Filed 5/4/15
                           CERTIFIED FOR PUBLICATION


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT


THE PEOPLE,                                          H039896
                                                    (Santa Clara County
        Plaintiff and Respondent,                    Super. Ct. No. 202265)

        v.

JOEL LOPEZ,

        Defendant and Appellant.



        Defendant Joel Lopez is currently serving a “Three Strikes” sentence of 25 years
to life for a 1998 conviction for possession of methamphetamine for sale (Health & Saf.
Code, § 11378). In 2013, he filed a petition for recall of his sentence under Penal Code
section 1170.1261 seeking resentencing to a determinate term. Although defendant was
“eligible” for resentencing, the superior court exercised its discretion under section
1170.126 to refuse to resentence him because “resentencing the petitioner would pose an
unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)
        On appeal, he contends that (1) his trial counsel was prejudicially deficient in
failing to request a jury trial on his petition, to which he claims he was entitled, (2) he
was entitled to resentencing because section 1170.126 establishes a presumption that he
is entitled to resentencing and this presumption was not rebutted by the evidence before
the superior court, and (3) a remand is required because Proposition 47, which enacted



1
        Subsequent statutory references are to the Penal Code unless otherwise specified.
section 1170.18 in November 2014, changed the definition of “unreasonable risk of
danger to public safety” as that phrase is used in section 1170.126. We conclude that
defendant was not entitled to a jury trial, the superior court did not abuse its discretion in
denying resentencing, and Proposition 47 did not change the definition of “unreasonable
risk of danger to public safety” as that phrase is used in section 1170.126.


                                       I. Background
          Defendant has had a substance abuse problem since he was 14 years old. He
completed three substance abuse treatment programs between 1986 and 1997, but his
substance abuse continued unabated. He was convicted of theft in 1988 and incurred two
burglary convictions, his two strikes, in 1989. Defendant has a long history of violence.
During one of the 1989 burglaries, the victim awoke to find defendant trying to steal his
stereo. Defendant tried to “gouge the victim’s eyes,” but fled when the victim escaped
his grasp. Also in 1989, when the police contacted defendant after it was reported that
“he was challenging passersby to fight,” defendant assaulted the police. While serving a
jail term, he escaped by force. In 1992, while driving a stolen car and trying to evade the
police, defendant “rammed an occupied police car.” In 1996, defendant assaulted and
injured his girlfriend. When the police arrived, he threatened and assaulted them and
damaged their patrol car. In addition to his violent offenses, defendant was convicted of
driving under the influence in 1989 and again in 1993. He has served multiple prison
terms, and his performance on parole has been dismal. He lied to his parole officer, made
no effort to obtain employment, and continued to use drugs and commit crimes while on
parole.
          Defendant was on parole with a warrant out for his arrest in August 1997 when he
was stopped by the police. Defendant had been seen dropping an object on the ground
after seeing a police officer. He provided a false name to the officer. The object he had
dropped was retrieved, and it was found to be a wallet containing five packages of

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methamphetamine and defendant’s California Identification Card. He was arrested and
found to be both drunk and under the influence of methamphetamine. Defendant was
convicted of possession of methamphetamine for sale and sentenced to 25 years to life in
1998.
        Since 1998, defendant has spent most of his time in the Secured Housing Unit
(SHU) at Pelican Bay State Prison due to his involvement in the Northern Structure
prison gang. He has been disciplined for battery on a peace officer and mutual combat in
2000, possession of inmate-manufactured alcohol in 2003 and 2004, possession of
contraband in 2003, possession of a deadly weapon in 2010, and gang activity in 2012.
Defendant was diagnosed with lupus, an incurable autoimmune disease, in 2001.
        In January 2013, 43-year-old defendant filed a petition seeking a finding that he
was eligible for “possible resentencing” under section 1170.126. The court noted that he
appeared to be eligible and appointed counsel for defendant. The prosecution conceded
that defendant was eligible, but it opposed resentencing on the ground that it would pose
an unreasonable risk of danger to public safety. At the June 2013 hearing, the court
observed that defendant’s “conduct has not changed the whole time he’s been in
custody.” He “continues to be a threat.” The court found that “defendant, if he were
resentenced, would be a danger to the community, would be an unreasonable risk and
would pose such a risk.” It denied defendant’s petition. Defendant timely filed a notice
of appeal.


                                       II. Discussion
                                 A. No Right to Jury Trial
        Defendant claims that his trial counsel was prejudicially deficient in failing to
request a jury trial on his petition. He contends that People v. Superior Court (Kaulick)
(2013) 215 Cal.App.4th 1279 (Kaulick), which held that the Sixth Amendment does not
apply to section 1170.126 petitions, was “wrongly decided.” We disagree.

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       In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States
Supreme Court held 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, at p. 490, italics
added.) The defendant in Kaulick contended that the prosecution was required to prove
“unreasonable risk of danger” under section 1170.126, subdivision (f) beyond a
reasonable doubt because this finding increased the statutory maximum for his offense.
(Kaulick, supra, 215 Cal.App.4th at p. 1301.) He argued that, once he was found eligible
for resentencing under section 1170.126, the “statutory maximum” for his offense was a
determinate term rather than the Three Strikes life term to which he had been originally
sentenced. (Kaulick, at p. 1302.)
       The Second District Court of Appeal rejected Kaulick’s contention on the ground
that the statutory maximum for his offense was always a life sentence. It first found that
there was no presumption under section 1170.126 that an eligible petitioner was entitled
to resentencing. Instead, “unreasonable risk of danger” was a “hurdle which must be
crossed” before a petitioner becomes entitled to resentencing. Thus, a petitioner is
statutorily subject to his or her Three Strikes term until that hurdle is crossed, making the
Three Strikes term the statutory maximum for Sixth Amendment purposes. (Kaulick,
supra, 215 Cal.App.4th at pp. 1302-1303.) Since the Sixth Amendment did not apply to
the “unreasonable risk of danger” finding, the standard of proof was not beyond a
reasonable doubt. (Kaulick, at p. 1303.)
       The Second District found support for its analysis in the United States Supreme
Court’s decision in Dillon v. United States (2010) 560 U.S. 817 (Dillon). In Dillon, the
court considered whether a two-step sentence modification procedure implicated the
Sixth Amendment. (Dillon, at pp. 826-829.) The first step of the procedure was a
determination of eligibility and the amount of the potential reduction. If the prisoner was
eligible, the second step involved a determination of whether a reduction should be

                                              4
ordered. (Dillon, at pp. 826-827.) The court held that such a procedure did not implicate
the Sixth Amendment because it did not lead to a “plenary resentencing” proceeding.
(Dillon, at p. 827.) Since the original sentence remained statutorily authorized, the two-
step procedure did not involve a change to the statutory maximum for the offense and
therefore did not implicate the Sixth Amendment. (Dillon, at pp. 828-829.)
       Dillon supports the Second District’s conclusion in Kaulick that section 1170.126
does not implicate the Sixth Amendment. Defendant claims that Dillon is inapplicable
because section 1170.126 establishes a presumption that he is entitled to resentencing.
To support his presumption contention, defendant relies on People v. Guinn (1994) 28
Cal.App.4th 1130 (Guinn). The Guinn court held, based on a statutory construction
analysis, that section 190.5 established a presumption of life without parole as the
sentence for a 16- or 17-year-old minor convicted of a special circumstance murder.
(Guinn, at pp. 1141-1142.) Section 190.5 provides that the penalty “shall be confinement
in the state prison for life without the possibility of parole or, at the discretion of the
court, 25 years to life.” (§ 190.5, subd. (b).) In People v. Gutierrez (2014) 58 Cal.4th
1354 (Gutierrez), the California Supreme Court disapproved Guinn and disagreed with its
holding that the language of section 190.5 established a presumption. (Gutierrez, at
p. 1371.) Instead, the court found that section 190.5’s language was ambiguous and
resolved the ambiguity based on the avoidance of possible unconstitutionality.
(Gutierrez, at pp. 1372-1373.)
       Defendant’s Guinn-based claim is that the structure of section 190.5 is similar to
the structure of section 1170.126, subdivision (f) and therefore a presumption should
apply. However, the California Supreme Court’s decision in Gutierrez disapproved of
the Guinn court’s reliance on the structure of section 190.5 to support a conclusion that a
presumption should apply. The language and structure of section 1170.126 is not
ambiguous with respect to whether a presumption should apply. The statute’s heavy
emphasis on the court’s duty to evaluate whether “resentencing” would pose an

                                                5
unreasonable risk of danger to public safety necessarily implies that the court’s finding
on that issue is a predicate to the petitioner’s entitlement to resentencing rather than an
issue that comes up only as a possible rebuttal of a presumption.
       We agree with the Second District’s holding in Kaulick and its reliance on Dillon.
A petition for resentencing under section 1170.126 does not implicate the Sixth
Amendment because it does not establish a presumption that an eligible petitioner is
entitled to resentencing. Since the original Three Strikes sentence remains the statutory
maximum for the offense, no right to a jury trial arises under the Sixth Amendment.


                                B. No Abuse of Discretion
       Defendant claims that the superior court abused its discretion in denying him
resentencing because he has not been violent during his last 13 years in prison, suffers
                                                    2
from lupus, and has reasonable post-release plans. His view of the record is
insupportable.
       Defendant has a long history of violence against both the police and others, and
his prison discipline record reflects that he has not reformed himself. Although he has
not been disciplined for actual violence since 2000, he was found in possession of a
deadly weapon in prison in 2010. In addition, he has been involved in prison gang
activity for many years and was disciplined for such activity as recently as 2012.
Furthermore, defendant’s lack of recent violence in the highly controlled environment of
the SHU at Pelican Bay State Prison is hardly a measure of the risk that he will be violent


2
        Defendant also maintains that the superior court could not deny his petition unless
it made a finding that he was “outside the ‘spirit’ of” section 1170.126 and expressly
identified the basis for its “unreasonable risk of danger” finding. He identifies no
statutory basis for this claim. Section 1170.126 precludes the granting of a petition if the
petitioner poses an “unreasonable risk of danger” and commits that determination to the
superior court’s discretion without any requirement of express findings. We reject
defendant’s unfounded claim.

                                              6
if released. When he was free in the community, defendant’s violence was undeterred by
jail and prison terms. He tried to gouge out a burglary victim’s eyes, challenged
strangers to fight, threatened and assaulted police officers, rammed his car into an
occupied police car, assaulted and injured his girlfriend, drove under the influence,
continued his substance abuse despite treatment, and made no effort to obtain
employment. The record contains no indication that his medical condition limits his
potential for violence.
       On this record, we find no abuse of discretion in the superior court’s finding that
resentencing defendant to a determinate term, which would result in his immediate
release, would pose an unreasonable risk of danger to public safety.


 C. Proposition 47’s Definition of “Unreasonable Risk of Danger to Public Safety”
       Section 1170.126 was enacted by the voters in November 2012 as part of the
Three Strikes Reform Act (the Reform Act). (People v. Yearwood (2013) 213
Cal.App.4th 161, 167.) As noted above, subdivision (f) of section 1170.126 erects a
hurdle that precludes resentencing if “the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public safety.”
Section 1170.126 does not define “an unreasonable risk of danger to public safety,” but it
does provide a list of nonexclusive criteria for the court to consider in making this
determination. (§ 1170.126, subd. (g).)
       Proposition 47, the Safe Neighborhoods and Schools Act (the SNS Act) was
enacted by the voters in November 2014. The Legislative Analyst described
Proposition 47 as having three aspects: “This measure reduces penalties for certain
offenders convicted of nonserious and nonviolent property and drug crimes. The
measure also allows certain offenders who have been previously convicted of such crimes
to apply for reduced sentences. In addition, the measure requires any state savings that
result from the measure be spent to support [certain services].” (Voter Information

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Guide, Gen. Elect. (Nov. 4, 2014) analysis by the Legislative Analyst, p. 35, italics
added.) Nowhere in Proposition 47 or the ballot materials provided to the voters
regarding it was there any reference to section 1170.126 or the Reform Act. (Voter
Information Guide, Gen. Elect. (Nov. 4, 2014) pp. 34-39, 70-74.)
       Proposition 47 established procedures for applications for reduced sentences for
specified nonserious and nonviolent property and drug crimes by adding section 1170.18
to the Penal Code. Subdivision (a) of section 1170.18 permits persons convicted of the
specified nonserious, nonviolent property and drug felonies to file petitions “request[ing]
resentencing . . . .” (§ 1170.18, subd. (a).) Subdivision (b) of section 1170.18 provides
that a court that receives such a petition shall resentence the petitioner “unless the court,
in its discretion, determines that resentencing the petitioner would pose an unreasonable
risk of danger to public safety.” Like section 1170.126, subdivision (g), section 1170.18,
subdivision (b) provides that, “[i]n exercising its discretion, the court may consider” the
petitioner’s criminal history, disciplinary record while incarcerated, and “[a]ny 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.”
(§ 1170.18, subd. (b).)
       Defendant relies on subdivision (c) of section 1170.18. It 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), italics added.) The very limited list of “violent felony” offenses set
forth in section 667, subdivision (e)(2)(C)(iv) reads: “(I) A ‘sexually violent offense’ as
defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code. [¶]
(II) Oral copulation with a child who is under 14 years of age, and who is more than 10
years younger than he or she as defined by Section 288a, sodomy with another person
who is under 14 years of age and more than 10 years younger than he or she as defined

                                              8
by Section 286, or sexual penetration with another person who is under 14 years of age,
and who is more than 10 years younger than he or she, as defined by Section 289. [¶]
(III) A lewd or lascivious act involving a child under 14 years of age, in violation of
Section 288. [¶] (IV) Any homicide offense, including any attempted homicide offense,
defined in Sections 187 to 191.5, inclusive. [¶] (V) Solicitation to commit murder as
defined in Section 653f. [¶] (VI) Assault with a machine gun on a peace officer or
firefighter, as defined in paragraph (3) of subdivision (d) of Section 245. [¶]
(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of
subdivision (a) of Section 11418. [¶] (VIII) Any serious and/or violent felony offense
punishable in California by life imprisonment or death.”
       Defendant contends that the very restrictive definition of “ ‘unreasonable risk of
danger to public safety’ ” set forth in subdivision (c) of section 1170.18 now controls the
meaning of that phrase as it is used in section 1170.126.3 We disagree.
       “We recognize the basic principle of statutory and constitutional construction
which mandates that courts, in construing a measure, not undertake to rewrite its
unambiguous language. (In re Waters of Long Valley Creek Stream System (1979) 25
Cal.3d 339, 348, 158 Cal.Rptr. 350, 599 P.2d 656.) That rule is not applied, however,
when it appears clear that a word has been erroneously used, and a judicial correction will
best carry out the intent of the adopting body.” (People v. Skinner (1985) 39 Cal.3d 765,
775 (Skinner).) “Whether the use of [a particular word] is, in fact, a drafting error can
only be determined by reference to the purpose of the section and the intent of the
electorate in adopting it.” (Skinner, at p. 776.)
       We believe that the word “Code” was “erroneously used” in section 1170.18,
subdivision (c) rather than the word “Act,” to refer to the SNS Act, and therefore this


3
      This issue is currently pending in the California Supreme Court in People v.
Valencia (2014) 232 Cal.App.4th 514, review granted Feb. 18, 2015, S223825.

                                              9
error is properly subjected to “judicial correction.” The “purpose” of section 1170.18 and
“the intent of the electorate” in enacting it unambiguously demonstrate that the voters did
not intend to alter the Reform Act or section 1170.126 in any way or to require the
resentencing of any person serving a sentence for a crime other than one of the specified
nonserious, nonviolent property or drug crimes.
       First, because Proposition 47’s ballot materials and proposed statutory language
contained nothing whatsoever to suggest that Proposition 47 would have any impact on
the resentencing of anyone who was serving a sentence for a crime other than one of the
specified nonserious, nonviolent property or drug crimes, it is inconceivable that voters
intended for subdivision (c) of section 1170.18 to severely restrict the ability of a court to
reject a resentencing petition under the Reform Act by a person convicted of crimes other
than one of the specified property or drug crimes and whom the court considered
dangerous. The Proposition 47 ballot materials contained no mention of such a possible
consequence and the only hint was the use of the word “Code” rather than “Act” in an
obscure subdivision of the lengthy proposed act. The ballot materials repeatedly
emphasized that the resentencing provisions of Proposition 47, which were contained in
section 1170.18, were limited to only those persons serving sentences for the specified
nonserious, nonviolent property or drug crimes.
       Second, the timing of Proposition 47 makes an intent to alter the Reform Act
illogical. The Reform Act required petitions to be brought within two years unless a
court concluded that there was good cause for a late-filed petition. (§ 1170.126,
subd. (b).) By the time Proposition 47 took effect, only two days remained in the two-
year period for filing a Reform Act petition. No rational voter could have intended to
change the rules for Reform Act petitions at the last moment, when nearly all petitions
would already have been filed and most of them adjudicated.
       Third, the structure and content of section 1170.18 is inconsistent with an intent to
apply section 1170.18, subdivision (c)’s definition throughout the entire Penal Code.

                                             10
Subdivision (n) of section 1170.18 provides: “Nothing in this and related sections is
intended to diminish or abrogate the finality of judgments in any case not falling within
the purview of this act.” (§ 1170.18, subd. (n), italics added.) Applying section 1170.18,
subdivision (c)’s definition throughout the Penal Code would necessarily “diminish or
abrogate the finality of judgments” in cases, like those subject to the Reform Act, that do
not fall “within the purview of” Proposition 47. Defendant’s petition under the Reform
Act, like most such petitions, seeks to abrogate the finality of a Three Strikes judgment in
a case that does not involve one of the specified nonserious, nonviolent property or drug
crimes. Thus, under section 1170.18, subdivision (n), “[n]othing” in section 1170.18 was
intended to apply to his petition. In addition, the wording of section 1170.18, subdivision
(c) is itself inconsistent with an intent to apply it “throughout” the entire Penal Code. It
refers to “petitioners” and defines a phrase that appears in only two sections of the Penal
Code, section 1170.18 and section 1170.126. If the voters had intended to apply this
definition to Reform Act petitions, this phrasing would have been the most roundabout
means of doing so. Since the ballot materials made no mention of the Reform Act, we
will not ascribe such unreasonable conduct to the voters.
       In sum, section 1170.18, subdivision (c) contains a drafting error that must be
judicially corrected. The word “Code” must be read as “Act.” Under this corrected
reading of the statute, there is no foundation for defendant’s contention.


                                      III. Disposition
       The order is affirmed.




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                                _______________________________
                                Mihara, J.



WE CONCUR:




_____________________________
Elia, Acting P. J.




_____________________________
Bamattre-Manoukian, J.




People v. Joel Lopez
H039896


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Trial Court:                                   Santa Clara County Superior Court


Trial Judge:                                   Honorable Rene Navarro


Attorney for Defendant and Appellant:          Patrick McKenna
                                               Under Appointment by the Sixth
                                               District Appellate Program


Attorneys for Plaintiff and Respondent:        Kamala D. Harris
                                               Attorney General of California

                                               Dane R. Gillette
                                               Chief Assistant Attorney General

                                               Gerald A. Engler
                                               Chief Assistant Attorney General

                                               Jeffrey M. Laurence
                                               Supervising Deputy Attorney General

                                               Christopher J. Wei
                                               Deputy Attorney General

                                               Aileen Bunney
                                               Deputy Attorney General




People v. Joel Lopez
H039896



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