Filed 5/5/15 P. v. Fanning CA4/1
                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                         COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                       DIVISION ONE

                                                STATE OF CALIFORNIA


THE PEOPLE,                                                         D065320

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD130440)

ROBERT ARTHUR FANNING,

         Defendant and Appellant.


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

Danielsen, Judge. Affirmed.

         Marianne Harguindeguy, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.

         Robert Arthur Fanning appeals an order denying his petition to recall his

indeterminate sentence for indecent exposure (Pen. Code,1 § 314.1) that was imposed



1        Statutory references are to the Penal Code.
under the "Three Strikes" law.2 He filed a petition to recall his sentence under the "Three

Strikes Reform Act" (the Act or TSRA) enacted in 2012 by the passage of Proposition

36. (§ 1170.126.) The trial court denied the petition, finding he posed an unreasonable

risk of danger to public safety.

       Fanning contends the court denied his right to due process by misapplying section

1170.126, which "establishes a presumption that an inmate who would not be subject to a

life term under [the Act] must ordinarily be resentenced to a second strike term." He

further contends the court incorrectly found that he posed an unreasonable risk of danger

to public safety, it failed to apply the proper standard for evaluating the prosecution's

burden of proof under the statute, and it violated his right against self-incrimination by

refusing to resentence him upon its finding he had denied committing the crimes for

which he was convicted. We conclude the court did not abuse its discretion by finding

that Fanning poses an unreasonable risk of danger to public safety. Accordingly, we

affirm the order denying Fanning's petition for resentencing.

                   FACTUAL AND PROCEDURAL BACKGROUND

Fanning's Criminal History

       Fanning was born in 1949 and has been incarcerated most of his adult life. When

he was 17, he was committed to the Washington State Department of Institutions,

Division of Juvenile Rehabilitation, based on charges that he was "exposing himself to



2     An order denying a petition for recall of a sentence under section 1170.126 is
appealable. (Teal v. Superior Court (2014) 60 Cal.4th 595, 597.)

                                              2
small children and undressing in public." In 1968, when Fanning was 19 years old, he

was first convicted of indecent exposure. He was incarcerated for six years and released

on probation.

       In 1977, Fanning violated probation by exposing himself to two teenagers and

showing them pornography.

       In 1984, Fanning was convicted of 38 arson and burglary counts stemming from

26 intentionally set fires of residences between March 1982 and January 1984 in the

Clairemont area of San Diego.

       In 1993, shortly after he was released from prison, Fanning was seen naked in

public. Police chased him but he fled. He was convicted of resisting a peace officer.

       In 1994, Fanning was arrested for running nude in the streets. His probation was

revoked. He was released from prison in June 1995. A month later, Fanning was seen

running naked in downtown San Diego, and his probation was again revoked.

       In January 1996, two days after his release from prison, he was observed walking

naked in downtown San Diego. He was apprehended as he tried to flee, and he was

incarcerated.

       In December 1996, Fanning was convicted of indecent exposure following a report

he was masturbating in public.

       In July 1997, Fanning was seen completely nude on the stairs of the San Diego

Convention Center. He told police that since 1993 he had had a severe

methamphetamine problem and "his behavior was due to his being under the influence."

He was convicted of indecent exposure.

                                            3
       In 1998, the court sentenced Fanning to 25 years to life plus one year in prison.

Fanning's Psychological Evaluation

       In December 2013, at defense counsel's request, psychologist Shayna Gothard

interviewed Fanning and administered various psychological tests to him. Among other

records, Dr. Gothard reviewed several probation reports outlining Fanning's criminal

record: arrest reports, prison records regarding Fanning's training and work tutoring

prison inmates, and his involvement in ministry. Dr. Gothard diagnosed Fanning with

exhibitionistic disorder, adult antisocial behavior, methamphetamine use disorder that

was in sustained remission in a controlled environment, and imprisonment. Dr. Gothard

added: "It is possible that Mr. Fanning also carries diagnoses for pyromania and

pedophilia though these disorders could not be diagnosed as he denied engaging in the

respective behaviors and more information is needed." (Some capitalization omitted.)

       Dr. Gothard stated in her report: "[Fanning] was questioned whether he had ever

tried to stop exposing himself. He replied, 'not until now.' When asked why the

possibility of being arrested was not a deterrent, he stated, 'I always figured I would not

get caught.' " During his interview with Dr. Gothard, Fanning continued to deny he

caused the fires. Dr. Gothard reported as follows regarding Fanning's treatment efforts

and insights: "Mr. Fanning has had limited sex offender and substance abuse treatment.

His focus in prison has been to learn how to be a peer educator. As such, he took

coursework in peer education for HIV, STD's and worked as a teacher's aide. He also

studied extensively with the ministry and continues to go to Bible study." (Some

capitalization omitted.)

                                              4
       Dr. Gothard concluded Fanning posed a relatively high risk of reoffending: "[His]

extensive history of sexual offenses, arson convictions, limited education and high

[Psychopathy Checklist Revised] score is consistent with those in this sample who

recidivated. His advanced age was inconsistent with general criminal recidivism."3 Dr.

Gothard elaborated: "Mr. Fanning's history is clearly a significant concern and one that

puts him at risk to reoffend. His extensive history of indecent exposure, fire-setting and

substance abuse all reflect significant problems with impulse control and impaired

judgment. Additionally, his lack of treatment, limited appreciation of his sexual disorder,

psychopathic traits, history of substance abuse, and potential exposure to destabilizers

place him at further risk. His insight into his past behavior is in the rudimentary stage

and in need of a deeper understanding. He also has not developed relapse prevention

plans should his urge to use substances or expose himself resurface. [¶] On a positive

note, Mr. Fanning has demonstrated no inappropriate behavior, including institutional

violations, since his incarceration in 1997. He has also reportedly been sober since his



3       Specifically, Dr. Gothard reported: "The Psychopathy Checklist Revised (PCL-R)
is a clinician completed measure based on a semi-structured interview and extensive
review of the records. Its items address both personality and behavioral attributes of
psychopaths. Mr. Fanning scored 26 on the PCL-R, placing him at approximately the
59th percentile in relation to other prison inmates on this measure. This score is within
the recommended total cutoff of 25-30 as indicative of psychopathy. His score of 9 on
Factor 1 of the PCL-R places him at approximately the 53rd percentile on personality
characteristics described as the 'selfish, callous and remorseless use of others.' His higher
score of 14 on Factor 2 (71st percentile), captures his chronically unstable and antisocial
lifestyle. Higher scores on this instrument are associated with an increased risk for
violent, assaultive behavior and criminal recidivism after release from prison. Mr.
Fanning's scores indicate that he has a number of personality and behavioral
psychopathic traits, though more in the realm of antisocial behavior."
                                              5
arrest and has no desire to resume using. He appreciates the deleterious affect [sic]

substance abuse has on his functioning and has declined offers to use in custody. Mr.

Fanning's advanced age is protective in terms of general criminality though not

necessarily sexual offending. However, by self-report, his libido and sexual functioning

have been adversely affected by his age, health challenges and medication, which could

reduce his urges. He has also begun to gain insight into the inappropriateness of his

sexual behavior and the disturbing affect [sic] on the victims. Lastly, Mr. Fanning has

been highly involved in the ministry and wants to live by Christian tenants [sic]. [¶] In

sum, though Mr. Fanning has exhibited no recent inappropriate behaviors, has been sober

for the past 16 years, and has begun to gain insight into his behavior, there are still a

number of factors which place him at a relatively high risk for re-offense, especially of

[sic] indecent exposure." (Some capitalization omitted.)

The Court's Denial of Fanning's Petition

       The court relied on the parties' briefs and several documents including Dr.

Gothard's report, information regarding Fanning's criminal conviction history, Fanning's

disciplinary record and his record of rehabilitation while in prison. The court noted that

Fanning's "commitment offense, standing by itself, would not be enough simply to say

he's an unreasonable risk of danger to society." It also concluded Fanning's "disciplinary

record and all of the information from inside the institution actually is quite favorable to

Mr. Fanning." Nonetheless, it denied the petition: "[Fanning] is at a significantly high

risk to reoffend, and that's not entirely based solely upon the history. . . . [¶] You put

that in combination of what I think are the critical facts, and that is that he has had no

                                              6
significant effective treatment, his appreciation of his sexual disorder is extraordinarily

limited, he has antisocial traits, he has a significant history of substance abuse, and

putting him back out into society, I think clearly would put him in a position of exposure

to facts and circumstances that could be characterized as destabilizers. [¶] Given his

insight or lack thereof of his past behavior, his denial of some of his past behavior, his

failure to develop reasonable relapse prevention programs all lead this court to believe

that at this time that if he were released by virtue of a resentencing, he would, in fact,

pose an unreasonable risk of danger to public safety. [¶] If he is to be released in the

future, it would be based upon parole determinations in the ordinary course."

                                       DISCUSSION

       Fanning challenges the court's denial of his petition on multiple grounds.

Contending the People bore the burden of proving his dangerousness beyond a reasonable

doubt, Fanning states the court was "insistent that his current dangerousness was tied to

his denial of guilt for the acts of arson for which he was convicted in 1985. . . . [¶] In

essence what the court was requiring was that [he] testify against himself as a condition

for resentencing . . . [in violation of ] the Fifth and Fourteenth amendments." He also

contends "[t]he court denied resentencing primarily on the grounds that the mere fact of

[his] criminal history is indicative of his current 'unreasonable' level of dangerousness."

He further contends: "At the time of appellant's hearing he was 64 years old, meaning

that his self-confessed history of sexual abuse ended 46 years ago. The court did not

mention or consider the remoteness of these crimes during the hearing." Fanning

concedes he "has had limited substance abuse and sex offender treatment in prison," but

                                              7
claims that is because of "his reluctance to discuss the nature of his crimes while in there.

However, it is clear from [his] sobriety and good behavior that he has developed

alternative methods for relapse prevention." Fanning summarizes: "The trial court failed

to consider the facts most probative on dangerousness, including [his] 16 years of good

behavior and work evaluations, the remoteness of his 1984 violent felony, his age of 64,

his medical disability, his psychological evaluation results and fiscal consequences [of his

continued incarceration]." (Some capitalization omitted.)

                                               I.

                                      General Legal Principles

       "[T]here are two parts to the Act: the first part is prospective only, reducing the

sentence to be imposed in future three strike cases where the third strike is not a serious

or violent felony (Pen. Code, §§ 667, 1170.12); the second part is retrospective,

providing similar, but not identical, relief for prisoners already serving third strike

sentences in cases where the third strike was not a serious or violent felony (Pen. Code,

§ 1170.126)." (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1286

(Kaulick).)

       "[U]nder the retrospective part of the Act, if the prisoner's third strike offense was

not serious or violent, and none of the enumerated exceptions applies, the defendant 'shall

be' sentenced as if the defendant had only a single prior strike, 'unless the court, in its

discretion, determines that resentencing the petitioner would pose an unreasonable risk of

danger to public safety.' (Pen. Code, § 1170.126, subd. (f).)" (Kaulick, supra, 215

Cal.App.4th at p. 1293, fn. omitted; see also § 1170.126, subd. (e).) The Act provides a

                                               8
means whereby prisoners currently serving sentences of 25 years to life for a third felony

conviction, which was not a serious or violent felony, may seek court review of their

indeterminate sentences and, under certain circumstances, obtain resentencing as if they

had only one prior serious or violent felony conviction and was thus a second-strike,

rather than a third-strike, offender. (Kaulick, supra, at p. 1286.)

       If the inmate satisfies the statutory criteria and is eligible for resentencing

(§ 1170.126, subds. (e), (f)), the trial court "shall" resentence the inmate "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).)

                                              II.

                                    The Burden of Proof Claim

       Fanning argues that, under Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the

prosecution must prove the dangerousness factor beyond a reasonable doubt. He

contends the court's failure to apply this standard violated his due process rights.



                                               9
       This precise claim has been rejected by the courts in Kaulick, supra, 215

Cal.App.4th 1279 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 "Apprendi

and its progeny do not apply to a determination of eligibility for resentencing under the

Act" (Osuna, 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." (Osuna, 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. [¶] . . . 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, at p. 1303, fn. omitted.)

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

part of the Act 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

                                              10
not implicate Sixth Amendment issues and need not be proved beyond a reasonable

doubt.

                                                    III.

                                     Sufficiency of the Evidence

Standard of Review

         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 trial

court's discretion. 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.)

         The appropriate standard of review involves two distinct but interdependent steps.

The first step requires the People to carry the burden of proving, by a preponderance of

the evidence, the facts on which a finding that resentencing a petitioner would pose an

unreasonable risk of danger to public safety reasonably can be based, and that appellate

review of those facts is based on the substantial evidence standard. However, the

preponderance of the evidence standard does not apply to the trial court's determination

regarding dangerousness. Instead, the ultimate decision of whether resentencing an

inmate would pose an unreasonable risk of danger to public safety is within the sound

discretion of the trial court, and therefore its finding must be upheld if it does not

                                               11
constitute an abuse of discretion, that is, if it falls within the bounds of reason, all of the

circumstances being considered. This construction comports with the plain language of

section 1170.126, subdivision (f), 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.)

Analysis

       We conclude the court's exercise of discretion contains ample support in the

record. Fanning has a lengthy record of prior offenses, including arson of several

residences and various acts of exhibitionism. Moreover, his record demonstrates a

marked inability to remain law-abiding during the brief periods when he was free from

incarceration. The psychologist found Fanning posed a high risk for recidivism based on

his prior crimes, his "rudimentary" insights into the basis for his criminal conduct, his

failure to receive treatment during his incarceration, and his lack of a relapse prevention

plan. In light of the substantial evidence in the record, it is of no moment that the court in

its ruling did not expressly refer to Fanning's advanced age and the fact his prior strikes

were committed when he was 34 years old, or any other factor which would have favored

the granting of Fanning's petition.

       Despite Fanning's criticism of the trial court's ruling as violating his right against

self incrimination, we note the court did not require Fanning to testify. We conclude it

had sufficient basis for its decision in the psychologist's report, and it merely

acknowledged that Fanning's prospects for rehabilitation and his level of public danger

were tied to a recognition of his involvement in committing the arsons; therefore,

                                               12
considering Fanning's decision to deny his role in the crime, the court was entitled to

conclude Fanning would continue to pose an unreasonable risk of danger to the public if

released. Moreover, contrary to Fanning's claim, the court manifestly did not limit itself

to reciting Fanning's "criminal behavior as grounds for denial of resentencing." Rather,

the court was more persuaded by Fanning's lack of insight into his criminal conduct or

plan to address the stressors that might arise upon his release, which would increase

Fanning's risk of reoffending, putting the public in unreasonable danger. On this record

the trial court's concern was warranted.

                                                  IV.

                                        The Proposition 47 Claim

       Fanning in his reply brief raises a new argument for reversal, asserting the newly

enacted 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. Fanning argues that, when 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.4 He specifically states: "In this case the trial court considered the nonviolent

offenses and behaviors in determining future dangerousness which would not be relevant

under this new definition of 'unreasonable risk of danger to public safety[.]' The trial

court indicated that part of the history [it] considered was indecent exposure, his


4       Fanning does not address, and we express no opinion on, whether he might be
eligible to bring a petition for recall under Proposition 47.
                                             13
substance abuse and his 'sexual abuse[.]' " We conclude our substantial analysis set forth

above is unaffected by Proposition 47.

       On November 4, 2014, voters enacted Proposition 47, which became effective 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 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—analogous

to the resentencing provisions of the TSRA, and permitted a person currently serving a

felony sentence for an offense that is 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 Fanning 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. Fanning 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

                                             14
evidence to support a finding Fanning posed an unreasonable risk of committing one of

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

       Our task is one of statutory construction.5 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." (Michele D., at p. 606.)

       We therefore consult " 'a variety of extrinsic aids, including the ostensible objects

to be achieved, the evils to be remedied, the legislative history, public policy,




5      We note the California Supreme Court has recently 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 Feb. 18, 2015, No. S223825, 183 Cal.Rptr.3d 516.) Pending
direction from the Supreme Court, we must reach the issue here.
                                               15
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." ' " (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." ' " (Id. at

pp. 1034-1035.)

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

different subjects that 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-

                                              16
called triggering, offense is nonviolent and may be widely perceived as relatively minor."

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

       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." (Cal. Voter Information Guide,

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

<http://www.voterguide.sos.ca.gov/past/2012/general/propositions> [as of Apr. 29, 2015]

(hereafter Information Guide I).) 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

                                              17
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

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

liberally construed to effectuate those purposes." (Information Guide I, supra, text of

Prop. 36, p. 110, original italics omitted.) As explained in People v. Osuna, supra, 225

Cal.App.4th at p. 1036, "[a]lthough the [TSRA] 'diluted' the three strikes law somewhat

[citation], '[e]nhancing public safety was a key purpose of the Act.' "

       In contrast, Proposition 47 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 molestation are not changed." (Cal. Voter Information

Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70, at

<http://www.voterguide.sos.ca.gov/en/propositions/47> [as of Apr. 29, 2015] (hereafter

Voter Information Guide II.) 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, §§ 459.5, subd. (a), 473, subd. (b), 476a, subd. (b),

                                             18
490.2, subd. (a), 496, subd. (a), 666, subd. (b).) Penal Code 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 Penal Code section 290,

subdivision (c). (Pen. Code, § 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." (Voter Information Guide II, 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." (Voter Information Guide II, supra, analysis of Prop. 47 by Legis.

Analyst, p. 35.) 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

                                             19
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 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." (Voter

Information Guide II, 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 Voter Information

Guide II, 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 II, supra,

                                             20
rebuttal to argument in favor of Prop. 47, p. 38), there is no suggestion the early release

provisions would extend to inmates whose current offenses remained felonies under the

TSRA. The same is true of the discussion of resentencing contained in the argument

against Proposition 47. (Voter Information Guide II, 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.

          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 section 1170.18, subdivision (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 Fanning's

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

                                               21
serious questions under the equal protection clauses of the United States and California

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

"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)6 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 Fanning, had their TSRA

applications denied and 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



6       However, different courts of appeal have concluded that even if Proposition 47's
definition of an "unreasonable risk of danger to public safety" applied prospectively to
applications under the TSRA, it did not apply retrospectively to applications denied
before the effective date of Proposition 47. (People v. Chaney (2014) 231 Cal.App.4th
1391, review granted February 18, 2015, S223676 [does the definition of "unreasonable
risk of danger to public safety" under section 1170.18, subdivision (c) apply retroactively
to resentencing under section 1170.126].) Two other cases decided after Chaney also
addressed this question, and both declined to retroactively apply the section 1170.18,
subdivision (c) definition of " 'unreasonable risk of danger to public safety' " to
resentencing under section 1170.126. (People v. Davis (2015) 234 Cal.App.4th 1001,
1006 (Davis); People v. Guzman (2015) 235 Cal.App.4th 847 (Guzman) (maj. opn. at pp
855-856 [definition under section 1170.18, subdivision (c) does not apply to resentencing
under section 1170.126]); see id. at p. 861 (conc. opn. of Aronson, J.) [definition under
section 1170.18, subdivision (c) does apply to resentencing under section 1170.126, but
not retroactively].) We agree with Davis and Guzman on this question. And we too
conclude "that the five words 'As used throughout this Code' were not intended by the
voters to hamstring the [TSRA]." (Davis, supra, 234 Cal.App.4th at p 1026.)
Accordingly, we deny Fanning's request, raised at oral argument, for an opportunity to
make further arguments on issues related to Proposition 47 and retroactivity.
                                            22
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.




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                               DISPOSITION

      The order is affirmed.




                                             O'ROURKE, J.

WE CONCUR:


BENKE, Acting P. J.


HALLER, J.




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