Full Resentencing Allowed under 3 Strike Reform Act?

Under the original Three Strikes law, a defendant with two or more prior serious or violent felony convictions would be sentenced to a life term for a current felony conviction even if the current conviction was not for a serious or violent felony (former Penal Code §§ 667(e)(2)(A), 1170.12(c)(2)(C)).

In 2012, California voters enacted the Three Strike Reform Act as Proposition 36, which stated that a defendant with two or more prior convictions for serious or violent felonies, whose current conviction was for a nonserious or nonviolent felony, would no longer receive a life sentence.  Instead, the term for the current offense would be doubled (Penal Code §§ 667(e)(2)(A), 1170.12(c)(2)(C)).

The Three Strikes Reform Act also provided that any person currently serving a life term pursuant to the Three Stikes law for a conviction for a felony that is not serious or violent may petition for resentencing (Penal Code § 1170.126(b)).  The petition must be filed within two years of the effective date of § 1170.126(b), or on a later date upon a showing of good cause. Id.

If the petitioner satisfies the criteria for resentencing, the petitioner shall be resentenced as a second-striker “unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.”  Penal Code § 1170.126(f).

In 2009, in Santa Barbara County Superior Court, Edgardo Ortiz Guevara was convicted of felony spousal abuse (Penal Code § 273.5(a)) and misdemeanor child endangerment (Penal Code § 273a(b)).  Felony spousal abuse is not a serious or violent felony as defined in Penal Code §§ 667.5(c) and 1192.7(c).  Mr. Guevara admitted two prior strike convictions within the meaning of the Three Strikes law and three prior prison terms (Penal Code § 667.5(b).  The trial court judge sentenced him to 25 years to life under the Three Stikes law plus three years for the prior prison term enhancements.

In 2013, after the Three Stikes Reform Act was passed, Mr. Guevara petitioned for resentencing and the trial court denied him relief, finding that resentencing him would pose an unreasonable risk of danger to public safety.  The court explained that Mr. Guevara had an extensive criminal history, including convictions for five felonies, multiple probation violation and multiple parole violations.  He also was found with a deadly weapon in prison, in 2011.  While his resentencing petition was pending, in 2014, he was found with another deadly weapon in prison.  A gang expert testified further that Mr. Guevara was a member of the Casa Blanca gang, a part of the Sureño gang and prison records suggested he worked for the Mexican Mafia.

In 2021, the Legislature passed Senate Bill No. 483, adding what is now Penal Code § 1172.75 to the Penal Code. 

In January 2023, the California Department of Corrections and Rehabilitation (CDCR) identified Mr. Guevara as being eligible to have his prior prison term enhancements stricken under § 1172.75, which retroactively invalidated such enhancements imposed prior to January 1, 2020.

In June 2023, the trial court held a hearing to determine if Mr. Guevara was entitled to have his sentence recalled and be resentenced.  The People agreed that the prior prison term enhancements must be stricken, but disagreed with Mr. Guevara on the scope of resentencing.

Penal Code § 1172.75(d)(2) provides that at the resentencing hearing, “the court shall apply . . . any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.”

Because his third strike was not a serious or violent felony, Mr. Guevara argued that the sentence of his current felony should only be doubled.

The trial court expressed its concern for public safety, but believed it was compelled by law to resentence Mr. Guevara.  After striking his three prior prison term enhancements, the judge resentenced Mr. Guevara to eight years, double the upper term on felony spousal abuse.

The People sought a stay and a writ of mandate and appealed to the Second Appellate District Court in Ventura to challenge the resentencing.

The Second Appellate District then reversed the trial court, explaining that to read Penal Code § 1172.75 together with Penal Code § 1170.126 (the Three Strike Reform Act) would effectively repeal the Three Strikes Reform Act for those serving indeterminate terms with prison prior enhancement, but not for those prisoners serving a third strike indeterminate sentence without prison prior enhancements.  More importantly, section 1172.75’s ameliorative provisions could not amend the Three Strikes Reform Act because they were not passed by a two-thirds majority.  Consequently, § 1172.85’s resentencing provisions could not affect the sentence for third strike offenders whose petitions under § 1170.126 have been denied, such as Mr. Guevara.