Filed 4/23/15 P. v. Aguirre 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                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                            C077310

                   Plaintiff and Respondent,                              (Super. Ct. No. CM009631)

         v.

CURTIS EUGENE AGUIRRE,

                   Defendant and Appellant.




         In November 2013, defendant Curtis Eugene Aguirre filed in pro se what he titled
a petition for a writ of habeas corpus (though invoking Pen. Code, § 1170.126)1 to recall
his 1998 indeterminate prison term for resentencing, the supporting materials for which
were essentially irrelevant. The statute, enacted as part of a November 2012 initiative
measure, provides retrospective relief under narrow criteria from indeterminate life terms



1 Undesignated statutory references are to the Penal Code.



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imposed for recidivism.2 The original trial judge presided over the matter (§ 1170.126,
subd. (b)), appointing counsel for defendant.

       The prosecutor filed opposition, which conceded that defendant was eligible for
relief (§ 1170.126, subd. (e)), but incorporated his criminal history and prison records in
support of the argument that defendant constituted an ongoing unreasonable risk of
danger to the public and thus was not entitled to relief (§1170.126, subds. (f), (g)).
Appointed counsel conceded that defendant’s criminal history and prison record were of
some concern, but argued that defendant’s age (and the many years he had already served
of his prison term) indicated that he would not pose an unreasonable risk of danger.
Counsel asserted the trial court as a result should resentence defendant to a determinate
sentence of double the term otherwise applicable to his convictions, i.e., the same
sentence defendant would receive under the prospective amendments to section 667 in
the initiative. (§ 1170.126, subd. (f); see § 667, subd. (e)(1).) Defendant waived an
updated probation report.

       After a hearing, the trial court agreed that defendant was eligible for resentencing.
However, it found that his prison record demonstrated an absence of rehabilitation, and
therefore he continued to represent “a serious threat to society.” Defendant filed a timely
notice of appeal. (Teal v. Superior Court (2014) 60 Cal.4th 595 [denial of recall petition
appealable].)




2 As defendant has pursued relief from a final conviction pursuant to section 1170.126,
we do not need to address the contretemps regarding whether a defendant whose sentence
is not yet final on appeal is entitled to application of related prospective amendments to
the recidivist provisions of section 667 without filing a petition for recall pursuant to
section 1170.126. (People v. Yearwood (2013) 213 Cal.App.4th 161, 168 [not
retroactive].) The issue is presently pending in the Supreme Court. (See, e.g., People v.
Conley (2013) 215 Cal.App.4th 1482, review granted Aug. 14, 2013, S211275 [case fully
briefed as of May 2014].)


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       Defendant does not contest the trial court’s exercise of discretion under section
1170.126 in July 2014. He instead argues only that section 1170.18, enacted as part of an
initiative in the November 2014 General Election, should apply retroactively on appeal to
his case. This new provision states that it defines “unreasonable risk of danger to public
safety” as “used throughout this Code” as being the commission of a new felony “within
the meaning of [section 667, subdivision (e)(2)(C)(iv)].” (§ 1170.18, subd. (c), italics
added.) The initiative is silent about its application to cases that are not yet final on
appeal, such as defendant’s.3 Defendant contends that as a result of this enactment we
should either reverse the order denying relief with directions to grant the petition because
he is not a danger to society as a matter of law under the new standard, or remand to the
trial court to exercise its discretion under the new definition. We disagree and shall
affirm the order denying the petition.

       Given the narrow legal issue presented, we do not need to add any further facts to
those set out in our introduction. We instead proceed to the Discussion.

                                         DISCUSSION

       The Penal Code presumes the prospective effect of any provision added to it
unless a manifest intent to the contrary appears in extrinsic indicia. (People v. Brown
(2012) 54 Cal.4th 314, 319 (Brown).) However, In re Estrada (1965) 63 Cal.2d 740
established the principle that a reduction in punishment yields an “inevitable” intrinsic
inference of retroactive application to all cases not yet final on appeal absent some form




3 We will assume in this context that we must accept the plain language of the statute as
applying to section 1170.126. We reserve the issue of whether we must do this for the
few cases remaining in which section 1170.18 could have been given prospective effect
before the limitations period for section 1170.126 petitions expired. (§ 1170.126, subd.
(b) [Nov. 7, 2014, except for good cause].)


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of “saving clause” from which a court can find an intent for prospective application.
(Id. at pp. 744-745, 747-748.)

       Nonetheless, the Estrada principle applies only where there is the reduction of a
particular punishment for a particular crime. (Brown, supra, 54 Cal.4th at pp. 324-325.)
As a result, the increase in conduct credits at issue in Brown, which was of general
application to all presentence custody (resulting in a generally applicable reduction in
punishment), did not satisfy these restated criteria for applying the Estrada principle.
(Brown, at pp. 317-318, 325.)

       By a parity of reasoning, even if we find that section 1170.18 results in a
constriction on a trial court’s discretion to deny a resentencing petition under section
1170.126 that would benefit a defendant (because it would make resentencing to
a reduced term more easily available as a result of narrower criteria for denying relief),
this is a statute that generally applies across a class of defendants, and accordingly does
not satisfy the restated Estrada criteria for applying an inevitable intrinsic inference of
retroactive application to cases not final on appeal.4

       We reached the same conclusion in People v. Crockett (2015) 234 Cal.App.4th
642, 660-661, petition for review filed March 25, 2015, S225198,5 and while the case is
not yet final, we adhere to the identical reasoning expressed in it.6



4 As a result, we do not need to determine if there is a saving clause that prevents the
application of this Estrada inference, and thus defendant’s discussion of “saving clause”
cases is beside the point.
5 The issue is pending in the Supreme Court. (People v. Chaney (2014) 231 Cal.App.4th
1391, petition for review granted February 18, 2015, S223676.)
6 The parties focus their arguments on People v. Valencia (2014) 232 Cal.App.4th 514,
review granted February 18, 2015, S223825. However, the grant of review renders these
arguments moot, and in any event the analysis in these arguments is not persuasive either
way.


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       Defendant’s discussion of Estrada does not consider the limitation Brown put on
any expansive reading of Estrada. His citation of Holder v. Superior Court (1969)
269 Cal.App.2d 314, which well antedates Brown, is accordingly inapposite.

       Defendant contends we should accord intrinsic significance to the enactment of
this definition of “unreasonable risk of danger to public safety” (§ 1170.18, subd. (c))
at the very end of the period for filing a recall petition, because section 1170.126 is the
only other Penal Code provision to which it could apply and it would not otherwise have
any benefit for the vast majority of section 1170.126 petitioners unless given retroactive
effect. We do not agree this bespeaks an unambiguous intent to apply this new definition
retroactively. While it is true that the phrase otherwise appears only in section 1170.126
(we note that it has its genesis in a regulation that governs parole determinations (Cal.
Code Regs., tit. 15, § 2281, subd. (a)), and is regularly employed in case law governing
those determinations), a more reasonable intent for wanting to apply section 1170.18
“throughout” the Penal Code is having the definition in place for the enactment of any
future ameliorative sentencing procedures, rather than infer a retroactive intent on an
issue otherwise not addressed in election materials that could have been easily stated
expressly.

       As nothing in the materials connected with the enactment of the statute otherwise
presents any unambiguous extrinsic indicia of retroactive intent, we apply the Penal
Code’s default rule of prospective application and disregard section 1170.18 in cases
pending on appeal.

       We do not find anything in the argument defendant otherwise presents that calls
our analysis into question in the civil cases he cites, which are not apposite. Beckman v.
Thompson (1992) 4 Cal.App.4th 481, 489, expressly notes that it does not involve an
issue of retroactive application of a new statute, but a repeal. Re-Open Rambla, Inc. v.
Board of Supervisors (1995) 39 Cal.App.4th 1499, 1510-1511, and Negrette v. California


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State Lottery Com. (1994) 21 Cal.App.4th 1739, 1743-1744, both expressly note that they
involve a new enactment that declares itself a clarification of existing law, which does
not present any question of retroactive application. Finally, Kuykendall v. State Bd. of
Equalization (1994) 22 Cal.App.4th 1194, 1199, involved a preliminary injunction, in
which a reviewing court must apply the law in effect at the time it renders its decision
(Collateral Loan & Secondhand Dealers Assn. v. County of Sacramento (2014)
223 Cal.App.4th 1032, 1038 (Collateral Loan)), given that it is a provisional remedy.

       Since we do not agree that section 1170.18 applies retroactively, we do not agree
that its definition results in an abuse of discretion in the denial of defendant’s petition.
We also reject the alternative argument that we must remand for the trial court to exercise
its discretion in light of the statute’s criteria. (Collateral Loan, supra, 223 Cal.App.4th at
p. 1041, fn. 7 [ordinarily, appellate court reviews discretion and does not exercise it in the
first instance on appeal]).

                                       DISPOSITION

       The order is affirmed.


                                                          BUTZ                   , J.



We concur:



      HULL                    , Acting P. J.



      HOCH                    , J.




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