Filed 8/29/16 P. v. Garcia CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B267788

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA030813)
         v.

JOSE GARCIA,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of Los Angeles County, Scott M.
Gordon, Judge. Affirmed.
         Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Mary
Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
                                     I. INTRODUCTION
       In 1997, a jury convicted defendant, Jose Garcia, of unlawful taking or driving of
a vehicle (Veh. Code, § 10851, subd. (a)) and joyriding (Pen. Code, § 499b).1 The jury
also found defendant had previously sustained three prior serious felony convictions.
Defendant was sentenced to 25 years to life in state prison pursuant to sections 667,
subdivision (e)(2) and 1170.12, subdivision (c)(2). We affirmed the judgment on direct
appeal. (People v. Garcia (Feb. 24, 1998, B113434) [nonpub. opn.].) The present appeal
is from an order denying defendant’s section 1170.126, subdivision (b) resentencing
petition. We affirm the order.
                                      II. DISCUSSION
                             A. “Unreasonable Risk of Danger”
       The trial court found defendant was eligible for resentencing, however, he posed
an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).) Defendant seeks
a remand for the trial court to apply the more narrow definition of “unreasonable risk of
danger to public safety” found in subsequently enacted section 1170.18, subdivision (c).
Defendant contends, “A remand is necessary to give the trial court an opportunity to
evaluate [defendant’s] suitability for resentencing under the proper legal standard.” We
find no reason to remand. The question whether the unreasonable risk standard in section
1170.18, subdivision (f), applies to a section 1170.126 petition is pending before our
Supreme Court in numerous cases. We agree with the existing authority. (People v.
Esparza (2015) 242 Cal.App.4th 726, 736-737.) Further, there is no evidence the voters
intended that 1170.18, subdivision (c) govern a determination made pursuant section
1170.126, subdivision (f). Given the foregoing, we need not address defendant’s
arguments that are premised on a contrary analysis. The Attorney General argues that the
unreasonable risk of harm to public safety definition in section 1170.18, subdivision (c)
does not govern a determination made pursuant section 1170.126, subdivision (f). We



       1   Further statutory references are to the Penal Code.


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agree. Given this analysis, we need not address defendant’s arguments that are premised
on a contrary conclusion.
                                    B. Void for Vagueness
       Defendant further contends section 1170.126, subdivision (g) is void for
vagueness. Section 1170.126, subdivision (g) sets forth the factors to be considered in
determining whether resentencing a petitioner would pose an unreasonable risk of danger
to public safety: “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.” Defendant argues: “First, [under
section 1170.126, subdivision (g),] there is no concrete way for a trial court to estimate a
petitioner’s level of risk to the public if resentenced based on the statute’s categories,
particularly when one category is whatever the court deems relevant. Such a standard
provides no notice to anyone, and encourages arbitrary denials. [¶] Second, even if a
court is able to intuit a petitioner’s level of risk, it is not possible to determine the
quantum of risk that distinguishes a ‘reasonable’ risk from an ‘unreasonable’ risk.
Combining the indeterminacy regarding how to measure an unreasonable risk of future
danger . . . with the indeterminacy regarding how much risk it takes to qualify as an
‘unreasonable’ risk of danger, subdivision (g) of section 1170.126 ‘produces more
unpredictability and arbitrariness than the Due Process Clause tolerates.’ [Citation.]”
       We agree with our colleagues in Division Six of the Court of Appeal for this
appellate district, “[I]t is debatable whether the vagueness doctrine has application to a
superior court judge making a discretionary sentencing decision.” (People v. Flores
(2014) 227 Cal.App.4th 1070, 1074.) Moreover, even if the vagueness doctrine applies,
for the reasons stated in Flores, “[T]he statute clearly and precisely delineates its reach in
words of common understanding.” (Id. at p. 1075.) Further, we believe our Division Six

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colleagues correctly concluded, “[A] superior court judge is capable of exercising
discretion, justly applying the public safety exception, and determining whether a lesser
sentence would pose an unreasonable risk of harm to the public safety.” (Ibid.) People v.
Garcia (2014) 230 Cal.App.4th 763, 765-766, 768, a decision of the Court of Appeal for
the Third Appellate District, is to the same effect. There our Third Appellate District
colleagues concluded, “[T]he 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.” (Id. at pp. 765-766.)
       Nothing in Johnson v. United States (2015) 576 U.S. __, __ [135 S.Ct. 2551,
2557], cited by defendant, compels a different conclusion. The vague statute at issue in
Johnson required a district court to estimate the risk posed by an offender’s conduct by
assessing “a judicially imagined ‘ordinary case’” of the crime. The sentencing decision
at issue in Johnson did not require an assessment of “real-world facts or statutory
elements” as is typically the case. (Id. at p. __ [135 S.Ct. at p. 2557].) Here, the trial
court made the “unreasonable risk” assessment by reference to facts in the record.
                                   C. Abuse of Discretion
       Defendant asserts the trial court abused its discretion in finding, under section
1170.126, that he posed an unreasonable risk of danger to public safety. Defendant in
effect asks this court to reweigh the question. Our review, however, is for an abuse of
discretion. (See People v. Williams (1998) 17 Cal.4th 148, 162.) It is defendant’s burden
to demonstrate an abuse of discretion, not merely that different jurists might rationally
disagree on the appropriate sentencing decision. (See People v. Superior Court (Alvarez)
(1997) 14 Cal.4th 968, 977–978; People v. Leavel (2012) 203 Cal.App.4th 823, 837.)
The trial court set forth in a well-reasoned, detailed, 15-page memorandum the factors
underlying its finding. The trial court properly considered defendant’s criminal history,
commitment offense, rules violations while incarcerated, rehabilitative programming,
classification and risk assessment scores, gang affiliation, age and post-release plans. No
abuse of discretion occurred.



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                                     III. DISPOSITION
       The order denying defendant’s Penal Code section 1170.126, subdivision (b)
resentencing petition is affirmed.
                            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                            TURNER, P.J.
       We concur:




       BAKER, J.




       RAPHAEL, J.




         Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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