Filed 3/6/15 P. v. Ingram 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                         D064936

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD122775)

THOMAS INGRAM,

         Defendant and Appellant.


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

Danielsen, Judge. Affirmed.

         Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

Peter Quon, Jr., and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and

Respondent.
       In 1996 Thomas Ingram was convicted of one count of petty theft with a prior

theft conviction (Pen. Code, § 484/666)1 and one count of commercial burglary (§ 459).

Because the court found true the allegations that Ingram had been convicted of three prior

offenses that were serious or violent felony strikes within the meaning of sections 667,

subdivisions (b) through (i), and 1170.12, the court sentenced Ingram to an indeterminate

term of 25 years to life for his convictions. In 2013 Ingram petitioned to recall his

sentence pursuant to the recently enacted Three Strikes Reform Act of 2012 (§ 1170.126

et seq.) (TSRA). The court denied his petition, and this appeal followed.2

                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND

       A. The Current Offenses and Sentence

       In 1996 Ingram was convicted of one count of petty theft with a prior theft

conviction (§ 484/666) and one count of commercial burglary (§ 459). In a bifurcated

proceeding, the court found true the allegations Ingram had been convicted of three

offenses for which he served a term in state prison within the meaning of section 667.5,

subdivision (b), and had three convictions for offenses that constituted serious or violent

felony strikes within the meaning of sections 667, subdivisions (b) through (i), and



1      All further statutory references are to the Penal Code unless otherwise specified.

2       In a petition for writ of habeas corpus filed by Ingram, considered concurrently
with this appeal, he also asserts his attorney provided ineffective assistance of counsel at
the hearing on his petition because the attorney did not call a particular witness to testify
at that hearing. For the reasons stated in our separate order filed concurrently with this
opinion, we have also denied his petition for writ of habeas corpus.
                                              2
1170.12. The court sentenced Ingram to an indeterminate term of 25 years to life, but

struck the enhancements for his prior prison terms.

       B. The Recall Petition

       In 2013, Ingram filed a petition seeking to recall his sentence under the TSRA.

The petition argued his current offense (the 1996 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 find he was not currently dangerous, recall

his sentence, and resentence him under the TSRA.

       The People's reply to the petition to recall Ingram's sentence conceded he had

prima facie shown he was qualified under the TSRA to be considered for resentencing.

However, the People noted Ingram's record before the commitment offense involved

crimes of violence in which he employed weapons, encompassed a prison record of

violence that spanned a decade, and suggested Ingram suffered from serious and

debilitating mental illness, as he has exhibited bizarre behavior leading to his

participating in mental health services in prison. The People submitted the matter to the

court's discretion on whether to resentence Ingram but argued that, were Ingram

resentenced, he should be resentenced subject to postrelease community supervision.

       The court denied the petition, concluding he posed an unreasonable risk of danger

to public safety were he resentenced and released under the TSRA. Ingram timely

appealed.




                                              3
                                         ANALYSIS

       Ingram raises numerous challenges to the order denying his 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, and he

was entitled to have a jury determine that issue,3 and reversal is therefore required

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

decisionmaker. Ingram also contends the newly enacted provisions of Proposition 47,

The Safe Neighborhoods and Schools Act (hereafter Proposition 47), adopted by the

voters on November 4, 2014, superimposes on 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.

Ingram finally asserts that, even assuming (1) the court was the proper decisionmaker, (2)

it properly applied a preponderance of the evidence standard, and (3) it was not required

to apply Proposition 47's more restrictive definition of dangerousness, there is no

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

risk of danger to public safety were he resentenced under the TSRA.




3       His counsel did not assert he had a right to a jury trial and therefore Ingram also
asserts, in his companion petition for writ of habeas corpus, that he was deprived of
effective assistance of counsel. Because we conclude in this appeal that Ingram was not
entitled to a jury trial on his recall petition, we also necessarily reject that aspect of his
writ petition asserting counsel was ineffective by not requesting a jury trial.
                                               4
       A. Ingram's Sixth Amendment Claims

       Ingram first 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 critical factor of "dangerousness" is a determination that increases the

sentence for the inmate beyond the presumptive sentencing choice. Ingram argues the

principles announced in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 provide

Ingram with protections under the Sixth Amendment to the United States Constitution to

require the prosecution to prove that factor beyond a reasonable doubt, and guarantees

him the right to a jury trial on that factor.

       1. The Burden of Proof Claim

       Ingram first argues that, under Apprendi, 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 "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

                                                5
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
          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, at p. 1303, fn.
          omitted.)

       Kaulick buttressed its determination by noting "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. U.S. (2010)

560 U.S. 817. (Kaulick, supra, 215 Cal.App.4th at p. 1304.) 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

                                              6
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 pp. 825-826.)] The court
stated, 'Notably, the sentence-modification proceedings authorized
by [the statute] are not constitutionally compelled. We are aware of
no 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 v. U.S., supra, 560 U.S. 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.)


                                   7
       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 Ingram did not have a right to a jury trial on

the issue of dangerousness. Both Osuna and Kaulick concluded that Apprendi's

principles, which include the right to have a jury determine factors aggravating a

sentence, do not apply to recall petitions under the TSRA. (Osuna, supra, 225

Cal.App.4th at p. 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 Ingram argues these cases were wrongly decided,

and Kaulick's application of Dillon was erroneous, we do not believe Kaulick's

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

was erroneous, and we conclude Ingram did not have the right to have a jury trial on the

issue of dangerousness.



                                              8
       B. The Proposition 47 Claim

       Ingram, by supplemental briefing, 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. Ingram 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

       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 Ingram relies in

the present appeal. That subdivision provides: "As used throughout this Code,


4     Ingram's supplemental briefing does not address, and we express no opinion on,
whether Ingram might be eligible to bring a petition for recall under Proposition 47.
                                              9
'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. Ingram 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 Ingram 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



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 Jan. 16, 2015, S223825.) Pending direction from the Supreme
Court, we must reach the issue here.
                                               10
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,

contemporaneous administrative construction, and the statutory scheme of which the

statute is a part. [Citations.]' [Citation.] We also ' "refer to other indicia of the voters'

intent, particularly the analyses and arguments contained in the official ballot pamphlet."

[Citation.]' " (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 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

                                               11
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.)

       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." (Voter Information Guide, 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 Feb. 25, 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

                                             12
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

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

liberally construed to effectuate those purposes." (Voter Information Guide, Gen. Elec.

(Nov. 6, 2012), supra, text of Prop. 36, p. 110, original italics omitted, italics added.) 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' [citation]."

       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,

                                             13
murder, and child molestation are not changed." (Voter Information Guide, Gen. Elec.

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

<http://vig.cdn.sos.ca.gov/2014/general/en/pdf/complete-vigr1.pdf> [as of Feb. 25,

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); §§ 459.5, subd. (a), 473, subd. (b), 476a, subd. (b), 490.2, subd. (a), 496, subd. (a),

666, subd. (b).) Section 1170.18 renders ineligible for resentencing only 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." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014),

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

                                              14
offenders convicted of nonserious and nonviolent property and drug crimes. This

measure also allows certain offenders who have been previously convicted of such crimes

to apply for reduced sentences." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014),

supra, analysis of Prop. 47 by Legis. Analyst, p. 35, italics added.) With respect to the

resentencing provision, the Legislative Analyst explained:

          "This measure allows offenders currently serving felony sentences
          for the above crimes [, i.e., grand theft, shoplifting, receiving stolen
          property, writing bad checks, check forgery, and drug possession] to
          apply to have their felony sentences reduced to misdemeanor
          sentences. In addition, certain offenders who have already
          completed a sentence for a felony that the measure changes could
          apply to the court to have their felony conviction changed to a
          misdemeanor. However, no offender who has committed a specified
          severe crime could be resentenced or have their conviction changed.
          In addition, the measure states that a court is not required to
          resentence an offender currently serving a felony sentence if the
          court finds it likely that the offender will commit a specified severe
          crime. Offenders who are resentenced would be required to be on
          state parole for one year, unless the judge chooses to remove that
          requirement." (Id. at p. 36, italics added.)

       Similarly, the arguments in favor of and against Proposition 47 spoke in terms

solely of Proposition 47, and never mentioned the 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, Gen. Elec. (Nov. 4, 2014), supra, argument in favor of Prop. 47,

p. 38.) The rebuttal to argument against Proposition 47 reiterated these themes, and

never suggested Proposition 47 would have any effect on resentencing under the TSRA.

                                            15
(See Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, rebuttal to argument

against Prop. 47, p. 39.) Although the rebuttal to argument in favor of Proposition 47

asserted 10,000 inmates would be eligible for early release under the measure, and that

many of them had prior convictions "for serious crimes, such as assault, robbery and

home burglary" (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, rebuttal to

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

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, Gen. Elec. (Nov. 4, 2014), supra, argument

against Prop. 47, p. 39.)

       In light of the foregoing, we cannot reasonably conclude voters intended the

definition of " 'unreasonable risk of danger to public safety' " contained in section

1170.18, subdivision (c), to apply to that phrase as it appears in section 1170.126,

subdivision (f), despite the former section's preamble, "As used throughout this

Code . . . ." Voters cannot intend something of which they are unaware.

       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

                                             16
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 Ingram'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 Ingram'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 Ingram, 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

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


6      However, the court in People v. Chaney (2014) 231 Cal.App.4th 1391 concluded,
even if Proposition 47's definition of an "unreasonable risk 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.
                                             17
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 Substantial Evidence Claim

       Ingram argues there was no substantial evidence from which a court reasonably

could conclude that he posed an unreasonable risk of the type of recidivism that would

endanger the public safety.

       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.)

       The language of the statutory scheme has led at least one court to construe the

appropriate standard of review to involve two distinct but interdependent steps. In

People v. Payne (2014) 232 Cal.App.4th 579, the court concluded 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, Payne concluded the

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

regarding dangerousness but, instead, the ultimate decision of whether resentencing an

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

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

constitute an abuse of discretion, i.e., if it falls within the bounds of reason, all of the

circumstances being considered. (Payne, at p. 597.)

       We agree this construction comports with the statutory 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.) Applying those tests here, there was substantial

evidence of numerous facts the court was entitled to consider when making its

discretionary determination.7 Ingram had a lengthy prior record of offenses, including a

1979 robbery in which he personally used a handgun and caused great bodily injury, and

other offenses in which physical violence was at least nascent, such as his 1986

conviction for robbery, and two earlier convictions in which he was carrying a concealed

weapon. Moreover, his prior record demonstrated a marked inability to remain law-

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



7       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).)
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behavior included numerous violations, including violations in which he used assaultive

or aggressive behavior, the last of which was only four years before he filed the present

petition.

       The court, after carefully considering the somewhat favorable evaluation of

Ingram by Dr. Clipson, exercised its discretion under the TSRA not to grant Ingram's

petition, reasoning that Ingram did present:

            "a substantial and high risk to recidivate in some criminal fashion,
            and given the difficulties that he has had even in the institution, it
            appears that he is very much at risk. Although the doctor
            characterizes a low/moderate risk of violent recurrence, he is at risk
            to commit a violent offense. [¶] I think given the instability that I
            see in his performance in the state prison, given his record in the
            state prison, I find that release at this time and resentencing this
            petitioner would pose an unreasonable risk of danger to public
            safety."

       We cannot conclude, on these facts, that the discretionary decision to deny

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

considered. Ingram contends, however, that the trial court erroneously framed the

pertinent issue as an inquiry into the risk of recidivism in general rather than the

likelihood of future violence. However, Ingram's prior crimes (including three that

involved carrying a handgun) and his aggressive and assaultive behavior in prison

provide an evidentiary basis to conclude he was at risk of committing a violent offense.

More importantly, section 1170.126, subdivision (f), does not provide a petitioner shall

be resentenced unless the court determines resentencing the petitioner would pose an

unreasonable risk of violence. Instead, that section employs the terminology of "danger

to public safety," and the commission of crimes can constitute a danger to public safety

                                               20
without being offenses of violence. (See, e.g., People v. Hughes (2002) 27 Cal.4th 287,

355 [crime of burglary is " ' " 'based primarily upon a recognition of the dangers to

personal safety created by the usual burglary situation—the danger that the intruder will

harm the occupants in attempting to perpetrate the intended crime or to escape and the

danger that the occupants will in anger or panic react violently to the invasion, thereby

inviting more violence' " ' "].) To condition resentencing denials on the likelihood of

future violence would run contrary to the language of section 1170.126, subdivision (f),

and we will not superimpose a requirement of a likelihood of violence where none was

included by the electorate. (Accord, People v. Payne, supra, 232 Cal.App.4th at pp. 603-

604.)

                                      DISPOSITION

        The order is affirmed.




                                                                           McDONALD, J.

WE CONCUR:


NARES, Acting P. J.


McINTYRE, J.




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