Filed 7/14/14 P. v. Kimble 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Butte)
                                                            ----




THE PEOPLE,                                                                                  C073819

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM026600)

         v.

KELLY VAUGHN KIMBLE,

                   Defendant and Appellant.




         Defendant Kelly Vaughn Kimble appeals from the trial court’s denial of his
petition for resentencing under the Three Strikes Reform Act of 2012. He contends a jury
was required to find him dangerous beyond a reasonable doubt for the trial court to deny
his petition for resentencing and, barring that, the trial court should have made the
dangerousness finding “upon a showing of clear and convincing evidence.” Following
the decision of another appellate court (People v. Superior Court (Kaulick) (2013) 215
Cal.App.4th 1279 (Kaulick)), we affirm.



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                   FACTUAL AND PROCEDURAL BACKGROUND
       In 2008, a jury found defendant guilty of stalking his girlfriend and the court
sentenced him to prison for 25 years to life under the three strikes law because he also
had prior convictions for attempted kidnapping and criminal threats. The stalking trial
included evidence that defendant slapped his girlfriend so hard she could not hear for
three days and repeatedly threatened to kill her and then her parents.
       Four years after defendant’s three strikes sentence, the electorate passed the Three
Strikes Reform Act. Under the Three Strikes Reform Act, “prisoners currently serving
sentences of 25 years to life for a third felony conviction which was not a serious or
violent felony may seek court review of their indeterminate sentences and, under certain
circumstances, obtain resentencing as if they had only one prior serious or violent felony
conviction.” (Kaulick, supra, 215 Cal.App.4th at pp. 1285, 1286.) If a defendant such as
the one here satisfies certain criteria, “the petitioner shall be resentenced . . . unless the
court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.” (Pen. Code,1 § 1170.126, subd. (f).)
       In the trial court, defendant argued in his written motion that his “sentence
reduction . . . c[ould] only be denied following a hearing where the prosecution proves by
a preponderance of the evidence that resentencing [him] . . . would pose a current,
unreasonable risk to public safety.” “In determining whether resentencing [him] would
pose an unreasonable risk to public safety, th[e trial] [c]ourt must assess [his] current
danger to the community.” And “there [wa]s insufficient evidence for the court to make
a finding that [he] presents a current, unreasonable danger to public safety.”




1      All further section references are to the Penal Code.

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       As defendant requested, the trial court held a hearing at which the court considered
evidence of dangerousness presented by the People. The court also considered the
evidence defendant had submitted and allowed defendant to testify.
       The court then found that defendant would “be an unreasonable risk of danger to
the public if released.” The court explained its finding as follows: his prior criminal acts
“involved physical violence”; “whenever he was placed on probation, he violated
probation”; [w]hen he was on parole, he violated parole”; while in prison for the current
offense, he “continues to defy authority year after year . . . [a]nd in both 2009 and again
in 2010, he assault[ed] another inmate”; and “[h]is other activities include letter writing
to other prisoners wherein he brags to other prisoners about his future plans to hustle and
his apparent continued gang ties which . . . are apparent by his refusal to move from his
cell in the Butte County Jail for gang related reasons.”
       Now, on appeal, defendant contends that a jury was required to find him
dangerous beyond a reasonable doubt and, barring that, the finding of dangerousness
should have been made by the trial court “upon a showing of clear and convincing
evidence.” Quoting Kaulick, we explain why defendant is wrong.
                                       DISCUSSION
       Defendant first argues he had a right to a jury trial based on proof beyond a
reasonable doubt of his dangerousness. As explained in Kaulick, “[t]his argument
presumes that a finding of dangerousness is a factor which justifies enhancing a
defendant’s sentence beyond a statutorily presumed second strike sentence” and “that,
once the trial court concluded that he was eligible for resentencing under the Act, he was
subject only to a second strike sentence, unless the prosecution established
dangerousness.” (Kaulick, supra, 215 Cal.App.4th at pp. 1301, 1302.)
       “The statutory language, however, is not amenable to [the defendant]’s
interpretation. Penal Code section 1170.126, subdivision (f) does not state that a
petitioner eligible for resentencing has his sentence immediately recalled and is

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resentenced to either a second strike term (if not dangerous) or a third strike
indeterminate term (if dangerousness is established). Instead, the statute provides that he
‘shall be resentenced’ to a second strike sentence ‘unless the court . . . determines that
resentencing the petitioner would pose an unreasonable risk of danger to public safety.’
In other words, dangerousness is not a factor which enhances the sentence imposed when
a defendant is resentenced under the Act; instead, dangerousness is a hurdle which must
be crossed in order for a defendant to be resentenced at all. If the court finds that
resentencing a prisoner would pose an unreasonable risk of danger, the court does not
resentence the prisoner, and the petitioner simply finishes out the term to which he or she
was originally sentenced.” (Kaulick, supra, 215 Cal.App.4th at pp. 1302-1303.)
       “The maximum sentence to which [the defendant], and those similarly situated to
him, is subject was, and shall always be, the indeterminate life term to which he was
originally sentenced. While Proposition 36 presents him with an opportunity to be
resentenced to a lesser term, unless certain facts are established, he is nonetheless still
subject to the third strike sentence based on the facts established at the time he was
originally sentenced. As such, a court’s discretionary decision to decline to modify the
sentence in his favor can be based on any otherwise appropriate factor (i.e.,
dangerousness), and such factor need not be established by proof beyond a reasonable
doubt to a jury.” (Kaulick, supra, 215 Cal.App.4th at p. 1303.)
       As to defendant’s backup argument that the standard of proof for a finding of
dangerousness should have been clear and convincing evidence, we agree with Kaulick
that “the proper standard of proof is preponderance of the evidence. Evidence Code
section 115 provides that, ‘[e]xcept as otherwise provided by law, the burden of proof
requires proof by a preponderance of the evidence.’ There is no statute or case authority
providing for a greater burden, and [the defendant] has not persuaded us that any greater
burden is necessary. In contrast, it is the general rule in California that once a defendant
is eligible for an increased penalty, the trial court, in exercising its discretion to impose

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that penalty, may rely on factors established by a preponderance of the evidence.
[Citation.] As dangerousness is such a factor, preponderance of the evidence is the
appropriate standard.” (Kaulick, supra, 215 Cal.App.4th at p. 1305, fns. omitted.)
                                     DISPOSITION
      The judgment (the court’s order denying defendant’s petition for resentencing) is
affirmed.



                                                      ROBIE                 , J.



We concur:



      RAYE                 , P. J.



      HOCH                 , J.




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