Filed 1/20/15 P. v. Andrade CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                   2d Crim. No. B252846
                                                                            (Super. Ct. No. CR37160)
     Plaintiff and Respondent,                                                  (Ventura County)

v.

ALBERT TICO ANDRADE,

     Defendant and Appellant.


                   Albert Tico Andrade appeals an order denying his petition for resentencing
under Penal Code section 1170.126 of the Three Strikes Reform Act of 2012 ("Act").1
(§§ 667, 1170.12, 1170.126; Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012).)
Andrade contends that there is insufficient evidence to support the trial court's
determination that he will pose an unreasonable risk of danger to the public if he is
resentenced as a second strike offender. He contends that section 1170.126 is
impermissibly vague and due process requires us to include the standards for predicting
current dangerousness that govern Romero2 motions and parole suitability
determinations. He also contends he has a Sixth Amendment right to a jury trial on the
question of his current dangerousness. We affirm.


1
    All statutory references are to the Penal Code unless otherwise stated.
2
    (People   v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.)
                      FACTUAL AND PROCEDURAL HISTORY
              Andrade is serving a term of 25 years to life under the three strikes law for
a 1995 conviction by jury for vehicle theft. (Veh. Code, § 10851, subd. (a).) His
criminal history includes prior felony convictions for attempted robbery and bank
robbery. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 211, 664; 18 U.S.C. § 2113(a).)
              In a previous appeal, Andrade challenged the underlying third-strike
sentence. We remanded his case for resentencing to ensure that the trial court understood
it had discretion to reduce Andrade's conviction for vehicle theft to a misdemeanor and to
sentence him as a second-strike offender. (People v. Andrade (Dec. 19, 1996, B100214
[nonpub. opn.] (Andrade I); People v. Vessell (1995) 36 Cal.App.4th 285, 295.) The trial
court resentenced Andrade as a third-strike offender. It stated, "The defendant's record
suggests [that] he is the very kind of guy who ought to be serving 25 to life." (People v.
Andrade (Jan. 13, 1998, B112277) [nonpub. opn.] (Andrade II).) We affirmed the
judgment.
              In 2012, Andrade filed the current petition for resentencing as a second-
strike offender under the authority of the newly enacted Act.3 The trial court conducted
an evidentiary hearing. The People presented documentary evidence of Andrade's
criminal history and his behavior while incarcerated. Andrade testified and presented one
witness, a representative of a residential substance abuse treatment program. The trial
court denied the petition. It determined that Andrade is eligible to be considered for
resentencing, but resentencing poses an unreasonable risk of danger to public safety.
              In 1987, when Andrade was 20 years old, he was convicted of his first
strike offense, attempted robbery. He and another person lay in wait for and attacked a
52-year-old man outside a convenience store in an effort to steal his wallet. (§§ 211,
664.) They hit and kicked the man. When someone tried to come to the man's aid,
Andrade attacked that person.



3
 Andrade filed a petition for writ of habeas corpus. The trial court treated it as a petition
for resentencing authorized by section 1170.126.
                                              2
               While on parole for the attempted robbery in 1988, Andrade committed
bank robbery. (18 U.S.C. § 2113.) He was charged in a federal indictment with robbing
bank tellers "by force, violence, and intimidation," on three occasions in 1988 and 1989.
He pled guilty to two counts. After he served a federal prison term, he violated the terms
of supervised release when he did not report for supervision. He returned to federal
prison in 1993 for eight months after he admitted the violation. In 1994, Andrade
suffered misdemeanor violations. During a traffic stop in 1995, he was found to have an
ice pick in his pants.
               In 1995, Andrade committed the vehicle theft for which he is serving a
third-strike sentence. He was 27 years old. He attacked the driver of the car before he
took it and drove the car into the backyard of Theresa Martinez. In Andrade's words, "I
go over there and vandalize their home, the garage and the truck and the fence with the
car." We summarized testimony in Andrade I: "Andrade drove 'peel-outs [and] donuts'
in the yard and struck a Christmas tree, a shed, Martinez's truck, and the front door and
side wall of the garage. Andrade then 'ran over' a discarded washer and dryer and 'stuff
on the side of the yard.'. . . '[T]he car was stuck up on the washer and dryer and then he
revved the engine [and] the car got down, and [Mrs. Martinez] was trying to cross the
street, and he tried to hit her.'"
               While incarcerated between 1996 and 2012, Andrade was involved in 19
disciplinary incidents. These include violent incidents in 1999, 2002, 2006, and 2012. In
1999, Andrade and another inmate attacked a third inmate in a dining hall, starting a riot.
A hearing officer found Andrade guilty of participating in the riot. In 2002, Andrade and
another inmate chased a third inmate into an exercise yard and attacked him. A guard
found a hand-made sharp metal weapon nearby. The victim suffered five puncture
wounds to his neck and throat. A hearing officer found Andrade was guilty of battery on
an inmate with a weapon. Andrade testified that in 2006 he was a victim of attempted
murder because he refused an "order" to stab another inmate. Later that year, Andrade
participated in a coordinated attack on guards by 25 inmates. During the ensuing riot,
Andrade and other inmates prevented a security gate from closing so more inmates could

                                             3
join the attack. A hearing officer found Andrade guilty of participating in the riot. In
2012, Andrade participated in another violent riot.
              Andrade's juvenile criminal history includes joyriding (§ 499) and stealing
beer from a store (§ 459) at age 14; vehicle theft (Veh. Code, § 10851) at age 15;
possessing a concealed knife (§ 594, subd. (b)(2)), vandalism (§ 594), and burglary
(§ 459) at age 16. The vandalism petition arose from an incident in which Andrade
attacked a parked car, with a mother and three young children inside, at a gas station.
Andrade kicked and dented the driver's door, hit the hood, and yelled, "Move your car
bitch or I'll kill your kids." Andrade opened a passenger door where the woman's nine-
year-old boy was sitting and yelled, "You hear me, I'll kill your fucking kids." He tried to
kick the boy, but missed when the boy moved. Andrade escaped from juvenile facilities
twice that same year. (Welf. & Inst. Code, § 871.)
              Andrade testified that he committed the vehicle theft because he was drunk
and his prior offenses were all alcohol related. He participated in "NA and AA for like
six months" in 17 years of continuous confinement. He did not participate in educational
classes. He said facility lockdowns sometimes prevented him from attending. He did not
express any need for substance abuse treatment. He said, "The first couple of years in
prison I did drink, but I just got tired of it and I didn't drink no more." He said he
contacted the residential treatment program because he "needed somewhere to go." He
said if he were released, he would "just try to stay--I do--stay away from trouble." He
said it is hard to stay out of trouble in prison. He heard from county jail inmates that
there is work available on the oil platforms.
               The representative of the residential program testified that he would accept
Andrade. The representative met with Andrade twice for a total of about one and a half
hours and he found him to be sincere.
              The trial court issued a written decision in which it weighed the evidence
on each suitability factor and concluded that resentencing Andrade would pose an
unreasonable risk of danger to the public, based primarily upon his criminal history, his


                                                4
consistent pattern of violent behavior in prison, and the absence of a viable plan for
addressing his problem with substance abuse.
                                         DISCUSSION
                Under the three strikes law as it existed before Proposition 36, a defendant
convicted of two prior serious or violent felonies was subject to a sentence of 25 years to
life upon conviction of any third felony. The Act reduces punishment for certain
nonviolent third-strike offenders. Prisoners such as Andrade, who are currently serving
an indeterminate sentence for a third felony conviction which was not a serious or violent
felony, may seek resentencing as a second strike offender to a determinate term.
(§ 1170.126.)
                Upon such petition, the trial court determines whether the inmate is eligible
to be considered for resentencing. It is undisputed that Andrade is eligible. When a
petitioner is eligible, the trial court must decide whether resentencing the petitioner poses
an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).)
                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." (§ 1170.126, subd. (f).) In exercising its discretion, the
trial court may consider "the petitioner's criminal conviction history . . . ; [¶] . . .
disciplinary record . . . ; and [¶] [a]ny other evidence the court, within its discretion,
determines to be relevant in deciding whether a new sentence would result in an
unreasonable risk of danger to public safety." (Id., subd. (g)(1)-( 3).) The trial court's
discretion to resentence under section 1170.126 is akin to other sentencing decisions. A
trial court has "discretion to make numerous other sentencing choices, such as whether to
grant or deny probation, impose consecutive sentences, or strike the punishment for an
enhancement." (People v. Sandoval (2007) 41 Cal.4th 825, 850.) An appellant who
attempts to show abuse of such discretion bears a heavy burden to show the court's
decision was arbitrary, capricious or exceeded the bounds of reason. (People v. Welch
(1993) 5 Cal.4th 228, 234 [decision whether to grant probation].)


                                                5
              The trial court exercised its discretion not to resentence Andrade in the
manner prescribed by section 1170.126 as demonstrated by its thorough written decision
in which it discusses and weighs the evidence on each factor. The People met their
burden to convince the trial court of the facts upon which it relied by a preponderance of
the evidence. (Evid. Code, § 115.)
              Andrade contends that the factors set forth in section 1170.126 for
determining unreasonable risk of danger are unduly vague and should be interpreted to
include the more particularized standards that govern Romero motions and parole
suitability determinations. Whether or not these standards apply to Andrade's
resentencing petition, they are satisfied. In determining whether to strike a prior strike in
the interests of justice because the defendant is outside the spirit of the three strikes law,
courts must consider the defendant's present and prior serious or violent felonies,
background, character, and prospects. (§ 1385, subd. (a); People v. Williams (1998) 17
Cal.4th 148, 161.) Andrade's background, character, and prospects offer little hope for
reform. In deciding that an inmate is not suitable for parole because he or she poses an
unreasonable danger to the public, courts must rely on some evidence of current
dangerousness; must consider the inmate's entire record including his or her criminal
record, history of violence, social history, psychological factors, prison behavior, signs of
remorse, motive for crimes, age, health, and plans for the future; and may not place
unlimited reliance upon immutable historic facts such as the nature of the commitment
offense. (§ 3041; Cal. Code Regs., tit. 15, § 2402, subds. (c) & (d); In re Lawrence
(2008) 44 Cal.4th 1181, 1191.) The record includes reliable, credible evidence of
Andrade's current dangerousness as recently as 2012 when he participated in a prison
riot. His testimony disclosed that he does not take responsibility for his continuing
violent conduct. The trial court considered Andrade's entire record and did not rely
solely on the nature of the commitment offense.
              Andrade forfeited his contention that his federal bank robbery convictions
could not qualify as strikes because he did not raise that issue in either of his two appeals
from the underlying judgment. (See Andrade I and Andrade II.) Moreover, although

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federal bank robbery can be committed without use of force, violence, or intimidation (18
U.S.C. § 2113(a); 1170.12, subd. (b)(2); see People v. Jones (1999) 75 Cal.App.4th 616,
634-635), Andrade pled guilty to robbing the tellers "by force, violence, and
intimidation."
              Andrade points out that he has not committed murder or rape and that his
commitment offense was a "wobbler." (§ 17, subd. (b)(1); Veh. Code, § 10851, subd.
(a).) But these are not overwhelming factors in his favor. Andrade committed vehicle
theft in a dangerous and felonious manner. The record supports the trial court's finding
that the offense "demonstrated a complete disregard for the safety of others." Andrade's
subsequent institutional behavior demonstrates his continuing dangerousness.
              Whether Andrade poses an "unreasonable risk of danger to public safety" is
not a fact that must be pled and proved to a jury beyond a reasonable doubt. (People v.
Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1305.) Any fact that increases
the penalty for a crime beyond the statutory maximum must be proved to a jury beyond a
reasonable doubt in order to satisfy the Sixth Amendment right to a jury trial. (Apprendi
v. New Jersey (2000) 530 U.S. 466, 490; Alleyne v. U.S. (2013) __ U.S. __ [133 S.Ct.
2151].) But this constraint applies only to a fact that is "legally essential to the
punishment." (Blakely v. Washington (2004) 542 U.S. 296, 313.) It does not apply to a
proceeding in which a trial court may, in its discretion, modify downward a properly
imposed sentence. (Dillon v. U.S. (2010) 560 U.S. 817, 828-829; Kaulick, at p. 1304; see
People v. Osuna (2014) 225 Cal.App.4th 1020, 1038 [decision whether a petitioner was
armed with a firearm during the current offense and is therefore ineligible for
resentencing under section 1170.126, subdivision (e) does not implicate Sixth
Amendment rights]; accord People v. Blakely (2014) 225 Cal.App.4th 1042, 1063.) The
resentencing provision does not create a new statutory maximum sentence. (Kaulick, at
p. 1303.)
              Andrade is serving a lawful statutory sentence of 25 years to life based on
facts he either admitted or were proven to a jury beyond a reasonable doubt. The
resentencing provision of the Act is an act of lenity on the part of the electorate and does

                                               7
not implicate Sixth Amendment concerns. (People v. Superior Court (Kaulick), supra,
215 Cal.App.4th at pp. 1304-1305.)
              The more restrictive definition of "unreasonable risk of danger to public
safety," recently enacted by the voters in Proposition 47, "the Safe Neighborhoods and
Schools Act," does not apply to Andrade's resentencing. (§ 1170.18, subd. (c).) Section
1170.18 defines "unreasonable risk of danger to public safety" to mean "an unreasonable
risk that the petitioner will commit a new violent felony within the meaning of clause (iv)
of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667." These "super-
strike" offenses are sexually violent offenses, certain sex crimes that involve a child, any
homicide or attempted homicide, solicitation to commit murder, assault with a machine
gun upon a peace officer or firefighter, possession of a weapon of mass destruction, or
any serious or violent felony that is punishable by life in prison or death. (§ 667, subd.
(e)(2)(C)(iv)(I)-(VIII).) We do not decide whether this definition applies to the Three
Strikes Reform Act, because Proposition 47 succeeded Andrade's petition and is not
retroactive. Proposition 47 does not contain an express declaration of retroactivity and it
is not clear from its history that the voters intended it to be retroactive. (§ 3, People v.
Brown (2012) 54 Cal.4th 314, 324.) The new definition is not retroactive under the
Estrada rule because it does not reduce punishment for a particular crime. (In re Estrada
(1965) 63 Cal.2d 740, 745.) Moreover, Andrade poses an unreasonable risk of
attempting or committing a homicide. (§ 667, subd. (e)(2)(C)(iv)(IV).)
                                       DISPOSITION
              The order is affirmed.
              NOT TO BE PUBLISHED.


                                            GILBERT, P. J.
We concur:

              YEGAN, J.


              PERREN, J.

                                               8
                               Patricia M. Murphy, Judge

                            Superior Court County of Ventura

                           ______________________________


             Nancy L. Tetreault, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Mark E.
Weber, Deputy Attorney General, for Plaintiff and Respondent.




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