Filed 7/16/15 P. v. Bates CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065983

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD192318)

GILBERT JOSEPH BATES,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, David J.

Danielsen, Judge. Affirmed.



         Carl Fabian, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Michael

Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
       In 2005, Gilbert Joseph Bates pleaded guilty to one count of corporal injury to a

cohabitant resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a)),1 admitted

suffering two strike priors under section 667, subdivisions (b) through (i), and stipulated

to a sentence of 25 years to life imprisonment. The trial court imposed the stipulated

sentence, and Bates remains in prison. Following the approval of Proposition 36, Bates

petitioned the trial court to recall his sentence and resentence him as a second strike

offender. (§ 1170.126, subd. (b).) The trial court found Bates eligible for resentencing

under section 1170.126, subdivision (e), but it determined that resentencing Bates would

constitute an "unreasonable risk of danger to public safety" under subdivision (f) of that

section. The court therefore denied Bates's petition.

       Bates appeals. He contends the trial court abused its discretion by finding that

resentencing Bates would constitute an "unreasonable risk of danger to public safety."

(§ 1170.126, subd. (f).) He also contends the subsequent approval of Proposition 47,

which includes a specific definition of "unreasonable risk of danger to public safety,"

requires that this case be remanded to the trial court for reconsideration under that new

definition. (See § 1170.18, subd. (c).)

       We conclude the trial court did not abuse its discretion by finding that Bates's

resentencing would constitute an "unreasonable risk of danger to public safety"




1      All further statutory references are to the Penal Code unless otherwise indicated.

                                              2
(§ 1170.126, subd. (f)), and the specific definition of that phrase in Proposition 47 does

not apply retroactively to Bates's petition.2 We therefore affirm the order.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In 2005, at the time of the offense for which Bates is currently incarcerated, Bates

was in a relationship with Noemi Zermano. Bates and Zermano had an argument, and

Zermano told Bates to stay away from their shared apartment. Zermano was afraid of

Bates, and she had a friend stay with her. Bates came back to the apartment, entered

through a window, and chased Zermano. Bates caught Zermano, who held on to a fence

to try anchor herself. Bates grabbed Zermano by the neck and pulled her away from the

fence, breaking her little finger. Bates then dragged Zermano through a courtyard. When

she struggled, Bates threw Zermano over his shoulder and slammed her head onto the

concrete pavement. She lost consciousness. Bates continued to drag Zermano, causing a

large abrasion to her left side. In a rear parking lot, Bates strangled Zermano. She lost

consciousness again. When Zermano awoke, Bates continued to have his arm around her

neck. A neighbor attempted to calm Bates down, but he did not release Zermano until

police arrived. The police arrested Bates, and paramedics took Zermano to the hospital.

Bates was charged with one count of corporal injury to a cohabitant resulting in a




2       As we will explain, we assume, but explicitly do not decide, that Proposition 47's
definition of "unreasonable risk of danger to public safety" applies to Proposition 36
petitions.

                                             3
traumatic condition (§ 273.5, subd. (a)) and two counts of false imprisonment by

violence, menace, fraud or deceit (§§ 236, 237, subd. (a)).3

       The prosecution alleged that Bates had suffered two strike priors under section

667, subdivisions (b) through (i), and two prison priors under section 667.5, subdivision

(b). These prior offenses occurred in 1996 and 2000. For the first strike and prison prior,

Bates was convicted of kidnapping (§ 207, subd. (a)) and sentenced to five years in

prison. Bates grabbed a former girlfriend, Jaime Lucero, while she attended a friend's

barbeque. Bates punched Lucero several times and dragged her to a waiting car. Bates

told Lucero " 'you are going to die today bitch.' " Bates drove Lucero to his grandfather's

house, where Bates again threatened Lucero. Several hours later, Lucero was able to

make a clandestine telephone call to police, who rescued her. For the second strike and

prison prior, Bates was convicted of making a criminal threat (§ 422) and sentenced to

four years in prison. Bates went to the workplace of his then-girlfriend, Leticia

Contreras, and accused Contreras of having sex with her boss. Bates chased Contreras,

who was pregnant at the time, and grabbed her. Bates pounded Contreras's head into a

bulletproof glass window three times. When Contreras's boss attempted to call the

police, Bates acted as if he had a gun and told Contreras and her boss he would kill them.




3      The facts in this paragraph are largely drawn from the probation report for Bates's
offense.

                                             4
Contreras's father arrived, and Bates dragged Contreras to the back of the building. Bates

became distracted, and Contreras escaped.4

       Bates initially pleaded guilty to the 2005 charges based on the trial court's

indicated sentence of 12 years eight months' imprisonment. Upon further review,

however, the trial court determined it could not dismiss Bates's strike priors and

effectuate the indicated sentence. The trial court allowed Bates to withdraw his plea.

After further negotiations, Bates pled guilty to one count of corporal injury to a

cohabitant resulting in a traumatic condition (§ 273.5, subd. (a)), admitted suffering the

two strike priors discussed above, and stipulated to a sentence of 25 years to life

imprisonment. The trial court sentenced Bates accordingly.

       Following the adoption of Proposition 36, Bates petitioned to recall his sentence

and for resentencing. Bates argued he was eligible for resentencing under section

1170.126, subdivision (e), and resentencing would not pose an unreasonable risk of

danger to public safety under subdivision (f) of that section. Bates contended his adult

criminal history was "relatively short." In addition to the current offense and the two

strikes discussed above, Bates had been convicted of misdemeanor interference with

telephone lines and sentenced to 45 days in jail. (§ 591.) In that incident, Bates and

Lucero (who was then Bates's girlfriend) began to argue. Bates threw a ketchup bottle at




4      The facts in this paragraph are largely drawn from the prosecution's opposition to
Bates's petition for recall and resentencing in the trial court.

                                              5
her. When Lucero attempted to call her mother, Bates pulled the telephone cord out of

the wall and headbutted her.5

       In his petition, Bates argued that his disciplinary record while incarcerated had

been that of an "average" inmate. Bates had been involved in several fights and had been

found with a makeshift weapon in his cell. However, Bates had been discipline-free for

two years. He had received several laudatory chronos from corrections officers during

that time. His California Static Risk Assessment for potential reoffense was "low."

Bates also had completed a number of educational, religious, substance abuse and anger

management courses. Bates had been conditionally accepted to a number of post-

incarceration housing programs and had several conditional job offers.

       Bates submitted a psychological evaluation prepared by Clark R. Clipson, Ph.D.

Clipson reviewed Bates's criminal and disciplinary records, analyzed the results of

several intelligence and personality tests, and performed a clinical interview of Bates.

Clipson diagnosed Bates with stimulant use disorder, alcohol use disorder, and

personality disorder. After reviewing Bates's risk factors, Clipson concluded that Bates

had a "low-moderate" risk of committing a violent offense in the future.

       The district attorney opposed Bates's petition. The district attorney conceded

Bates was eligible for resentencing, but argued that resentencing would pose an

unreasonable risk of danger to public safety. (§ 1170.126, subds. (e), (f).) The district



5       Bates also had a number of juvenile adjudications, including disturbing the peace,
false identification to a police officer, and violating curfew and probation.

                                             6
attorney pointed to the violence of Bates's crimes and his continued violent record while

in prison. For example, from 2006 through 2011, Bates was found guilty of possessing

an inmate-manufactured weapon, participating in a race riot requiring use of force,

battery on an inmate without a weapon requiring the use of force, refusing to obey lawful

orders which resulted in cell extraction without force, and fighting (three times).

       At the hearing on Bates's petition, the court heard argument from counsel. The

court explained, "I want to make it clear that after a complete review of this record, I am

well aware that I'm not making a decision solely based upon the historical figure [Gilbert]

Bates as he existed at the time of the sentencing. It is Gilbert Bates who at the time of

sentencing represented a certain risk to society and then the Gilbert Bates now as

understood better through his behavior in the institution, through the efforts that he has

made to rehabilitate himself and the Gilbert Bates as presented in the psychological

evaluation that has been presented to me. [¶] This is not a case that I have decided

lightly. I read this several times, and I have listened carefully to the arguments so as to

hopefully put my understanding of what I read into a proper context."

       The court found that resentencing Bates would pose an unreasonable risk of

danger to public safety under section 1170.126, subdivision (f), and denied Bates's

petition. Bates appeals.

                                       DISCUSSION

                                              I

       "Proposition 36, the Three Strikes Reform Act of 2012, was approved by the

voters in the November 6, 2012 General Election. Sections 667 and 1170.12 were

                                              7
amended and section 1170.126 was enacted." (People v. Jernigan (2014) 227

Cal.App.4th 1198, 1203.) Among other things, Proposition 36 " 'created a postconviction

release proceeding whereby a prisoner who is serving an indeterminate life sentence

imposed pursuant to the three strikes law for a crime that is not a serious or violent felony

and who is not disqualified, may have his or her sentence recalled and be sentenced as a

second strike offender unless the court determines that resentencing would pose an

unreasonable risk of danger to public safety. (§ 1170.126.)' " (Jernigan, at pp. 1203-

1204; see People v. Johnson (July 2, 2015, S219454, S219819) ___ Cal.4th __ [2015 Cal.

Lexis 4521, p. *9].)

       Proposition 36 provides that if a petitioner is eligible for resentencing, "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."

(§ 1170.126, subd. (f).) "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." (§ 1170.126, subd. (g); see People v.

Brown (2014) 230 Cal.App.4th 1502, 1510.)

       "The meaning of 'unreasonable risk of danger to public safety' is made clear by

reference to the examples of evidence the trial court may consider in making this

                                               8
determination. To determine unreasonable risk, the trial court may consider any relevant

evidence, including a defendant's criminal conviction history and record of discipline and

rehabilitation while incarcerated." (People v. Garcia (2014) 230 Cal.App.4th 763, 769

(Garcia).) "The critical inquiry, however, is not whether the risk is quantifiable, but

rather, whether the risk would be 'unreasonable.' " (Ibid.) "[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." (People v. Superior Court (Kaulick) (2013) 215

Cal.App.4th 1279, 1303.) Instead, the standard of proof for the prosecution to prove that

resentencing a petitioner under Proposition 36 would pose an unreasonable risk of danger

to public safety is preponderance of the evidence. (Id. at p. 1305.)

       Proposition 36 expressly vests the trial court with discretion to determine whether

resentencing the petitioner would pose an unreasonable risk of danger to public safety.

(§ 1170.126, subds. (f), (g).) We therefore review an order denying resentencing on that

basis for abuse of discretion. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1124

(Rodrigues).) "Where, as here, a discretionary power is statutorily vested in the trial

court, its exercise of that discretion 'must not be disturbed on appeal except on a showing

that the court exercised its discretion in an arbitrary, capricious or patently absurd manner

that resulted in a manifest miscarriage of justice.' " (Ibid.)

       Bates has not shown the trial court abused its discretion by denying Bates's

petition on the grounds resentencing him would present an unreasonable risk of danger to

public safety. Bates's crimes, primarily perpetrated against women with whom he had a

                                               9
relationship, involved willful and prolonged episodes of intense violence. Bates's current

offense, from 2005, caused his victim to lose consciousness twice (from slamming her

head into the pavement and from strangulation), to suffer a large abrasion on her left side

(from dragging her through a concrete parking lot), and to break her little finger (from

pulling her off a fence that she had grabbed to resist Bates's aggression). Bates's first

strike, from 1996, involved kidnapping a former girlfriend, punching her multiple times,

and telling her " 'you are going to die today bitch.' " Bates's second strike, from 2000,

also involved death threats, this time against Bates's then-current girlfriend. Bates went

to her workplace, pounded the victim's head against a bulletproof glass window three

times, and dragged her to the back of the building. The trial court was entitled to

consider these crimes, and their viciousness, in determining whether resentencing Bates

would present an unreasonable risk of danger to public safety. (§ 1170.126, subd. (g)(1).)

       The trial court was also entitled to consider Bates's mixed record in prison.

(§ 1170.126, subd. (g)(2).) For much of his time in prison for the current offense, Bates

repeatedly violated prison rules, including for violent acts of fighting and battery. From

2006 through 2011, Bates was found guilty of possessing an inmate-manufactured

weapon, participating in a race riot requiring use of force, battery on an inmate without a

weapon requiring the use of force, refusing to obey lawful orders which resulted in cell

extraction without force, and fighting (three times). While his last two years were

discipline-free, and he had obtained several laudatory chronos and participated in

rehabilitation, Bates's counsel in the trial court could only describe him as an "average"

inmate.

                                             10
       Proposition 36 vests the trial court with the discretion to determine whether

resentencing Bates would pose an unreasonable risk of danger to public safety.

(§ 1170.126, subd. (f).) Given the evidence we have discussed, the trial court did not act

" 'in an arbitrary, capricious or patently absurd manner that resulted in a manifest

miscarriage of justice' " when it found that resentencing Bates would pose such an

unreasonable risk. (See Rodrigues, supra, 8 Cal.4th at p. 1124.) The court did not abuse

its discretion by denying Bates's petition.

       Bates criticizes the trial court for not stating reasons for its finding that

resentencing Bates would pose an unreasonable risk. But Bates does not contend the

statute at issue here, or any applicable rule of court, required a statement of reasons. We

likewise see no such requirement. The Supreme Court's decision in People v. Lock

(1981) 30 Cal.3d 454, 459, cited by Bates, is therefore inapposite.

       Bates focuses on the report of his psychologist, who opined that Bates had a "low-

moderate" risk of committing a violent offense in the future. Bates contends that the

question on which his expert opined, Bates's risk of reoffense, was the same question the

court was required to consider under section 1170.126, subdivision (f). The trial court,

however, was not required to accept the opinion of Bates's expert. "The fact finder

determines the facts, not the experts. Indeed, the fact finder may reject even 'a unanimity

of expert opinion. "To hold otherwise would be in effect to substitute a trial by 'experts'

for a trial by jury . . . ." ' " (In re Scott (2003) 29 Cal.4th 783, 823.) The same principle

applies here. The trial court, not Bates's expert, was vested with the discretion to

determine whether Bates's resentencing would pose an unreasonable risk of danger to

                                               11
public safety. (§ 1170.126, subd. (f).) To find an abuse of discretion simply because the

trial court gave little weight to Bates's expert's opinion would effectively eliminate the

trial court's discretion. "Although experts may testify about their opinions, the fact finder

decides what weight to give those opinions. This is especially important when the

witnesses are not neutral court-appointed experts but experts hired by a party specifically

seeking evidence supporting that party's position." (In re Scott, at p. 823.) Bates's

contentions based on the prosecutor's comments are likewise unpersuasive because we

review the trial court's order, not the prosecutor's stated reasons for opposing Bates's

petition.

       Bates also points to evidence of his rehabilitation, including insight into his

crimes, while in prison. But, as we have discussed, the trial court was entitled to weigh

this evidence against other factors bearing on the risk of danger to public safety in

resentencing Bates, including the facts of his prior crimes and his disciplinary history in

prison. (§ 1170.126, subd. (g); see Garcia, supra, 230 Cal.App.4th at p. 769.) The trial

court did not act in an arbitrary and capricious manner by "rejecting" Bates's evidence of

rehabilitation (or his expert's evidence), as Bates contends. The court was entitled to give

this evidence the weight it saw fit.6 Similarly, the trial court was not required to credit



6       We likewise disagree with Bates's contention that the trial court's order rests solely
on "static" evidence concerning the nature of Bates's crimes. Additional evidence
supported the order, as we have discussed, including Bates's disciplinary history while in
prison. Similarly, we disagree with Bates's argument on reply that the Attorney General
has tacitly conceded the court abused its discretion because the Attorney General did not
address Bates's evidence of rehabilitation. In her opposition, the Attorney General set
forth the evidence Bates contended supported his petition. The Attorney General then
                                             12
Bates's interpretation of his prison disciplinary history which, in his view, demonstrated

that Bates was targeted for violence for various reasons and was not predominantly the

aggressor. In light of all the evidence, including the evidence cited by Bates, the trial

court's finding that resentencing Bates would present an unreasonable risk of danger to

public safety was reasonable. The trial court did not abuse its discretion by denying

Bates's petition.

                                              II

       "On November 4, 2014, the voters enacted Proposition 47, 'the Safe

Neighborhoods and Schools Act' . . . , which went into effect the next day." (People v.

Rivera (2015) 233 Cal.App.4th 1085, 1089 (Rivera).) "Proposition 47 makes certain

drug- and theft-related offenses misdemeanors, unless the offenses were committed by

certain ineligible defendants. These offenses had previously been designated as either

felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)."

(Id. at p. 1091.) "Proposition 47 also created a new resentencing provision: section

1170.18. Under section 1170.18, a person 'currently serving' a felony sentence for an

offense that is now a misdemeanor under Proposition 47, may petition for a recall of that

sentence and request resentencing in accordance with the statutes that were added or

amended by Proposition 47. (§ 1170.18, subd. (a).)" (Id. at p. 1092.)




addressed Bates's argument that evidence of his rehabilitation demonstrated his
resentencing would not present an unreasonable risk of danger to public safety. We
perceive no concession by the Attorney General.

                                             13
       In an manner analogous to Proposition 36, "[a] person who satisfies the criteria in

section 1170.18 shall have his or her sentence recalled and be 'resentenced to a

misdemeanor . . . unless the court, in its discretion, determines that resentencing the

petitioner would pose an unreasonable risk of danger to public safety.' (§ 1170.18,

subd. (b).)" (Rivera, supra, 233 Cal.App.4th at p. 1092.)

       In contrast to Proposition 36, however, Proposition 47 provides a specific

definition of the phrase "unreasonable risk of danger to public safety." Among the

provisions added by Proposition 47 is the following: "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." (§ 1170.18,

subd. (c).) The "new violent felony" offenses referenced in this provision include a

narrow class of violent felonies, colloquially called "super strike offenses." (See § 667,

subd. (e)(2)(C)(iv).)

       Bates contends that the definition of "unreasonable risk of danger to public safety"

contained in Proposition 47 applies to petitions filed under Proposition 36. He interprets

the language "[a]s used throughout this Code" (§ 1170.18, subd. (c)) as evidencing an

intent to apply the Proposition 47 definition to Proposition 36 as well. Bates further

contends that he is entitled to the benefit of this new definition even though the court

denied his Proposition 36 petition before Proposition 47 became effective.

       We need not decide the question whether the Proposition 47 definition of

"unreasonable risk of danger to public safety" applies to petitions under Proposition 36.

                                             14
Even assuming, without deciding, that the definition does apply, we conclude the

definition does not apply retroactively to petitions under Proposition 36, like Bates's, that

the trial court heard and decided prior to the effective date of Proposition 47.7

       "Whether a statute operates prospectively or retroactively is, at least in the first

instance, a matter of legislative intent. When the Legislature has not made its intent on

the matter clear with respect to a particular statute, the Legislature's generally applicable

declaration in section 3 provides the default rule: 'No part of [the Penal Code] is

retroactive, unless expressly so declared.' [The Supreme Court has] described section 3,

and its identical counterparts in other codes (e.g., Civ. Code, § 3; Code Civ. Proc., § 3),

as codifying 'the time-honored principle . . . that in the absence of an express retroactivity

provision, a statute will not be applied retroactively unless it is very clear from extrinsic




7       Both issues raised by Bates, regarding the applicability and retroactivity of
Proposition 47's definition of "unreasonable risk of danger to public safety," are currently
pending before the Supreme Court. (People v. Valencia (2014) 232 Cal.App.4th 514,
review granted Feb. 18, 2014, S223825 [applicability]; People v. Chaney (2014) 231
Cal.App.4th 1391, review granted Feb. 18, 2015, S223676 [retroactivity].) This court
recently decided a related issue regarding the retroactivity of the substantive provisions of
Proposition 47 that reduce certain felony offenses to misdemeanors. (People v. DeHoyos
(June 30, 2015, D065961) ___ Cal.App.4th ___ [2015 Cal.App. Lexis 582].) In
DeHoyos, this court determined that ballot materials and other indicia of the electorate's
intent showed that the electorate intended those provisions to operate only prospectively.
(Id. at p. *5.) Because DeHoyos did not consider Proposition 47's definition of
"unreasonable risk of danger to public safety," DeHoyos's analysis, while informative,
does not apply directly to the question presented in this case.

                                              15
sources that the Legislature . . . must have intended a retroactive application.' " (People

v. Brown (2012) 54 Cal.4th 314, 319 (Brown).)8

       The same general rule applies to statutes, like Proposition 47, enacted through the

initiative process: "It is well settled that a new statute is presumed to operate

prospectively absent an express declaration of retrospectivity or a clear indication that the

electorate, or the Legislature, intended otherwise." (Tapia v. Superior Court (1991) 53

Cal.3d 282, 287, italics added (Tapia).) The rule likewise applies where, as here, the new

statute becomes effective while the judgment or order is on appeal, and is therefore not

final. (People v. Gonzalez (2012) 210 Cal.App.4th 724, 736 (Gonzalez) [statute enacted

while appeal pending not retroactive].)

       In In re Estrada (1965) 63 Cal.2d 740 (Estrada), the Supreme Court discussed a

significant exception to this general rule disfavoring retroactivity. The court held that,

under certain circumstances, an implied legislative intent in favor of retroactivity may be

found: "When the Legislature amends a statute so as to lessen the punishment it has

obviously expressly determined that its former penalty was too severe and that a lighter

punishment is proper as a punishment for the commission of the prohibited act. It is an

inevitable inference that the Legislature must have intended that the new statute imposing

the new lighter penalty now deemed to be sufficient should apply to every case to which


8      The rules governing the retroactivity of statutory enactments differ from the rules
applicable to judicial decisions: " 'Unlike statutory enactments, judicial decisions . . . are
generally applied retroactively.' " (People v. Welch (1999) 20 Cal.4th 701, 732, fn. 4; see
People v. Guerra (1984) 37 Cal.3d 385, 399-402 [discussing retroactivity in the context
of judicial decisions].)

                                             16
it constitutionally could apply. The amendatory act imposing the lighter punishment can

be applied constitutionally to acts committed before its passage provided the judgment

convicting the defendant of the act is not final. This intent seems obvious, because to

hold otherwise would be to conclude that the Legislature was motivated by a desire for

vengeance, a conclusion not permitted in view of modern theories of penology." (Id. at

p. 745.)

       In Brown, the Supreme Court explained its current understanding of Estrada's

effect on the general rule disfavoring retroactivity. Estrada "supports an important,

contextually specific qualification to the ordinary presumption that statutes operate

prospectively: When the Legislature has amended a statute to reduce the punishment for

a particular criminal offense, we will assume, absent evidence to the contrary, that the

Legislature intended the amended statute to apply to all defendants whose judgments are

not yet final on the statute's operative date." (Brown, supra, 54 Cal.4th at p. 323,

fn. omitted.) The Supreme Court emphasized that ". . . Estrada is today properly

understood, not as weakening or modifying the default rule of prospective operation

codified in section 3, but rather as informing the rule's application in a specific context by

articulating the reasonable presumption that a legislative act mitigating the punishment

for a particular criminal offense is intended to apply to all nonfinal judgments." (Brown,

at p. 324.)

       Bates does not point to any portion of Proposition 47 that expressly provides that

its definition of "unreasonable risk of danger to public safety" should apply



                                             17
retroactively.9 The ordinary presumption against retroactivity therefore applies. (§ 3;

Brown, supra, 54 Cal.4th at p. 324; Tapia, supra, 53 Cal.3d at p. 287.) Even if

Proposition 47 were ambiguous regarding retroactivity, it would normally be construed to

be unambiguously prospective. (See Brown, at p. 324.)

       Bates therefore relies on the Estrada exception. Bates argues that Proposition 47's

definition of "unreasonable risk of danger to public safety" is "indisputably a more

lenient standard of dangerousness" because it limits the trial court to an assessment of the

petitioner's likelihood of committing a specified class of violent felonies. (See § 1170.18,

subd. (c).) Because, in Bates's view, this new definition benefits him, he argues that

Estrada requires its retroactive application to his petition.

       We disagree that the Estrada exception should apply here. Brown made clear that

Estrada applied where the newly-enacted statute was " ' "[a] legislative mitigation of the

penalty for a particular crime" ' " such that, absent a desire for " ' "vengeance," ' " the

Legislature must have intended retroactive application. (Brown, supra, 54 Cal.4th at

p. 324, quoting Estrada, supra, 63 Cal.2d at p. 745.) Neither of these circumstances

apply to the statute at issue here.

       First, Proposition 47's new definition of "unreasonable risk of danger to public

safety" is not a "legislative mitigation of the penalty for a particular crime." (Estrada,

supra, 63 Cal.2d at p. 745; see Brown, supra, 54 Cal.4th at p. 324.) Proposition 47's



9       We reiterate that our holding rests on the assumption that Proposition 47's
definition applies to petitions under Proposition 36. We explicitly do not decide that
question because it is unnecessary to our decision.
                                              18
definition does not address punishments or penalties at all. Instead, it provides a specific

definition for courts to apply in assessing the unreasonableness of the danger to public

safety that resentencing a petitioner like Bates would create. Nor is the definition limited

to a particular crime. The definition would apply across a large class of petitioners who

have been convicted of any number of nonserious and nonviolent felonies. (See

§ 1170.126, subd. (b) [defining eligibility for Proposition 36 relief as any three-strike

offender who was convicted "of a felony or felonies that are not defined as serious and/or

violent felonies"].)

       Second, applying Proposition 47's definition only prospectively would not

engender the same concerns over vengeance that motivated the Estrada court. (Estrada,

supra, 63 Cal.2d at p. 745; see Brown, supra, 54 Cal.4th at p. 324.) Estrada explained

that " '[a] legislative mitigation of the penalty for a particular crime represents a

legislative judgment that the lesser penalty or the different treatment is sufficient to meet

the legitimate ends of the criminal law.' " (Estrada, at p. 745.) Upholding a harsher

penalty, when the Legislature has impliedly determined that such a penalty no longer

serves a penological goal when applied to a defendant's crime, would serve no legitimate

purpose according to Estrada: " 'Nothing is to be gained by imposing the more severe

penalty after such a pronouncement; the excess in punishment can, by hypothesis, serve

no purpose other than to satisfy a desire for vengeance.' " (Ibid.) Because Proposition

47's definition of dangerousness to public safety does not prescribe a new penalty for any

particular crime, it did not create any " 'excess in punishment' " that would raise concerns

over vengeance. (Estrada, at p. 745.) On the contrary, Proposition 47 simply narrowed

                                              19
the discretion given trial courts to determine whether Bates's resentencing would

constitute an unreasonable risk of danger to public safety. It did not declare, expressly or

impliedly, that Bates's current sentence would serve no purpose other than a desire for

vengeance.

       Contrary to Bates's contention, not all statutes that benefit a defendant fall within

the Estrada exception. Brown expressly rejected the argument that the Estrada exception

"should be understood to apply more broadly to any statute that reduces punishment in

any manner." (Brown, supra, 54 Cal.4th at p. 325; see Gonzalez, supra, 210 Cal.App.4th

at p. 735.) As Brown explained, "We do not take issue with the proposition that a

convicted prisoner who is released a day early is punished a day less. But, as we have

explained, the rule and logic of Estrada is specifically directed to a statute that represents

' "a legislative mitigation of the penalty for a particular crime" ' (Estrada, [supra, 63

Cal.2d] at p. 745, italics added) because such a law supports the inference that the

Legislature would prefer to impose the new, shorter penalty rather than to ' "satisfy a

desire for vengeance" ' (ibid.)." (Brown, at p. 325.) This situation is not presented here.

       As Bates points out, the Estrada exception has been applied in numerous contexts

where the punishment for a particular crime has been lightened, the elements of proof

required to convict a defendant of a particular crime have been broadened, or the

defenses available to a defendant for a particular crime have been expanded. (See People

v. Wright (2006) 40 Cal.4th 81, 94-95; People v. Babylon (1985) 39 Cal.3d 719, 722;

People v. Rossi (1976) 18 Cal.3d 295, 299-302; People v. Trippet (1997) 56 Cal.App.4th

1532, 1544-1546.) However, these authorities are inapplicable because they predate the

                                              20
Supreme Court's interpretation of Estrada in Brown and because Proposition 47's

definitional change does not fall into these categories where Estrada has previously been

applied.

       We therefore conclude that even assuming, without deciding, that Proposition 47's

definition of "unreasonable risk of danger to public safety" applies to petitions under

Proposition 36, the new definition in Proposition 47 should not apply retroactively here,

where Bates's petition under Proposition 36 was heard and decided before the effective

date of Proposition 47. In light of this conclusion, we need not consider whether Bates

was prejudiced because the trial court did not use Proposition 47's definition. We also

need not consider the Attorney General's alternative argument that Bates is not eligible

for resentencing under Proposition 36 because he intended to cause great bodily injury

during the commission of his current offense. (See §§ 667, subd. (e)(2)(C)(iii), 1170.12,

subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2).)

                                       DISPOSITION

       The order is affirmed.



                                                                                  IRION, J.

WE CONCUR:



NARES, Acting P. J.



MCDONALD, J.

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