Filed 4/19/16 P. v. Lopez CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B262908

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA143618)
         v.

CARLOS LOPEZ,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, William C.
Ryan, Judge. Affirmed.
         Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson,
Supervising Deputy Attorney General, and Noah P. Hill, Deputy Attorney General, for
Plaintiff and Respondent.
                                             ____________________
       Defendant and appellant Carlos Lopez, who had two prior convictions as defined
in the three strikes law, was sentenced in 1988 to concurrent indeterminate terms of 26
years to life1 following his convictions for unlawfully taking a vehicle (Veh. Code
§ 10851, subd. (a)) and grand theft (Pen. Code, § 487).2 After the 2012 passage of
Proposition 36 (the “Three Strikes Reform Act,” hereafter “the Act”), defendant filed a
petition under section 1170.126 to recall his indeterminate sentence and to be resentenced
as a second strike offender. The trial court denied the petition, finding that defendant
posed an unreasonable risk of danger to public safety.
       Defendant contends the trial court applied an incorrect standard when evaluating
whether he posed an unreasonable risk of danger to public safety. He argues that the
narrow definition of unreasonable risk contained in section 1170.18, which was added by
initiative measure Proposition 47 (“The Safe Neighborhoods and Schools Act”) in 2014,
applies to resentencing petitions under the Act, such as his, which were still pending at
the time the initiative became effective.3 He asserts that he does not pose an
unreasonable risk of danger to public safety under either the standard the court applied or
the one established by Proposition 47. Defendant further contends the trial court’s
determination of his unreasonable risk of danger to public safety was a factual finding
enhancing his sentence, triggering his constitutional right to a jury trial and proof beyond
a reasonable doubt.


       1In 1999, this court affirmed defendant’s convictions, but ordered the sentence on
the grand theft conviction stayed pursuant to Penal Code section 654.

       2   All future statutory references are to the Penal Code unless otherwise specified.

       3 Under Proposition 47, “‘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).) The phrase “unreasonable risk of danger to public safety” is not
defined in the Act, but factors the court “may consider” include a defendant’s criminal
history, disciplinary record and record of rehabilitation, and any other evidence the court
deems relevant. (§ 1170.126, subd. (g)(1)-(3).)


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       We affirm the court’s order denying defendant’s petition for resentencing. The
issue of whether the Act’s definition of unreasonable risk of danger to public safety was
repealed and replaced with the standard in Proposition 47 is currently pending before the
California Supreme Court.4 For purposes of this appeal, we reject defendant’s argument
and conclude the People’s position reflects the better view of the Act’s definition of
unreasonable risk of danger to public safety. (See People v. Myers (2016) __
Cal.App.4th __, 2016 WL 1072861 [filed March 17, 2016, Case No. C078277].)
Because this case will be governed by our Supreme Court’s ultimate resolution of the
issue, we do not discuss it further.5 We also hold that substantial evidence supports the
trial court’s findings on defendant’s unreasonable risk of danger to public safety, and the
trial court properly resolved the petition without a jury trial and by application of the
preponderance of the evidence burden of proof.


                      FACTS AND PROCEEDURAL HISTORY


Strike Convictions and Commitment Offenses


       First Strike


       On March 19, 1986, defendant was walking on the sidewalk toward the victim’s
brother and began harassing him without provocation. When the victim intervened,

       4 The issue of whether Proposition 47’s definition of unreasonable risk of danger
to public safety applies in Proposition 36 resentencing proceedings is pending before the
California Supreme Court in People v. Chaney (2014) 231 Cal.App.4th 1391, review
granted February 18, 2015, (S223676) and People v. Valencia (2014) 232 Cal.App.4th
514, review granted February 18, 2015, (S223825).

       5 We need not discuss the argument in defendant’s reply brief that the Act’s
definition of unreasonable risk of danger to public safety is unconstitutionally vague.
(People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.) In any event, the contention has been
rejected. (People v. Garcia (2014) 230 Cal.App.4th 763, 768-770.)


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defendant threatened to kill him. Defendant pulled out a handgun and shot at the victim
six times, striking him twice in the legs, before fleeing. Defendant was a member of the
Florencia 13 criminal street gang at the time.
       Defendant pleaded guilty to assault with a firearm and admitted the allegation that
he used a firearm in the commission of the offense. The court imposed a sentence of six
years in state prison.


       Second Strike


       On October 27, 1987, defendant argued with the victim over the sale of a $10 bag
of marijuana before pulling out a gun, striking the victim in the head with it, and then
shooting him four times. The victim died at the scene.
       Defendant pleaded guilty to voluntary manslaughter and admitted the allegation
that he used a firearm in commission of the offense. Two counts of armed robbery, one
count of robbery, and two counts of assault with a firearm in incidents charged in the
same information, but occurring on separate occasions, were dismissed. The court
imposed a sentence of 13 years in state prison, to run concurrently with the six-year
sentence imposed in defendant’s first strike case.


       Commitment Offenses


       On January 1, 1997, the victim parked a van in front of his house. The van was
missing the following morning. Police found the van a few blocks away in an alley,
where defendant and another man were removing tools from it.
       The jury convicted defendant of unlawfully taking a vehicle and grand theft of
personal property. The trial court found true the allegations that defendant had suffered
two prior serious felony convictions within the meaning of section 1170.12, and had
served two prior prison terms within the meaning of section 667.5, subdivision (b). He
was sentenced to concurrent terms of 26 years-to-life under the three strikes law.

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The Section 1170.126 Petition and Facts As Accepted by the Trial Court


       The Petition


       On December 5, 2012, defendant filed a petition seeking recall of his three strikes
sentence on the basis that his commitment offenses were not serious or violent felonies.
On February 19, 2013, the trial court issued an order to show cause why the requested
relief should not be granted.


       Facts6


       We set forth the facts in the light most favorable to the trial court’s ruling,7
beginning with the descriptions of defendant as found in the probation reports from the


       6  We recognize that defendant presented mitigating explanations for his conduct,
and also presented opinion testimony by Richard Subia, who had 26 years experience
working in the Department of Corrections and Rehabilitation, reaching high ranking
positions within the Department. Subia concluded that defendant did not pose a current
risk of danger to public safety. Subia downplayed defendant’s criminal record and prison
misconduct, but the trial court impliedly rejected Subia’s theories. Subia was not a
percipient witness to any of the events in this case, and the trial court’s rejection of his
opinion of the defendant’s conduct and the findings of misconduct by prison authorities
was well within the court’s discretion as finder of fact.
        In addition to Subia’s opinion testimony, the parties stipulated that if defendant’s
mother were called she would testify that defendant’s two brothers in Ensenada were
prepared to provide him with food, housing, and employment in the family’s construction
business, assuming that he was deported. She would move to Ensenada to provide
additional financial support. If defendant were allowed to remain in the United States his
family living here would offer financial assistance. As discussed later in this opinion, the
trial court did not credit this evidence in light of defendant’s record of criminal offenses
after deportation.
        Our discussion focuses on the facts as found by the trial court.

       7At the suitability hearing, the prosecution introduced tables of defendant’s
criminal history, disciplinary record in prison, and security classification scores, as well
as defendant’s California Law Enforcement Telecommunications System criminal

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strike prior convictions and the commitment offenses. In the first strike case, the
probation officer described defendant as follows:8 “This 21 year old street gang member
is violent, dangerous, callous, and life-threatening, and he does not deserve any kind of
probation supervision.” In the second strike case, the probation officer wrote: “This
defendant, although merely 21 years old, appears hardened, calculating, and without
remorse or conscience. His propensity for violence, as evidenced by his record is indeed
frightening. . . . Indications are that he will kill again. He apparently habitually carries
weapons (usually guns) and, from all indications, has a volcanic temper. . . . He is seen
as vicious and antisocial and it is hoped that he can be kept in prison for the longest
possible time prescribed by law.” Finally, in the probation report on the commitment
offense, the probation officer concluded: “The defendant has a lengthy and
extraordinarily violent criminal history. He poses a grave threat to the community.”
       Defendant became a member of the Florencia 13 gang at age 13. He was on
parole at the time of the commitment offenses. He had been deported on August 1, 1995,
but returned to the country without permission and thereafter engaged in the commitment
offenses.
       Defendant’s criminal history is not limited to the strike prior offenses and the
commitment offenses. His criminal history also includes the following: a 1984
conviction for carrying a loaded firearm in public (§ 12031, subd. (a)); a 1985 conviction
for carrying a concealed firearm on his person (§ 12025, subd. (b)); a 1985 conviction for
possession of PCP for sale (Health & Saf. Code, § 11378.5); a 1985 arrest for ransom and
extortion with an unknown disposition; a 1986 conviction for taking a vehicle without the


history, the court of appeal opinion on the commitment offenses, probation reports in
connection with defendant’s strike convictions, preliminary hearing transcripts relating to
defendant’s strike convictions, certification documents from the California Department of
Correction and Rehabilitation (CDCR), reports pertaining to defendant’s 11 prison rules
violations, and defendant’s CDCR reclassification score sheets for March 18, 1999,
through April 30, 2014.

       8Underlining in the quoted material appears in the District Attorney’s opposition
to defendant’s petition.

                                              6
owner’s consent (Veh. Code, § 10851); and a 1987 conviction for unauthorized
possession of marijuana or concentrated cannabis (Health & Saf. Code, § 11357). While
incarcerated, defendant was arrested on three separate occasions in 1999 -- once for
possession of a weapon while in state prison and twice for assault by a prisoner while in
state prison. Defendant also had a juvenile record, including sustained Welfare and
Institutions Code section 602 petitions in 1982 and 1983 finding that he possessed a knife
on school grounds.
       Defendant engaged in substantial misconduct in prison, where he was in Level IV
placement9 for almost his entire 16-year period of incarceration, and was housed in the
Security Housing Unit (SHU) six times for violence. Defendant was found guilty of 11
rules violations while incarcerated, including: a stabbing assault of an inmate in 1994,
possession of an inmate-manufactured weapon in January of 1999, battery on an inmate
in April of 1999, battery on an inmate necessitating pepper spray in May of 1999, battery
on an inmate with a deadly weapon in July of 1999, manufacturing of alcohol in 2000,
delaying a peace officer in the performance of his duties in 2000, obstructing a peace
officer in 2005, possession of dangerous contraband in 2006, attempted battery on a
peace officer in 2008, and participation in a gang-related riot in 2011. Defendant
received no qualifying points toward work, school, or vocational programs between
September 29, 1999, and March 8, 2013. Defendant’s security classification score had
risen from 91 upon entry to the current score of 153, although his California Static Risk
Assessment (CSRA) score was low, indicating that it was unlikely he would reoffend.
       Among defendant’s prison misconduct were the following incidents: in 1999,
during a search of defendant’s cell officers found eight inmate-manufactured weapons
made from pencils that had been sharpened and taped together, along with 20 inmate-
manufactured darts; also in 1999, defendant’s cellmate was discovered standing at the
door to his cell covered in blood, suffering from eight puncture wounds to his face, jaw,
neck, shoulder area, upper arms and chest, three of which could be considered life-


       9   Level IV is the highest level of security in the prison system.

                                                7
threatening; in April 1999, defendant ran up and began punching an inmate who was
being stabbed by someone else; in May 1999 defendant and five other inmates attacked a
single victim; in 2006, defendant was the sole occupant of a cell in which 10 pieces of
metal aluminum stock, ranging from eight inches long and three inches wide to four and
one-half inches long and one and one-fourth inches wide were found; and in 2008,
defendant started an altercation with a prison guard by taking a “bladed stance.”


       Trial Court’s Ruling


       The court denied defendant’s petition, finding by a preponderance of the evidence
that defendant posed an unreasonable risk of danger to public safety. It considered
defendant’s criminal history, his disciplinary history while in prison, his minimal
participation in rehabilitation, work, and education programs, his age, and his plan for
transition after release. The court noted that certain immutable factors, including
criminal history, are decreasingly predictive of future risk when an inmate has engaged in
substantial rehabilitative programming. In this case, however, due to defendant’s serious
misconduct and lack of rehabilitative programming, his commitment offenses continued
to be relevant. Defendant’s institutional behavior, including 11 rules violations, one as
recent as 2011, was indicative of current dangerousness. The rules violations “involved
numerous incidents of actual violence, possession of inmate-manufactured weapon[s],
possession of dangerous contraband, multiple incidents of battery on other inmates, a
2008 attempted battery on a peace officer[,] and the 2011 participation in a gang-related
riot.” As a result of his actions, defendant significantly increased his already high
security classification score. The court took into account a laudatory report for
defendant’s work in the main kitchen, but also considered that defendant had
“participated in no self-help programming that would help him gain insight into the
causative factors for his criminal and violent past.” Defendant had participated in
minimal education programming since 1990, and had not earned his GED although he
was now 48 years old. Any restrictions on his ability to participate in programming could

                                              8
be attributed to his own conduct. Although defendant had a strong transitional plan and
family support, he did not explain how this support system would help him avoid future
violations of the law when it had failed in the past. Taking all of these factors into
consideration, the court denied defendant’s petition for recall of his sentence.


                                       DISCUSSION


Court’s Discretion


       Defendant contends that the court abused its discretion when it determined that he
posed an unreasonable risk of danger to public safety.10 We disagree.
       The Act gives the court broad discretion in determining whether the petitioner
poses an unreasonable risk. It lists multiple factors that the court “may” consider,
including the petitioner’s criminal history (encompassing the nature of the crimes,
injuries inflicted, length of sentence, and remoteness in time), his disciplinary record
while in prison, and any efforts made at rehabilitation. (§ 1170.126, subd. (g).)
       The trial court here considered all of these factors and found defendant’s history
contained strong indicia that he would pose an unreasonable risk of danger to public
safety. The court considered defendant’s long history of felonies involving violence. It
reasonably found that although the crimes were remote, his convictions were still relevant
in light of his subsequent violent history. Defendant entered prison with a high
classification score of 91. In his 16 years of incarceration, his classification score never
went below that initial number, but instead increased substantially, at one point reaching
165. Although the score decreased after defendant filed his petition, at the time of the
hearing his score was still 149. Defendant had incurred 11 rules violations while in


       10 Defendant makes this argument with respect to his proposed unreasonable risk
standard and the one the court applied. As noted earlier in this opinion, we reject
defendant’s proposed standard, and accordingly only review the trial court’s decision
under the standard set forth in the Act.

                                              9
prison, including several for violence against other inmates. His most recent violation
prior to filing his petition was for participation in a gang-related riot. He had merited
SHU placement on multiple occasions. The court could reasonably conclude that
defendant’s ongoing pattern of violent behavior — beginning in 1986 and continuing
through 2011—indicated that he posed an unreasonable risk to the public safety.
       Although defendant had held jobs in prison and participated in a few educational
classes, he had not participated in any rehabilitative programs and had not earned his
GED. Defendant excused his lack of participation and meager educational progress as a
product of his high security classification. As the court noted, defendant had earned his
security classification with his own violent actions and misconduct, and had no one but
himself to blame for the consequences.
       The court acknowledged that defendant appeared to have a strong transitional plan
and great family support, but this was not a sufficient basis to conclude he did not pose an
unreasonable risk. Defendant had not explained why this impressive social network had
not prevented him from re-offending repeatedly in the past. Absent an explanation, there
was no reason to believe that the assistance of family and friends would keep him from
re-offending in the future.
       In light of defendant’s long history of violence and his lack of participation in
programs that would help to rehabilitate and prepare him for a successful re-entry into
society, we cannot say that the trial court abused its discretion in determining that
defendant posed an unreasonable threat of danger to public safety.


Right to Jury Trial


       Finally, defendant contends that he had a constitutional right to have a jury decide
whether he posed an unreasonable threat of danger to public safety beyond a reasonable
doubt under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny. He
admits that his position has been rejected in appellate court decisions, but asserts that
those cases were wrongly decided. We agree with our sister courts that there is no such

                                             10
constitutional right. (See People v. Myers, supra, __ Cal.App.4th __ , WL 1072861;
People v. Berry (2015) 235 Cal.App.4th 1417, 1428; People v. Brimmer (2014) 230
Cal.App.4th 782 (Brimmer).)
       “Considered in conjunction with each other, the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution require that each element of a crime or
sentence enhancement be proved to the jury beyond a reasonable doubt. (United States v.
Gaudin (1995) 515 U.S. 506, 509-510; In re Winship (1970) 397 U.S. 358, 364; People v.
Jones (1999) 75 Cal.App.4th 616, 631.) Apprendi states that ‘[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’
(Apprendi, supra, 530 U.S. at p. 490.) . . . [I]n Blakely v. Washington (2004) 542 U.S.
296, the high court clarified that the ‘prescribed statutory maximum’ for purposes of the
right to a jury trial is not necessarily the maximum penalty provided by statute for the
crime; rather, it is ‘the maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant.’ (Id. at p. 303, italics
omitted.) And in Alleyne v. United States (2013) 570 U.S. –––– [133 S.Ct. 2151] the
same court declared that a fact which increases the mandatory minimum sentence must
likewise be submitted to a jury, and proved beyond a reasonable doubt. (Id. at p. ––––
[133 S.Ct. at p. 2154].) The high court in Cunningham v. California (2007) 549 U.S.
270, further explained that, ‘under the Sixth Amendment, any fact that exposes a
defendant to a greater potential sentence must be found by a jury, not a judge, and
established beyond a reasonable doubt, not merely by a preponderance of the evidence.’
(Id. at p. 281.)” (Brimmer, supra, 230 Cal.App.4th at pp. 803-804.) However, the
Supreme Court has also held that “a defendant’s Sixth Amendment right to have essential
facts found by a jury beyond a reasonable doubt do[es] not apply to limits on downward
sentence modifications.” (People v. Esparza (2015) 242 Cal.App.4th 726, 739 (Esparza),
citing Dillon v. United States (2010) 560 U.S. 817, 828 (Dillon).)
       Defendant’s argument is predicated on his assertion that section 1170.126 created
a presumptive two strike sentence, which can be increased to an indeterminate three

                                              11
strike sentence only if it is found that the petitioner poses an unreasonable threat of
danger to public safety. We reject defendant’s interpretation of the statute. Section
1170.126, subdivision (f) states that an inmate who has otherwise met the eligibility
criteria “shall be resentenced [as a second strike offender] unless the court, in its
discretion, determines that resentencing the [inmate] would pose an unreasonable risk of
danger to public safety.” It “does not state that a petitioner eligible for resentencing has
his sentence immediately recalled and is resentenced to either a second strike term (if not
dangerous) or a third strike indeterminate term (if dangerousness is established).”
(People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1302 (Kaulick).)
Thus, “dangerousness is not a factor [that] enhances the sentence imposed when a
defendant is resentenced under the Act; instead, dangerousness is a hurdle [that] 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.” (Kaulick, supra, at p. 1303, fn. omitted.) “Simply put, a
denial of an inmate’s petition does not increase the penalty to which that inmate is
already subject, but instead removes the inmate from the scope of an act of lenity on the
part of the electorate to which he or she is not constitutionally entitled. That the denial is
based on a determination of dangerousness does not change that conclusion.” (Esparza,
supra, 242 Cal.App.4th at p. 740.) Because section 1170.126 may only decrease an
inmate’s sentence, the Sixth amendment is not implicated. (See Dillon, supra, 560 U.S.
at p. 828; Esparza, supra, 242 Cal.App.4th at p. 739; People v. Osuna (2014) 225
Cal.App.4th 1020, 1040 (Osuna).) Accordingly, “a trial court need only find the
existence of a disqualifying factor by a preponderance of the evidence. (Evid. Code,
§ 115; see Kaulick, supra, 215 Cal.App.4th at p. 1305.)” (Osuna, supra, at p. 1040.)




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                                   DISPOSITION


     The order denying defendant’s petition for recall of sentence is affirmed.


             KRIEGLER, J.


We concur:




             TURNER, P. J.




             BAKER, J.




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