this issue, we review the Act and published opi nions from other districts.
1. New Proposition 36 As approved by the voters in 2012, the Act amended sections 667, 1170.12, and 1170.125, and added section 1170.126. Secti on 1 of the Act, cont aining “Findings and Declarations,” states the pur pose of the Act is to “resto re the original intent of California’s Three Strikes law-imposing life sentences for dangerous criminals like rapists, murderers, and child molesters.” (49 West’s Ann. Pen. Code (2013 supp.) Historical and Statutory Notes, foll. § 667, p. 35.) Sectio n 1 continues that the Act will
retain life sentences for serious or violent crimes but will “[s]ave hundreds of millions of taxpayer dollars every year” by resentencing non-serious, non-vi olent offenders to shorter terms. ( Id. at p. 36.) The shift in focus to serious and violen t offenders will “[p]revent the early release of dangerous criminals who are currently being released early because jails and prisons are overcrowded with lo w-risk, non-violent inmates serving life sentences for petty crimes.” ( Ibid. ) Finally, section 7 of the Act calls for liberal construction to protect the “health, safety, a nd welfare of the people of the State of California.” ( Ibid. )As amended, defendants with two pr ior serious or violent felony convictions 9 who are convicted of a third felony that is non-se rious and non-violent no longer automatically face an indeterminate term of 25 years to life in prison. (§ 667, subd. (e)(2)(C).) Instead,
these offenders must serve “twice the term otherwise provided as punishment for the current felony conviction.” (§ 667, subd s. (e)(1), (e)(2)(C) [not ing non-serious, nonviolent offenders “shall be sentenced pursuant to paragraph (1) of subdivision (e)”].) Even if the current felony is not statutorily serious or violent, however, a defendant must
still serve an indeterminate term of 25 years to life if any of the following is true: (1) the current felony is an enhanced “controlled subs tance charge”; (2) the current felony is a sex offense or requires registering as a sex o ffender; (3) the current felony was completed
while armed with a firearm or with intent to cause great bodily injury; or (4) any of defendant’s prior felony convictions is for a crime listed in sec tion 667, subdivision (e)(2)(C)(iv). (§ 667, subds. (e)(2)(C)(i) - (e)(2)(C)(iv).) To further the objective of prioritizing prison space for high-risk felons, the Act
also added section 1170.126. That section st ates the Act applies “exclusively to persons presently serving an indeterminate term of im prisonment” as third strike offenders. (§ 1170.126, subd. (a).) It allows felons whose third strike wa s not serious or violent to petition the Superior Court for resentencing. (§ 1170.126, su bd. (b).) Resentencing is only available to felons who, by virtue of meeting the criteri a laid out in the preceding paragraph, would be eligible for sentencing as a second strike offender under amended
sections 667 and 1170.12. (§ 1170.126, subd. (e).) Importantly, a trial court has discreti on to deny resenten cing to a felon who otherwise meets the resentencing criteria if the court finds resentencing “would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) In making that

9 Serious or violent felonies for purp oses of the Act consist of the crimes contained in section 1192.7, subdivision (c), and section 667.5, subdivision (c), respectively. (§ 667, subd. (e)(2)(C).)determination, the court may consider any re levant evidence, including a felon’s criminal conviction history and disciplinar y record during incarceration. (§ 1170.126, subd. (g).) Finally, felons must petition for resentencing w ithin two years of Nove mber 2012 “or at a later date upon a showing of good cause . . . .” (§ 1170.1 26, subd. (b).)
2. Appellate Opinions Interpreting the Act The first published appellate opinion to address whether felons with non-final judgments 10 are entitled to automatic resentencing was People v. Yearwood (2013) 213 Cal.App.4th 161, 168 ( Yearwood ). The main argument in that case was that the Act should be applied retroactively becau se of the Supreme Court’s opinion in In re Estrada (1965) 63 Cal.2d 740 ( Estrada ). In Estrada , the Supreme Court held that when a statutory amendment mitigates punish ment and there is no saving clause, 11 the amendment will apply retroactiv ely to all defendants whose judgments are not yet final. ( Id. at p. 748.) This holding is an exception to the general rule found in section 3 that all
sections of the Penal Code are to be prospectively applied. ( Id. at p. 746.)
In Yearwood , the Fifth Appellate District determined that Estrada was inapplicable, concluding that the new senten cing regime does not apply retroactively to felons with non-final judgments. ( Yearwood, supra, 213 Cal.App.4th at pp. 168, 172.)
The court conceded that the Act contains ne ither a saving clause nor any reference to retroactivity. ( Id. at p. 172

. ) Nonetheless, it found th e sentence recall petition process
added as section 1170.126 acted as a “functi onal equivalent” of a saving clause. ( Ibid. ) The court supported its conclusi on that section 1170.126 op erates as a saving clause by

10 A judgment is not final for purposes of the retroactive effect of statutes “ ‘so long as the courts may provide a remedy on direct review[, whic h] includes the time within which to petition to th e United States Supreme Court for writ of certiorari.’ ” ( Yearwood, supra, 213 Cal.App.4th at p. 171, quoting In re Pine (1977) 66 Cal.App.3d 593, 594.)
11 We refer to “saving clause” here as an express statutory provision calling for prospective application.referring to the goals of the Act. Specific ally, it found the overar ching goal of public safety showed the voters in tended the sentence recall petiti on process to be the sole remedy and that holding otherwise would take away the discretion of the trial courts to ensure that unreasonably dang erous felons remain in pris on for 25 years to life. ( Id. at p. 176.)
Yearwood also addressed the claim that se ction 1170.126, su bdivision (b) is ambiguous because it does not specify whet her it is applicable to all currently incarcerated felons or only th ose whose sentences are final. The court rejected that contention, finding no ambiguity. ( Yearwood, supra, at p. 177.) The court reasoned that the Act’s failure to distinguish between fina l and non-final judgments meant that Section 1170.126 applies to all “pers ons presently serving an indete rminate term of imprisonment . . . .” (§ 1170.126, subd. (a); Yearwood, supra, at p. 177.)
The defendant in Yearwood also claimed section 1170.126, subdivision (k) supported retroactivity by its statement that “[n]othing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the defendant.” (§ 1170.126, subd. (k).) The court disagreed, interpreting that subdivision to preserve only the ability of felons to challenge their convicti ons by direct appeal or collateral attack. ( Yearwood, supra, at p. 178.) Finally, the court rejected the defendant’s equal protection argument, finding that the discretion given to trial court judges by section 1170.126 was rationally related to the leg itimate state interest of “inc reas[ing] the likelihood that prisoners whose sentences are re duced or who are released due to the Act will not pose an unreasonable risk of danger to the public.” ( Yearwood, supra, at p. 179.) The Supreme
Court denied review of Yearwood in May 2013. ( People v. Yearwood (May 1, 2013, S209069).)
Since Yearwood , other districts have published conflicting opinions regarding the retroactive application of the Act and the Ca lifornia Supreme Court has granted review in each of the following: People v. Conley (2013) 215 Cal.App.4th 1482, review grantedAug. 14, 2013, No. S211275, 304 P.3d 1070 [3d Dist., no retroactivity]; People v. Lewis (2013) 216 Cal.App.4th 468, review granted Au g. 14, 2013, No. S21 1494, 304 P.3d 1071 [4th Dist., Div. 2, retroactive]; People v. Lester (2013) 220 Cal.App.4th 291, review granted Jan. 15, 2014, No. S21 4648, 315 P.3d 1182 [4th Dist., Div. 2, no retroactivity]; People v. Contreras (2013) 221 Cal.App.4th 558, review granted Jan. 29, 2014, S215516, __ P.3d __ [4th Dist., Div. 3, retroactive].
3. Analysis Section 3 provides the general rule that Penal Code provisions are not retroactive, “unless expressly so declared.” (§ 3.) In Estrada , the Supreme Court announced an exception to this general rule, holding that statutes that mitigate punishment are to be applied retroactively to all non-final judgments. ( Estrada, supra, 63 Cal.2d at p. 748.) Courts have, however, recognized two situa tions where statutes that ameliorate punishment will not apply retroactively: (1) when the statute contains a saving clause ( Ibid .); and (2) when the Legislature demons trates an intent to apply a statute prospectively “with sufficient clarity that a reviewing court can discern and effectuate [the intent]” ( In re Pedro T. (1994) 8 Cal.4th 1041, 1049, see also People v. Nasalga (1996) 12 Cal.4th 784, 793). Both parties concede the Three Strike s Reform Act contains no explicit saving clause. Section 10 of the Act, which contai ns its effective date, merely states it is “effective on the first day after enactment . . . .” (49 West’s Ann. Pen. Code (2013 supp.) Historical and Statutory Notes, foll. § 667, p. 36.) Beca use there is no explicit saving clause, we must determine whether there is clear voter intent to depart from the Estrada rule and apply the statute only prospectively. We interpret initiatives th e same as statutes. ( Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900-901.) We lo ok first to the statutory text and attempt to give words their plain meaning. ( Id. at p. 901.) We construe languag e in the context of the “statuteas a whole and the overall statutory scheme . . . .” ( People v. Rizo (2000) 22 Cal.4th 681, 685.) If a statute is ambiguous, we seek to effectuate the intent of the voters by reviewing relevant legislative history, incl uding the analyses and arguments contained in the official ballot pamphlet. ( People v. Birkett (1999) 21 Cal.4th 226, 243.)
Section 7 of the Act calls for liberal cons truction to protect the “health, safety, and welfare of the people of the State of Califor nia.” (49 West’s Ann. Pen. Code (2013 supp.) Historical and Statutory Notes, foll. § 667, p. 36.) Penal Code section 1170.126 states the sentence recall petition process ap plies exclusively to “persons presently serving an indeterminate term of imprisonment” as third strike offenders. (§ 1170.126, subd. (a).) Defendant claims section 1170.126, subdivision (a) is ambiguous because it fails to specify whether it applies to all pers ons serving indeterminat e terms or only those whose judgments are already final. We di sagree because the plain language of the section suggests it applies to all persons, without regard to finality of judgment.
Even if we were to conclude the sec tion is ambiguous, consideration of that language in the context of the Act as a w hole supports finding the voters intended the sentence recall petition process from section 1 170.126 to be the ex clusive resentencing remedy for individuals in defendant’s position. Our interpretation of the Act serves its purpose of protecting the public’s health, safety, and welfare by ensuring trial court judges tasked with resentenci ng offenders retain the disc retionary authority to deny petitions filed by individuals w ho would pose an unreasonable risk of danger to public safety. (§ 1170.126, subds. (f), (g).) The o fficial summary, arguments, and legislative analysis of the Act likewise make no mention of a distinction betwee n final and non-final judgments. They merely no te that some individuals currently serving indeterminate terms for a non-serious, non-viol ent third strike could be rese ntenced, but only if a “judge determines [offender] does not pose unreasona ble risk to public safety.” (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) summary of the Act prepared by the Attorney General, p. 48.) Th e only references to the concep t of resentencing track thesentence recall petition process set forth in se ction 1170.126. (E.g., Voter Information Guide, Gen. Elec. (Nov. 6, 2012) analysis of the Act by the Legislative Analyst, p. 50 [“ This measure allows certain third strikers to apply to be resentenced” unless the trial court “determines that resentencing the o ffenders would pose an unreasonable risk to public safety”]. ) Despite the lack of an explicit saving cl ause, we conclude the plain language of
section 1170.126 read in the context of the statute as a whole provides clear intent to apply the Act prospectively. As such, we c onclude defendant is not entitled to automatic resentencing but can avail hims elf of the sentence recall pe tition process if he meets the statutory prerequisites.III. DISPOSITION The judgment is affirmed.

__________ _______________ ___________ Grover, J.

WE CONCUR:

_____________ _______________ Rushing, P.J.

_____________ _______________ Márquez, J.