Filed 9/25/15 P. v. Jackson CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065962

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD189406)

WALLACE JACKSON,

         Defendant and Appellant.


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

Danielsen, Judge. Affirmed.

         Sheila Quinlan, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Warren J.

Williams, Deputy Attorneys General, for Plaintiff and Respondent.
       In 2005 Wallace Jackson pleaded guilty to one count of indecent exposure with a

prior indecent exposure conviction (Pen. Code, § 314)1 and admitted he had nine prior

strike convictions within the meaning of sections 667, subdivisions (b) through (i) and

1170.12, and three prison priors within the meaning of section 667.5, subdivision (b).

The court sentenced Jackson to an indeterminate term of 25 years to life for his

conviction. In 2012 Jackson moved to recall his sentence pursuant to the recently

enacted Three Strikes Reform Act of 2012 (§ 1170.126 et seq., hereafter TSRA). The

court denied his petition, and this appeal followed.

                                             I

                  FACTUAL AND PROCEDURAL BACKGROUND

       A. The Current Offenses and Sentence

       In 2005 Jackson was charged with two counts of indecent exposure with a prior

indecent exposure conviction (§ 314) and with the further allegations he had nine prior

strike convictions (§§ 667, subds. (b)-(i) & 1170.12) and three prison priors (§ 667.5,

subd. (b)). Jackson pleaded guilty to one count of indecent exposure with a prior

indecent exposure conviction (§ 314), admitted the prior strike and prison prior

allegations, and was sentenced to an indeterminate term of 25 years to life for his

conviction.




1      All further statutory references are to the Penal Code unless otherwise specified.
                                             2
       B. The Recall Petition

       In 2012, Jackson filed a petition seeking to recall his sentence under the TSRA.

The petition argued his current offense (the 2005 conviction) did not bar him from relief

under the TSRA and his prior strike convictions did not disqualify him from resentencing

under the TSRA; therefore, the court should recall his sentence, find he was not currently

dangerous, and resentence him under the TSRA.

       The People's reply to Jackson's recall petition conceded he had prima facie shown

he was qualified under the TSRA to be considered for resentencing. However, the People

noted Jackson's record before the commitment offense involved repeated reoffenses, and

he had a prison record of violence and indecent exposure. The People argued he

remained a public safety risk and should not be released but, were Jackson resentenced,

he should be resentenced subject to postrelease community supervision.

       The court concluded Jackson was an unreasonable risk of danger to public safety

were he to be resentenced and released under the TSRA, and therefore denied the

petition. Jackson timely appealed.

                                        ANALYSIS

       Jackson raises numerous challenges to the order denying his sentence recall

petition. He argues the order must be reversed because the prosecution was required to

prove beyond a reasonable doubt that he posed an unreasonable risk of danger to public

safety, he was entitled to have a jury determine that issue, and reversal is therefore

required because he was denied the protections as to both the standard of proof and the

proper decision maker. Jackson also contends the provisions of Proposition 47, the Safe

                                              3
Neighborhoods and Schools Act (hereafter Proposition 47), adopted by the voters on

November 4, 2014, superimposes upon the TSRA a new definition for whether an inmate

poses an unreasonable risk of danger to public safety for purposes of resentencing, and

there is no substantial evidence to support the court's finding that he would pose an

unreasonable risk of danger to public safety under Proposition 47's definitional strictures.

Jackson also asserts that, even assuming the court was the proper decision maker,

properly applied a preponderance of the evidence standard, and was not required to apply

Proposition 47's more restrictive definition of dangerousness, the evidence is insufficient

to support the court's finding he would pose an unreasonable risk of danger to public

safety were he resentenced under the TSRA.

       A. Jackson's Sixth Amendment Claims

       Jackson asserts that because the statutory scheme makes second strike sentencing

the presumptive sentencing choice for persons eligible for resentencing under the TSRA,

and only permits a departure from that sentence when there is a finding that a critical

factor (i.e. the inmate poses an unreasonable risk of danger to public safety) is present,

the factor is a determination that increases the sentence for the inmate beyond the

presumptive sentencing choice. Jackson argues the principles announced in Apprendi v.

New Jersey (2000) 530 U.S. 466 provide him with protections under the Sixth

Amendment to the United States Constitution to require the prosecution to prove that

factor beyond a reasonable doubt, and provides the right to a jury trial on that factor.




                                              4
       1. The Burden of Proof Claim

       Jackson argues that, under the rationales of Apprendi and Alleyne v. United States

(2013) ___ U.S. ___ [133 S.Ct. 2151], the prosecution must prove the dangerousness

factor beyond a reasonable doubt. This precise claim has been rejected by the courts in

People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279 (Kaulick) and People v.

Osuna (2014) 225 Cal.App.4th 1020 (Osuna). The Osuna court, relying in part on

Kaulick, "conclude[d] disqualifying factors need not be proven to a jury beyond a

reasonable doubt where eligibility for resentencing under section 1170.126 is concerned."

(Osuna, at p. 1038, fn. omitted.) Osuna held that "Apprendi and its progeny do not apply

to a determination of eligibility for resentencing under the Act" (id. at p. 1039) because

"[a] finding an inmate is not eligible for resentencing under section 1170.126 does not

increase or aggravate that individual's sentence; rather, it leaves him or her subject to the

sentence originally imposed. The trial court's determination here that defendant was

armed with a firearm during the commission of his current offense did not increase the

penalty to which defendant was already subject, but instead disqualified defendant from

an act of lenity on the part of the electorate to which defendant was not constitutionally

entitled." (Id. at p. 1040.) Similarly, Kaulick concluded that:

          "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. If the court finds that
          resentencing a prisoner would pose an unreasonable risk of danger,
          the court does not resentence the prisoner, and the petitioner simply
          finishes out the term to which he or she was originally sentenced.
          [¶] The maximum sentence to which Kaulick, and those similarly
          situated to him, is subject was, and shall always be, the

                                              5
          indeterminate life term to which he was originally sentenced. While
          Proposition 36 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." (Kaulick, supra, 215
          Cal.App.4th at p. 1303, fn. omitted.)

      Kaulick buttressed its determination by noting that "the United States Supreme

Court has already concluded that its opinions regarding a defendant's Sixth Amendment

right to have essential facts found by a jury beyond a reasonable doubt do not apply to

limits on downward sentence modifications due to intervening laws" citing Dillon v.

United States (2010) 560 U.S. 817. As Kaulick explained:

          "At issue in Dillon was a modification to the sentencing guideline
          range for the offense of which the defendant was convicted. The law
          provided that a prisoner's sentence could be modified downward
          when the range had been lowered; however, the law provided that a
          sentence could only be lowered if consistent with applicable policy
          statements. Those policy statements, in turn, provided that a
          sentence could not be reduced below the minimum sentence of an
          amended sentencing range except to the extent that the original term
          was below the original range. The Supreme Court had already held
          that, in order to avoid constitutional problems, the federal sentencing
          guidelines were advisory, rather than mandatory. The issue in
          Dillon was whether the policy statement, which did not permit
          reducing a sentence below the amended range except to the extent
          the original term was below the original range, must also be
          rendered advisory. [Dillon, at p. 819.] The Supreme Court
          concluded that it remained mandatory. This was so because the
          statute allowing resentencing when the sentencing range was
          lowered was, itself, not a plenary resentencing in the usual sense.
          Instead, the statute simply authorized a limited adjustment to an
          otherwise final sentence. [Dillon, at p. 827.] The court stated,
          'Notably, the sentence-modification proceedings authorized by [the
          statute] are not constitutionally compelled. We are aware of no

                                              6
          constitutional requirement of retroactivity that entitles defendants
          sentenced to a term of imprisonment to the benefit of subsequent
          Guidelines amendments. Rather [the statute] represents a
          congressional act of lenity intended to give prisoners the benefit of
          later enacted adjustments to the judgments reflected in the
          Guidelines. [¶] Viewed that way, proceedings under [this statute]
          do not implicate the Sixth Amendment right to have essential facts
          found by a jury beyond a reasonable doubt. Taking the original
          sentence as given, any facts found by a judge at a [modification
          downward] proceeding do not serve to increase the prescribed range
          of punishment; instead, they affect only the judge's exercise of
          discretion within that range.' [Dillon, at p. 828.] Such decisions,
          stated the court, simply do not implicate Sixth Amendment rights.
          (Ibid.) [¶] The language in Dillon is equally applicable here. The
          retrospective part of the Act is not constitutionally required, but an
          act of lenity on the part of the electorate. It does not provide for
          wholesale resentencing of eligible petitioners. Instead, it 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, 215 Cal.App.4th at
          pp. 1304-1305.)

       We agree with the analysis of Kaulick and Osuna and conclude the retrospective

part of the TSRA is not constitutionally required, but instead represents an act of lenity

on the part of the electorate permitting the potential for the original sentence to be

modified downward. Facts found at such a proceeding, including the factor of

dangerousness, do not implicate Sixth Amendment issues and need not be proved beyond

a reasonable doubt.

       2. The Jury Trial Claim

       The same rationale convinces us that Jackson did not have a right to a jury trial on

dangerousness. Both Osuna and Kaulick have concluded that Apprendi's principles,

which include the right to have a jury determine factors aggravating a sentence, do not

                                              7
apply to recall petitions under the TSRA. (Osuna, supra, 225 Cal.App.4th at p. 1039

["Apprendi and its progeny do not apply to a determination of eligibility for resentencing

under the [TSRA]"]; Kaulick, supra, 215 Cal.App.4th at p. 1304 ["the United States

Supreme Court has already concluded that its opinions regarding a defendant's Sixth

Amendment right to have essential facts found by a jury beyond a reasonable doubt do

not apply to limits on downward sentence modifications due to intervening laws"].)

Although Jackson argues these cases were wrongly decided, we do not believe Kaulick's

conclusion as to Dillon's impact on downward sentence modifications under the TSRA

was erroneous, and therefore we conclude Jackson did not have the right to have a jury

trial on the issue of dangerousness.

       B. The Proposition 47 Claim

       Jackson argues the provisions of Proposition 47, by adding section 1170.18,

redefined the standard for determining whether an inmate poses an unreasonable risk of

danger to public safety for purposes of resentencing under the TSRA. Jackson argues

that, once this new definition is applied to his application under the TSRA, there is no

substantial evidence to support the court's finding that he would pose an unreasonable

risk of danger to public safety.2

       On November 4, 2014, voters enacted Proposition 47, which went into effect the

next day. (Cal. Const., art. II, § 10, subd. (a).) The focus of Proposition 47 was to render

misdemeanors a class of certain drug- and theft-related offenses previously categorized as


2      Jackson's brief does not address, and we express no opinion on, whether he might
be eligible to bring a petition for recall under Proposition 47.
                                             8
felonies or "wobblers," unless they were committed by certain ineligible defendants.

Proposition 47 also created a new resentencing provision—section 1170.18—analogous

to the resentencing provisions of the TSRA that permitted a person currently serving a

felony sentence for an offense now a misdemeanor to 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).)

       Among the lengthy provisions of Proposition 47, as presented to and adopted by

the voters, is subdivision (c) of section 1170.18, the provision on which Jackson relies in

the present appeal. That subdivision 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" (§ 1170.18, subd.

(c)), thereby incorporating by reference section 667, subdivision (e)(2)(C)(iv)'s list of

particularly heinous felonies. Jackson asserts section 1170.18, subdivision (c), now

limits a trial court's discretion to deny resentencing under the TSRA to those cases in

which resentencing the defendant would pose an unreasonable risk he or she will commit

one of the listed particularly heinous felonies and, because there was no substantial

evidence to support a finding Jackson posed an unreasonable risk of committing one of

the listed particularly heinous felonies, he argues the trial court's order must be reversed.




                                              9
       Our task is one of statutory construction.3 Although the TSRA and Proposition 47

employ similar language, this does not inexorably require that the definition contained in

section 1170.18, subdivision (c), must be read into section 1170.126, subdivision (f),

because "[t]he literal language of a statute does not prevail if it conflicts with the

lawmakers' intent" (Osuna, supra, 225 Cal.App.4th at p. 1033), nor will the " 'apparent

purpose of a statute . . . be sacrificed to a literal construction.' " (Cossack v. City of Los

Angeles (1974) 11 Cal.3d 726, 733.) Rather, we must construe the statute in accord with

its purpose, and a court should not construe the language of a statute in its literal sense 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." (In re Michele D., supra, 29 Cal.4th

at p. 606.)

       We consult " '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'



3      We note the California Supreme Court has granted review to determine whether
the definition of "unreasonable risk of danger to public safety" under Proposition 47
applies to resentencing under the TSRA. (People v. Valencia (2014) 232 Cal.App.4th
514, review granted Jan. 16, 2015, S223825.) Pending direction from the Supreme
Court, we must reach the issue here.
                                               10
intent, particularly the analyses and arguments contained in the official ballot pamphlet."

[Citation.]' " (Osuna, supra, 225 Cal.App.4th at p. 1034.) With 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.]' " (Id. at pp. 1034-1035.)

       Although the TSRA and Proposition 47 address related subjects, they target

different subjects; we conclude Proposition 47's literal meaning would not comport with

the purpose of the TSRA, and applying it to resentencing proceedings under the TSRA

would frustrate, rather than promote, that purpose and the intent of the electorate in

enacting both initiative measures. First, as is evidenced by its title, the TSRA was aimed

solely at revising a law—the three strikes law—the principal focus of which was to

punish recidivism with more severe sentences. (See, e.g., People v. Cooper (1996) 43

Cal.App.4th 815, 823-824.) Just a few months before the November 6, 2012, election at

which the TSRA was passed, the California Supreme Court recognized that "[o]ne 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."

(In re Coley (2012) 55 Cal.4th 524, 528-529.)

                                             11
       When voters approved the TSRA, they resolved this controversy in favor of strike

offenders. In one of the "Findings and Declarations" of the TSRA, the voters approved

the declaration that the TSRA 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." (S.D. Voter Information Pamp., Gen. Elec.

(Nov. 6, 2012) text of Prop. 36, § 1, p. 105, at

<http://vig.cdn.sos.ca.gov/2012/general/pdf/complete-vig-v2.pdf> [as of Sep. 23, 2015].)

Nowhere, however, do the ballot materials for the TSRA suggest voters understood or

intended the TSRA would require resentencing of qualified 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 the TSRA. That voters did not intend

such a result is amply demonstrated by the fact an indeterminate life term remained

mandatory under the TSRA for a wide range of current offenses even if the offender does

not have a prior conviction for a particularly heinous offense (§§ 667, subd. (e)(2),

1170.12, subd. (c)(2)), and 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 (see § 1170.126, subd. (e)(2)).

       When voters adopted the reforms of the TSRA, that enactment was still presented

as placing public safety first, even though there were also cost savings likely to accrue as

a result of its enactment. Thus, 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

                                             12
the health, safety, and welfare of the people of the State of California, and shall be

liberally construed to effectuate those purposes." (S.D. Voter Information Pamp., Gen.

Elec. (Nov. 6, 2012), supra, text of Prop. 36, p. 110, original italics omitted, italics

added.) As explained in Osuna, supra, 225 Cal.App.4th at page 1036, "[a]lthough the

[TSRA] 'diluted' the three strikes law somewhat [citation], '[e]nhancing public safety was

a key purpose of the Act' [citation]."

       In contrast, Proposition 47 emphasized monetary savings.4 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 molestation are not changed." (S.D. Voter Information Pamp., Gen.

Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70 (Pamphlet), at <http://

vig.cdn.sos.ca.gov/2014/general/en/pdf/complete-vigr1.pdf> [as of Sep. 23, 2015].)

Proposition 47 requires misdemeanor sentences for various drug possession and property

offenses, unless the perpetrator has a prior conviction for a particularly heinous 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); Pen. Code,


4    Jackson has requested we take judicial notice of Proposition 47 and the
accompanying ballot materials, and we grant that request.
                                              13
§§ 459.5, subd. (a), 473, 476a, subd. (b), 490.2, subd. (a), 496, subd. (a), 666, subd. (b).)

Section 1170.18 renders ineligible for resentencing only an inmate whose current offense

would now be a misdemeanor, but who has a prior conviction for a particularly heinous

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 TSRA, which dealt

with offenders whose current convictions would still be felonies. 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." (Pamphlet, supra, official title and summary of Prop. 47, 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." (Pamphlet, supra, analysis of

Prop. 47 by Legislative 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

                                                 14
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 TSRA. 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." (Pamphlet,

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 TSRA. (See Pamphlet, 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" (Pamphlet, supra, rebuttal to argument in favor of Prop. 47, p. 38), there

is no suggestion the early release provisions would extend to inmates whose current

                                               15
offenses remained felonies under the TSRA. The same is true of the discussion of

resentencing contained in the argument against Proposition 47. (Pamphlet, supra,

argument against Prop. 47, p. 39.)

       Considering 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.

       Additionally, as a matter of statutory construction, we note the TSRA's sunset

clause effectively precluded most new applications for relief under the TSRA after

November 7, 2014 (see § 1170.126, subd. (b)), while Proposition 47 (and its newly

enacted definitional provisions under § 1170.18, subd. (c)) took effect on November 5,

2014 (Cal. Const., art. II, § 10, subd. (a)), which would provide only a two-day window

during which an applicant under the TSRA would reap the benefits of the more restrictive

"dangerousness" definitions adopted by Proposition 47. As an additional matter of

statutory construction, we decline to ascribe to the electorate an intent to overlay a

definitional amendment onto a remedial scheme that effectively expired two days after

the definitional amendment would have taken effect.

       Finally, and again as a matter of statutory construction, adopting Jackson's

interpretation of the intended scope of section 1170.18, subdivision (c), would present

serious questions under the equal protection clauses of the United States and California

Constitutions. Specifically, under Jackson's construction, the more restrictive

                                             16
"dangerousness" definition adopted by Proposition 47 would apply only to applicants

who invoked the TSRA during the two-day window when both were in effect or

(assuming retroactivity) to a slightly larger class of applicants under the TSRA whose

matters were not yet final before the effective date of Proposition 47. However, the more

restrictive "dangerousness" definition adopted by Proposition 47 would provide no

benefit to those applicants who, although identically situated to Jackson, had their TSRA

applications denied, which denials became final before November 5, 2014. "Both the

United States Supreme Court and the California courts have pointed out on numerous

occasions that a court, when faced with an ambiguous statute that raises serious

constitutional questions, should endeavor to construe the statute in a manner which

avoids any doubt concerning its validity." (Carlos v. Superior Court (1983) 35 Cal.3d

131, 147, fn. omitted, overruled on other grounds in People v. Anderson (1987) 43 Cal.3d

1104, 1147.) Our construction of Proposition 47's provisions avoids potential equal

protection infirmities of its provisions by limiting its application to applicants under

Proposition 47's remedial scheme.

       C. The Remaining Claims

       Jackson finally argues (1) this court should apply the "substantial evidence"

standard to reviewing a trial court's determination of dangerousness under the TSRA, and

(2) this court should conclude there was no substantial evidence on which the court could

reasonably conclude that he posed an unreasonable risk to public safety.




                                             17
       The Standard of Review: Substantial Evidence or Abuse of Discretion?

       There is no definitive case law determining the appropriate standard of review to a

trial court's determination of dangerousness under the TSRA.5 We therefore turn to the

statutory scheme and analogous law to examine this issue.

       Section 1170.126, subdivision (f), provides that a petitioner shall not be

resentenced if "the court, in its discretion, determines that resentencing the petitioner

would pose an unreasonable risk of danger to public safety." (Italics added.) By its plain

language, subdivision (f) of section 1170.126 leaves the determination of whether

resentencing would present an unreasonable risk of danger to public safety to the

discretion of the court. This conclusion finds further support in subdivision (g) of this

same statute, which provides in part that a court may consider various enumerated factors

"[i]n exercising its discretion in subdivision (f)." (Italics added.) "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. [Citations.]' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-

1125.) This standard examines whether the ruling in question falls outside bounds of

reason under applicable law and relevant facts. (People v. Williams (1998) 17 Cal.4th

148, 162.)


5      In People v. Payne (2015) 232 Cal.App.4th 579, the court evaluated the
appropriate standard of review under the TSRA. However, the California Supreme Court
has granted review in Payne (People v. Payne, supra, review granted March 25, 2015,
S223856) and, pending direction from the Supreme Court, we must reach the issue here.
                                              18
       Under the clear language of section 1170.126, the ultimate determination that

resentencing would pose an unreasonable risk of danger is vested in the trial court's

discretion and we therefore review that determination for abuse of discretion. Of course,

if there is no evidence in the record supporting the facts on which the court's discretion

was exercised, the decision would constitute an abuse of discretion, and we therefore

conclude the People have the burden of proving, by a preponderance of the evidence, the

relevant facts and circumstances that animate the trial court's discretionary determination.

       Such an interpretation is consistent with California's noncapital sentencing

scheme. Under the determinate sentencing law (DSL) as it existed prior to Cunningham

v. California (2007) 549 U.S. 270, "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 discretion to impose the lower or upper term instead of the middle term

of imprisonment, and generally were required by the statutes and sentencing rules to state

reasons for their discretionary sentencing choices. (Id. at pp. 808-809.) Such reasons had

to be "supported by a preponderance of the evidence in the record" and reasonably related

to the particular sentencing determination. (People v. Scott (1994) 9 Cal.4th 331, 349.)

Even after the DSL was reformed and amended in response to Cunningham, the courts

still acknowledged that certain discretionary sentencing decisions could rely on facts

established by a preponderance of the evidence. (See In re Coley, supra, 55 Cal.4th at

                                             19
pp. 557-558.) As our Supreme Court explained in People v. Sandoval (2007) 41 Cal.4th

825, 850-851, 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.' "

(Italics added.)

       We believe a trial court's discretionary determination of dangerousness when

considering a petition for resentencing under the TSRA is analogous to an evaluation of

the relative weight of mitigating and aggravating circumstances and is "not equivalent to

a factual finding." (People v. Black, supra, 41 Cal.4th at p. 814, fn. 4.) Although the

facts on which that discretion is exercised should be supported by a preponderance of the

evidence, the court's ultimate determination is not subject to substantial evidence review,

but must instead be upheld if it does not constitute an abuse of discretion. That is,

although the facts on which the court's finding of unreasonable risk is based must be

supported by a preponderance of the evidence and are themselves subject to our review

for substantial evidence (see, e.g., 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]), the determination of dangerousness remains a discretionary one and we will not

disturb its ruling unless it "exceeds the bounds of reason, all of the circumstances before

it being considered." (People v. Santamaria (1991) 229 Cal.App.3d 269, 277.)



                                               20
       Application of the Standard to the Ruling Below

       Applying those tests here, the record contains substantial evidence of numerous

facts the court was entitled to consider when making its discretionary determination.6

Jackson had a lengthy prior record of offenses, as this court recognized in People v.

Jackson (July 27, 2006, D047054) [nonpub. opn.] [2006 WL 2076035, at p. *3]:

          "As a juvenile, he was arrested three times for indecent exposure and
          was committed to the California Youth Authority for a 1976 incident
          involving auto theft, reckless driving, and assault with a deadly
          weapon on a police officer. Jackson's adult criminal history began in
          1979 when he was convicted of residential burglary and sentenced to
          prison for two years. In 1981 he again committed burglary and was
          sentenced to prison for six years. In 1985 he was convicted of
          attempted burglary, five counts of burglary of inhabited dwellings,
          and assault with a deadly weapon. Jackson's assault charge stemmed
          from one of the 1985 residential burglaries after he struck a startled
          female resident in the face with a ceramic pitcher, causing an injury
          requiring plastic surgery. While serving a 25-year sentence for the
          1985 crimes, he was arrested in prison for possessing a weapon and
          sentenced to prison for two additional years. After serving 15 years
          of his 27-year sentence, Jackson was paroled in 2000. He violated
          parole two times, first for fighting and making terrorist threats and
          then for indecent exposure. Jackson's 2003 indecent exposure
          conviction culminated in his return to prison until 2004 when he was
          discharged from parole. On February 24, 2005, he committed the
          current felony while on probation for the 2003 indecent exposure
          conviction."




6       When exercising its 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." (§ 1170.126, subd. (g).)

                                            21
       In addition to his record of violence, including a residential assault that severely

injured the victim, his record demonstrated a marked inability to remain law-abiding

during the brief periods when he was free from incarceration. Finally, his prison

behavior included violations in which he used assaultive or aggressive behavior, the last

of which occurred less than four years before he filed the present petition.

       The court, after considering the somewhat favorable psychological evaluation of

Jackson by Dr. Gothard, exercised its discretion under the TSRA not to grant Jackson's

petition, reasoning he still presented "a continuing and unreasonable risk of danger to

public safety." We cannot conclude that, on these facts, the discretionary decision to

deny Jackson's petition fell outside the bounds of reason, all of the circumstances being

considered.

                                      DISPOSITION

       The order is affirmed.



                                                                            McDONALD, J.

WE CONCUR:


McCONNELL, P. J.


NARES, J.




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