Filed 10/16/14
                        CERTIFIED FOR PARTIAL PUBLICATION*




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                             (Shasta)
                                               ----




THE PEOPLE,                                                          C074279

                 Plaintiff and Respondent,                     (Super. Ct. No.
                                                             MCRDCRF080000011)
        v.

ARMANDO JOSEPH GARCIA,

                 Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Shasta County, James
Ruggiero, Judge. Affirmed.

      Charles M. Bonneau, Jr., 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, Daniel B. Bernstein and Tia M.
Coronado, Deputies Attorney General, for Plaintiff and Respondent.



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

                                                1
       Defendant Armando Joseph Garcia appeals from the trial court’s denial of his
petition for resentencing under the Three Strikes Reform Act of 2012 (the Act).1 The
court based the denial on its finding that defendant poses “an unreasonable risk of danger
to public safety” if released. The bases for its finding were defendant’s “nonstop
criminal history” that included violent felonies (two robberies), two escapes from
confinement, an 18-year prison commitment shortly after which he exhibited a weapon,
and the relatively recent timing of his current offense (receiving stolen property) in 2007.
       Defendant contends on appeal the Act is unconstitutionally vague because the
term “unreasonable risk of danger to public safety” is not adequately defined. We
disagree.
       As we explain, the term “unreasonable risk of danger to public safety” is clear
because it can be objectively ascertained by reference to the examples of evidence the
trial court may consider in making this determination. These examples are: “(1) The
petitioner’s criminal conviction history, including the type of crimes committed, the
extent of injury to victims, the length of prior prison commitments, and the remoteness of
the crimes; [¶] (2) The petitioner’s disciplinary record and record of rehabilitation while
incarcerated; and [¶] (3) Any other evidence the court, within its discretion, determines
to be relevant in deciding whether a new sentence would result in an unreasonable risk of
danger to public safety.” (§ 1170.126, subd. (g).)
                   FACTUAL AND PROCEDURAL BACKGROUND
       Defendant’s current offense for which he has been incarcerated under the three
strikes law was receiving stolen property committed in December 2007. He and his wife
acted as lookouts while another person burglarized a home. When police tried to




1      Penal Code section 1170.126. Further section references are to this code.

                                             2
handcuff him, defendant attempted to pull free, requiring two officers to restrain him with
the help of pepper spray. Defendant had a stolen camera on him. Police found a stolen
rifle in the orchard across the street from the burglarized home. Defendant was charged
with first degree residential burglary, grand theft of a firearm, receiving stolen property,
and some misdemeanors. He pled guilty to receiving stolen property and admitted prior
strikes for a stipulated sentence of 25 years to life in prison.
       Defendant’s criminal history began about 30 years before, with felony receiving
stolen property in 1980, for which he was placed on probation. A year later, in 1981, he
committed second degree burglary and was sentenced to prison for 16 months. In
February 1982, the month he was released, he was arrested and a month later pled guilty
to robbery (his first strike) and sentenced to four years in prison. In 1984, he was
convicted of unlawful driving/taking a vehicle and sentenced to two years in prison. The
same year, he was also convicted of escape. In 1985, he was convicted of grand theft and
sentenced to three years in prison. In 1988, he was convicted of assault on a peace
officer, battery on a peace officer, and thereafter, with another escape, all resulting in
another four years and eight months in prison. Defendant violated parole and was
returned to prison in 1991. When released on parole, he was arrested again in June 1991
and when released again, within months committed a first degree burglary (his second
strike), a robbery (his third strike), and vehicle theft in 1992, which resulted in a total
prison term of 18 years. He was released from prison in February 2003. Within nine
months, in November 2003, defendant was arrested again. In August 2004, he
brandished a weapon and was placed on probation for two years, including serving 180
days in jail. In January 2005 and January 2007, he violated that probation and was
reincarcerated. Defendant was paroled in April 2007 and committed his current offense
eight months later.
       Defendant’s criminal history was preceded by his delinquency in 1979, for which
he was committed to the California Youth Authority.

                                               3
       Defendant has been incarcerated for his current offense of receiving stolen
property since December 2007. During this time, defendant has not been written up for
prison misconduct. Once a validated member of a prison gang, defendant is now
considered by prison officials to be a gang dropout. He has participated in narcotics
anonymous, art therapy, anger management, education classes, and vocational training.
       Defendant filed a petition for resentencing under the Act in February 2013. The
People responded in writing that defendant was eligible for resentencing but that the
court should not resentence him because he “poses a completely unreasonable risk of
danger to public safety.” They also argued that if the court were “inclined” to resentence
him, “the People instead would request that the original plea [be] withdrawn and the case
. . . set for trial on the original charges” because they would “no longer [be] getting the
benefit of the bargain.” Defendant then filed a supplemental petition detailing his record
of rehabilitation since his current incarceration.
       At the hearing on defendant’s petition, the parties agreed that the burden of proof
was with the People to prove by a preponderance of evidence that defendant posed an
unreasonable risk of danger to public safety if released. The People relied on the
evidence they had previously submitted to the court in their response to defendant’s
petition for resentencing that included defendant’s “969(b) packet,” the preliminary
examination transcript from the current offense, and the postsentencing report prepared
by the probation department from the current offense. They “acknowledge[d] that while
in prison, [defendant] has actually been exemplary” but that “does not change that he is
an unreasonable risk of danger to the community.” Defense counsel argued that
defendant was now 51 years old and since being transferred to Mule Creek prison in
December 2009, “he’s worked very diligently toward rehabilitation in those last about
three and a half years.”
       Before announcing its ruling, the court made some “general observations.” Its job
was to “determine whether resentencing and obviously release would pose an

                                              4
unreasonable risk of danger to public safety. The problem is we’re essentially being
asked as courts to predict future dangerousness.” “[W]e’ve developed a variety of tools
that supposedly have made it easier to . . . predict future dangerousness, none of which is
before the Court in this case,” such as the “Static 99” and a “variety of other . . .
psychological evaluations.” It was not “lost on any of us” that “when a person has been
sentenced to a life term and comes to court . . . with almost a last grasp at hope for . . .
having their life handed back to them after being sentenced to a life sentence,” “it’s an
awesome responsibility on the parties” and on the court to make that determination.
       After making those observations, the court “turn[ed] to what [it] ha[d] before [it].”
It was “significant” that defendant had been discipline free for five years and that was
one of the facts the court was “directed to consider.” But defendant had a “nonstop
criminal history” that included violent felonies, specifically, defendant’s two robberies
and two escapes from confinement. Although the court did not “recall being made aware
of any injuries to victims,” “any threat of violence to obtain property” carries with it “at
least psychological injury.” “[O]f greatest concern” was that shortly after an 18-year
prison commitment, defendant exhibited a weapon. And defendant’s current crime of
receiving stolen property in 2007 was not remote. “Weighing all of these factors”
defendant “would pose an unreasonable risk of danger to public safety” and, thus, the
court denied his petition for resentencing.
       Defendant timely appealed from that denial.
                                        DISCUSSION
                                               I
               The Term “Unreasonable Risk Of Danger To Public Safety”
                                 Is Not Void For Vagueness
       Defendant contends that section 1170.126 is unconstitutionally vague because the
term “unreasonable risk of danger to public safety” (§ 1170.126, subd. (f)) is not defined.
We disagree.

                                               5
       “The constitutional interest implicated in questions of statutory vagueness is that
no person be deprived of ‘life, liberty, or property without due process of law,’ as assured
by both the federal Constitution (U.S. Const., Amends. V, XIV) and the California
Constitution (Cal. Const., art. I, § 7).” (Williams v. Garcetti (1993) 5 Cal.4th 561, 567.)
“All presumptions and intendments favor the validity of a statute and mere doubt does
not afford sufficient reason for a judicial declaration of invalidity. Statutes must be
upheld unless their unconstitutionality clearly, positively and unmistakably appears.”
(Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 484.)
       Defendant fails to satisfy this demanding standard. Under the Act, a defendant
who is not otherwise ineligible for resentencing “shall be resentenced . . . unless the
court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)
       “In exercising its discretion in subdivision (f), the court may consider:
       “ (1) The petitioner’s criminal conviction history, including the type of crimes
committed, the extent of injury to victims, the length of prior prison commitments, and
the remoteness of the crimes;
       “(2) The petitioner’s disciplinary record and record of rehabilitation while
incarcerated; and
       “ (3) Any other evidence the court, within its discretion, determines to be relevant
in deciding whether a new sentence would result in an unreasonable risk of danger to
public safety.” (§ 1170.126, subd. (g).)
       The meaning of “unreasonable risk of danger to public safety” is made clear by
reference to the examples of evidence the trial court may consider in making this
determination. To determine unreasonable risk, the trial court may consider any relevant
evidence, including a defendant’s criminal conviction history and record of discipline and
rehabilitation while incarcerated. Far from giving “insufficient guidance” on how to



                                              6
determine unreasonable risk as defendant claims, the statute enumerates factors the court
may consider in exercising its discretion.
       Defendant insists the term “unreasonable risk of danger to public safety” is vague
because the term “unreasonable” is not defined with mathematical precision. He
questions whether it “mean[s] a risk of harm that is more likely that not to occur, say a
risk greater than 50%? Or is an ‘unreasonable risk’ one which cannot be elicited by the
use of reasonable or rational analysis?”
       The critical inquiry, however, is not whether the risk is quantifiable, but rather,
whether the risk would be “unreasonable.” (§ 1170.126, subd. (f).) “ ‘The law is replete
with instances in which a person must, at his peril, govern his conduct by such
nonmathematical standards as “reasonable,” “prudent,” “necessary and proper,”
“substantial,” and the like. Indeed, a wide spectrum of human activities is regulated by
such terms: thus one man may be given a speeding ticket if he overestimates the
“reasonable or prudent” speed to drive his car in the circumstances (Veh. Code, § 22350),
while another may be incarcerated in state prison on a conviction of willful homicide if
he misjudges the “reasonable” amount of force he may use in repelling an assault
[citation]. As the Supreme Court stated in Go-Bart Importing Co. v. United States (1931)
282 U.S. 344, 357 [75 L.Ed. 374 . . .], “There is no formula for the determination of
reasonableness.” Yet standards of this kind are not impermissively vague, provided their
meaning can be objectively ascertained by reference to common experiences of
mankind.’ ” (People v. Morgan (2007) 42 Cal. 4th 593, 606, quoting People v. Daniels
(1969) 71 Cal.2d 1119, 1128-1129].)
       Here, as we have explained, the meaning of the term “unreasonable risk of danger
to public safety” is clear because it can be objectively ascertained by reference to the
examples of evidence the trial court may consider in making this determination.       There
is no merit in defendant’s claim otherwise.



                                              7
                                              II
                       The Trial Court Did Not Abuse Its Discretion
              In Finding An Unreasonable Risk Of Danger To Public Safety
       Defendant contends that to the extent the Act provides a “standard of guided
discretion for the determination of ‘unreasonable risk of danger to public safety,’ the trial
court abused its discretion in this case.” Included in this contention are defendant’s
claims: (a) the court did not place any burden of proof on the People; (b) the court “may”
have considered the People’s argument that if it were “inclined” to resentence defendant,
“the original plea [be] withdrawn and the case . . . set for trial on the original charges”;
and (c) the court abused its discretion in coming to the conclusion that it did with the
factors it considered. We take each of these claims in turn, finding merit in none.
                                              A
                  The Court Placed The Burden Of Proof On The People
       Defendant claims the court did not place any burden of proof on the People. The
record refutes defendant’s claim. Toward the beginning of the hearing, defense counsel
stated that the burden of proving unreasonable risk was “on the People, by a
preponderance of the evidence.” The court responded that “makes sense to me.” The
defense attorney then cited Kaulick, which holds that the People bear the burden of
establishing dangerousness by a preponderance of the evidence. (People v. Superior
Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301.) Thus, the court squarely placed the
burden of proof on the People.
       However, the issue of the burden of proof is a red herring. We express no opinion
as to whether the trial court was correct, and defendant does not claim a higher burden
should have been imposed. It is difficult to imagine a case in which the burden of proof
will matter in an appeal from a denial of resentencing based on a finding that a defendant
poses an “unreasonable risk of danger to public safety.” The facts are undisputed, limited
as they usually are to defendant’s criminal history. Where evidentiary facts are disputed,

                                               8
the appropriate standard of review on appeal would be sufficiency of the evidence, and
the question would be whether there is “substantial” evidence to support the ruling, i.e.,
evidence that is reasonable in nature, credible, and of solid value. Clearly, our standard
of review is abuse of discretion. “ ‘We find no authority distinguishing between
insufficient evidence and abuse of discretion. It would seem obvious that, if there were
no evidence to support the decision, there would be an abuse of discretion.’ ” (In re
Marriage of Russo (1971) 21 Cal.App.3d 72, 86-87.) But here, there is ample evidence,
uncontradicted, though the ultimate fact -- whether defendant would pose an
unreasonable risk of danger to public safety if released -- is hotly contested. Resolution
of that fact is a quintessential exercise of discretion, like a multitude of other
determinations vested in judicial officers, guided by the standards set forth in
section 1170.126, subdivision (g).
                                               B
           There Is No Evidence The Court Considered The People’s Argument
              About Withdrawing Defendant’s Three Strikes Plea Agreement
       Defendant contends the court “may” have considered the People’s argument that if
the court were “inclined” to resentence defendant, “the original plea [be] withdrawn and
the case . . . set for trial on the original charges” because the People would “no longer
[be] getting the benefit of the bargain.” He claims this was a possibility because there
was “an absence of other significant factors to support the rejection of recall.”
       There is no support in the record for defendant’s argument. The court discussed
each of the factors it weighed it determining whether resentencing defendant would pose
an unreasonable risk of danger to public safety. The People’s argument about withdrawal
of the plea bargain was not one of them.




                                               9
                                              C
     The Trial Court Did Not Abuse Its Discretion In Concluding That Defendant’s
      Resentencing Would Pose An Unreasonable Risk Of Danger To Public Safety
       Defendant argues the court abused its discretion by failing to give credence to the
factors that weighed in favor of defendant’s release. We review a trial court’s exercise of
discretion using the abuse of discretion standard, under which it is not enough for a
defendant to show that reasonable people might disagree about the court’s sentencing
decision but rather, the defendant must show, for example, the court was unaware of its
discretion or acted arbitrarily. (See People v. Carmony (2004) 33 Cal.4th 367, 376-378
[making these observations in terms of a trial court’s exercise of discretion in
determining whether to strike a defendant’s strike].)
       Here, defendant’s argument about the factors the court did consider is based on a
disagreement about the trial court’s weighing of appropriate factors. Specifically,
defendant points out that his robbery strikes were remote, “there was no record of harm to
any of the victims,” and his conduct in prison was “good.” This reweighing is not an
appropriate basis on which to find an abuse of discretion. (People v. Carmony, supra, 33
Cal.4th at p. 378.) The trial court was well aware of the factors defendant cites on
appeal, as it specifically noted as “significant” the five years defendant had spent in
prison discipline free and the fact that it had not been made aware of any injuries to
victims (although it noted that defendant’s victims would have been psychologically
injured from the robberies). But the court did not find that these factors were significant
enough to overcome the factors indicating that resentencing him would pose an
unreasonable risk of danger to public safety. Specifically, it did not find that the
remoteness of the robbery strikes weighed in favor of resentencing because defendant had
an “on-going, nonstop criminal history,” two escapes from confinement, an 18-year
prison commitment, shortly after which he exhibited a weapon, and had recently
committed the current offense of receiving stolen property. Based on a weighing of all

                                             10
the factors, including the negative ones we have recounted, the court reasonably believed
that resentencing defendant would pose an unreasonable risk of danger to public safety.
Simply because reasonable people could disagree, this does not mean the court abused its
discretion.
                                     DISPOSITION
       The judgment (the court’s order denying defendant’s petition for resentencing) is
affirmed.



                                                      ROBIE                 , J.



We concur:



      RAYE                 , P. J.



      HOCH                 , J.




                                           11
