Filed 12/17/14




                      CERTIFIED FOR PARTIAL PUBLICATION*

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                   F067838
        Plaintiff and Respondent,
                                                        (Super. Ct. Nos. SUF20408 &
                 v.                                              SUF20409)

RANDY LYNN PAYNE,
                                                                 OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Merced County. Mark V.
Bacciarini, Judge.
        Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant
and Appellant.
        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.




*       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part III of the Discussion and the
concurring opinion.



                               SEE CONCURRING OPINION
                                    INTRODUCTION
       The Three Strikes Reform Act of 2012 (hereafter Proposition 36 or the Act)
created a postconviction release proceeding for third strike offenders serving
indeterminate life sentences for crimes that are not serious or violent felonies. If such an
inmate meets the criteria enumerated in Penal Code section 1170.126, subdivision (e), he
or she will be resentenced as a second strike offender unless the court determines such
resentencing would pose an unreasonable risk of danger to public safety.1 (§ 1170.126,
subd. (f); People v. Yearwood (2013) 213 Cal.App.4th 161, 168.)
       After the Act went into effect, Randy Lynn Payne (defendant), an inmate serving a
term of 25 years to life following conviction of a felony that was not violent (as defined
by § 667.5, subd. (c)) or serious (as defined by § 1192.7, subd. (c)), filed a petition to
have his sentence recalled and to be resentenced. Following a hearing, the trial court
found defendant “present[ed] an unreasonable risk of danger to public safety if released.”
       In the published portion of this opinion, we hold the People have the burden of
proving, by a preponderance of the evidence, facts on which a finding that resentencing a
petitioner would pose an unreasonable risk of danger to public safety reasonably can be
based. Those facts are reviewed for substantial evidence. We further hold, however, that
the preponderance of the evidence standard does not apply to the trial court’s
determination regarding dangerousness, nor does section 1170.126, subdivision (f), create
a presumption of resentencing. The ultimate decision — whether resentencing an inmate
would pose an unreasonable risk of danger to public safety — instead lies within the
sound discretion of the trial court. In the unpublished portion of the opinion, we
conclude recently enacted section 1170.18, subdivision (c) does not modify
section 1170.126, subdivision (f). Finding no abuse of discretion, we affirm.


1      Further statutory references are to the Penal Code unless otherwise stated.



                                              2.
                       FACTS AND PROCEDURAL HISTORY
       On February 10, 1996, defendant was observed stealing several cases of motor oil
from a convenience store/gas station in Merced.2 He subsequently led a California
Highway Patrol officer in a pursuit on Highway 99. Defendant drove at speeds well over
100 miles per hour, sometimes traveling partly on the center divider and other times
traveling on the shoulder. His driving forced other vehicles to move out of his way to
avoid collision. As defendant approached the Livingston city limits, he drove onto the
shoulder to pass vehicles stopped at a red traffic light. Defendant lost control of the car,
flipped over, and struck a power pole. The car had been stolen.
       On August 12, 1996, a jury convicted defendant of two felonies: evading arrest
while operating a motor vehicle (Veh. Code, § 2800.2) and petty theft with prior theft
convictions (§§ 488, 666).3 Defendant was found to have three prior serious or violent
felony convictions within the meaning of the three strikes law. On April 22, 1997, he
was sentenced to 25 years to life in prison.
       On or about December 21, 2012, defendant filed a petition under
section 1170.126. He represented he was statutorily eligible for such relief, and argued
he should be resentenced to a second strike term of 48 months in prison and be released
from custody.
       The People opposed the petition. They pointed to defendant’s 14-year-long record
of criminal convictions, which included three strike convictions (one for robbery and two
for residential burglary); the high risk of danger to others posed by his commitment
offense; and defendant’s admission, to the probation officer, that he had a drug problem.

2      The facts of defendant’s commitment conviction are derived from our opinion in
People v. Payne (May 26, 1998, F026894) [nonpub. opn.], of which we have taken
judicial notice by separate order.
3     The jury was unable to reach a verdict on a count charging defendant with
unlawful taking of a motor vehicle. (Veh. Code, § 10851.)



                                               3.
The People asserted defendant’s conduct in prison had been poor, as he had violated
prison disciplinary rules on a number of occasions. The People argued that, even after
participating in Narcotics Anonymous and Alcoholics Anonymous programs over the
years, defendant incurred disciplinary write-ups for “narcotic diversion” — diverting
morphine medication he was to swallow — and possession of alcohol, most recently in
2013. The People further argued that, if defendant were released, he would face
difficulty earning sufficient income by lawful means, as his prison records revealed his
lack of marketable trade skills and lack of education. Based on the foregoing, the People
asserted the trial court should find resentencing defendant would pose an unreasonable
risk of danger to public safety.
       The petition was heard on August 5, 2013.4 The court considered its own files in
the matter, as well as defendant’s records — his “central file” — from the California
Department of Corrections and Rehabilitation (CDCR).
       Information in defendant’s CDCR records included the probation officer’s report
for defendant’s commitment offenses. It showed defendant, who was born in 1963, had
an adult criminal conviction record dating back to 1982. Between 1982 and 1996, he
incurred nine misdemeanor convictions for crimes that included burglary, petty theft with
a prior conviction, and carrying a concealed weapon on his person; and seven cases in
which he was convicted of one or more felonies that included multiple burglaries and
robbery.5 Defendant told the probation officer he dropped out of high school; started


4      Because the judge who imposed defendant’s third strike term was retired, the
matter was heard by a different judge. (See § 1170.126, subd. (j).)
5      The robbery conviction arose out of an incident in which defendant apparently
believed he was reclaiming a bicycle stolen from him. Defendant and the victim argued
over ownership of the bicycle. Defendant said he was going back to his truck to get
something. When he returned, he had a plastic bag in his hand that appeared to contain a
handgun. The victim handed over the bicycle, which defendant placed in his truck and
drove away. Defendant, who was on parole from the California Rehabilitation Center,


                                            4.
using PCP when he was 12 years old and then moved on to cocaine, heroin, LSD,
methamphetamine, and marijuana; and injected a mixture of cocaine and heroin as his
“drug of choice.” He considered himself dependent on drugs, and had been dependent in
the past. Defendant also stated he drank three-fifths of a gallon of whiskey a week, and
drank wine and beer. CDCR reception center information showed defendant had a
history of heart and kidney disease and that he claimed work experience in a walnut
processing plant, laying train tracks, and field work.
       Defendant’s CDCR records contained several rules violation reports. In 1998, he
was found guilty of possession of United States currency. In 1999, he was placed into
administrative segregation pending investigation into allegations of narcotics trafficking
in the prison’s general population. In 2004, he was found guilty of mutual combat. He
admitted punching the other inmate who, defendant said, was only defending himself.
Defendant characterized the inmate as “a homeboy” who was irritating him. Staff had to
use pepper spray and a baton strike to break up the fight. In 2006, a hypodermic syringe
with a needle was found in the cell defendant shared with another inmate. Defendant
admitted it was his, and said he found it in the garbage after a building search. In 2008,
defendant was found guilty of possession of tobacco. In 2010, defendant was found
guilty of circumventing medical procedures by diverting medication. Defendant
acknowledged he was required to place his medication into his mouth, swallow it, and
then allow the nurse to determine he had done so. In 2012, a random search of a cell
assigned to defendant and another inmate revealed a garbage bag full of inmate-
manufactured alcohol (“‘pruno’”). Defendant stated the pruno was his. At the hearing,
he pled guilty to possession of inmate-manufactured alcohol and stated, “‘It wasn’t mine,
but I took it.’” The most recent rules violation report, dated January 1, 2013, was, again,


pled no contest pursuant to People v. West (1970) 3 Cal.3d 595 in exchange for dismissal
of a five-year enhancement.



                                             5.
for circumventing medical procedures by diverting medication. Defendant stood in the
pill line for his “‘as needed’” morphine dose, placed the pill in his mouth and drank his
water, but did not swallow the pill. Defendant was written up multiple times for failing
to report or being late to class or to his work assignment, being out of bounds, not being
in his cell during inmate count, violating grooming and cell regulations, and smoking (a
violation of state law).
       Defendant’s most recent annual review, dated October 31, 2012, showed him in
“Close B” custody. His placement score was 19, the mandatory minimum for a prisoner
with a life sentence. His records contained numerous good reports from his prison work
supervisors. They also contained verification of his participation in Narcotics
Anonymous, Alcoholics Anonymous, and a victims’ awareness program over various
periods of time.6 He also received a certificate of proficiency as a sewing machine
operator.
       Defendant’s central file contained a therapeutic progress report, dated May 23,
2013, by Dr. Mathews, a clinical psychologist at the prison.7 Mathews related defendant
had been able to make “some true and substantial progress” in the four years she had
been treating him, and had deepened his commitment to “making something better of
himself.” She found he was not as “materially- driven” as in the past, and although he
had struggled with substance abuse issues, he had managed to successfully face them and
was engaged in an ongoing dialogue with her about them. She believed defendant had

6      In February 2004, defendant was presented certificates of attendance attesting to
his regular attendance of 25 months in Alcoholics Anonymous and Narcotics
Anonymous.
7       Defendant’s file also contained voluminous interdisciplinary progress notes that
were listed as “Confidential Client/Patient Information.” Although the court considered
Mathews’s written notes and live testimony, it sustained a claim of privilege with respect
to the confidential records and did not consider them in reaching its decision. We neither
summarize nor consider the confidential information.



                                             6.
“attained a maturity that has allowed him to no longer be the reactive, angry young man
he once was.” She believed he was now capable of delaying gratification. She opined he
would make a good candidate for resentencing under the Act.
       Mathews testified at the hearing. She had been defendant’s primary treating
mental health clinician since the spring of 2009. She concurred with defendant’s
previous clinician’s diagnoses that defendant had a “mood disorder not otherwise
specified” and polysubstance abuse in institutional remission.8 Although defendant was
prescribed various medications in the past, he had taken no psychotropic medications
since Mathews had been treating him. Defendant’s drug addiction involved multiple
substances and reportedly dated from the age of about 10 to 11 years old. Mathews was
aware defendant was prescribed morphine while on her caseload. She was concerned
with morphine use because she believed it contributes to depression.
       Mathews related she and defendant had long conversations about “his short fuse”
and “his tendency to personalize things.” She thought defendant had done “really well”
developing the capacity to look at what was truly being said so as not to personalize
comments. The major change Mathews saw in defendant was his ability to delay
gratification. She found he did not have to have “some of the material comfort … he
used to want and actively hustle to get” before he was incarcerated. Asked by defense
counsel if she thought the court should have concerns regarding defendant’s substance
abuse if released, Mathews responded: “I think the Court would be wise to concern
[itself] with whether or not he would have a stable environment. I think [defendant] is
actually capable with very, very small amounts of money of getting back onto his feet
because of his abilities and discussions with me about his interest and ideas and education


8      A diagnosis of mood disorder is not a major mental illness. It means people have
fluctuating capacity to cope, moodiness, depression, anxiety, and sometimes difficulty
sleeping.



                                            7.
and real estate. [¶] But … I don’t feel good about him going out and not having a
structure. My concern would be his just, kind of, floating out there and feeling
overwhelmed by society after 17 years of incarceration.” Mathews thought a sober living
environment would be very important, and had discussed the possibility with defendant
who seemed receptive to the idea. Mathews was of the opinion that anyone who had ever
had a problem with substance abuse continued to have a problem, and she saw defendant
as continuing to struggle in that respect.
       Defendant testified at the hearing. He admitted having a longstanding drug
problem, but denied possessing or consuming any medication not prescribed for him
during the 17 years he had most recently been in prison, even though he could have
obtained illicit drugs had he wanted to. Defendant was prescribed morphine from 2008
to 2013 because of spinal problems. He explained he did not immediately swallow his
medication in the January 2013 incident, because his neck was swollen that morning.
The nurse who reported him in 2010 and 2013 was a temporary nurse; defendant took his
medication three times a day and never had a problem with the regular staff nurses. He
denied the pruno was his; he took the blame because the inmate to whom it belonged had
a parole hearing coming up. The syringe found in 2006 belonged to his cellmate, who
was scheduled to go home in three days.
       Defendant testified he would never again use drugs, because it had cost him too
much. Although he would not have a problem if he were released, he would be willing to
go into transitional housing. He had a means of support because he had won a civil
judgment. He also had family in the Modesto area. He planned to get involved with his
brother in buying, fixing up, and reselling foreclosed homes, and he also planned to do
volunteer work.
       The prosecutor argued that, based on the totality of the circumstances (defendant’s
prior criminal history, the circumstances of his commitment offense, his disciplinary
record, and the fact he was still struggling with substance abuse), defendant remained a

                                             8.
danger to public safety. Defense counsel pointed to defendant’s explanation for some of
the disciplinary violations, and noted he had no write-ups for hiding or selling pills, and
only one assaultive-type incident. She argued he was focused on the future and had
participated in drug and alcohol programs as best he could, and argued nothing had been
presented to show he would be a risk of danger should he be released.
       The court took the matter under submission. On August 20, 2013, the court stated
it had spent a significant amount of time reviewing the case file and records and
considering the testimony presented. Based on “all of those things,” it found “there is a
risk of dangerousness” with which it was “not comfortable.” It denied the petition for the
reasons set out in its written ruling. That ruling read, in pertinent part:

               “The court places the burden of persuasion on the prosecution. That
       is, the state must convince the court, by a preponderance of the evidence,
       that to resentence a defendant as a ‘second strike offender’ would present
       an unreasonable risk of danger to the public. Unless the court finds the
       defendant presents such a danger, he or she shall be resentenced. The
       drafters of Penal Code section 1170.126 have given the court guidance on
       pertinent factors to consider. [¶] … [¶]

              “The district attorney focuses on the nature of defendant’s prior
       criminal history, the facts and circumstances surrounding the life
       commitment offense, the defendant’s disciplinary record while
       incarcerated, and his life - long substance abuse problems. The
       prosecution’s position is that, when taken together, these factors
       demonstrate that resentencing [defendant] would pose an unreasonable risk
       of danger to public safety. In response, the defense called Dr. Mathews .…

              “The court finds Dr. Mathews[’s] opinions regarding [defendant] to
       be unhelpful to [defendant]. The court notes that Dr. Mathews candidly
       admits that [defendant’s] substance abuse is in institutional remission, and
       should concern the court. She further opined that [defendant] continues to
       have a substance abuse problem. Perhaps most importantly, Dr. Mathews
       diagnoses [defendant] with a mood disorder (NOS) that leaves [defendant]
       with a ‘fluctuating ability to cope’. This, combined with his ongoing
       substance abuse problems, greatly concerns the court.

            “To the extent that Dr. Mathews characterizes [defendant’s]
       commitment offense as relatively minor, the court strongly disagrees. A

                                              9.
       jury convicted [defendant] of felony evading .… As cited by the
       prosecutor, [defendant] has ‘proved himself to be a threat to public safety
       and security’. His criminal career has been long and extensive. His prior
       serious felony convictions were residential burglaries. The court finds that
       those offenses do involve a high risk of physical danger, as did the evading
       offense. His record of rehabilitation while incarcerated is sparse. Indeed,
       he continues to receive disciplinary write - ups as recently as this year. The
       court further places little weight on [defendant’s] explanation that he ‘took
       the fall’ for a fellow inmate on at least two occasions. [Defendant]
       admitted that he lied to prison authorities to achieve his goals, and the court
       has little doubt he would be dishonest here in an attempt to win his
       freedom.

              “When taken together, the foregoing facts lead the court to find that
       the District Attorney has, by a preponderance of the evidence, met his
       burden of proof and persuasion. The court is convinced that [defendant]
       would present an unreasonable risk of danger to public safety if released.”
                                       DISCUSSION
                                               I
                             The Applicable Legal Principles
       In order to be eligible for resentencing as a second strike offender under the Act,
the inmate petitioner must satisfy the three criteria set out in subdivision (e) of
section 1170.126.9 (People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979,
989.) If the inmate satisfies all three criteria, as did defendant, he or she “shall be


9      “An inmate is eligible for resentencing if: [¶] (1) The inmate is serving an
indeterminate term of life imprisonment imposed pursuant to paragraph (2) of
subdivision (e) of Section 667 or subdivision (c) of Section 1170.12 for a conviction of a
felony or felonies that are not defined as serious and/or violent felonies by subdivision (c)
of Section 667.5 or subdivision (c) of Section 1192.7. [¶] (2) The inmate’s current
sentence was not imposed for any of the offenses appearing in clauses (i) to (iii),
inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or
clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of
Section 1170.12. [¶] (3) The inmate has no prior convictions for any of the offenses
appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of
Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of
Section 1170.12.” (§ 1170.126, subd. (e).)


                                              10.
resentenced [as a second strike offender] unless the court, in its discretion, determines
that resentencing the [inmate] would pose an unreasonable risk of danger to public
safety.” (§ 1170.126, subd. (f).) In exercising this discretion, “the court may consider:
[¶] (1) The [inmate’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 [inmate’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.” (Id., subd. (g).)

     A.   A TRIAL COURT’S ULTIMATE DETERMINATION REGARDING DANGEROUSNESS LIES
          WITHIN ITS DISCRETION; ITS RULING, THEREFORE, IS REVIEWED FOR ABUSE OF
          DISCRETION.

          Defendant argues the trial court’s decision regarding dangerousness should be
reviewed for substantial evidence.10 We disagree. The plain language of subdivisions (f)
and (g) of section 1170.126 calls for an exercise of the sentencing court’s discretion.
“‘Discretion is the power to make the decision, one way or the other.’ [Citation.]”
(People v. Carmony (2004) 33 Cal.4th 367, 375.) “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.


10      The substantial evidence test applies to an appellate court’s review of findings
made under the preponderance of the evidence standard. (People v. Wong (2010) 186
Cal.App.4th 1433, 1444.) Under that test, the appellate court reviews the record in the
light most favorable to the challenged finding, to determine whether it discloses evidence
that is reasonable, credible, and of solid value such that a reasonable trier of fact could
make the finding by a preponderance of the evidence. The appellate court “resolve[s] all
conflicts in the evidence and questions of credibility in favor of the [finding], and …
indulge[s] every reasonable inference the [trier of fact] could draw from the evidence.
[Citation.]” (Ibid.)



                                              11.
[Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see
People v. Williams (1998) 17 Cal.4th 148, 162 [abuse-of-discretion review asks whether
ruling in question falls outside bounds of reason under applicable law and relevant
facts].)
          Under the clear language of section 1170.126, the ultimate determination that
resentencing would pose an unreasonable risk of danger is a discretionary one. We,
therefore, review that determination for abuse of discretion. Of course, if there is no
evidence in the record to support the decision, the decision constitutes an abuse of
discretion. (See In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.)

     B.   THE BURDEN OF PROOF BY PREPONDERANCE OF THE EVIDENCE APPLIES TO PROOF
          OF THE FACTS, NOT TO THE TRIAL COURT’S ULTIMATE DETERMINATION.

          Defendant asserts a trial court cannot deny resentencing due to dangerousness
unless the People have proved dangerousness beyond a reasonable doubt. The People
contend their burden is preponderance of the evidence.11

                 “The standard of proof, the United States Supreme Court has said,
          ‘serves to allocate the risk of error between the litigants and to indicate the
          relative importance attached to the ultimate decision.’ [Citation.] At one
          end of the spectrum is the ‘preponderance of the evidence’ standard, which
          apportions the risk of error among litigants in roughly equal fashion.
          [Citation.] At the other end of the spectrum is the ‘beyond a reasonable
          doubt’ standard applied in criminal cases, in which ‘our society imposes
          almost the entire risk of error upon itself.’ [Citation.] Between those two
          standards is the intermediate standard of clear and convincing evidence.
          [Citation.] These three standards are codified in California’s Evidence
          Code. Section 115 of that code states: ‘The burden of proof may require a
          party to … establish the existence or nonexistence of a fact by a
          preponderance of the evidence, by clear and convincing proof, or by proof
          beyond a reasonable doubt. [¶] Except as otherwise provided by law, the

11    The parties have assumed whatever burden exists is on the People. Case law
supports that assumption. (E.g., People v. Flores (2014) 227 Cal.App.4th 1070, 1075-
1076; People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301, fn. 25
(Kaulick).) The trial court here expressly placed the burden on the prosecution.



                                                12.
       burden of proof requires proof by a preponderance of the evidence.’
       (Italics added.)

             “If the Legislature has not established a standard of proof, a court
       must determine the appropriate standard by considering all aspects of the
       law. [Citation.] No standard of proof is specified in section [1170.126] .…

               “‘The standard of proof that is required in a given instance has been
       said to reflect “… the degree of confidence our society thinks [the
       factfinder] should have in the correctness of factual conclusions for a
       particular type of adjudication.” … The standard of proof may therefore
       vary, depending upon the gravity of the consequences that would result
       from an erroneous determination of the issue involved.’ [Citations.]”
       (People v. Arriaga (2014) 58 Cal.4th 950, 961-962.)
       “In enacting section 1170.126 as part of Proposition 36, the issue before the voters
was not whether a defendant could or should be punished more harshly for a particular
aspect of his or her offense, but whether, having already been found to warrant an
indeterminate life sentence as a third strike offender, he or she should now be eligible for
a lesser term.” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1036.) Although voters
could have permitted automatic resentencing, under any and all circumstances, of those
eligible therefor, they did not do so. This demonstrates a recognition of two highly
plausible scenarios: (1) Some inmates sentenced to indeterminate terms under the
original version of the three strikes law for crimes not defined as serious or violent
felonies may have started out not posing any greater risk of danger than recidivists who
will now be sentenced to determinate terms as second strike offenders under the
prospective provisions of the Act, but have become violent or otherwise dangerous while
imprisoned, or (2) Enough time might have passed since some inmates committed their
criminal offenses so that those offenses no longer make such inmates dangerous, but
other factors do. Because of the severe consequences to society that may result if a
dangerous inmate is resentenced as a second strike offender and released to the
community upon completion of his or her term with little or no supervision (see, e.g.,
§ 3451) and without undergoing any suitability assessment (see, e.g., In re Lawrence


                                             13.
(2008) 44 Cal.4th 1181, 1204), we believe it appropriate to apportion the risk of error in
roughly equal fashion.
       Division Three of the Second District Court of Appeal has stated that, where a
court’s discretion under section 1170.126, subdivision (f) is concerned, the People bear
the burden of proving “dangerousness” by a preponderance of the evidence. (Kaulick,
supra, 215 Cal.App.4th at pp. 1301-1305 & fn. 25; see Evid. Code, § 115.) That court
determined this is so because “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.” (Kaulick,
supra, at p. 1303.) Kaulick explained:

              “The maximum sentence to which Kaulick, and those similarly
       situated to him, is subject was, and shall always be, the indeterminate life
       term to which he was originally sentenced. While [the Act] 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.” (Ibid.)

       In People v. Blakely (2014) 225 Cal.App.4th 1042, 1059-1062 (Blakely), we
rejected the claim an inmate seeking resentencing pursuant to section 1170.126 had a
Sixth Amendment right to a jury determination, beyond a reasonable doubt, on the
question of conduct constituting a disqualifying factor. We concluded that Apprendi v.
New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny (e.g., Alleyne v. United
States (2013) 570 U.S. ___ [133 S.Ct. 2151]; Cunningham v. California (2007) 549 U.S.
270 (Cunningham); Blakely v. Washington (2004) 542 U.S. 296) “do not apply to a
determination of eligibility for resentencing under the Act.” (Blakely, supra, 225
Cal.App.4th at p. 1060.) We also relied heavily on Kaulick.



                                            14.
       In rejecting application of the beyond a reasonable doubt standard, Kaulick
discussed the United States Supreme Court’s conclusion in Dillon v. United States (2010)
560 U.S. 817, 828 (Dillon), that “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.” 12 (Kaulick, supra, 215 Cal.App.4th at
p. 1304.) Kaulick found Dillon’s language applicable. Since the retrospective part of the
Act is not constitutionally required, but an act of lenity on the part of the electorate and
provides for a proceeding where the original sentence may be modified downward, any
facts found at such a proceeding, such as dangerousness, do not implicate Sixth
Amendment issues. Thus, there is no constitutional requirement that the facts be
established beyond a reasonable doubt. (Kaulick, supra, at pp. 1304-1305.)
       Although in Blakely, we applied Kaulick’s analysis to the initial determination of
eligibility for resentencing under the Act (Blakely, supra, 225 Cal.App.4th at p. 1061), it
applies equally to the issue whether resentencing the petitioner would pose an
unreasonable risk of danger to public safety. A denial of an inmate’s petition does not
increase the penalty to which that inmate is already subject, but instead removes the
inmate from the scope of an act of lenity on the part of the electorate to which he or she is
not constitutionally entitled. (Blakely, supra, at p. 1062.) That the denial is based on a
determination of dangerousness does not change that conclusion.
       Kaulick found the prosecution bears the burden of establishing “dangerousness”
by a preponderance of the evidence against a claim the Apprendi line of cases requires
proof beyond a reasonable doubt. (Kaulick, supra, 215 Cal.App.4th at pp. 1301-1302.)
As a result, it had no real occasion to address the interplay between the burden of proof

12     Pepper v. United States (2011) 562 U.S. 476 [131 S.Ct. 1229] does not undermine
Dillon’s or Kaulick’s reliance thereon. Unlike Dillon, Pepper involved a plenary
resentencing after the defendant’s sentence had been set aside on appeal. (Pepper, supra,
562 U.S. at p. ___ [131 S.Ct. at p. 1236].)



                                             15.
and the trial court’s exercise of discretion as that issue is presented here, or to clarify
whether the prosecution is required to establish “dangerousness” in the sense of facts
upon which the trial court can base the ultimate determination resentencing a petitioner
would pose an unreasonable risk of danger to public safety, or in the sense of establishing
that determination itself.13 Nevertheless, we believe it supports our interpretation.
        Accordingly, we hold preponderance of the evidence is the applicable standard of
proof, regardless whether we analyze the issue as one of Sixth Amendment jurisprudence
or due process. (See People v. Flores, supra, 227 Cal.App.4th at p. 1076.)14
        This does not, however, mean the trial court must apply that standard in making its
ultimate determination whether to resentence a petitioner, or we must review that
determination for substantial evidence. Nor does it mean evidence of dangerousness
must preponderate over evidence of rehabilitation for resentencing to be denied.
        The language of section 1170.126, subdivision (f) expressly provides the petitioner
shall be resentenced unless the court, in its discretion, makes a determination that
resentencing would pose an unreasonable risk of danger. The statute does not say the
petitioner shall be resentenced unless the People prove resentencing would pose such a
risk.

13      As noted, ante, we have previously discussed Kaulick in the context of the initial
determination whether an inmate is eligible for resentencing under the Act. (Blakely,
supra, 225 Cal.App.4th at pp. 1058, 1060-1061; People v. Osuna, supra, 225 Cal.App.4th
at pp. 1033, 1039-1040.) Nothing we say here should be taken as disagreement with or
modification of those opinions. We deal here with a different aspect of the retrospective
portion of the Act and a subject not before us in our prior cases.
14     We recognize that in the case of people who are involuntarily committed as
narcotics addicts or for analogous reasons, the California Supreme Court has found the
appropriate standard of proof to be beyond a reasonable doubt. (See, e.g., People v.
Thomas (1977) 19 Cal.3d 630, 637-638.) Defendant received the protections of that
standard of proof (and the right to a jury trial) at the time he was found to have suffered
his prior strike convictions, however. (People v. Nguyen (2009) 46 Cal.4th 1007, 1015;
People v. Towers (2007) 150 Cal.App.4th 1273, 1277.)



                                              16.
       Considering the language of subdivisions (f) and (g) of section 1170.126, we
conclude the People have the burden of establishing, by a preponderance of the evidence,
facts from which a determination resentencing the petitioner would pose an unreasonable
risk of danger to public safety can reasonably be made. The reasons a trial court finds
resentencing would pose an unreasonable risk of danger, or its weighing of evidence
showing dangerousness versus evidence showing rehabilitation, lie within the court’s
discretion. The ultimate determination that resentencing would pose an unreasonable risk
of danger is a discretionary one. While the determination must be supported by facts
established by a preponderance, the trial court need not itself find an unreasonable risk of
danger by a preponderance of the evidence. (See In re Robert L., supra, 21 Cal.App.4th
at pp. 1065-1067 [discussing abuse of discretion and preponderance of the evidence
standards].)
       Such an interpretation is consistent with California’s noncapital sentencing
scheme.15 Under the determinate sentencing law (DSL) as it existed prior to
Cunningham, “three terms of imprisonment [were] specified by statute for most offenses.
The trial court’s discretion in selecting among [those] options [was] limited by
section 1170, subdivision (b), which direct[ed] that ‘the court shall order imposition of
the middle term, unless there are circumstances in aggravation or mitigation of the
crime.’” (People v. Black (2007) 41 Cal.4th 799, 808, fn. omitted.) Trial courts had
“broad discretion” to impose the lower or upper term instead of the middle term of
imprisonment (People v. Scott (1994) 9 Cal.4th 331, 349), and generally were required by
the statutes and sentencing rules to state reasons for their discretionary sentencing choices
(ibid.). Such reasons had to be “supported by a preponderance of the evidence in the

15     The determination of the appropriate penalty in a capital case “‘is “essentially
moral and normative …, and therefore … there is no burden of proof or burden of
persuasion. [Citation.]” [Citation.]’ [Citations.]” (People v. McKinzie (2012) 54
Cal.4th 1302, 1362.)



                                            17.
record” and reasonably related to the particular sentencing determination. (Ibid.; see
former Cal. Rules of Court, rule 4.420(b).) Even after the DSL was reformed and
amended in response to Cunningham, so as to eliminate judicial factfinding in selection
of the appropriate term when three possible prison terms are specified by statute,
establishment of facts by a preponderance of the evidence remains necessary with respect
to certain discretionary sentencing decisions. (See In re Coley (2012) 55 Cal.4th 524,
557-558.)16
       In People v. Sandoval (2007) 41 Cal.4th 825, 850-851, the California Supreme
Court stated that, in making its discretionary sentencing choices post-Cunningham, “the
trial court need only ‘state [its] reasons’ [citation]; it is not required to identify
aggravating and mitigating factors, apply a preponderance of the evidence standard, or
specify the ‘ultimate facts’ that ‘justify[] the term selected.’ [Citations.] Rather, the
court must ‘state in simple language the primary factor or factors that support the exercise
of discretion.’ [Citation.]” (Italics added.)
       The trial court’s ultimate determination when considering a petition for
resentencing under section 1170.126 is analogous to an evaluation of the relative weight
of mitigating and aggravating circumstances. Such an evaluation “is not equivalent to a
factual finding.” (People v. Black, supra, 41 Cal.4th at p. 814, fn. 4.) It follows, then,
that the trial court need not apply a preponderance of the evidence standard, in that it
need not find resentencing the petitioner would, more likely than not, pose an


16      After Cunningham concluded the DSL violated a defendant’s Sixth Amendment
right to a jury trial (Cunningham, supra, 549 U.S. at p. 281), the Legislature amended
section 1170 so that now “(1) the middle term is no longer the presumptive term absent
aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the
discretion to impose an upper, middle or lower term based on reasons he or she states.”
(People v. Wilson (2008) 164 Cal.App.4th 988, 992.) Subdivision (b) of section 1170
states the court “shall select the term which, in the court’s discretion, best serves the
interests of justice.”



                                                18.
unreasonable risk of danger to public safety. (See Kaulick, supra, 215 Cal.App.4th at
p. 1305, fn. 28 [preponderance standard means “‘more likely than not’”].)
       To summarize, a trial court need not determine, by a preponderance of the
evidence, that resentencing a petitioner would pose an unreasonable risk of danger to
public safety before it can properly deny a petition for resentencing under the Act. Nor is
the court’s ultimate determination subject to substantial evidence review. Rather, its
finding will be upheld if it does not constitute an abuse of discretion, i.e., if it falls within
“the bounds of reason, all of the circumstances being considered. [Citations.]” (People
v. Giminez (1975) 14 Cal.3d 68, 72.) The facts or evidence upon which the court’s
finding of unreasonable risk is based must be proven by the People by a preponderance of
the evidence, however, and are themselves subject to our review for substantial
evidence.17 If a factor (for example, that the petitioner recently committed a battery, is
violent due to repeated instances of mutual combat, etc.) is not established by a
preponderance of the evidence, it cannot form the basis for a finding of unreasonable risk.
(See People v. Cluff (2001) 87 Cal.App.4th 991, 998 [trial court abuses its discretion
when factual findings critical to decision find no support in record]; cf. People v. Read
(1990) 221 Cal.App.3d 685, 689-691 [where trial court erroneously determined defendant
was statutorily ineligible for probation, reviewing court was required to determine
whether trial court gave sufficient other reasons, supported by facts of case, for probation
denial].)




17     We agree with defendant that “substantial evidence,” not the significantly more
deferential “some evidence” standard applicable to review of executive branch decisions
in parole cases (see In re Rosenkrantz (2002) 29 Cal.4th 616, 658, 665), is the appropriate
appellate standard.



                                               19.
   C.   SECTION 1170.126 DOES NOT ESTABLISH OR CONTAIN A PRESUMPTION A
        PETITIONER’S SENTENCE BE REDUCED.

        Defendant argues a section 1170.126 resentencing “is the converse of a Romero
hearing and establishes a presumption that the life term be reduced to a second strike
sentence.” (Some capitalization & underscoring omitted.)
        In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the
California Supreme Court held that trial courts retain discretion to strike, in furtherance
of justice under section 1385, subdivision (a), prior felony conviction allegations in cases
brought under the three strikes law. (Romero, supra, at pp. 529-530.) The court
subsequently clarified, however, that in deciding whether to do so, “the court in question
must consider whether, in light of the nature and circumstances of his present felonies
and prior serious and/or violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside the scheme’s spirit, in
whole or in part, and hence should be treated as though he had not previously been
convicted of one or more serious and/or violent felonies.” (People v. Williams, supra, 17
Cal.4th at p. 161.)
        Because the three strikes law was intended to restrict trial courts’ discretion in
sentencing repeat offenders, the state high court determined there were “stringent
standards” sentencing courts must follow in order to find a defendant should be treated as
falling outside the three strikes scheme. (People v. Carmony, supra, 33 Cal.4th at
p. 377.) The court explained:

               “[T]he three strikes law not only establishes a sentencing norm, it
        carefully circumscribes the trial court’s power to depart from this norm and
        requires the court to explicitly justify its decision to do so. In doing so, the
        law creates a strong presumption that any sentence that conforms to these
        sentencing norms is both rational and proper.

               “In light of this presumption, a trial court will only abuse its
        discretion in failing to strike a prior felony conviction allegation in limited
        circumstances. For example, an abuse of discretion occurs where the trial
        court was not ‘aware of its discretion’ to dismiss [citation], or where the


                                              20.
       court considered impermissible factors in declining to dismiss [citation].
       Moreover, ‘the sentencing norms [established by the Three Strikes law
       may, as a matter of law,] produce[] an “arbitrary, capricious or patently
       absurd” result’ under the specific facts of a particular case. [Citation.]

              “But ‘[i]t is not enough to show that reasonable people might
       disagree about whether to strike one or more’ prior conviction allegations.
       [Citation.] … Because the circumstances must be ‘extraordinary … by
       which a career criminal can be deemed to fall outside the spirit of the very
       scheme within which he squarely falls once he commits a strike as part of a
       long and continuous criminal record, the continuation of which the law was
       meant to attack’ [citation], the circumstances where no reasonable people
       could disagree that the criminal falls outside the spirit of the three strikes
       scheme must be even more extraordinary.” (People v. Carmony, supra, 33
       Cal.4th at p. 378.)
       As we explained in Blakely, supra, 225 Cal.App.4th at page 1054, “The purpose of
the three strikes law has been variously stated as being ‘“to ensure longer prison
sentences and greater punishment for those who commit a felony and have been
previously convicted of serious and/or violent felony offenses”’ [citation] and ‘to
promote the state’s compelling interest in the protection of public safety and in punishing
recidivism’ [citation]. Although the Act ‘diluted’ the three strikes law somewhat
[citation], ‘[e]nhancing public safety was a key purpose of the Act’ [citation].” Because
public safety remains a key purpose of the law under the Act, we reject defendant’s
assertion that a section 1170.126 proceeding is the converse of a Romero determination,
so that any refusal to resentence an eligible inmate must be subjected to the same
rigorous scrutiny as the granting of a Romero motion.18




18     Because a trial court can deny resentencing under section 1170.126,
subdivision (f), only upon a finding of unreasonable risk of danger to public safety, a trial
court would abuse its discretion, as in a Romero situation, by refusing to resentence a
petitioner because of antipathy toward the Act or a personal belief a particular defendant
deserved an indeterminate term for reasons other than dangerousness. (See People v.
Williams, supra, 17 Cal.4th at pp. 159, 161.)



                                             21.
       Relying on People v. Guinn (1994) 28 Cal.App.4th 1130, 1141-1142, 1145 and its
progeny (e.g., People v. Murray (2012) 203 Cal.App.4th 277, 282; People v. Ybarra
(2008) 166 Cal.App.4th 1069, 1089), all of which deal with section 190.5,
subdivision (b),19 defendant contends the “shall”/“unless” formulation employed in
subdivision (f) of section 1170.126 “establishes a mandatory presumption of reduction of
… [a] sentence, subject only to a limited exception for extraordinary cases of current
dangerousness.” (Some capitalization & underscoring omitted.)
       The California Supreme Court recently disapproved the cases relied on by
defendant. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1370, 1387.) Leaving aside
constitutional questions raised by establishing a presumption in favor of life without
parole for juveniles after the United States Supreme Court’s opinion in Miller v. Alabama
(2012) 567 U.S. ___ [132 S.Ct. 2455], the state high court’s review of the text of
section 190.5, subdivision (b) led it to conclude the syntax is ambiguous concerning any
presumption. The court stated: “It is not unreasonable to read this text … to mean that a
court ‘shall’ impose life without parole unless ‘at the discretion of the court’ a sentence
of 25 years to life appears more appropriate. [Citation.] But it is equally reasonable to
read the text to mean that a court may select one of the two penalties in the exercise of its
discretion, with no presumption in favor of one or the other. The latter reading accords
with common usage. For example, if a teacher informed her students that ‘you must take
a final exam or, at your discretion, write a term paper,’ it would be reasonable for the
students to believe they were equally free to pursue either option. The text of


19     Section 190.5, subdivision (b) provides, in pertinent part: “The penalty for a
defendant found guilty of murder in the first degree, in any case in which one or more
special circumstances … has been found to be true …, who was 16 years of age or older
and under the age of 18 years at the time of the commission of the crime, shall be
confinement in the state prison for life without the possibility of parole or, at the
discretion of the court, 25 years to life.”



                                             22.
section 190.5[, subdivision ](b) does not clearly indicate whether the statute was intended
to make life without parole the presumptive sentence.” (People v. Gutierrez, supra, 58
Cal.4th at p. 1371.)
       The same example can be applied to the syntax of section 1170.126,
subdivision (f). Thus, we do not agree with defendant that resentencing to a second strike
term “is the ‘generally mandatory’ disposition, subject only to ‘circumscribed’ discretion
to retain” the indeterminate third strike term. A court considering whether to resentence
an eligible petitioner under section 1170.126, subdivision (f) has circumscribed discretion
in the sense it can only refuse to resentence if it finds that to do so would pose an
unreasonable risk of danger to public safety on the facts of the particular case before it.
This does not mean, however, its discretion is circumscribed in the sense it can only find
dangerousness in extraordinary cases. To the contrary, it can do so in any case in which
such a finding is rational under the totality of the circumstances.
       Such a conclusion comports with the plain language of the statute. Moreover, a
conclusion resentencing to a second strike term is a generally mandatory presumption
from which courts can depart only in extraordinary cases, as defendant asserts, would run
directly contrary to the intent of the voters in passing the Act. (See People v. Gutierrez,
supra, 58 Cal.4th at pp. 1371-1372 [examining legislative history and voter intent in
attempt to resolve statutory ambiguity].) As we stated in People v. Osuna, supra, 225
Cal.App.4th at page 1036, “‘[e]nhancing public safety was a key purpose of the Act’
[citation].” Thus, although one purpose of the Act was to save taxpayer dollars (People
v. Osuna, supra, at p. 1037), “[i]t is clear the electorate’s intent was not to throw open the
prison doors to all third strike offenders whose current convictions were not for serious or
violent felonies, but only to those who were perceived as nondangerous or posing little or
no risk to the public.” (Id. at p. 1038, second italics added.) Had voters intended to
permit retention of an indeterminate term only in extraordinary cases, they would have
said so in subdivision (f) of section 1170.126, rather than employing language that

                                             23.
affords courts broad discretion to find dangerousness. They also would not have afforded
the trial court the power to consider any evidence it determined to be relevant to the issue
as they did in subdivision (g)(3) of the statute.20

     D.   THE FOCUS IN A SECTION 1170.126, SUBDIVISION (F) ANALYSIS, IS ON WHETHER
          PETITIONER CURRENTLY POSES AN UNREASONABLE RISK OF DANGER TO PUBLIC
          SAFETY.

          Defendant contends the trial court “must articulate a rational nexus” between the
factors considered in its decision and current dangerousness “as with parole denials.”
(Some capitalization & underscoring omitted.)
          In discussing the “some evidence” standard applicable in parole cases, the
California Supreme Court has stated: “This standard is unquestionably deferential, but
certainly is not toothless, and ‘due consideration’ of the specified factors requires more
than rote recitation of the relevant factors with no reasoning establishing a rational nexus
between those factors and the necessary basis for the ultimate decision — the
determination of current dangerousness.” (In re Lawrence, supra, 44 Cal.4th at p. 1210.)


20      Defendant points to an article written by two of the authors of the Act, in which
they assert the intent of Proposition 36 is that inmates will be entitled to resentencing in
all but the rarest cases involving true risk to public safety. Assuming this material is
properly before us, it does not help defendant, because it finds no support in either the
language of section 1170.126 itself or in the ballot materials related to Proposition 36.
For instance, although the “ARGUMENT IN FAVOR OF PROPOSITION 36” stated the
measure had been “carefully crafted … so that truly dangerous criminals” would receive
no benefits from the Act (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) argument
in favor of Prop. 36, p. 52), it did not suggest dangerousness would properly be found
only in rare cases. Thus, the authors’ intent is not a reliable indicator of what voters
intended. (See People v. Garcia (2002) 28 Cal.4th 1166, 1175-1176, fn. 5; California
Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699-701;
Carleson v. Superior Court (1972) 27 Cal.App.3d 1, 9, fn. 11; see also People v. Rizo
(2000) 22 Cal.4th 681, 685.) Rather, the statutory language and ballot materials suggest
voters intended resentencing would be denied in any case in which it would pose an
unreasonable risk of danger to public safety, and they entrusted to their local judges the
discretion to make that determination.



                                              24.
       Although we decline to decide how and to what extent parole cases inform the
decision whether to resentence a petitioner under the Act or our review of such a
decision, we do agree with defendant that the proper focus is on whether the petitioner
currently poses an unreasonable risk of danger to public safety. (Cf. In re Shaputis
(2008) 44 Cal.4th 1241, 1254; In re Lawrence, supra, 44 Cal.4th at p. 1214.) We also
agree a trial court may properly deny resentencing under the Act based solely on
immutable facts such as a petitioner’s criminal history “only if those facts support the
ultimate conclusion that an inmate continues to pose an unreasonable risk to public
safety. [Citation.]” (In re Lawrence, supra, at p. 1221.) “[T]he relevant inquiry is
whether [a petitioner’s prior criminal and/or disciplinary history], when considered in
light of other facts in the record, are such that they continue to be predictive of current
dangerousness many years [later]. This inquiry is … an individualized one, and cannot
be undertaken simply by examining the circumstances of [the petitioner’s criminal
history] in isolation, without consideration of the passage of time or the attendant changes
in the inmate’s psychological or mental attitude. [Citation.]’ [Citation.]” (In re
Shaputis, supra, 44 Cal.4th at pp. 1254-1255.)
                                              II
                                 The Trial Court’s Ruling
       Applying the foregoing principles, we conclude defendant has not borne his
burden on appeal of establishing the trial court’s ruling exceeds the bounds of reason.
Although appellant counsels us to remember that, if he were sentenced today for the same
commitment offenses he could not be sentenced to a life term as a third strike offender,
we note the same would be true of any prisoner eligible for resentencing under
section 1170.126. Defendant also argues voters have determined prisoners like him do
not pose an unreasonable risk of danger. If that were so, voters would not have given
trial courts discretion to decide what evidence is relevant to such a determination, or to
make such determination. We find those arguments unpersuasive.

                                             25.
       Here, the trial court clearly was aware it was required to find defendant currently
posed an unreasonable risk to public safety. As the court stated in its written ruling,
“Unless the court finds the defendant presents such a danger, he or she shall be
resentenced.” (Italics added & omitted.)
       Additionally, the trial court’s ruling conveyed reasoning which established a nexus
between the evidence before it and current dangerousness. Defendant appears to contend
an express statement of reasons supporting a finding of dangerousness is required, but
section 1170.126 — in contrast to section 1385, subdivision (a) — contains no such
requirement. The trial court’s ruling here was more than adequate for meaningful
appellate review, and “the application of reasoned analysis” is apparent from its ruling.
(In re Young (2012) 204 Cal.App.4th 288, 306.) Moreover, the court did not merely rely
on long-ago crimes, although defendant’s criminal record certainly figured into its
determination.
       Defendant complains the trial court discounted or ignored any evidence favorable
to him, such as the remoteness of his criminal offenses, his classification score, his health
and age, and Mathews’s assessment. These matters were all before the court, however,
and the court expressly stated it had reviewed the case file and records and considered the
testimony, and that its determination was “[b]ased on all of those things.” Although it
may not have expressly mentioned each piece of evidence individually, this does not
mean it failed to consider all the evidence. In the absence of any showing to the contrary,
we presume it did so. (Evid. Code, § 664; see Denham v. Superior Court (1970) 2 Cal.3d
557, 564; cf. People v. Sparks (1968) 262 Cal.App.2d 597, 600-601.) That defendant
does not agree with the conclusion the court reached, or the weight or lack of weight it
accorded to the various facts before it, does not mean the trial court erred.
       Defendant argues the trial court erroneously framed the pertinent issue as an
inquiry into the risk of recidivism in general, when it should have been looking at the
likelihood of future violence. The court did not err. Section 1170.126, subdivision (f)

                                             26.
does not say a petitioner shall be resentenced unless the court determines resentencing the
petitioner would pose an unreasonable risk of violence; rather, it speaks in terms of
danger to public safety.21 That a crime (or criminal) can constitute a danger to public
safety without being violent is too obvious to dispute (see, e.g., People v. Hughes (2002)
27 Cal.4th 287, 355; People v. Villalobos (2006) 145 Cal.App.4th 310, 317) and is
recognized both by the three strikes law’s inclusion as a strike, by reference to
section 1192.7, subdivision (c)’s definition of a “serious felony,” any first degree
burglary, furnishing certain drugs to a minor, and grand theft involving a firearm (§§ 667,
subd. (d)(1), 1170.12, subd. (b)(1), 1192.7, subd. (c)(18), (24) & (26)), and by
section 1170.126, subdivision (e)(2)’s disqualification from eligibility for resentencing
persons convicted of certain narcotics offenses (see §§ 667, subd. (e)(2)(C)(i), 1170.12,
subd. (c)(2)(C)(i)). Although the ballot materials concerning Proposition 36 focused on
violent criminals, section 7 of the Act provides: “This act is an exercise of the public
power of the people of the State of California for the protection of the health, safety, and
welfare of the people of the State of California, and shall be liberally construed to
effectuate those purposes.” (Italics omitted.) To condition resentencing denials upon the
likelihood of future violence would run contrary to the language of section 1170.126,
subdivision (f) and voters’ intent, and would not effectuate the purposes of the Act.
       Finally, defendant contends that, in light of the Act’s express purpose of “a more
rational and cost-effective allocation of the crippling expenses of California’s prison


21      Words and phrases used in the Penal Code “must be construed according to the
context and the approved usage of the language .…” (§ 7, subd. 16.) In interpreting a
ballot initiative, we afford the words used their ordinary and usual meaning. (People v.
Park (2013) 56 Cal.4th 782, 796.) “[S]afety” has been variously defined as “the
condition of being safe: freedom from exposure to danger: exemption from hurt, injury or
loss” (Webster’s 3d New Internat. Dict. (1986) p. 1998) and “[t]he condition of being
safe; freedom from danger, risk, or injury” (American Heritage Dict. (2d college ed.
1982) p. 1084).



                                             27.
system,” trial courts are required to weigh fiscal considerations in deciding resentencing
petitions, something the trial court here did not do. In our view, the notion that the cost
of continued incarceration has some bearing on whether resentencing a particular inmate
would pose an unreasonable risk of danger to public safety is a non sequitur. Although
saving money is a goal of the Act, it does not override the primary purpose of the three
strikes law and the Act as a whole — the protection of public safety. (See People v.
Osuna, supra, 225 Cal.App.4th at pp. 1036-1038.) The trial court was not required to
take the cost of continued imprisonment into account or undertake the equivalent of a
cost-benefit analysis in determining whether resentencing defendant would pose an
unreasonable risk of danger to public safety; the Act already did so, and the electorate has
determined keeping criminals who pose an unreasonable risk of danger to public safety
behind bars for their full three strikes sentence is more important than saving money.
                                             III*
                             Section 1170.18, Subdivision (c)
       On November 4, 2014, voters enacted Proposition 47, “the Safe Neighborhoods
and Schools Act” (hereafter Proposition 47). It went into effect the next day. (Cal.
Const., art. II, § 10, subd. (a).) Insofar as is pertinent here, Proposition 47 renders
misdemeanors certain drug- and theft-related offenses that previously were felonies or
“wobblers,” unless they were committed by certain ineligible defendants. Proposition 47
also created a new resentencing provision — section 1170.18 — by which a person
currently serving a felony sentence for an offense that is now a misdemeanor, may
petition for a recall of that sentence and request resentencing in accordance with the
offense statutes as added or amended by Proposition 47. (§ 1170.18, subd. (a).) A
person who satisfies the criteria in subdivision (a) of section 1170.18 shall have his or her
sentence recalled and be “resentenced to a misdemeanor … unless the court, in its
*      See footnote, ante, page 1.



                                              28.
discretion, determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety.” (Id., subd. (b).)22
       Hidden in the lengthy, fairly abstruse text of the proposed law, as presented in the
official ballot pamphlet — and nowhere called to voters’ attention — is the provision at
issue in the present appeal. Subdivision (c) of section 1170.18 provides: “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 the following felonies, sometimes called
“super strike” offenses:

              “(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 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.



22    Proposition 47 also created a process whereby eligible persons who have already
completed their sentences may have the particular conviction or convictions designated
as misdemeanors. (§ 1170.18, subds. (f), (g).)



                                                29.
              “(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.”
       The question is whether section 1170.18, subdivision (c) now limits a trial court’s
discretion to deny resentencing under the Act to those cases in which resentencing the
defendant would pose an unreasonable risk he or she will commit a new “super strike”
offense. Defendant says it does. The People disagree. We agree with the People.23


23     We solicited supplemental briefing concerning Proposition 47. Among the
questions we asked counsel to answer were whether defendant met the criteria for
resentencing under section 1170.18 and, if so, whether we needed to determine the
applicability, if any, of section 1170.18, subdivision (c) to resentencing proceedings
under section 1170.126. We are satisfied it is appropriate for us to reach the issue of
applicability regardless of whether defendant might obtain resentencing under
Proposition 47.
        It appears that a number of inmates will be eligible to seek resentencing under
both the Act and Proposition 47. Such an inmate need not wait to file a petition under
Proposition 47 until the trial court’s ruling on the inmate’s petition under the Act is final.
A trial court is not divested of jurisdiction over a Proposition 47 petition by the fact a
petition under the Act is pending, whether in a trial court or a Court of Appeal, with
respect to the same inmate. (Cf. People v. Mayfield (1993) 5 Cal.4th 220, 222-227;
People v. Johnson (1992) 3 Cal.4th 1183, 1256-1257; People v. Alanis (2008) 158
Cal.App.4th 1467, 1472-1473.) While the general rule is that “an appeal from an order in
a criminal case removes the subject matter of that order from the jurisdiction of the trial
court [citations]” (Anderson v. Superior Court (1967) 66 Cal.2d 863, 865), the subject
matter of a ruling on a petition under the Act is legally independent from a petition under
Proposition 47 (see People v. Superior Court (Gregory) (2005) 129 Cal.App.4th 324,
332).
       In light of the differences between the two proceedings — for instance, an inmate
resentenced under Proposition 47 is generally subject to one year of parole (§§ 1170.18,
subd. (d), 3000.08), while an inmate resentenced under the Act is subject to up to three
years of postrelease community supervision (§ 3451; People v. Tubbs (2014) 230
Cal.App.4th 578, 585-586, petn. for review pending, petn. filed Nov. 12, 2014; People v.
Espinoza (2014) 226 Cal.App.4th 635, 637-638) — we express no opinion concerning
whether the granting of a Proposition 47 petition would render moot resentencing
proceedings, whether in a trial court or on appeal, under the Act. Nothing we say should


                                             30.
       “‘In interpreting a voter initiative …, we apply the same principles that govern
statutory construction. [Citation.]’ [Citation.] ‘“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.]” (People v. Superior Court (Cervantes) (2014) 225
Cal.App.4th 1007, 1014.) Thus, in the case of a provision adopted by the voters, “their
intent governs. [Citations.]” (People v. Jones (1993) 5 Cal.4th 1142, 1146.)
       To determine intent, “‘we look first to the words themselves. [Citations.]’”
(People v. Superior Court (Cervantes), supra, 225 Cal.App.4th at p. 1014.) We give the
statute’s words “‘a plain and commonsense meaning. [Citation.] We do not, however,
consider the statutory language “in isolation.” [Citation.] Rather, we look to “the entire
substance of the statute … in order to determine the scope and purpose of the
provision .… [Citation.]” [Citation.] That is, we construe the words in question “‘in
context, keeping in mind the nature and obvious purpose of the statute .…’ [Citation.]”
[Citation.] We must harmonize “the various parts of a statutory enactment … by
considering the particular clause or section in the context of the statutory framework as a
whole.” [Citations.]’ [Citation.]” (People v. Acosta (2002) 29 Cal.4th 105, 112.) We
“accord[] significance, if possible, to every word, phrase and sentence in pursuance of the
legislative purpose. A construction making some words surplusage is to be avoided.…
[S]tatutes or statutory sections relating to the same subject must be harmonized, both
internally and with each other, to the extent possible. [Citations.]” (Dyna-Med, Inc. v.
Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.)
       “‘“When statutory language is clear and unambiguous, there is no need for
construction and courts should not indulge in it.” [Citation.]’ [Citation.]” (People v.
Hendrix (1997) 16 Cal.4th 508, 512.) On its face, “[a]s used throughout this Code,” as


be read as expressing any opinion concerning defendant’s eligibility to seek, or the
appropriate result should he seek, resentencing under Proposition 47.



                                            31.
employed in section 1170.18, subdivision (c), clearly and unambiguously refers to the
Penal Code, not merely section 1170.18 or the other provisions contained in
Proposition 47. (See People v. Bucchierre (1943) 57 Cal.App.2d 153, 164-165, 166; see
also Marshall v. Pasadena Unified School Dist. (2004) 119 Cal.App.4th 1241, 1254-
1255; People v. Vasquez (1992) 7 Cal.App.4th 763, 766.)
       This does not mean, however, that the definition contained in section 1170.18,
subdivision (c) must inexorably be read into section 1170.126, subdivision (f). (Cf.
Marshall v. Pasadena Unified School Dist., supra, 119 Cal.App.4th at p. 1255.) “The
literal language of a statute does not prevail if it conflicts with the lawmakers’ intent .…
[Citations.]” (People v. Osuna, supra, 225 Cal.App.4th at pp. 1033-1034.) “‘The
apparent purpose of a statute will not be sacrificed to a literal construction.’ [Citation.]”
(Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 733.) Rather, “the literal meaning
of a statute must be in accord with its purpose.” (People v. Mohammed (2008) 162
Cal.App.4th 920, 927.) “[I]t is settled that the language of a statute should not be given a
literal meaning if doing so would result in absurd consequences that the [voters] did not
intend” (In re Michele D. (2002) 29 Cal.4th 600, 606), or would “frustrate[] the manifest
purposes of the legislation as a whole .…” (People v. Williams (1992) 10 Cal.App.4th
1389, 1393.) “To this extent, therefore, intent prevails over the letter of the law and the
letter will be read in accordance with the spirit of the enactment. [Citation.]” (In re
Michele D., supra, 29 Cal.4th at p. 606; accord, People v. Ledesma (1997) 16 Cal.4th 90,
95.)
       Thus, “‘we look to a variety of extrinsic aids, including the ostensible objects to be
achieved, the evils to be remedied, the legislative history, public policy,
contemporaneous administrative construction, and the statutory scheme of which the
statute is a part. [Citations.]’ [Citation.] We also ‘“refer to other indicia of the voters’
intent, particularly the analyses and arguments contained in the official ballot pamphlet.”
[Citation.]’ [Citation.]” (People v. Osuna, supra, 225 Cal.App.4th at p. 1034.) We

                                             32.
consider “the consequences that will flow from a particular interpretation” (Dyna-Med,
Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at p. 1387), as well as “the
wider historical circumstances” of the statute’s or statutes’ enactment (ibid.). “‘Using
these extrinsic aids, we “select the construction that comports most closely with the
apparent intent of the [electorate], with a view to promoting rather than defeating the
general purpose of the statute, and avoid an interpretation that would lead to absurd
consequences.” [Citation.]’ [Citation.]” (People v. Osuna, supra, 225 Cal.App.4th at
pp. 1034-1035.)
       Proposition 47 and the Act address related, but not identical, subjects. As we
explain, reading them together, and considering section 1170.18, subdivision (c) in the
context of the statutory framework as a whole (see People v. Acosta, supra, 29 Cal.4th at
p. 112; Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 658-659; In re
Cindy B. (1987) 192 Cal.App.3d 771, 781), we conclude its literal meaning does not
comport with the purpose of the Act, and applying it to resentencing proceedings under
the Act would frustrate, rather than promote, that purpose and the intent of the electorate
in enacting both initiative measures (see People v. Disibio (1992) 7 Cal.App.4th Supp. 1,
5).
       As is evidenced by its title, the Act was aimed solely at revising the three strikes
law. That law, as originally enacted by the Legislature, was described by us as follows:

               “Under the three strikes law, defendants are punished not just for
       their current offense but for their recidivism. Recidivism in the
       commission of multiple felonies poses a danger to society justifying the
       imposition of longer sentences for subsequent offenses. [Citation.] The
       primary goals of recidivist statutes are: ‘… to deter repeat offenders and, at
       some point in the life of one who repeatedly commits criminal offenses
       serious enough to be punished as felonies, to segregate that person from the
       rest of society for an extended period of time. This segregation and its
       duration are based not merely on that person’s most recent offense but also
       on the propensities he has demonstrated over a period of time during which
       he has been convicted of and sentenced for other crimes. Like the line
       dividing felony theft from petty larceny, the point at which a recidivist will

                                             33.
       be deemed to have demonstrated the necessary propensities and the amount
       of time that the recidivist will be isolated from society are matters largely
       within the discretion of the punishing jurisdiction.’ [Citation.]

               “By enacting the three strikes law, the Legislature acknowledged the
       will of Californians that the goals of retribution, deterrence, and
       incapacitation be given precedence in determining the appropriate
       punishment for crimes. Further, those goals were best achieved by
       ensuring ‘longer prison sentences and greater punishment’ for second and
       third ‘strikers.’” (People v. Cooper (1996) 43 Cal.App.4th 815, 823-
       824.)24
       A few months before the November 6, 2012, election, the California Supreme
Court observed: “One aspect of the [three strikes] law that has proven controversial is
that the lengthy punishment prescribed by the law may be imposed not only when … a
defendant [who has previously been convicted of one or more serious or violent felonies]
is convicted of another serious or violent felony but also when he or she is convicted of
any offense that is categorized under California law as a felony. This is so even when the
current, so-called triggering, offense is nonviolent and may be widely perceived as
relatively minor. [Citations.]” (In re Coley, supra, 55 Cal.4th at pp. 528-529.)
       Clearly, by approving the Act, voters resolved this controversy in favor of strike
offenders. Thus, one of the “Findings and Declarations” of the Act stated the Act would
“[r]estore the Three Strikes law to the public’s original understanding by requiring life
sentences only when a defendant’s current conviction is for a violent or serious crime.”
(Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of proposed law, § 1, p. 105.)
Nowhere, however, do the ballot materials for the Act suggest voters intended essentially

24      The foregoing applies equally to the three strikes initiative measure that added
section 1170.12 to the Penal Code. The following statement of intent preceded the text of
the statute in Proposition 184, which was approved by voters on November 8, 1994: “‘It
is the intent of the People of the State of California in enacting this measure to ensure
longer prison sentences and greater punishment for those who commit a felony and have
been previously convicted of serious and/or violent felony offenses.’” (See Historical
and Statutory Notes, 50C West’s Ann. Pen. Code (2004 ed.) foll. § 1170.12, p. 239.)



                                            34.
to open the prison doors to existing third strike offenders in all but the most egregious
cases, as would be the result if the definition of “‘unreasonable risk of danger to public
safety’” contained in section 1170.18, subdivision (c) were engrafted onto resentencing
proceedings under section 1170.126, subdivision (f). That voters did not intend such a
result is amply demonstrated by the fact an indeterminate life term remains mandatory
under the Act for a wide range of current offenses even if the offender does not have a
prior conviction for a “super strike” offense (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)),
and that an inmate is rendered ineligible for resentencing under section 1170.126 for an
array of reasons beyond his or her having suffered such a prior conviction (§ 1170.126,
subd. (e)(2)).
       The Act clearly placed public safety above the cost savings likely to accrue as a
result of its enactment. Thus, as we previously observed, uncodified section 7 of the Act
provides: “This act is an exercise of the public power of the people of the State of
California for the protection of the health, safety, and welfare of the people of the State of
California, and shall be liberally construed to effectuate those purposes.” (Voter
Information Guide, Gen. Elec. (Nov. 6, 2012), supra, text of proposed law, p. 110,
original italics omitted, italics added.) As we explained in People v. Osuna, supra, 225
Cal.App.4th at page 1036, “Although the Act ‘diluted’ the three strikes law somewhat
[citation], ‘[e]nhancing public safety was a key purpose of the Act’ [citation].”
       In contrast, Proposition 47 — while titled “the Safe Neighborhoods and Schools
Act” — emphasized monetary savings. The “Findings and Declarations” state: “The
people of the State of California find and declare as follows: [¶] The people enact the
Safe Neighborhoods and Schools Act to ensure that prison spending is focused on violent
and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to
invest the savings generated from this act into prevention and support programs in K-12
schools, victim services, and mental health and drug treatment. This act ensures that
sentences for people convicted of dangerous crimes like rape, murder, and child

                                             35.
molestation are not changed.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text
of proposed law, § 2, p. 70.) Uncodified section 15 of the measure provides: “This act
shall be broadly construed to accomplish its purposes,” while uncodified section 18
states: “This act shall be liberally construed to effectuate its purposes.” (Voter
Information Guide, Gen. Elec. (Nov. 4, 2014), supra, text of proposed law, p. 74.)
Proposition 47 requires misdemeanor sentences for various drug possession and property
offenses, unless the perpetrator has a prior conviction for a “super strike” offense or for
an offense requiring sex offender registration pursuant to section 290, subdivision (c).
(Health & Saf. Code, §§ 11350, subd. (a), 11357, subd. (a), 11377, subd. (a); §§ 459.5,
subd. (a), 473, subd. (b), 476a, subd. (b), 490.2, subd. (a), 496, subd. (a), 666, subd. (b).)
Section 1170.18 renders ineligible for resentencing only those inmates whose current
offense would now be a misdemeanor, but who have a prior conviction for a “super
strike” offense or for an offense requiring sex offender registration pursuant to
section 290, subdivision (c). (§ 1170.18, subds. (a), (i).)
       Nowhere in the ballot materials for Proposition 47 were voters given any
indication that initiative, which dealt with offenders whose current convictions would
now be misdemeanors rather than felonies, had any impact on the Act, which dealt with
offenders whose current convictions would still be felonies, albeit not third strikes. For
instance, the Official Title and Summary stated, in pertinent part, that Proposition 47
would “[r]equire[] resentencing for persons serving felony sentences for these offenses[,
i.e., offenses that require misdemeanor sentences under the measure] unless court finds
unreasonable public safety risk.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014),
supra, official title and summary, p. 34.) In explaining what Proposition 47 would do,
the Legislative Analyst stated: “This measure reduces penalties for certain offenders
convicted of nonserious and nonviolent property and drug crimes. This measure also
allows certain offenders who have been previously convicted of such crimes to apply for
reduced sentences.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra,

                                              36.
analysis of Prop. 47 by Legis. Analyst, p. 35, italics added.) With respect to the
resentencing provision, the Legislative Analyst explained:

               “This measure allows offenders currently serving felony sentences
       for the above crimes[, i.e., grand theft, shoplifting, receiving stolen
       property, writing bad checks, check forgery, and drug possession] to apply
       to have their felony sentences reduced to misdemeanor sentences. In
       addition, certain offenders who have already completed a sentence for a
       felony that the measure changes could apply to the court to have their
       felony conviction changed to a misdemeanor. However, no offender who
       has committed a specified severe crime could be resentenced or have their
       conviction changed. In addition, the measure states 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.
       Offenders who are resentenced would be required to be on state parole for
       one year, unless the judge chooses to remove that requirement.” (Id. at
       p. 36, italics added.)
       Similarly, the arguments in favor of and against Proposition 47 spoke in terms
solely of Proposition 47, and never mentioned the Act. The Argument in Favor of
Proposition 47 spoke in terms of prioritizing serious and violent crime so as to stop
wasting prison space “on petty crimes,” stop “wasting money on warehousing people in
prisons for nonviolent petty crimes,” and stop California’s overcrowded prisons from
“incarcerating too many people convicted of low-level, nonviolent offenses.” (Voter
Information Guide, Gen. Elec. (Nov. 4, 2014), supra, argument in favor of Prop. 47,
p. 38.) The Rebuttal to Argument Against Proposition 47 reiterated these themes, and
never suggested Proposition 47 would have any effect on resentencing under the Act.
(See Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, rebuttal to argument
against Prop. 47, p. 39.) Although the Rebuttal to Argument in Favor of Proposition 47
asserted 10,000 inmates would be eligible for early release under the measure, and that
many of them had prior convictions “for serious crimes, such as assault, robbery and
home burglary” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, rebuttal to
argument in favor of Prop. 47, p. 38), there is no suggestion the early release provisions



                                            37.
would extend to inmates whose current offenses remained felonies under the Act. The
same is true of the discussion of resentencing contained in the Argument Against
Proposition 47. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, argument
against Prop. 47, p. 39.)
       In light of the foregoing, we cannot reasonably conclude voters intended the
definition of “‘unreasonable risk of danger to public safety’” contained in
section 1170.18, subdivision (c) to apply to that phrase as it appears in section 1170.126,
subdivision (f), despite the former section’s preamble, “As used throughout this
Code .…” Voters cannot intend something of which they are unaware.
       We are cognizant one of the Act’s authors has taken the position Proposition 47’s
definition of “unreasonable risk of danger” applies to resentencing proceedings under the
Act. (St. John & Gerber, Prop. 47 Jolts Landscape of California Justice System (Nov. 5,
2014) Los Angeles Times <http://www.latimes.com/local/politics/la-me-ff-pol-
proposition47-20141106-story.html> [as of Dec. 17, 2014].) Looking at the information
conveyed to voters, however, this clearly was not their intent and so an author’s desire is
of no import. (Cf. People v. Garcia, supra, 28 Cal.4th at pp. 1175-1176, fn. 5; People v.
Bradley (2012) 208 Cal.App.4th 64, 83; Kaufman & Broad Communities, Inc. v.
Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 30.)
       We are also mindful “it has long been settled that ‘[t]he enacting body is deemed
to be aware of existing laws and judicial constructions in effect at the time legislation is
enacted’ [citation], ‘and to have enacted or amended a statute in light thereof’ [citation].
‘This principle applies to legislation enacted by initiative. [Citation.]’ [Citation.]”
(People v. Superior Court (Cervantes), supra, 225 Cal.App.4th at p. 1015; accord, In re
Lance W. (1985) 37 Cal.3d 873, 890, fn. 11.) Thus, we presume voters were aware
“unreasonable risk of danger to public safety,” as used in section 1170.126,
subdivision (f), had been judicially construed as not being impermissibly vague, but as
nevertheless having no fixed definition. (People v. Garcia (2014) 230 Cal.App.4th 763,

                                             38.
769-770, petn. for review pending, petn. filed Nov. 18, 2014; People v. Flores, supra,
227 Cal.App.4th at p. 1075.) Because nowhere in the ballot materials for Proposition 47
was it called to voters’ attention the definition of the phrase contained in section 1170.18,
subdivision (c) would apply to resentencing proceedings under the Act, we simply cannot
conclude voters intended Proposition 47 to alter the Act in that respect. Voters are not
asked or presumed to be able to discern all potential effects of a proposed initiative
measure; this is why they are provided with voter information guides containing not only
the actual text of such a measure, but also a neutral explanation and analysis by the
Legislative Analyst and arguments in support of and in opposition to the measure. As we
have already observed, none of those materials so much as hinted that Proposition 47
could have the slightest effect on resentencing under the Act. (Cf. Marshall v. Pasadena
Unified School Dist., supra, 119 Cal.App.4th at pp. 1255-1256 [legislative history of
enactment included information bill would add definition of particular term to Public
Contract Code].)25
       We are asked to infer an intent to extend section 1170.18, subdivision (c)’s
definition to proceedings under section 1170.126 because the phrase in question only
appears in those sections of the Penal Code. We cannot do so. The only resentencing
mentioned in the Proposition 47 ballot materials was resentencing for inmates whose
current offenses would be reduced to misdemeanors, not those who would still warrant
second strike felony terms. There is a huge difference, both legally and in public safety
risked, between someone with multiple prior serious and/or violent felony convictions
whose current offense is (or would be, if committed today) a misdemeanor, and someone

25     For the same reasons, we reject any suggestion the definition contained in
section 1170.18, subdivision (c) was intended to clarify the true meaning of
“unreasonable risk of danger to public safety” as used in section 1170.126,
subdivision (f). (Cf. Re-Open Rambla, Inc. v. Board of Supervisors (1995) 39
Cal.App.4th 1499, 1511; In re Connie M. (1986) 176 Cal.App.3d 1225, 1238.)



                                             39.
whose current offense is a felony. Accordingly, treating the two groups differently for
resentencing purposes does not lead to absurd results, but rather is eminently logical.
       We recognize “[i]t is an established rule of statutory construction … that when
statutes are in pari materia similar phrases appearing in each should be given like
meanings. [Citations.]” (People v. Caudillo (1978) 21 Cal.3d 562, 585, overruled on
another ground in People v. Martinez (1999) 20 Cal.4th 225, 229, 237, fn. 6 &
disapproved on another ground in People v. Escobar (1992) 3 Cal.4th 740, 749-751 &
fn. 5; see Robbins v. Omnibus R. Co. (1867) 32 Cal. 472, 474.) We question whether
Proposition 47 and the Act are truly in pari materia: That phrase means “[o]n the same
subject; relating to the same matter” (Black’s Law Dict. (9th ed. 2009) p. 862), and the
two measures (albeit with some overlap) address different levels of offenses and
offenders. In any event, “canons of statutory construction are merely aids to ascertaining
probable legislative intent” (Stone v. Superior Court (1982) 31 Cal.3d 503, 521, fn. 10);
they are “mere guides and will not be applied so as to defeat the underlying legislative
intent otherwise determined [citation]” (Dyna-Med, Inc. v. Fair Employment & Housing
Com., supra, 43 Cal.3d at p. 1391).
       The Act was intended to reform the three strikes law while keeping intact that
scheme’s core commitment to public safety. Allowing trial courts broad discretion to
determine whether resentencing an eligible petitioner under the Act “would pose an
unreasonable risk of danger to public safety” (§ 1170.126, subd. (f)) clearly furthers the
Act’s purpose. Whatever the wisdom of Proposition 47’s policy of near-universal
resentencing where misdemeanants are concerned — and “[i]t is not for us to gainsay the
wisdom of this legislative choice” (Bernard v. Foley (2006) 39 Cal.4th 794, 813) —
constraining that discretion so that all but the worst felony offenders are released
manifestly does not, nor does it comport with voters’ intent in enacting either measure.
       Accordingly, Proposition 47 has no effect on defendant’s petition for resentencing
under the Act. Defendant is not entitled to a remand so the trial court can redetermine

                                             40.
defendant’s entitlement to resentencing under the Act utilizing the definition of
“‘unreasonable risk of danger to public safety’” contained in section 1170.18,
subdivision (c).26
                                     DISPOSITION
       The judgment is affirmed.
                                                                 _____________________
                                                                           DETJEN, J.
I CONCUR:


 _____________________
 LEVY, Acting P.J.




26     Recently, the Third District Court of Appeal held section 1170.18,
subdivision (c)’s definition of “‘unreasonable risk of danger to public safety’” does not
apply retroactively to defendants whose petitions for resentencing under the Act were
decided before the effective date of Proposition 47. (People v. Chaney (Dec. 1, 2014,
C073949) ___ Cal.App.4th ___, ___-___ [2014 D.A.R. 15934, 15935-15936].) Chaney
did not decide whether Proposition 47’s definition applies prospectively to such petitions.
(Chaney, supra, at p. ___, fn. 3 [2014 D.A.R. 15934, 15936, fn. 3].) Were we to
conclude section 1170.18, subdivision (c) modifies section 1170.126, subdivision (f), we
would agree with Chaney that it does not do so retroactively. We believe, however, that
a finding of nonretroactivity inexorably leads to the possibility of prospective-only
application, and that prospective-only application of Proposition 47’s definition to
resentencing petitions under the Act would raise serious, perhaps insurmountable, equal
protection issues. “Mindful of the serious constitutional questions that might arise were
we to accept a literal construction of the statutory language, and of our obligation
wherever possible both to carry out the intent of the electorate and to construe statutes so
as to preserve their constitutionality [citations]” (People v. Skinner (1985) 39 Cal.3d 765,
769), we rest our holding on the reasoning set out in our opinion, ante.



                                            41.
PEÑA, J.,
       I concur in the judgment and the majority opinion with the exception of part III. I
agree defendant may not take advantage of Proposition 47’s1 newly enacted definition of
“unreasonable risk of danger to public safety,” as provided in Penal Code section
1170.18, subdivision (c) (1170.18(c)). I do so not because there is any ambiguity in the
language used in section 1170.18(c) or the notion that the statute does not mean what it
says, i.e., that the new definition applies “throughout this Code.” Rather, in my view,
there is no indication the electorate, in enacting section 1170.18(c), intended it to apply
retroactively to resentencing determinations under Proposition 36, the Three Strikes
Reform Act of 2012 (the Act).
I.     After November 4, 2014, the definition of “unreasonable risk of danger” in
       Section 1170.18(c) applies throughout the Penal Code
       Section 1170.18(c) provides: “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.”
       This section and subdivision were enacted on November 4, 2014, when California
voters passed Proposition 47, long past the time of defendant’s resentencing hearing.
Unless the legislation was designed or intended to apply retroactively, the definition in
section 1170.18(c) cannot apply to defendant. This is the only inquiry we must make to
resolve the issue of whether the definition in section 1170.18(c) applies to defendant.
However, the majority has opted to determine whether the new definition applies to any
resentencing provisions under the Act, past, present, or future. I respectfully disagree
with the majority’s analysis and conclusion on this broader issue.


1The Safe Neighborhood and Schools Act (Prop. 47, as approved by voters, Gen. Elec.
(Nov. 4, 2014)).
               “‘When construing a statute, we must “ascertain the intent of the
       Legislature so as to effectuate the purpose of the law.”’ [Citations.] ‘[W]e
       begin with the words of a statute and give these words their ordinary
       meaning.’ [Citation.] ‘If the statutory language is clear and unambiguous,
       then we need go no further.’ [Citation.] If, however, the language supports
       more than one reasonable construction, we may consider ‘a variety of
       extrinsic aids, including the ostensible objects to be achieved, the evils to
       be remedied, the legislative history, public policy, contemporaneous
       administrative construction, and the statutory scheme of which the statute is
       a part.’ [Citation.] Using these extrinsic aids, we ‘select the construction
       that comports most closely with the apparent intent of the Legislature, with
       a view to promoting rather than defeating the general purpose of the statute,
       and avoid an interpretation that would lead to absurd consequences.’
       [Citation.]” (People v. Sinohui (2002) 28 Cal.4th 205, 211-212.)
       Where the statutory language is so clear and unambiguous, there is no need for
statutory construction or to resort to legislative materials or other outside sources.
(Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366, 1371.) Absent ambiguity, it is
presumed the voters intend the meaning apparent on the face of an initiative measure, and
the courts may not add to the statute or rewrite it to conform to a presumed intent not
apparent in its language. (People v. ex rel. Lungren v. Superior Court (1996) 14 Cal.4th
294, 301.)
       In determining whether the words enacted here are unambiguous, we do not write
on a blank slate. For example, in Marshall v. Pasadena Unified School Dist. (2004) 119
Cal.App.4th 1241, 1255, the court stated there “is nothing ambiguous about the phrase
‘as used in this code.’” It held the definition of “Emergency, as used in this code”
applied to the entire Public Contract Code, and it was not limited to a particular chapter,
article, or division of that code. Also, in People v. Bucchierre (1943) 57 Cal.App.2d 153,
166, the court held: “The words ‘as in this code provided’ (Penal Code, § 182) refer to
the Penal Code.”
       In a similar vein, the court in People v. Leal (2004) 33 Cal.4th 999, 1007-1008,
applied the plain meaning rule as follows:




                                              2.
               “The statutory language of the provision defining ‘duress’ in each of
       the rape statutes is clear and unambiguous. The definition of ‘duress’ in
       both the rape and spousal rape statutes begins with the phrase, ‘As used in
       this section, “duress” means ….’ (§§ 261, subd. (b), 262, subd. (c).) This
       clear language belies any legislative intent to apply the definitions of
       ‘duress’ in the rape and spousal rape statutes to any other sexual offenses.

              “Starting from the premise that in 1990 the Legislature incorporated
       into the rape statute a definition of ‘duress’ that already was in use for other
       sexual offenses, defendant argues that the Legislature must have intended
       its 1993 amendment of the definition of ‘duress’ in the rape statute, and the
       incorporation of this new definition into the spousal rape statute, to apply as
       well to other sexual offenses that use the term ‘duress.’ Defendant
       observes: ‘The legislative history does not suggest any rationale for why
       the Legislature would want its 1993 amendment of the definition of
       “duress” to apply only to rape so that it would have one meaning when the
       rape statutes use the phrase “force, violence, duress, menace, or fear of
       immediate and unlawful bodily injury” but another, much more expansive
       meaning when the identical phrase is used in the statutes defining sodomy,
       lewd acts on a child, oral copulation and foreign object rape.’

               “But the Legislature was not required to set forth its reasons for
       providing a different definition of ‘duress’ for rape and spousal rape than
       has been used in other sexual offenses; it is clear that it did so. ‘When
       “‘statutory language is … clear and unambiguous there is no need for
       construction, and courts should not indulge in it.’” [Citations.] The plain
       meaning of words in a statute may be disregarded only when that meaning
       is “‘repugnant to the general purview of the act,’ or for some other
       compelling reason ….” [Citations.]’ [Citation.] As we said in an
       analogous situation: ‘It is our task to construe, not to amend, the statute.
       “In the construction of a statute … the office of the judge is simply to
       ascertain and declare what is in terms or in substance contained therein, not
       to insert what has been omitted or omit what has been inserted ….”
       [Citation.] We may not, under the guise of construction, rewrite the law or
       give the words an effect different from the plain and direct import of the
       terms used.’ [Citation.]”
       The majority pays lip service to the plain meaning rule and then ignores it. While
acknowledging the language used is unambiguous, it nonetheless engages in statutory
construction to determine whether the electorate really intended to say what it actually
enacted. The end result is a rewriting of the statute so that it comports with the majority’s



                                              3.
view of what the voters really intended. The majority has rewritten section 1170.18(c) so
that it now states: “As used in this section only, ‘unreasonable risk of danger to public
safety’ means ….” The majority does so without providing a compelling reason to do so
and without showing the plain language used has a “‘meaning [that] is “‘repugnant to the
general purview of the act.’”’” (People v. Leal, supra, 33 Cal.4th at p. 1008.) Because
the Act had not previously defined the phrase “unreasonable risk of danger to public
safety,” the definition in section 1170.18(c) cannot be repugnant or contradictory to the
Act, nor does the majority claim the definition is repugnant to the general purview of
Proposition 47. For these reasons, I respectfully disagree with the majority on this part of
the opinion.
II.    Section 1170.18(c) has no application to defendant’s resentencing under the
       Act
       I do concur in the result because there is nothing in Proposition 47 to indicate the
definition enacted under section 1170.18(c) is to be applied retroactively to defendant
under the Act.
       I begin my analysis with section 3 of the Penal Code, which provides that “[n]o
part of it is retroactive, unless expressly so declared.” “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,” section 3 provides the
default rule. (People v. Brown (2012) 54 Cal.4th 314, 319.) Proposition 47 is silent on
the question of whether it applies retroactively to proceedings under the Act. The
analysis of Proposition 47 by the legislative analyst and the arguments for and against
Proposition 47 are also silent on this question. (Voter Information Guide, Gen. Elec.
(Nov. 4, 2014) pp. 34-39.) Because the statute contains no express declaration that
section 1170.18(c) applies retroactively to proceedings under the Act, and there is no
clearly implied intent of retroactivity in the legislative history, the default rule applies.




                                                4.
       Defendant cites In re Estrada (1965) 63 Cal.2d 740 to argue retroactive
application.
       In Estrada, the court stated:

       “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 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 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.” (In re
       Estrada, supra, 63 Cal.2d at p. 745.)
       One may argue that under the Estrada case, unless there is a “savings clause”
providing for prospective application, a statute lessening punishment is presumed to
apply to all cases not yet reduced to a final judgment on the statute’s effective date. (In
re Estrada, supra, 63 Cal.2d at pp. 744-745, 747-748.) However, the Estrada case has
been revisited by our Supreme Court on several occasions. In People v. Brown, supra, 54
Cal.4th at page 324 the court stated: “Estrada is today properly understood, not as
weakening or modifying the default rule of prospective operation codified in [Penal
Code] 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.” “The
holding in Estrada was founded on the premise 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.”’”
(Id. at p. 325.) In Brown, the court did not apply the Estrada rule because “a statute
increasing the rate at which prisoners may earn credits for good behavior does not


                                             5.
represent a judgment about the needs of the criminal law with respect to a particular
criminal offense, and thus does not support an analogous inference of retroactive intent.”
(People v. Brown, supra, at p. 325.)
       Similarly here, Estrada does not control because applying the definition of
“unreasonable risk to public safety” in Proposition 47 to petitions for resentencing under
the Act does not reduce punishment for a particular crime. Instead, the downward
modification of a sentence authorized by the Act is dependent not just on the current
offense but on any number of unlimited factors related to the individual offender,
including criminal conviction history, disciplinary and rehabilitation records, and “[a]ny
other evidence the court, within its discretion, determines to be relevant in deciding
whether a new sentence would result in an unreasonable risk of danger to public safety.”
(Pen. Code, § 1170.126, subd. (g)(3).)
       For this reason also, defendant’s argument his equal protection rights would be
violated if he is denied retroactive application is unavailing. In light of the unlimited
factors related to individual offenders that inform the exercise of discretion, no two
individual offenders may be said to be similarly situated for purposes of resentencing
under the Act. Unlike In re Kapperman (1974) 11 Cal.3d 542, upon which defendant
relies, Proposition 47’s new definition does not automatically confer a benefit such as
credit for time served prior to commencement of their prison sentence to some prisoners
and not others based solely on their commitment date.
       Nor is this case similar to Village of Willowbrook v. Olech (2000) 528 U.S. 562
also relied upon by defendant. There, the plaintiff (Olech) alleged she was intentionally
treated differently from others similarly situated and that there was no rational basis for
the difference in treatment. Specifically, the defendant (Village) had intentionally
demanded a 33-foot easement as a condition of connecting her property to the municipal
water supply where the Village required only a 15-foot easement from other similarly
situated property owners. After a three-month delay, Village relented and agreed to

                                              6.
provide water service with only a 15-foot easement. Olech also alleged Village was
actually motivated by ill will resulting from Olech’s prior filing of an unrelated and
unsuccessful lawsuit against Village. The high court held that apart from the Village’s
subjective motivation, the fact the Village required a 33-foot easement from Olech as a
condition for connecting her property while it required only a 15-foot easement from the
other similarly situated property owners sufficiently stated a claim for relief under
traditional equal protection analysis. (Id. at pp. 563-565.) Here, defendant has not shown
he is similarly situated to others to whom the new definition has applied or may apply,
nor has he established that he has been treated differently as a result of some arbitrary
discrimination.
       Because section 1170.18(c)’s definition of “unreasonable risk of danger to public
safety” does not apply retroactively to the Act, the sentencing court applied the correct
standard in exercising its discretion to not resentence defendant.2 Since defendant has
failed to show an abuse of that discretion, I concur in the majority’s affirmance of the
judgment.

                                                          ___________________________
                                                                              PEÑA, J.




2Recently  in People v. Chaney (Oct. 29, 2014 C073949) __ Cal.App.4th __ the Third
District Court of Appeal held the definition of “unreasonable risk of danger to public
safety” as provided in section 1170.18(c) does not apply retroactively. I agree.



                                             7.
