People v. Mueck CA3

Filed 10/25/13 P. v. Mueck CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Tehama) ----

THE PEOPLE, C071720

Plaintiff and Respondent, (Super. Ct. No. NCR81726)

v.

STEVEN WERNER MUECK,

Defendant and Appellant.

Defendant Steven Werner Mueck pleaded guilty to bribing a witness and admitted to previously being convicted of two serious or violent felonies. After a motion to withdraw his plea was denied, defendant was sentenced to an indeterminate term of 25 years to life in state prison in accordance with his plea. Defendant’s sole claim on appeal is that he is entitled to benefit from the change in law enacted by Proposition 36 because the judgment in his case is not yet final. He asks us to vacate his sentence and remand this matter to the trial court for a new sentencing hearing. We affirm the judgment.

1

DISCUSSION While defendant's appeal was pending, the voters passed Proposition 36, limiting three strike sentences to current convictions for serious or violent felonies, or a limited number of other felonies that are not relevant here. (See Pen. Code, §§ 1170.12, subd. (c), 667, subd. (c).)1 If defendant had been sentenced today, he would not be subject to an indeterminate life term. Proposition 36 also added section 1170.126, which creates a postconviction release proceeding “intended to apply exclusively to persons presently serving an indeterminate term of imprisonment pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, whose sentence under this act would not have been an indeterminate life sentence.” (§ 1170.126, subd. (a).) A prisoner is eligible for resentencing under section 1170.126 as a second strike offender if certain requirements are met. (§ 1170.126, subd. (e).) In asking us to vacate his sentence and remand the matter, defendant relies on In re Estrada (1965) 63 Cal.2d 740 (Estrada). Under Estrada, a statute lessening punishment is presumed to apply to all cases not yet reduced to final judgment on the statute's effective date unless there is a savings clause or its equivalent providing for prospective application. (Id. at pp. 744-745, 747-748; People v. Brown (2012) 54 Cal.4th 314, 322, 328 [Estrada principles did not require retroactive application of section 4019 amendments concerning presentence conduct credits].) Defendant contends the holding in Estrada applies to him and under the amended law he must be automatically resentenced to a determinate term (rather than merely remanded for a discretionary resentencing hearing pursuant to section 1170.126).