1 Filed 3/13/14 P. v. Martinez CA4/2 Opinion following order vacating prior opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. FERNANDO MARTINEZ, Defendant and Appellant. E056034 (Super.Ct.No. RIF1100168) OPINION

APPEAL from the Superior Court of Ri verside County. Michael B. Donner and Michele D. Levine, Judges. Affirmed in part; remanded for resentencing. Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, Steve Oetting and Michael Pulos, Deputy Attorneys Ge neral, for Plaintiff and Respondent.2 Defendant Fernando Martinez was char ged with one count of possession of methamphetamine in a prison. (Pen. Code, § 4573.6.) 1 The information also alleged that defendant had served one prior prison term a nd that he had suffered three prior serious felony convictions. (§§ 667.5, subd. (b); 667, subds. (c), (e)(2)(A); 1170.12, subd. (c)(2)(A).) A jury found him guilty, and the trial cour t found the prior conviction and prior prison term allegati ons true, based on defendant’s admissions. The court sentenced defendant to a term of 25 years to life, with a concurrent term of one year for the prior prison term enhancement. Defendant appeals, asserting a variety of errors. We will affirm the conviction. We will, howev er, remand the cause for resentencing pursuant to section 667, subdivision (e)(2)(C).
FACTS Defendant was an inmate at the Califor nia Rehabilitation Center. On July 27, 2010, Correctional Officer Motto conducted a security check in Dorm 203. Defendant was seated on his assigned bunk. There were two other inmates in the area. Inmate Rodriguez was lying on his assigned bunk . An unidentified inmate was watching television with Rodriguez. While he was dealing with the other two inmates, Motto noticed that defendant’s body was shaking. His hands were shaking as he was writing on a notepad. When Motto requested defendant’s identification card, de fendant jumped up and then stumbled and fell, catching himself on the bed. Based on his training, Motto suspected that defendant

1 All further statutory citations refer to the Penal Code unless another code is specified.3 was under the influence of a drug. At so me point, defendant picked up two out of the 30 or so CD cases which we re on his bunk. He held them flat, like a tray. Motto ordered him to put them down, and defendant complied. Mo tto wondered why defendant would pick up just two of the CD cases. He suspected there might be contraband in the

area. Motto called for other officers . When he put defendant’ s hands in restraints, he noticed blood running down defendant’s arm from the inner elbow area. Motto suspected the blood came from a puncture wound associated with drug us e. Other officers took defendant away. Motto picked up the two CD cases defendant had been holding and found a white crystal substance between the tw o CD cases. Motto applied a field test which returned a positive resu lt for methamphetamine. This preliminary result was later confirmed. The crystal substance contai ned a useable quantity of methamphetamine. After being read his Miranda 2 rights, defendant told O fficer Boyd that he had injected heroin into bo th arms. He told a registered nur se who examined him that he was under the influence of heroin. The nurse obse rved that he had new needle marks on both arms. The nurse testified that defendant’s pulse and blood pr essure were consistent with methamphetamine use but not with heroin use.

2 Miranda v. Arizona (1966) 384 U.S. 436.4 DISCUSSION
1.
THE COURT PROPERLY DENIED DEFENDANT’S BATSON-WHEELER MOTION Defendant claims the trial court erred in denying his motion under Batson v. Kentucky (1986) 476 U.S. 79 ( Batson ) and People v. Wheeler (1978) 22 Cal.3d 258 ( Wheeler ) based on the prosecutor’s exercise of peremptory challenges to excuse four prospective jurors with Hispanic surnames. The issue arose as follows. Defendant made a Batson-Wheeler motion concerning the number of peremptory challenges exerci sed by the prosecution against Hispanic jurors. Among the 11 perempto ry strikes exercised by the prosecutor up to that point, four were exercised against prospective ju rors with Hispanic surnames: Martinez, Santos, Orozco and Sanchez. The court asked the prosecutor for her reasons for discharging the four prospective jurors. Th e prosecutor stated that she discharged Ms. Martinez because she had a cousin who was then in pr ison. She discharged Mr. Santos because he was unemployed and beca use he had been giving her “inappropriate looks,” “undressing [her] with his eyes.” Sh e discharged Mr. Orozco because he had a family member then in prison . She stated, “I’ve kicked everybody who’s had a family member in prison.” She discharged Ms. Sa nchez because she was a social worker who “might have a bleeding heart for the fact that [defendant] might have drug abuse problems.” In addition, Ms. Sanchez had a family member then in prison.5 The court asked defense counsel to respond. Counsel submitted without argument. The court then stated that it did not find sufficient inform ation to suggest that a member of a protected class was bei ng discharged for inappropriate reasons. Defendant now contends that the record sh ows that the prosecutor’s stated reasons were pretextual because, contrary to he r statement that she had “kicked” every prospective juror who had a relative in pr ison, she in fact accepted several other prospective jurors who also had family memb ers then in prison or family members who had been in prison in the past. Moreover, he contends that the trial court failed to discharge its duty to evaluate the “subjectiv e genuineness” of the prosecutor’s raceneutral reason for the peremptory challenges, pa rticularly with respect to Mr. Santos, the juror who was allegedly “undressing [t he prosecutor] with his eyes.” The prosecution’s use of peremptory ch allenges to remove prospective jurors based on group bias, such as race or ethnicity, violates a defendant’s right to trial by a jury drawn from a representa tive cross-section of the community under article I, section 16 of the California Constitution and his right to equal protection under the Fourteenth Amendment to the Un ited States Constitution. ( People v. Taylor (2010) 48 Cal.4th 574, 611 ( Taylor ).) The procedure and standards courts use with respect to motions challenging perempto ry strikes are stated in Batson , supra , 476 U.S. 79 and were reiterated by the United States Supreme Court in Johnson v. California (2005) 545 U.S. 162 ( Johnson ): “First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Second, once the defendant has ma de out a prima facie case, the burden shifts to the State6 to explain adequately the racial excl usion by offering perm issible race-neutral justifications for the strikes. Third, [i]f a race-neutral explanation is tendered, the trial court must then decide [] whet her the opponent of the strike has proved purposeful racial discrimination.” ( Id . at p. 168, internal quotation ma rks and citations omitted for clarity.) If, as in this case, the trial court asks for an explanation of the prosecutor’s reasons for the challenges, whether the defendant esta blished a prima facie case may be moot. ( Taylor , supra , 48 Cal.4th at p. 612.) If so, the revi ewing court proceeds to the third step of the Batson analysis, to determine whether the record supports th e prosecutor’s raceneutral explanations. ( Ibid .) This is the test defendant as ks us to apply. However, asking the prosecutor for an explanation does not automatically mean that the trial court implicitly found that th e defendant made a prima facie showing. ( Ibid .) Here, rather than engaging in any analysis of the prosecutor’s explanations, the tria l court concluded only that there was not “sufficient informati on or evidence to suggest” purposeful discrimination. Defendant contends that this means that the trial court failed to discharge its duty to “evaluate the ‘subjective genu ineness’” of the reasons given for the peremptory challenge. We disagree. The court’s finding that there was insufficient evidence to suggest purposeful discriminati on does not refer to th e sufficiency of the prosecution’s explanations. Rather, it refers to the first prong of the Batson analysis, i.e., the defendant’s burden to make out a prima fa cie case by showing th at “‘the totality of the relevant facts gives rise to an in ference of discriminatory purpose.’” ( Johnson , supra , 545 U.S. at p. 168

. ) Accordingly, “‘examining the court’s remarks in context’” ( Taylor ,7 at p. 612), we conclude that the trial court found that defendant failed to make a prima facie showing. Having determined that the tr ial court found that the de fendant failed to make a prima facie showing of purposeful discriminati on, we review the record independently to decide “‘the legal question whether the record supports an inference that the prosecutor excused a juror on the basi s of’” membership in a protected class. ( Taylor , supra , 48 Cal.4th at p. 614, c itation omitted.) Under Johnson , supra , 545 U.S. 162, a defendant satisfies the first prong of Batson “by producing evidence suffi cient to permit the trial judge to draw an inference that discrimination has occurred.” ( Johnson , at p. 170.) The defendant “should make as complete a record of the circumstances as is feasible.” ( Wheeler , supra , 22 Cal.3d at p. 280.)
In Taylor , supra , 48 Cal.4th 574, the court noted that the defendant’s showing was inadequate because he merely pointed out that the prosec utor had dismissed a single African-American woman and submitted that question on that basis alone, without referring to the juror’s questionnaire or voir di re answers, responding to the prosecutor’s stated reasons for the excusal, or pointing to any other ev idence that would permit an inference of discrimination. ( Id. at p. 614.) Defendant’s showing in this case was equally deficient. Defense counsel stated only that he was making a Wheeler-Batson motion “[r]egarding the number of Hispanic s that are being challenged by the prosecution.” He did not respond to the pr osecutor’s reasons for th e challenges when the court invited him to do so, nor did he point to any evidence, other than the bare fact of the8 four challenges to Hispanic surnamed jurors, that wo uld permit an inference of discrimination. Rather , he merely submitted. Our independent review of the record s upports the trial cour t’s conclusion that there was insufficient evidence of purposeful discriminati on. In addition to the three Hispanic surnamed juro rs the prosecutor dismissed because they had a relative or friend in prison, the prosecutor also dismissed a pr ospective juror with a non-Hispanic name— Mahdi Sarsak—whose uncle was then in prison. The record does not suggest any other reason for excusing Mr. Sarsak. Two other jurors who had relativ es who had been in prison in the past were not excused by the pr osecutor. Juror No. 4 was accepted onto the jury even though she stated th at she had visited a relative in prison several years before. The prosecutor accepted the jury without excusing Thomas Griffin, whose brother-in-law had been in prison 20 years earlier. 3 The prosecutor could va lidly distinguish between jurors who at the time of trial had a friend or relative in prison and jurors whose friend or relative had been in prison in the past. Defendant asserts, however, that the prosecutor’s statement that she had “kicked everybody who’s had a family member in prison,” indicated that she was not making such a distinction. We do not agree that the prosecutor’s statement unambiguously supports defendant’s interpreta tion. Had defense counsel challenged the prosecutor on that poi nt during the heari ng on the motion, the prosecutor might have explained that she wa s excusing only juro rs with friends or relatives currently in prison. Furthermore, the record does not reveal the ethnicity of

3 Mr. Griffin was excused by the defense, as was LaTonya Taylor, whose nephew was then in prison.9 Juror No. 4, who was not excused by the prosec utor. We have no re ason to assume that Juror No. 4 was not Hispanic, which would further undermine the sufficiency of the evidence of purposeful discrimination. Indeed, we do not know the ethnicity of any of the jurors who were ultimately chosen to serve; those jurors are identified in the record only by nu mber. In determining whether a prima facie showing of purposeful di scrimination has been made, it is relevant “whether the record shows that the prosecutor struck all or most of the members of the identified group from the venire, or has us ed a disproportionate number of his peremptories against the group.” ( Taylor , supra , 48 Cal.4th at p. 615, internal quotation marks and citations omitted for clarity.) Beca use the record does no t allow us to make that determination, we cannot say that the record supports an inference of purposeful discrimination. Accordingly, we cannot say that the trial court erred in finding that defendant failed to make a prima facie showing under Batson

. 2. THE TRIAL COURT PROPERLY ADMITTED EVIDENCE CONCERNING AN ATTEMPT BY DEFENDANT’S BROT HER TO SMUGGLE DRUGS TO
DEFENDANT Prior to trial, the prosecutor sought leav e to present evidence that in 2006, while defendant was incarcerated at Ca lifornia Men’s Colony in Sa n Luis Obispo, he received drugs, including methamphetamine, which were smuggled into the prison by defendant’s brother, Francisco Martinez, and transferred to defendant during contact visits. An informant told correctional officers about the smuggling in November 2005. When10 Francisco Martinez came to vi sit defendant at the prison on April 2, 2006, he was searched and was found to have methamphe tamine and marijuana on his person. The prosecutor argued that the evid ence was relevant because it was similar to the conduct charged in the instant case, i. e., possessing methamphetamine while incarcerated, and that it was relevant to prove defe ndant’s knowledge of methamphe tamine and its nature as a controlled substance. The trial court agreed that the evidence was relevant and that because it was more probative than prejudicia l, it was admissible pursuant to Evidence Code section 1101, subdivision (b). 4 Defendant now contends that this was prejudicial error. We disagree. Evidence Code section 1 101, subdivision (a), provides that, with certain exceptions not relevant here, “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” Subdivision (b) of that statute provides, however, that “evidence that a person committe d a crime, civil wrong, or other act” is admissible when it is “relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident) . . . .” Evidence which is relevant for a purpose sanctioned by Evidence Co de section 1101, subdivision (b), must nevertheless be excluded if it contravenes ot her policies limiting admission, such as those contained in Evidence Code section 352. ( People v. Ewoldt (1994) 7 Cal.4th 380, 404.)

4 The court excluded evidence that Fr ancisco Martinez had been convicted in connection with the 2006 smuggling attempt.11 Section 352 provides that a “court in its disc retion may exclude evidence if its probative value is substantially outweig hed by the probability that its admission will (a) necessitate undue consumption of time or (b) create s ubstantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Here, defendant concedes that the evidence was at leas t “minimally relevant” for purposes of Evidence Code section 1101, subd ivision (b). He c ontends only that its probative value was outweighed by extreme pr ejudice. He does not, however, actually engage in any analysis to support that conclu sion. Rather, he assu mes that the evidence was so prejudicial as to deny him his due process right to a fair trial. We need not address a contention which is not supporte d by meaningful analysis and citation to authority. ( People v. Weaver (2001) 26 Cal.4th 876, 986- 987.) Because defendant has not addressed the underlying question of the prej udicial effect of the evidence, we decline to address defendant’s contentions that th e admission of the evidence was either a prejudicial abuse of discretion or a violation of due process.
3. THE TRIAL COURT PROPERLY DENIED DEFENDANT’S PITCHESS MOTION Defendant filed a motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 ( Pitchess ) and Evidence Code section 1043 se eking Officer Motto’s personnel records. Defense counsel’s declaration in su pport of the motion stated that defendant was not aware of the presence of the methampheta mine Motto discovered and that he believed that Motto planted it. The tr ial court found this insuffici ent to establish good cause12 justifying an in camera review of Motto’s pe rsonnel records. Defendant now contends that this was an abuse of discretion. We disagree. A defendant is entitled to discovery of a police officer’s confidential personnel records that contain information releva nt to the defendant’s defense. ( Pitchess , supra , 11 Cal.3d at pp. 537-538; Evid. Code, §§ 1043-1 045.) The procedure requires a showing of good cause for the discovery, an in camera review of the reco rds if good cause is shown, and disclosure of information deemed by the trial court to be “relevant to the subject matter involved in the pending litigation.” (Evid. Code, § 1045, subd. (a).) A trial court’s ruling on a Pitchess motion is reviewed for abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.) In order to establish good cause to compel an in camera review by the court, a defendant must show th at the personnel records are materi al to his or her defense, and must state a reasonable belief that the record s contain the type of information sought. ( Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016.) As part of the good cause showing, a defendant must also “‘establish a plausible factua l foundation’” for its defense by “present[ing] . . . a specific factual scen ario of officer misconduct that is plausible when read in light of th e pertinent documents.” ( Id . at p. 1025.) A scen ario sufficient to establish a plausible factual foundation “is on e that might or could have occurred” and “presents an assertion of specific police misco nduct that is both internally consistent and supports the defense proposed to the charges.” ( Id . at p. 1026.) In other words, the defense must assert facts concerning the officer’s conduct whic h would support the proposed defense. (See, e.g., People v. Thompson (2006) 141 Cal.App.4th 1312, 1317-13 1318 [upholding the trial court’s finding of a lack of good cause wh ere the defendant did not “present a factual account of the scope of the alleged police misconduct, and [did] not explain his own actions in a manner that adequately support[ed] his defense”]; People v. Sanderson (2010) 181 Cal.App.4th 1334, 1341-1342 [Fourth Dist., Div. Two] [upholding the trial court’s finding of lack of good cause where defendant failed to present “a plausible alternative factual scenario” but in essence merely denied the elements of the charge against him].) The trial court did not abuse its discretion in finding th at defendant did not meet his burden of showing good cause. Defendant ’s claim that he was not aware of the presence of the methamphetamine and that he believed that Motto planted it was not an “alternative factual scenario” of facts ( People v. Sanderson , supra , 181 Cal.App.4th at p. 1342) that would sustain a defense in this case because defendant did not describe any factual basis for the assertion that Motto planted the drug. Moreover, defendant did not deny the truth of Motto’s observation that defendant picked up only the two CDs which happened to contain the methamphetamine, nor did he deny that he displayed symptoms of being under the influence of methamphetami ne, as Motto testified at the preliminary hearing. Because defendant provided no fa ctual basis for concludi ng that Motto planted the drug, his Pitchess motion in effect merely denied the possession charge. Accordingly, the trial court properly denied his Pitchess motion without an in camera review of Motto’s co nfidential records.14 4. DEFENDANT IS ENTITLED TO BE SENTENCED AS A SECOND-STRIKER
UNDER THE THREE ST RIKES REFORM ACT 1. Introduction The Three Strikes Reform Act of 2012 (hereafter the Re form Act) was enacted by the electorate on November 6, 2012, and becam e effective November 7, 2012. (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C), 1170.126.) 5 Under the three strikes law as it existed before the passage of the Reform Ac t, all defendants with two or more strike priors received a sentence of 25 years to life upon conviction of any new felony. (Former § 667(e)(2)(A).) As amended, section 667 provides that a defendant who has two or more strike priors is to be sentenced pursuant to paragr aph 1 of section 667(e) —i.e., as though the defendant had only one strike prior—if the current offense is not a serious or violent felony as defined in section 667.5(c) or s ection 1192.7(c), unless certain disqualifying

5 For convenience, we will dispense with the use of “subdivision” in referring to statutes. We will also refer solely to secti on 667(e) in discussing the Reform Act, omitting reference to the substantially identical section 1170.12(c). Ho wever, the analysis applies to both section 667 and section 1170.12.15 factors are pleaded and proven. 6 (§ 667(d)(1), (e)(2)(C).) Th e Reform Act also provides a procedure which allows a person who is “presently serving” an indeterminate life sentence imposed pursuant to the three strikes law to petiti on to have his or her sentence

6 Section 667(e)(2)(C) provides that sec ond-strike sentencing does not apply if the prosecution pleads and prov es any of the following: “(i) The current offense is a controlled substance charge, in which an allegation under Section 11370.4 or 11379 .8 of the Health and Safety Code was adm itted or found true. “(ii) The current offense is a felony sex offense, defined in subdivision (d) of Section 261.5 or Secti on 262, or any felony offense that results in mandatory registration as a sex offender pursuant to subdivision (c ) of Section 290 except for violations of Sections 266 and 285, paragraph (1) of subdi vision (b) and subdivision (e) of Section 286, paragraph (1) of subdivision (b) and subd ivision (e) of Section 288a, Section 311.11, and Section 314. “(iii) During the commission of the current of fense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person. “(iv) The defendant suffered a prior serious and/or violent felony conviction, as defined in subdivision (d) of this sec tion, for any of the following felonies: “(I) A ‘sexually violent offense’ as defi ned 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 young er than he or she as defined by Section 288a, so domy with another person who is under 14 years of age and more th an 10 years younger than he or she as defined by Section 286, or se xual 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 peac e officer or firefighter, as defined in paragraph (3) of subdivisi on (d) of Section 245. “(VII) Possession of a weapon of mass destruc tion, as defined in paragraph (1) of subdivision (a) of Section 11418. “(VIII) Any serious and/or vi olent felony offense punish able in California by life imprisonment or death.”16 recalled and to be sentenced as a second-strike offender, if the current offense is not a serious or violent felony and the person is not otherwise disqualified. The trial court may deny the petition even if those criteria are met, if the court determines that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126(a)-(g).) Accordingly, under section 1170.126, resenten cing is discretionary even if the defendant meets the objective criteria (§ 1170.126(f), (g)), while sentencing under section 667(e)(2)(C) is mandatory, if the de fendant meets the objective criteria. The intermediate courts have disagreed as to whether the mandatory second-strike sentencing provisions of the Reform Act appl y to all qualifying thir d-strike convictions which were not yet final on November 7, 20 12. The issue is on review before the California Supreme Court. (See, e.g., People v. Conley , review granted Aug. 14, 2013, S211275 [Reform Act is not retroactive]; People v. Lewis [Fourth Dist., Div. Two], review granted Aug. 14, 2013, S211494 [Reform Act applies retroactively]; People v.
Lester [Fourth Dist., Div. Two], review gran ted Jan. 15, 2014, S214648 [Reform Act does not apply retroactively].) Defendant contends that the Reform Act applies retroactively. Neither defendant’s current offense—possession of a controlled substance in a prison—nor his strike priors—assau lt with a firearm, attempted robbery and robbery—disqualify him for resentencing pursu ant to section 667(e)(2)(C). (See fn. 6,

ante .) Accordingly, although he was convicted and sentenced before the effective date of the Reform Act, he contends that he is en titled to be sentenced as a second-striker. The Attorney General contends that the Re form Act applies prospectively only.17 2. Section 667(e)(2)(C) Applies to De fendants Whose Judgments Were Not Yet Final on the Effective Da te of the Reform Act. There is a general rule of statutory cons truction, embodied in section 3 of the Penal Code, that “‘when there is nothing to indicate a contrary intent in a statute it will be presumed that the Legislature intended the statute to operate pr ospectively and not retroactively.’ [Citation.]” ( People v. Floyd (2003) 31 Cal.4th 179, 184 ( Floyd ).) In Estrada , supra , 63 Cal.2d 740, the California Suprem e Court created a limited exception to that presumption. In that case, the court held that wher e a statute has been amended to lessen the punishment for an offense and there is no clear indication of an intent to apply the amendment prospectively only, it must be presumed that the Legislature intended the mitigated punishment to apply to all judgments not yet final as of the effective date of the amended statute. ( Id. at pp. 744-747.) The court held, ‘“A legislative mitigation of the penalty for a particular crime represents a le gislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law.”’ ( Id . at p. 745.) From this, “[i] t is an inevitable inference th at the Legislature must have intended that the new statute imposing th e new lighter penalty now deemed to be sufficient should apply to ev ery case to which it constitutiona lly could apply,” including those which are not yet final. ( Ibid .) The Legislature has never abrogated the Estrada rule. (See People v. Nasalga (1996) 12 Cal.4th 784, 792, fn. 7 ( Nasalga ).) The rule and its c ontinued vitality were most recently discussed by the California Supreme Court in People v. Brown (2012) 54 Cal.4th 314 ( Brown ). In Brown , the court reiterated that Estrada “is today properly18 understood, not as weakening or modifying the default rule of prospective operation codified in section 3, but rath er as informing the rule’s app lication in a specific context by articulating the reasonable presumption that a legislative act mitigating the punishment for a particular criminal offense is intended to apply to all nonfinal judgments. ” ( Id . at p. 324, italics added.) Despite the Estrada presumption, however, a cour t interpreting a statute which ameliorates punishment must nevertheless dete rmine the intent of the Legislature or of the electorate in enacting the statute. ( Floyd , supra , 31 Cal.4th at p. 184

. ) To determine intent, courts look first to th e language of the provision, giving its words their ordinary meaning. If that language is clear in relation to the problem at hand, there is no need to go further. ( Ibid .) If the language is not clear, the tool s of statutory construction must be applied, including but not limited to the Estrada rule. If necessary, the court must also look to other extrinsic indi cators of intention. ( Nasalga , supra , 12 Cal.4th at p. 794.) There is no question that section 667(e)(2 )(C) is an amendment which ameliorates punishment under the three strikes law for those defendants who meet its criteria. However, the Reform Act does not contain a ny explicit provision for retroactive or prospective application, and it does not ex plicitly state what remedy—i.e., section 667(e)(2)(C) or section 1170.126—applies to a person in defendant’s position. Consequently, we must “look fo r any other indications” to de termine and give effect to the intent of the electorate. ( Nasalga , supra , 12 Cal.4th at p. 794.)19 In enacting new laws, both the Legislature and the electorate are “presumed to be aware of existing laws and judi cial construction thereof.” ( In re Lance W. (1985) 37 Cal.3d 873, 890, fn. 11.) Acco rdingly, we presume that in enacting the Reform Act, the electorate was aware of the Estrada presumption that a law ameliorating punishment applies to all judgments not yet final on appeal on the effective date of the new statute. We also presume that the electorate was awar e that a saving clause may be employed to make it explicit that the amendment is to apply prospectively only, and that in the absence of a saving clause or another clear signal of intent to apply the amendment prospectively, the statute is presumed to apply to all nonfinal judgments. ( Nasalga , supra , 12 Cal.4th at p. 793; Estrada , supra , 63 Cal.2d at p. 747.) Previous ballot initiatives have employed explicit language ma king an ameliorative statute prospective. For example, the California Supreme Court held that the previous Proposition 36, approved by voters on November 7, 2000, applied prospectively only, despite its ameliorative effect, because it expressly stat ed, “‘Except as othe rwise provided, the provisions of this act shall become effectiv e July 1, 2001, and its provisions shall be applied prospectively.’” ( Floyd , supra , 31 Cal.4th at pp. 183-185.) The court in Floyd held that the plain language of this saving clause trumped any other possible interpretation of the proposition. ( Id . at pp. 185-187.) In the Re form Act, in contrast, the absence of such language is persuasive evidence that the electorate did intend to apply section 667(e)(2)(C) to nonfinal judgments.20 This construction, moreover, is fully consis tent with the expressed purposes of the Reform Act. In Floyd , the court found further support in the ballot arguments in support of the proposition, which stated that “[ i]f Proposition 36 passes, non-violent drug offenders convicted for the first or second time after 7/1/2000 , will get mandatory, courtsupervised treatment instead of jail.” (Vot er Information Guide, Gen. Elec. (Nov. 7, 2000) argument in favor of Prop. 36, p. 26, italics added; see Floyd , supra , 31 Cal.4th at pp. 187-188.) The ballot argumen ts in support of the Reform Act stated that its purpose was to ensure that “[p]recious financial and law enforcement re sources” were not diverted to impose life sentences for some non-violent offenses, while assuring that violent repeat offenders are effectively punishe d and not released earl y. The proponents stated that the act would “help stop clog ging overcrowded prisons with non-violent offenders, so we have room to keep violent fe lons off the streets” a nd “help[] ensure that prisons can keep dangerous criminals behind ba rs for life.” An additional purpose was to save taxpayers “$100 million ev ery year” by ending wasteful spending on housing and health care costs for “non-violent Three St rikes inmates.” Moreover, the act would ensure adequate punishment of non-violent re peat offenders by doubling their state prison sentences. The proponents pointed out that dangerous criminals were being released early because “jails are overcro wded with non-violent offende rs who pose no risk to the public.” And, the proponen ts stated that by passing Pr oposition 36, “California will retain the toughest recidivist Three Strike s law in the country but will be fairer by emphasizing proportionality in sentencing and will prov ide for more evenhanded application of this important law.” The proponents pointed out that “[p]eople convicted21 of shoplifting a pair of socks, stealing bread or baby formula [ sic ] don’t deserve life sentences.” (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) argument in favor of Prop. 36 and rebuttal to argument agains t Prop. 36 <http://voterguide.sos.ca.gov/ propositions/36/arguments-rebuttals .htm> [as of Feb. 21, 2014].) Applying section 667(e)(2)(C) to nonfinal judgments is wholly consistent with these objectives, in that doing so would enha nce the monetary savings projected by the proponents and would further se rve the purposes of reducing the number of non-violent offenders in prison populations and of rese rving the harshest punishment for recidivists with current convictions for serious or violen t felonies, while still assuring public safety by imposing doubled prison terms on less serious repeat offenders. For both of these reasons—the absence of any expressed intent to apply the act prospectively only and the stated intent underlying the proposition—we conclude that section 667(e)(2)(C) applies to judgments whic h were not final as of its effective date.
In People v. Yearwood (2013) 213 Cal.App.4th 166 (review den. May 1, 2013, S209060) ( Yearwood ), currently the on ly published opinion on th is issue in which review has not been granted, the court held that th e Reform Act applies prospectively only. In Yearwood , as in this case, the defendant woul d have been entitled to second-strike sentencing under the Reform Act if he had been sent enced initially after the effective date of the Reform Act. He had already been sentenced and his appeal was pending on the date the act became effective. The court held that even though th e judgment was not yet final, Yearwood’s only remedy was to petition for recall of his sentence and for resentencing pursuant to section 1170.126. ( Yearwood , at pp. 167, 168, 169.)22 The court held, as we have, that the Re form Act does not contain a saving clause or refer to retroactive or prospective app lication or refer exp licitly to persons in Yearwood’s position. Nevertheless, the c ourt held, section 1170 .126 unambiguously applies to prisoners whose judgments were no t final on the Reform Act’s effective date, because those prisoners were “presently serv ing” an indeterminate life term under the three strikes law. (See § 11 70.126(a).) The court held that section 1170.126 therefore effectively operates as the f unctional equivalent of a savi ng clause and, if section 667(e)(2)(C) is read not in is olation but in the context of th e entire statutory scheme, it is clear that the mandatory sentencing provision of section 667(e)(2)(C) is intended to operate prospectively only. ( Yearwood , supra , 213 Cal.App.4th at p. 175.) Yearwood is correct that even in the absence of an express saving clause there may be other reasons to determine that the en acting body intended the statute to apply prospectively only. Brown , supra , 54 Cal.4th 314, provides an example. In that case, the court held that an amendment to section 4019 which increased the rate at which prisoners may earn credits for good behavi or applied prospectively only, despite the absence of express language to that effect, because the purpose of section 4019 is to provide an incentive for good behavior during incarcerati on. Accordingly, rath er than reflecting a determination that a reduced penalty for past criminal conduct satisfies the legitimate ends of criminal law, section 4019 addresses “ future conduct in a custodial setting by providing increased incentives for good behavior.” ( Brown , at p. 325.) Awarding the credit retroactively, for time sp ent in custody before the effe ctive date of the amendment, would not further that purpose. Consequently, the court held, there is no logical basis for23 inferring that the Legislature intended the ame nded statute to apply re troactively, and the Estrada rule does not apply. ( Brown , at p. 325 & fn. 15.) The same is not true of the Reform Act, however. As we discussed ab ove, retroactive app lication of section 667(e)(2)(C) is consistent with the prop onents’ stated objectives of reducing prison overcrowding, reducing the resources expende d on third-strike offenders whose current and prior offenses are non- violent and less serious, and enhancing public safety by ensuring that the truly dangerous repeat o ffenders serve indetermin ate life terms less. (More about this below.) Accordingly, ther e is a logical basis for inferring that the electorate intended the amendment to apply to nonfinal judgments. Moreover, we do not agree with Yearwood that section 1170 .126 unambiguously applies to defendants who were serving nonfinal third-strike sentences on the effective date of the Reform Act. In light of the Estrada presumption and the absence of a saving clause in section 667(e)(2)(C), th e provision that section 1170.126(a) applies “exclusively to persons presently serving” a third-strike sentence is ambiguous—does it refer only to prisoners serving sentences which are final, or does it include those whose judgments are not final? It is certainly not so clear as to qualify as the functional equivalent of a saving clause. In Nasalga , supra , 12 Cal.4th 784, the California Supreme Court held that the rule of Estrada is “not implicated where the Legislature clearly signals its intent” to make an amendment prospective, “by the inclus ion of either an express saving clause or its equivalent.” ( Nasalga , at p. 793, italics added.) Th e court did not describe what constitutes an “equivalent” to an express saving clause. However, the court stated that in the absence of an express savi ng clause, the “‘quest for legisl ative intent’” requires that24 “‘the Legislature demonstrate its intention with sufficient cl arity that a reviewing court can discern and effectuate it.’ [Citation.]” ( Ibid .) In our opinion, the statutory language that Yearwood relies on does not meet that require ment because it is ambiguous. We note, too, that Yearwood does not cite a single case in which similarly ambiguous language was deemed to be the equivalent of a saving clause. Yearwood finds support for its position in th e ballot arguments in favor of the Reform Act. It points out that enhancing p ublic safety was a key purpose of the act. ( Yearwood , supra , 213 Cal.App.4th at p. 175.) Th e court states that giving section 667(e)(2)(C) prospective-only applicati on furthers that pur pose by reducing the likelihood that prisoners who are currently dangerous will be released from prison under the Reform Act. In contrast with section 1170.126, section 667(e)(2)(C) does not provide the court with discretion to impose a third-stri ke sentence if it finds that the defendant poses an “unreasonable risk of danger to public sa fety.” (§ 1170.126(f).) Yearwood points out that several years may elapse be tween sentencing and finality, and a defendant who might objectively qualify for second-strike sentenci ng under section 667(e)(2)(C) may have shown him- or herself to pose such a risk by misconduct during postsentencing incarceration. ( Yearwood , at pp. 175-176.) This is arguably a valid concern. However, it is not reflected in the ballot arguments in support of the Reform Act. We cannot say that a concern not expressed in a ballot argument is a clear indication of vote r intent, no matter how valid the concern may be. Moreover, a defendant may also be incarcerated for many months before being convicted and sentenced for a third-strike offe nse. Such a defendant may also display a25 propensity for violence or other conduct whil e incarcerated which indicates that he or she poses a risk to public safety. Neverthe less, any qualifying de fendant convicted and sentenced after the effective date of the Reform Act is entitled to sentencing under section 667(e)(2)(C), and the trial court has no discretion to impose a third-strike sentence even if the court has concerns abou t the defendant’s futu re dangerousness for any reason, including the defendant’s conduct while in custody. For this reason as well, we do not find Yearwood ’s analysis persuasive. 3. Conclusion We conclude that in passing the Three Stri kes Reform Act of 2012, the electorate intended the mandatory sentencing provi sion of sections 667(e)(2)(C) and 1170.12(c)(2)(C) to apply to qualifying defendants whose judgments were not yet final on the effective date of the act. Accordin gly, we need not address defendant’s other contentions. 5. THE TRIAL COURT LACKED AUTHORITY TO ORDER DEFENDANT TO PARTICIPATE IN DRUG COUN SELING WHILE IN PRISON Section 1203.096 provides: “(a) Upon conviction of any felony in which the defendant is sentenced to state prison and in which the court makes the findings set forth in subdivision (b), a court sha ll, in addition to any other te rms of imprisonment, fine, and conditions, recommend in writing that the de fendant participate in a counseling or education program having a substance abuse component while imprisoned.26 “(b) The court shall make the recommenda tion specified in subdivision (a) if it finds that any of the following are true: “(1) That the defendant at the time of the commission of the offense was under the influence of any alcoholic beverages. “(2) That the defendant at the time of the commission of the offense was under the influence of any controlled substance. “(3) That the defendant has a demons trated history of substance abuse. “(4) That the offense or offenses for which the defendant was convicted are drug related.” In this case, at sentencing, the court orde red defendant to participate in a program having a substance abuse component. The ab stract of judgment and sentencing minutes state, “Defendant to partic ipate in a counseling or ed ucational program having a substance abuse component thr ough the Division of Adult In stitutions (PC 1203.096).” Defendant contends that this order constitutes an unauthori zed sentence, in that the statute authorizes the court only to reco mmend participation in a substance abuse program. He asks us to strike that order. The Attorney General co ntends that by virtue of the statutory citation on the abstract of judgment, the Department of Corrections and Rehabilitation will understand that the court in tended only to recommend participation. At most, the Attorney General states, we should order the abstract modified to reflect that it is a recommendation only.27 Defendant is correct that the court’s order exceeded its authority. However, because we are remanding the cause for rese ntencing, the question of the appropriate remedy is moot. On resentencing, the tria l court shall phrase its recommendation that defendant participate in a substance abuse pr ogram as a recommendation, rather than an order.
DISPOSITION The cause is remanded for resentencing pursuant to Penal Code section 667, subdivision (e)(2)(C). The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J.
We concur:

RAMIREZ P. J.

HOLLENHORST J.