Filed 1/14/16 P. v. Wormley CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E061998

v.                                                                       (Super.Ct.No. FVA022818)

TYRIN JAMEL WORMLEY,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Jan B. Norman, 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, Arlene A. Sevidal, Collette




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Cavalier, and Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and

Respondent.

       Defendant Tyrin Jamel Wormley appeals from the trial court’s denial of his

petition for resentencing under the Three Strikes Reform Act of 2012 (three strikes law),

added by Proposition 36. Defendant contends that (1) the definition of the phrase

“unreasonable risk of danger to public safety” in Penal Code section 1170.18, subdivision

(c)1 contained in the Safe Neighborhoods and Schools Act, added by Proposition 47,

applies to resentencing petitions brought under Proposition 36 and (2) this definition

applies retroactively to petitions denied before the voters enacted Proposition 47.

       We do not address defendant’s first contention because we conclude that the

definition of dangerousness in Proposition 47 is not retroactive. In other words, even if

the definition in Proposition 47 did apply to Proposition 36, defendant is not entitled to

relief because his resentencing petition was heard and denied before Proposition 47’s

passage.2 Accordingly, we affirm.




       1   All further undesignated statutory references are to the Penal Code.

       2 The issue of whether Proposition 47’s definition of “unreasonable danger to
public safety” applies to Proposition 36 and whether it applies retroactively is currently
pending before the California Supreme Court in People v. Valencia, review granted
February 18, 2015, S223825 and People v. Chaney, review granted February 18, 2015,
S223676, respectively.



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                                              I

                    FACTUAL AND PROCEDURAL BACKGROUND

       Because the issue on appeal is a legal question of statutory interpretation, we take

the facts of defendant’s underlying offense from our prior opinion affirming defendant’s

conviction. (People v. Wormley (Feb. 23, 2006, E037991) [nonpub. opn.].) Around 2:30

a.m. on September 22, 2004, a San Bernardino County Sheriff’s Department officer

observed defendant throw an object on the ground while riding a bicycle without a

headlight. The officer detained defendant and discovered he was on active parole

supervision. The object defendant had thrown on the ground was a knife concealed in a

black nylon “do-rag,” tied with a string.

       A jury found defendant guilty of carrying a concealed dirk or dagger (§ 12020,

subd. (a)(4)) and found true the allegations that defendant suffered two prison priors

(§ 667.5, subd. (b)). The trial court sentenced defendant to a term of 25 years to life

pursuant to the three strikes law, and a one-year term for each prison prior, for a total of

27 years to life in state prison.

       On April 2, 2013, defendant filed a Proposition 36 resentencing petition pursuant

to section 1170.126. The trial court considered the petition in hearings on September 16

and 19, 2014. The court heard argument from counsel and reviewed defendant’s criminal

history, records of defendant’s performance while in custody, a psychological report

assessing defendant’s risk of danger to public safety, and letters of mitigation submitted



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by defense counsel. Based on this evidence, the court concluded that defendant had

engaged in an ongoing pattern of criminal conduct from 1995 to 2004, and, while in

custody for his most recent offense, had committed multiple sexual offenses against

female staff members and multiple batteries. The court found that defendant posed an

unreasonable risk of danger to public safety and denied his petition.

                                              II

                                        ANALYSIS

       A.     Background Regarding Propositions 36 and 47

       The voters enacted Proposition 36, or the three strikes law, on November 6, 2012.

(People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1285.) Proposition 36

amended sections 667 and 1170.12 to lessen the sentence that may be imposed in many

cases involving nonviolent, nonserious felonies committed after two strikes. (People v.

Yearwood (2013) 213 Cal.App.4th 161, 167-168.) Proposition 36 also added a

resentencing provision, section 1170.126, “whereby a prisoner who is serving an

indeterminate life sentence imposed pursuant to the three strikes law for a crime that is

not a serious or violent felony and who is not disqualified, may have his or her sentence

recalled and be sentenced as a second strike offender unless the court determines that

resentencing would pose an unreasonable risk of danger to public safety.” (People v.

Yearwood, supra, at p. 168, italics added.) Section 1170.126 does not define

“unreasonable risk of danger to public safety,” but it states that in assessing a petitioner’s



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dangerousness, 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, subds. (f) &

(g).)

        Two years after the enactment of Proposition 36, on November 4, 2014, the voters

enacted Proposition 47. (Cal. Const., art. II, § 10, subd. (a).) Proposition 47 changed

portions of the Penal Code and Health and Safety Code to reduce various drug possession

and theft-related offenses from felonies or wobblers to misdemeanors, unless the offenses

were committed by certain ineligible offenders. (People v. Rivera (2015) 233

Cal.App.4th 1085, 1091.) Proposition 47 also created a new resentencing provision,

section 1170.18, under which “a person ‘currently serving’ a felony sentence for an

offense that is now a misdemeanor under Proposition 47, may petition for a recall of that

sentence and request resentencing in accordance with the statutes that were added or

amended by Proposition 47.” (People v. Rivera, supra, at p. 1092.)




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       Similar to the resentencing procedure under Proposition 36, Proposition 47 gives

the court discretion to resentence an otherwise eligible petitioner if the court determines

that the petitioner poses an “unreasonable risk of danger to public safety.” (§ 1170.18,

subd. (b).) Unlike Proposition 36, however, Proposition 47 provides a definition of

dangerousness: “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), italics added.)

       B.     The Definition of Dangerousness in Proposition 47 Does Not Apply

              Retroactively to Proposition 36 Petitioners

       Proposition 47 was enacted about two months after defendant’s September 2014

resentencing hearing. Unless California voters intended the proposition to apply

retroactively, the definition of dangerousness in Proposition 47 cannot apply to

defendant. Defendant argues that the voters so intended; we disagree.

       Criminal statutes are not retroactive, “unless expressly so declared.” (§ 3.) As our

high court stated in People v. Brown (2012) 54 Cal.4th 314 (Brown), section 3 codifies

“ ‘the time-honored principle . . . that in the absence of an express retroactivity provision,

a statute will not be applied retroactively unless it is very clear from extrinsic sources that

the Legislature . . . must have intended a retroactive application.’ ” (Brown, supra, at

p. 319.) Furthermore, ambiguities regarding the Legislature’s or the voters’ intent



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towards retroactivity should be resolved in favor of a “strong presumption” of

prospective application. (Id. at pp. 320, 323-324.)

       “ ‘In interpreting a voter initiative like [Proposition 47], we apply the same

principles that govern statutory construction.’ ” (People v. Rivera, supra, 233

Cal.App.4th at p. 1099, original brackets.) Proposition 47 is silent as to its effective date

and does not include any reference to retroactive application of its provisions as they

relate to Proposition 36 and the three strikes law. Similarly, the analysis of Proposition

47 by the legislative analyst, the arguments in favor of Proposition 47, and the arguments

against Proposition 47 are silent as to the retroactive application to proceedings under the

three strikes law. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), text of Prop. 47

& analysis by Legis. Analyst, pp. 34-39.) There is therefore “no clear and unavoidable

implication” of retroactivity that “arises from the relevant extrinsic sources.” (Brown,

supra, 54 Cal.4th at p. 320.)

       In arguing otherwise, defendant relies on the retroactivity principle stated in In re

Estrada (1965) 63 Cal.2d 740 (Estrada). As we explain, the Estrada rule is inapplicable

to the instant case.

       In Estrada, our Supreme Court stated that when the Legislature amends a statute

so as to “lessen the punishment” for a particular offense, the Legislature has “expressly

determined that its former penalty was too severe and that a lighter punishment is proper

as punishment for the commission of the prohibited act.” (Estrada, supra, 63 Cal.2d at



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p. 745.) In the case of such amendments, the “inevitable inference” is that “the

Legislature must have intended that the new statute imposing the new lighter penalty now

deemed to be sufficient should apply to every case to which it constitutionally could

apply,” including “acts committed before its passage provided the judgment convicting

the defendant of the act is not final.” (Ibid.) Thus, the Estrada rule provides that a

statute lessening punishment is presumed to apply to all cases not yet reduced to final

judgment on the statute’s effective date, unless there is a “saving clause” providing for

prospective application. (Id. at pp. 744-745, 747-748.)

       In Brown, the court held the Estrada rule did not apply to an amendment that

increased the rate at which eligible prisoners could earn conduct credit for time spent in

local custody. (Brown, supra, 54 Cal.4th at p. 328.) In so holding, the court rejected the

defendant’s argument that retroactivity should “apply more broadly to any statute that

reduces punishment in any manner.” (Id. at p. 325, italics added.) Instead, the court

concluded the Estrada rule applies only to statutes or amendments containing “a

legislative mitigation of the penalty for a particular crime.” (Brown, supra, at p. 325.)

Applying this rule to the conduct credits amendment at issue, the court concluded that the

amendment did not lessen the punishment for an offense, it simply “reward[ed] good

behavior in prison.” (Ibid.)




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       Similarly here, the definition of dangerousness in Proposition 47 does not lessen

punishment for a particular crime; rather, it narrows the trial court’s assessment of

dangerousness. Put another way, Proposition 47’s definition of dangerousness “does not

represent a judgment about the needs of the criminal law with respect to a particular

criminal offense,” and thus it does not “support an analogous inference of retroactive

intent.” (Brown, supra, 54 Cal.4th at p. 325.) As the court explained in Brown, “Estrada

is . . . properly understood, not as weakening or modifying the default rule of prospective

operation codified in section 3, but rather as informing the rule’s application in a specific

context by articulating the reasonable presumption that a legislative act mitigating the

punishment for a particular criminal offense is intended to apply to all nonfinal

judgments.” (Id. at p. 324.)

       We therefore conclude that the expansion of the Estrada rule to Proposition 47’s

definition of dangerousness would conflict with section 3’s default rule that criminal

statutes apply prospectively if there is no express indication to the contrary. The court

did not err in failing to apply Proposition 47’s definition of dangerousness to defendant’s

Proposition 36 resentencing petition.




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                                        III

                                  DISPOSITION

     The order appealed from is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                CODRINGTON
                                                             J.

We concur:


RAMIREZ
                     P. J.


McKINSTER
                        J.




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