Filed 6/30/15 P. v. Martin CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040617
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 202487)

         v.

LAWRENCE MARTIN,

         Defendant and Appellant.




                                           I.        INTRODUCTION
         In 1998, defendant Lawrence Martin was convicted of possession of a concealed
dirk or dagger (Pen. Code, § 12020, subds. (a), (c)(24))1 and sentenced to an
indeterminate term of 25 years to life for that offense because he was found to have
suffered four prior felony convictions that qualified as “strikes” (§§ 667, subds. (b)-(i),
1170.12). This court affirmed defendant’s conviction and sentence in People v. Martin
(July 28, 2000, H018961) [nonpub. opn.].2




         1
        All further statutory references are to the Penal Code unless otherwise indicated.
         2
        On our own motion, we take judicial notice of our prior opinion. (Evid. Code,
§ 452, subd. (d)(1).)
       In 2013, defendant filed a petition for recall of sentence in the trial court, pursuant
to section 1170.126. (See id., subd. (b).) Section 1170.126 was added by Proposition 36,
the Three Strikes Reform Act of 2012 (hereafter, Reform Act). On January 16, 2014, the
trial court denied the petition, finding that although defendant was eligible for
resentencing, he posed an “unreasonable risk of danger to public safety” under section
1170.126, subdivision (f) (hereafter, section 1170.126(f)).
       On appeal, defendant contends: (1) under principles of due process and the
Sixth Amendment, he had the right to a jury trial and proof beyond a reasonable doubt on
the issue of whether resentencing him would pose an unreasonable risk of danger to
public safety; (2) if his trial attorney forfeited the first issue by failing to demand a jury
trial, he received ineffective assistance of counsel; (3) remand is required because after
the trial court denied his petition, the electorate changed the definition of “unreasonable
risk of danger to public safety” as used in section 1170.126(f) by the enactment of
section 1170.18, subdivision (c) (hereafter, section 1170.18(c)).
       This court recently rejected similar claims in People v. Lopez (2015) 236
Cal.App.4th 518 (Lopez), and we follow that decision here. As we find no merit to
defendant’s claims, we will affirm the order denying defendant’s petition for recall of
sentence.

                                  II.     BACKGROUND
       A.     Underlying Offenses and Strike Allegations3
       On September 18, 1997, at about 11:00 p.m., two San Jose State University Police
Officers encountered defendant in the driveway of a San Jose apartment complex.
Defendant agreed to speak with the officers and admitted he had a knife on him, showing



       3
       The following summary is taken from People v. Martin, supra, H018961
[nonpub. opn.].


                                               2
the officers a knife that was tucked into his jacket sleeve. In his pants, defendant had a
baggie containing 2.28 grams of marijuana and a glass pipe.
        Defendant was subsequently convicted of possession of a concealed dirk or dagger
(§ 12020, subds. (a), (c)(24)) and misdemeanor possession of marijuana (Health & Saf.
Code, § 11357, subd. (b)). The trial court found true allegations that defendant had
suffered four prior felony convictions that qualified as “strikes” (§§ 667, subds. (b)-(i),
1170.12) and had served three prior prison terms (§ 667.5, subd. (b)). The “strike”
allegations were based on defendant’s prior convictions of felony battery with infliction
of great bodily injury, burglary of an inhabited dwelling house (two convictions), and
attempted burglary of an inhabited dwelling house.
        B.     Sentencing and Appeal
        At his sentencing hearing on August 11, 1998, defendant requested the trial court
exercise its discretion to strike his “strikes” pursuant to People v. Superior Court
(Romero) (1996) 13 Cal.4th 497. The trial court declined to do so, finding that “in light
of the defendant’s current and past crimes and the particulars of his background,
character, and prospects,” defendant did not fall “outside the spirit of the three strikes
law.”
        The trial court sentenced defendant to an indeterminate term of 25 years to life for
possession of a concealed dirk or dagger, with three consecutive one-year terms for the
three prior prison term allegations, for an aggregate sentence of 28 years to life. This
court affirmed defendant’s conviction and sentence in 2000.
        C.     Petition for Recall of Sentence
        On January 15, 2013, defendant filed a petition for recall of sentence, requesting
appointment of counsel and a finding that he was eligible for resentencing under the
provisions of section 1170.126. The trial court found that defendant “appear[ed]” to be
eligible for resentencing, appointed counsel, and set a hearing. In an order filed on



                                              3
June 7, 2013, the trial court found that petitioner was in fact eligible for resentencing
under section 1170.126, subdivision (e).4
       The prosecution subsequently filed written opposition to defendant’s petition for
recall of sentence, in which it argued that defendant continued to pose an unreasonable
risk of danger to public safety. (See § 1170.126(f).) The prosecution discussed
defendant’s criminal history, his prison disciplinary record, and statements defendant
made to the probation officer at the time of sentencing. (See id., subd. (g).5)
       In a written reply to the prosecution’s opposition, defendant argued that he had the
right to a jury trial on the question of whether he posed an unreasonable risk of danger to
public safety. Defendant also argued that he presented a low risk of danger to public
safety due to his age (he was 54 years old at the time) and the facts relating to his
criminal history and prison disciplinary record.
       A hearing on defendant’s petition for recall of sentence was held on January 16,
2014. Defendant presented the testimony of an expert on California prison
classifications, discipline, complaints, housing, and gangs. The expert testified about
defendant’s various disciplinary incidents, which included six serious rules violations




       4
          The trial court rejected the prosecution’s argument that defendant was
ineligible for resentencing because he was “armed with a firearm or deadly weapon”
in the commission of his felony offense. (See §§ 1170.126, subd. (e)(2); 667,
subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) The parties do not challenge this
ruling on appeal.
        5
          Section 1170.126, subdivision (g) provides: “In exercising its discretion in
subdivision (f), the court may consider: [¶] (1) The petitioner’s criminal conviction
history, including the type of crimes committed, the extent of injury to victims, the length
of prior prison commitments, and the remoteness of the crimes; [¶] (2) The petitioner’s
disciplinary record and record of rehabilitation while incarcerated; and [¶] (3) Any 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.”


                                              4
between 2002 and 2012. Several of defendant’s disciplinary incidents involved violence,
conduct that could lead to violence, or challenges to the authority of correctional officers.
       The trial court explained that it was denying defendant’s petition for recall of
sentence because it found defendant continued to pose an unreasonable risk of danger to
public safety. (See § 1170.126(f).) The trial court first discussed defendant’s criminal
history. (See § 1170.126, subd. (g)(1).) The trial court noted that defendant began “a
criminal career” when he was 18 years old, that he had nine felony convictions (four of
which were strikes), 17 misdemeanor convictions, three prison commitments, and
three parole violations. The trial court referred to the serious nature of defendant’s
burglary and felony battery convictions and the fact that some of his misdemeanor
convictions involved assaultive conduct.
       The trial court next discussed defendant’s record of prison discipline, finding it
“egregious.” (See § 1170.126, subd. (g)(2).) The trial court found it significant that
defendant had six serious rules violations and had committed a battery that resulted in
serious bodily injury on another inmate. The trial court indicated it had also considered
efforts defendant had made to rehabilitate himself. (See § 1170.126, subd. (g)(3).) The
trial court found it concerning that defendant had not yet accepted “responsibility and
accountability” for his actions.
       Ultimately, the trial court found that if defendant was released, he “could very
well be a danger to this community.” The trial court therefore denied defendant’s
petition for recall of sentence.

                                   III.    DISCUSSION
       A.     The Three Strikes Reform Act
       This court recently described the Reform Act in People v. Chubbuck (2014) 231
Cal.App.4th 737 at pages 740-741:




                                              5
       “Under the ‘Three Strikes’ law as it existed prior to the Reform Act [citations], a
defendant who had previously been convicted of two or more serious or violent felonies
was subject to an indeterminate sentence of 25 years to life upon his or her conviction of
any new felony. The Reform Act prospectively changed the Three Strikes law by
reserving indeterminate life sentences for cases where the new offense is also a serious or
violent felony, unless the prosecution pleads and proves an enumerated disqualifying
factor. In all other cases, a recidivist defendant will be sentenced as a second strike
offender, rather than a third strike offender. [Citations.]
       “The Reform Act also created a ‘ “post-conviction release proceeding” ’ whereby
a Three Strikes prisoner who is serving an ‘indeterminate life sentence’ for a crime that
was not a serious or violent felony—and who is not otherwise disqualified—may have
his or her sentence recalled and be resentenced as a second strike offender, unless the
court ‘determines that resentencing . . . would pose an unreasonable risk of danger to
public safety.’ [Citations.]”
       The Reform Act, which took effect on November 7, 2012, specifies that a petition
for recall of sentence must be filed “within two years after the effective date of the act
that added this section or at a later date upon a showing of good cause.” (§ 1170.126,
subd. (b); see Prop. 36, § 6, approved Nov. 6, 2012, eff. Nov. 7, 2012.)
       B.     Right to a Jury Trial
       Defendant first contends that under principles of due process and the Sixth
Amendment, he had the right to a jury trial and proof beyond a reasonable doubt on the
issue of whether he would pose an unreasonable risk of danger to public safety if he was
resentenced as a second-strike defendant. According to defendant, a true finding on the
disqualifying factor provided by section 1170.126(f) (i.e., dangerousness) “results in the
imposition of a sentence beyond that which could otherwise lawfully be imposed,” and
thus is “the functional equivalent of an element of an offense which must be found true



                                              6
by a jury to the beyond a reasonable doubt standard” under Apprendi v. New Jersey
(2000) 530 U.S. 466.
       As defendant acknowledges, a similar claim was rejected in People v. Superior
Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1286 (Kaulick). (See also People v.
Flores (2014) 227 Cal.App.4th 1070, 1075-1076 [agreeing with Kaulick].) Recently, in
Lopez, we rejected the claim that Kaulick was “ ‘wrongly decided.’ ” (Lopez, supra, 236
Cal.App.4th at p. 523.)
       In Kaulick, the defendant argued that the standard of proof applicable to the
determination of dangerousness under section 1170.126(f) should be beyond a reasonable
doubt, reasoning that “a finding of dangerousness is a factor which justifies enhancing a
defendant’s sentence beyond a statutorily presumed second strike sentence.” (Kaulick,
supra, 215 Cal.App.4th at p. 1301.) The Kaulick defendant argued that once he was
found eligible for resentencing under the Reform Act, he “was subject only to a second
strike sentence, unless the prosecution established dangerousness.” (Id. at p. 1302.)
       The Kaulick court held that under the Reform Act, a third strike indeterminate
sentence is not effectively recalled upon a finding of eligibility, before the trial court
determines whether dangerousness is established. (Kaulick, supra, 215 Cal.App.4th at
p. 1303.) The court explained: “[D]angerousness 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.” (Ibid., fn. omitted.)
       Kaulick analogized to Dillon v. United States (2010) 560 U.S. 817 (Dillon), in
which the United States Supreme Court held that “its opinions regarding a defendant’s
Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt
do not apply to limits on downward sentence modifications due to intervening laws.

                                               7
[Citation.]” (Kaulick, supra, 215 Cal.App.4th at p. 1304.) In Dillon, the defendant had
been sentenced under the federal sentencing Guidelines. Because the Guidelines were
subsequently amended to provide for a lesser sentencing range for the defendant’s
offense, the defendant moved for a sentence reduction. The District Court reduced his
sentence to a term at the bottom of the revised range, but the court found it did not have
the authority to impose a below-Guidelines sentence. (Dillon, supra, at pp. 823-824.)
The defendant characterized the sentence reduction process as resentencing proceedings
implicating his Sixth Amendment right to a jury, but the Supreme Court characterized the
proceedings as a “ ‘modif[ication of] a term of imprisonment,’ ” to which the Sixth
Amendment did not apply. (Id. at p. 825.)
       Kaulick applied the reasoning in Dillon to petitions for recall of sentence under
section 1170.126. The Kaulick court observed that “[t]he retrospective part of the
[Reform] Act is not constitutionally required, but an act of lenity on the part of the
electorate,” which provides only for a downward modification of a sentence, not
“wholesale resentencing of eligible prisoners.” (Kaulick, supra, 215 Cal.App.4th at
p. 1304.) As such, “[a]ny facts found at such a proceeding, such as dangerousness, do
not implicate Sixth Amendment issues.” (Id. at p. 1305.)
       We agree with Kaulick’s reasoning and conclusion. (See Lopez, supra, 236
Cal.App.4th at pp. 523-524.) We conclude that defendant did not have the right to a jury
trial and proof beyond a reasonable doubt on the issue of whether he would pose an
unreasonable risk of danger to public safety if he was resentenced as a second-strike
defendant. (See § 1170.126(f).)6



       6
          Because we have concluded that defendant had no right to a jury trial on the
issue of dangerousness under section 1170.126(f), we need not address defendant’s
alternate claim that if his trial attorney forfeited that issue by failing to demand a jury
trial, he received ineffective assistance of counsel.


                                               8
       C.     Definition of Unreasonable Risk of Danger to Public Safety
       Defendant contends that remand is required because after the trial court denied his
petition for recall of sentence, the electorate changed the definition of “unreasonable risk
of danger to public safety” as used in section 1170.126(f), through the enactment of
section 1170.18(c). This court rejected this argument in Lopez, supra, 236 Cal.App.4th at
pages 527 to 529, and we adhere to the holding reached in that case.
       On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods
and Schools Act. (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014), eff. Nov.
5, 2014.) Proposition 47 reclassified certain felony drug and theft related offenses as
misdemeanors and enacted a new statutory provision whereby a person serving a felony
sentence for a reclassified offense can petition for a recall of his or her sentence.
(§ 1170.18, subd. (a).) Similar to section 1170.126, newly-enacted section 1170.18
requires the trial court to determine whether “resentencing the petitioner would pose an
unreasonable risk of danger to public safety” before imposing a misdemeanor sentence.
(Id., subd. (b).) Section 1170.18, subdivision (b) specifies that in determining whether
the petitioner poses an “unreasonable risk of danger to public safety,” the trial court is to
consider the same three factors that a court considers in determining whether to
resentence a petitioner under the Reform Act. (See § 1170.126, subd. (g).) But unlike
section 1170.126, section 1170.18 provides a restrictive definition of “unreasonable risk
of danger to public safety.” Section 1170.18(c) reads: “As used throughout this Code,
‘unreasonable risk of danger to public safety’ means 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.”
       Section 667, subdivision (e)(2)(C)(iv) lists eight felonies or classes of felonies:
“(I) A ‘sexually violent offense’ as defined 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 younger than he or she as defined by

                                              9
Section 288a, sodomy with another person who is under 14 years of age and more than
10 years younger than he or she as defined by Section 286, or sexual 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 peace officer or firefighter, as defined in paragraph (3) of
subdivision (d) of Section 245. [¶] (VII) Possession of a weapon of mass destruction, as
defined in paragraph (1) of subdivision (a) of Section 11418. [¶] (VIII) Any serious
and/or violent felony offense punishable in California by life imprisonment or death.”
       Thus, it appears that under section 1170.18(c), the trial court can deny a petition
for recall of sentence for an otherwise eligible petitioner only if it finds that the petitioner
poses an “ ‘unreasonable risk of danger to public safety’ ” because there is “an
unreasonable risk that the petitioner will commit” one of the above-enumerated violent
felonies.
       Defendant argues that section 1170.18(c)’s introductory clause—“As used
throughout this Code”—means that its definition of “unreasonable risk of danger to
public safety” applies whenever that phrase is used in the Penal Code. According to
defendant, the section 1170.18(c) definition of “unreasonable risk of danger to public
safety” is thus incorporated into section 1170.126 proceedings, such that a dangerousness
finding under the section 1170.126(f) now requires that there is an unreasonable risk that
a petitioner will commit one of the eight felonies or categories of felonies listed above.
Defendant contends that a remand is warranted for the trial court to revisit its
dangerousness inquiry in light of the new definition.
       The People counter that section 1170.18(c)’s definition of “unreasonable risk of
danger to public safety” applies only to petitioners seeking a recall of their sentence

                                               10
under that initiative, and that even if the section 1170.18(c) definition of dangerousness
does apply to petitions filed under section 1170.126, the new definition would not apply
retroactively to defendant.7
       Our review of this issue is governed by familiar principles of statutory
construction, which are applicable to voter initiatives like the Reform Act. (See People v.
Osuna (2014) 225 Cal.App.4th 1020, 1034 (Osuna).) “ ‘ “The fundamental purpose of
statutory construction is to ascertain the intent of the lawmakers so as to effectuate the
purpose of the law. [Citations.]” ’ [Citation.]” (Ibid.)
       Although it is a “basic principle of statutory and constitutional construction . . .
that courts, in construing a measure, not undertake to rewrite its unambiguous language,”
that rule need not be applied “when it appears clear that a word has been erroneously
used, and a judicial correction will best carry out the intent of the adopting body.
[Citation.]” (People v. Skinner (1985) 39 Cal.3d 765, 775.) Whether there is a drafting
error “can only be determined by reference to the purpose of the section and the intent of
the electorate in adopting it.” (Id. at p. 776.)
       In Lopez, this court concluded that “the word ‘Code’ was ‘erroneously used’ in
section 1170.18, subdivision (c) rather than the word ‘Act,’ to refer to the [Safe
Neighborhoods and Schools] Act,” and that the error was therefore “properly subjected to
‘judicial correction.’ ” (Lopez, supra, 236 Cal.App.4th at p. 527.) This court explained:
“The ‘purpose’ of section 1170.18 and ‘the intent of the electorate’ in enacting it
unambiguously demonstrate that the voters did not intend to alter the Reform Act or

       7
         The California Supreme Court has granted review in several cases addressing
these arguments. (People v. Valencia (2014) 232 Cal.App.4th 514, review granted
February 18, 2015, S223825; People v. Chaney (2014) 231 Cal.App.4th 1391, review
granted February 18, 2015, S223676; People v. Payne (2014) 232 Cal.App.4th 579,
review granted March 25, 2015, S223856; People v. Crockett (2015) 234 Cal.App.4th
642, review granted May 13, 2015, S225198; see also People v. Davis (2015) 234
Cal.App.4th 1001, review granted June 10, 2015, S225603.)


                                               11
section 1170.126 in any way or to require the resentencing of any person serving a
sentence for a crime other than one of the specified nonserious, nonviolent property or
drug crimes.” (Ibid.)
       This court provided three reasons for the conclusion in Lopez that the use of the
word “Code” was a drafting error. First, we pointed out that “Proposition 47’s ballot
materials and proposed statutory language contained nothing whatsoever to suggest that
Proposition 47 would have any impact on the resentencing of anyone who was serving a
sentence for a crime other than one of the specified nonserious, nonviolent property or
drug crimes.” (Lopez, supra, 236 Cal.App.4th at pp. 527-528.) This court observed that
“the only hint” of such a possible consequence “was the use of the word ‘Code’ rather
than ‘Act’ in an obscure subdivision of the lengthy proposed act” and that the Proposition
47 ballot materials had “repeatedly emphasized” that the resentencing provisions “were
limited to only those persons serving sentences for the specified nonserious, nonviolent
property or drug crimes.”8 (Lopez, supra, at p. 528.) In light of these facts, this court
found it “inconceivable that voters intended for subdivision (c) of section 1170.18 to
severely restrict the ability of a court to reject a resentencing petition under the Reform




       8
         The Legislative Analyst wrote in the Voter Information Guide that
Proposition 47 was intended to reduce penalties for “certain nonserious and nonviolent
property and drug offenses from wobblers or felonies to misdemeanors,” and identified
those crimes as “Grand Theft,” “Shoplifting,” “Receiving Stolen Property,” “Writing Bad
Checks,” “Check Forgery,” and “Drug Possession.” (Voter Information Guide, Gen.
Elect. (Nov. 4, 2014) analysis by the Legislative Analyst, pp. 35-36.) The analysis
explained that the initiative “allows offenders currently serving felony sentences for the
above crimes to apply to have their felony sentences reduced to misdemeanor sentences,”
and that “a court is not required to resentence an offender currently serving a felony
sentence if the court finds it likely that the offender will commit a specified severe
crime.” (Id. at p. 36, italics added; see Osuna, supra, 225 Cal.App.4th at p. 1034
[analyses and arguments in official ballot pamphlet are indicia of voters’ intent].)


                                             12
Act by a person convicted of crimes other than one of the specified property or drug
crimes and whom the court considered dangerous.” (Ibid.)
       Second, this court observed that “the timing of Proposition 47 makes an intent to
alter the Reform Act illogical.” (Lopez, supra, 236 Cal.App.4th at p. 528.) Under
section 1170.126, subdivision (b), petitions for recall of sentence were required to be
filed within two years of the date the Reform Act was enacted, except upon a showing of
good cause. The Reform Act became effective on November 7, 2012 (Prop. 36, § 6, as
approved by voters, Gen. Elec. (Nov. 6, 2012), eff. Nov. 7, 2012) and thus petitions for
recall of sentence were required to have been filed by November 7, 2014, which was only
two days after the effective date of Proposition 47. It would be irrational for the voters
who enacted Proposition 47 in 2014 to intend to change the definition of dangerousness
that applied to petitions filed under the Reform Act, since there were only two more days
in the filing window. At that point, “nearly all [Reform Act] petitions would already
have been filed and most of them adjudicated.” (Lopez, supra, at p. 528.)
       Third, this court reasoned that “the structure and content of section 1170.18 is
inconsistent with an intent to apply section 1170.18, subdivision (c)’s definition
throughout the entire Penal Code.” (Lopez, supra, 236 Cal.App.4th at p. 528.) This court
noted that section 1170.18 specifies that “ ‘[n]othing in this and related sections is
intended to diminish or abrogate the finality of judgments in any case not falling within
the purview of this act.’ (§ 1170.18, subd. (n), italics added.)” (Lopez, supra, at p. 528.)
This court reasoned that “[a]pplying section 1170.18, subdivision (c)’s definition
throughout the Penal Code would necessarily ‘diminish or abrogate the finality of
judgments’ in cases, like those subject to the Reform Act, that do not fall ‘within the
purview of’ Proposition 47.” (Ibid.) This court pointed out that a petition under the
Reform Act “seeks to abrogate the finality of a Three Strikes judgment in a case that does
not involve one of the specified nonserious, nonviolent property or drug crimes.” (Lopez,
supra, at p. 528.) This court further concluded that “the wording of section 1170.18,

                                             13
subdivision (c) is itself inconsistent with an intent to apply it ‘throughout’ the entire Penal
Code.” (Lopez, supra, at p. 528.) This court noted that the statute “refers to ‘petitioners’
and defines a phrase that appears in only two sections of the Penal Code, section 1170.18
and section 1170.126.” (Ibid.) This court observed that “[i]f the voters had intended to
apply this definition to Reform Act petitions, this phrasing would have been the most
roundabout means of doing so.” (Ibid.) This court declined to “ascribe such
unreasonable conduct to the voters,” particularly “[s]ince the ballot materials made no
mention of the Reform Act.” (Ibid.)
       We adhere to Lopez and conclude that section 1170.18(c) contains a drafting error
that must be judicially corrected. “The word ‘Code’ must be read as ‘Act.’ ” (Lopez,
supra, 236 Cal.App.4th at p. 529.) Therefore, the definition of “unreasonable risk of
danger to public safety” in section 1170.18(c) does not apply to the phrase “unreasonable
risk of danger to public safety” as used in section 1170.126(f).

                                   IV.    DISPOSITION
       The order denying defendant’s petition for recall of sentence is affirmed.




                                              14
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P. J.




I CONCUR:




__________________________
MIHARA, J.




People v. Martin
H040617
Márquez, J., Concurring.
       I agree defendant was not entitled to a jury trial and proof beyond a reasonable
doubt on whether he would pose an unreasonable risk of danger to public safety. Like
my colleagues, I agree with the reasoning in People v. Superior Court (Kaulick) (2013)
215 Cal.App.4th 1279 (Kaulick) that a finding under the Three Strikes Reform Act of
2012 (the Reform Act) that a defendant poses an unreasonable risk of danger to public
safety does not enhance a defendant’s sentence. (Kaulick, supra, 215 Cal.App.4th at
p. 1303.) Instead, such a finding makes a defendant ineligible for resentencing under the
Reform Act such that he or she “simply finishes out the term to which he or she was
originally sentenced.” (Ibid.) Because the original sentence is not enhanced, the right to
a jury trial is not implicated.
       But I respectfully disagree with the majority’s conclusion that Proposition 47
“ ‘contains a drafting error that must be judicially corrected.’ ” (Maj. opn., p. 14, citing
People v. Lopez (2015) 236 Cal.App.4th 518, 529 (Lopez).) The majority finds the
drafting error in the phrase: “As used throughout this Code, ‘unreasonable risk of danger
to public safety’ means 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.” (Pen. Code, § 1170.18, subd. (c).)
       In my view, the plain text of that voter-enacted language makes the definition of
the term “unreasonable risk of danger to public safety” applicable wherever it is used
“throughout” the Penal Code. The majority concludes the drafters meant to use the word
“Act” instead of “Code” (Maj. opn., p. 14), but that reading would render superfluous the
term “throughout” in the statutory phrase. The term “unreasonable risk of danger to
public safety” is used only twice in the Penal Code—once in the Reform Act, and once in
Proposition 47. The drafters would not have used the prefatory phrase “As used
throughout” to refer to a single use within the Act. I believe the drafters intended to
apply the definition wherever that term is “used throughout” the Penal Code, including its
use in the Reform Act.
       The majority notes the absence of ballot materials and other indicia of legislative
intent indicating the term was intended to apply to the Reform Act. (Maj. opn., p. 12.)
But there is no need to resort to the ballot materials or other extrinsic sources where the
plain language is clear. In my view, where the plain language at issue is consistent with
the voters’ intent to reduce punishments for certain crimes, regardless of whether
punishments are reduced through recall petitions under the Reform Act or Proposition 47.
Whether the voters’ enactment of this language is sound public policy is beyond the reach
of the judiciary—particularly here, where the voters enacted language explicitly limiting
judicial discretion.
       If the policy embodied in the statutory language at issue requires some alteration,
that reform should be undertaken by the Legislature and the Governor. Proposition 47
“may be amended by a two-thirds vote of the members of each house of the Legislature
and signed by the Governor so long as the amendments are consistent with and further
the intent of this act.” (Stats. 2014, p. A-20, Prop. 47, § 15.) An explicit purpose and
intent of Proposition 47 is to “[r]equire a thorough review of criminal history and risk
assessment of any individuals before resentencing to ensure that they do not pose a risk to
public safety.” (Stats. 2014, p. A-13, Prop. 47, § 3, subd. 5.) Thus, there is no doubt the
Legislature and the Governor could amend Proposition 47 to address safety-related policy
concerns that may arise from the definitional language. I would leave it to the other
branches of government to make any such changes to the voter-enacted statute.
       Although I disagree with the majority’s analysis of Proposition 47, even if the
definitional language therein applies to the Reform Act, I would conclude the definition
does not apply retroactively to this case. It is well-established that statutes apply
prospectively. (People v. Brown (2012) 54 Cal.4th 314, 319-324.) Although In re

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Estrada (1965) 63 Cal.2d 740 and its progeny recognize a limited exception for statutes
that reduce the punishment for a particular crime, the definitional language of Proposition
47 does not reduce the punishment for a particular crime, and there is no indication
anywhere within Proposition 47 that the definitional language is to be applied
retroactively.
       Here, the trial court denied defendant’s petition on January 16, 2014, more than
ten months before Proposition 47 was passed by the voters. Because I would conclude
the definitional language took effect when Proposition 47 became effective on November
4, 2014, I concur with the majority that the order denying defendant’s petition for recall
should be affirmed.




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                   ___________________________
                   Márquez, J.




People v. Martin
H040617
