Filed 1/8/16 P. v. Rubal CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----




THE PEOPLE,                                                                                  C076023

                   Plaintiff and Respondent,                                    (Super. Ct. No. 62088013A)

         v.

JOSE VINCENT RUBAL,

                   Defendant and Appellant.




         Defendant Jose Vincent Rubal appeals from the trial court’s orders denying his
petition for resentencing pursuant to Penal Code section 1170.126 (unless otherwise
stated, statutory references that follow are to the Penal Code) based on the court’s finding
that resentencing posed an unreasonable risk of danger to public safety. He contends the
trial court’s decision was an abuse of discretion because it was not supported by
sufficient evidence and was based on an erroneous understanding of the relevant
standard. He also contends that the court erred in failing to apply the beyond a


                                                             1
reasonable doubt standard and in failing to obtain a supplemental probation report. In a
supplemental brief, defendant contends that the definition of danger to public safety
found in the resentencing provision of Proposition 47, section 1170.18, applies to the
danger to public safety finding under section 1170.126. We affirm the trial court’s
orders.

                                   FACTS AND PROCEEDINGS

          On December 16, 2008, a car that defendant, a validated Norteno gang member,
was driving was stopped by a law enforcement officer in Roseville. As the officer was
walking to defendant’s car, defendant drove off at a high rate of speed, then pulled over
and ran from the car successfully escaping for the moment. In the car, officers found 130
grams of marijuana, a digital scale, 15 Vicodin pills, and burglary tools.
          The car was later purchased by Pick-n-Pull in Rocklin and, on January 21, 2009, a
Pick-n-Pull employee found a .25-caliber Beretta under trash on the floorboard.
          Defendant was on parole at the time of the traffic stop, and had failed to report
with his parole office on December 8, 2008. Sometime between December 8, 2008 and
February 21, 2009, when defendant was arrested in Oklahoma, he spoke to a fellow gang
member and asked if the latter was willing to accept responsibility for the charges that
had been brought against him.
          Defendant pleaded no contest to transportation of a controlled substance (Health &
Saf. Code, § 11352, subd. (a)), solicitation to commit a crime (§ 653f, subd. (a)),
admitted two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and
three prior prison terms (§ 667.5, subd. (b)) with a People v. Harvey (1979) 25 Cal.3d
754 waiver (People v. Rubal (Feb. 23, 2012, C067562) [nonpub. opn.] at p. 1). The trial
court sentenced him to 36 years to life in state prison. Defendant appealed, and we
affirmed his conviction in an unpublished opinion. (Id. at p. 2.)




                                                2
       On August 21, 2013, defendant filed a petition for recall of sentence pursuant to
section 1170.126.
       Defendant’s criminal and prison disciplinary history is as follows:
       On August 6, 1989, defendant, two other adults, and four juveniles, entered a
residence and took numerous items valued at over $4,000. Defendant, who was 18 at the
time, pleaded guilty to first degree burglary (§ 459) and was placed on five years’
probation.
       In January 1991, defendant admitted violating his probation by testing positive for
methamphetamine and failing to report to probation. He was given a four-year prison
term with execution suspended and committed to the California Rehabilitation Center
(CRC).
       In July 1993, defendant was convicted of possession of a hypodermic syringe
(Bus. & Prof. Code, § 4149) and resisting an officer (§ 148, subd. (a)). He was
terminated from CRC and sent to prison in October 1993 after admitting his gang
affiliation to CRC officials.
       Less than two months after being paroled, defendant was convicted of simple
battery (§ 242) in May 1994. Defendant committed his second strike in August 1994,
when he was convicted of assault with a deadly weapon (§ 245, subd. (a)(1)) after he
stabbed a man who he thought was calling him a snitch. Defendant’s victim suffered a
collapsed left lung and a small incision wound to his left rib cage area. Defendant was
sentenced to a two-year state prison term.
       In May 1996, defendant was given a nine-month term for violating parole by
associating with known Northern Structure prison gang members and possessing a replica
firearm. In April 1997, while he was awaiting a hearing on an allegation of a parole
violation, defendant assaulted an inmate and lost 90 days of credit. He was given a six-
month term in July 1997 for violating parole by associating with known gang members.



                                             3
       In February 1998, one month after being released on parole, defendant violated
parole by associating with known gang members and being drunk in public. He received
an eight-month sentence.
       Defendant, while under the influence of methamphetamine, rear-ended a water
truck in Roseville in April 1999. His five-year-old son suffered seat belt injuries in the
collision. Defendant pleaded guilty to child endangerment (§ 273a, subd. (a)) and felony
driving under the influence (Veh. Code, § 23153) and admitted a strike. He was
sentenced to eight years eight months in state prison.
       On December 1, 1999, defendant approached three members of a rival gang in the
prison yard and made a comment that led to a riot. The Department of Corrections and
Rehabilitation found defendant committed a rules violation by inciting a riot. On
October 17, 2000, defendant was found to have committed another rules violation of
inciting others into behavior which could lead to violence when he urged fellow inmates
to refuse to leave the prison yard. Defendant was transferred to Pelican Bay and lost 360
days of credit after he and another inmate assaulted a third inmate with stabbing
instruments in January 2002.
       Defendant was paroled in July 2007. In March 2008 and September 2008 he was
found to have violated his parole by associating with known gang members. He was
placed on parole hold in December 2008 after Roseville police officers found a picture
taken in November 2008 of him posing with another validated gang member.
       While serving his current prison term, defendant was found to have committed a
rules violation in June 2011 by participating in disruptive cadence calling with other
members of his gang during exercise in the prison yard. He was found guilty of another
rules infraction by possessing marijuana in July 2011. In September 2012, defendant told
prison officials he was no longer in good standing with his gang and wanted to leave it.
He was in the secure housing unit due to fears for his safety.



                                             4
       There were no witnesses at the hearing on defendant’s petition. The trial court
denied the petition in a written ruling. The court found the prosecution had the burden of
proving unreasonable risk of danger by a preponderance of the evidence. In support of its
ruling, the trial court noted defendant had spent only 20 percent of his adult life out of
custody, committed six felonies, multiple misdemeanors, eight parole violations, and
numerous prison rules violations. Recognizing that defendant’s decision to leave his
gang in September 2012 was a “significant decision,” which was “an important step
towards becoming a more law abiding person,” the court could not “disregard the pattern
of anti-social behavior and violence demonstrated by the petitioner as an adult for more
than 20 years.”

                                         DISCUSSION

                                               I

                   Substantial Evidence and the Correct Legal Standard

       Defendant contends the trial court’s denial of his petition was an abuse of
discretion because it was not supported by substantial evidence and because the court
applied the wrong legal standard to his petition.

       A.     Substantial Evidence

       Following the Three Strikes Reform Act of 2012 (the Act), a defendant convicted
of a felony with two or more prior strike allegations is subject to a sentence of 25 years to
life if the current conviction is a serious or violent felony but is subject only to a two
strike sentence if the current felony is not serious or violent. (§§ 667, subd. (e)(2)(A),
(e)(2)(C), 1170.12, subd. (c)(2)(A), (c)(2)(C); People v. Yearwood (2013)
213 Cal.App.4th 161, 170.)
       Section 1170.126 allows a person presently serving a three strikes sentence for a
felony that is neither serious nor violent to petition for resentencing as a second strike



                                               5
offender. (§ 1170.126, subd. (a).) A prisoner is disqualified from resentencing if his
current conviction or criminal record come within the four disqualifying factors listed in
sections 667, subdivision (e)(2)(C) and 1170.12, subdivision (c)(2)(C). (§ 1170.126,
subd. (e).) If the prisoner is not subject to one of the disqualifying factors, then the trial
court shall resentence him under the two strikes provision “unless the court, in its
discretion, determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety.” (§ 1170.126, subd. (f).) In making this determination, “the
court may consider: [¶] (1) The petitioner’s criminal conviction history, including the
type of crimes committed, the extent of injury to victims, the length of prior prison
commitments, and the remoteness of the crimes; [¶] (2) The petitioner’s disciplinary
record and record of rehabilitation while incarcerated; and [¶] (3) Any other evidence the
court, within its discretion, determines to be relevant in deciding whether a new sentence
would result in an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (g).)
       Since section 1170.126 vests the trial court with discretion to determine whether
resentencing defendant poses an unreasonable risk to public safety, we review the court’s
decision under the familiar abuse of discretion standard. Using this standard, we consider
whether the ruling “exceeds the bounds of reason or is arbitrary, whimsical or capricious.
[Citations.] This standard involves abundant deference to the trial court’s rulings.”
(People v. Jackson (2005) 128 Cal.App.4th 1009, 1018.)
       In addition, we review the factual findings upon which a court’s unreasonable risk
determination is based under the equally familiar substantial evidence standard.
Accordingly, we review the entire record in the light most favorable to the court’s factual
findings to determine whether it discloses evidence that is reasonable, credible, and of
solid value such that a reasonable trier of fact could make those factual findings by a
preponderance of the evidence. (Cf. People v. Bolin (1998) 18 Cal.4th 297, 331.) But if
the factual findings are not supported by substantial evidence, they cannot form the basis
for an unreasonable risk determination. (See People v. Cluff (2001) 87 Cal.App.4th 991,

                                               6
998 [court abuses discretion when factual findings critical to decision find no support in
evidence].)
       Defendant claims the trial court’s ruling is not supported by substantial evidence
because it “relied almost entirely on [defendant’s] prior criminal record and past record
of in-prison rule violations to find that he would unreasonably endanger public safety if
resentenced.” He notes that his strike convictions are over two decades ago and only one
of them involved actual violence. According to defendant, his history of crime and
prison rule breaking is “entwined” with “his prior drug use and his gang affiliation.” He
claims the trial court “gave short shrift to what has clearly been a sea change in [his] life”
by leaving his gang. Arguing that section 1170.126 looks to future dangerousness rather
than past dangerousness, defendant concludes that the trial court’s ruling lacks substantial
evidence in light of his relative lack of prison rules violations in his last five years in
custody, the fact that he is over 40 years old and therefore is less likely to engage in
criminal behavior, and his decision to leave his gang.
       Defendant’s argument effectively asks us to review the trial court’s decision de
novo rather than determining whether its factual findings are supported by substantial
evidence and whether the conclusion it draws from those findings is an abuse of
discretion. We decline the invitation. The trial court’s findings of fact, that defendant
had a lengthy record of crime, parole violations, and prison rules violations are amply
supported by the evidence. The trial court did not give “short shrift” to defendant’s
relatively recent decision to leave his gang, but reasonably concluded that this decision,
while a good start did not undo an adult life spent almost entirely in custody during which
he committed six felonies including two strikes, eight parole violations, and numerous
misdemeanors and prison rules violations. As previously noted, subdivision (g) of
section 1170.126 allows the trial court to consider defendant’s criminal record and his
prison record in determining the risk a defendant may pose to the public if he is
resentenced. It was not an abuse of discretion for the trial court to conclude that

                                               7
resentencing defendant posed an unreasonable risk of danger to public safety based on his
lengthy record of criminal behavior and prison rules violations even though he recently
left his gang.
         We note that defendant also claims that the Placer County Superior Court grants
section 1170.126 resentencing petitions at a much lower rate than courts in other
counties. This contention is irrelevant to the question at hand, which is whether the
decision in this case is an abuse of discretion. The claim is also forfeited since the
evidence supporting this claim is not in the record and was not presented to the trial
court.

         B.      The Trial Court’s Standard for Determining the Petition

         Defendant contends the trial court abused its discretion because it did not
understand that section 1170.126 created “a presumption and an expectation [in favor]
of” being resentenced “that is overcome only if the court in its discretion finds the
petitioner would present an unreasonable risk of danger to public safety if resentenced.”
According to defendant, this presumption is created by the use of the terms “shall” and
“unless” in subdivision (f) of section 1170.126. Defendant bases his reading of these
terms on what he sees as the purpose of the Act, to reserve “life sentences for dangerous
criminals like rapists, murderers, and child molesters” and reducing the terms for “low
risk, non-violent inmates” convicted of “minor” or “petty” crimes. (Prop. 36, § 1,
preamble and ¶¶ 4-5.) From this, he concludes that the section 1170.126 hearing is the
converse of a hearing on a motion to strike a prior strike conviction, so that resentencing
will be denied only in “extraordinary cases upon proof of current dangerousness.” (Cf.
People v. Philpot (2004) 122 Cal.App.4th 893, 907 [striking prior strike reserved for
extraordinary circumstances].)
         The text of section 1170.126, subdivision (f) does not include language creating a
presumption. Subdivision (f) states: “Upon receiving a petition for recall of sentence


                                               8
under this section, the court shall determine whether the petitioner satisfies the criteria in
subdivision (e). If the petitioner satisfies the criteria in subdivision (e), the petitioner
shall be resentenced pursuant to paragraph (1) of subdivision (e) of Section 667 and
paragraph (1) of subdivision (c) of Section 1170.12 unless the court, in its discretion,
determines that resentencing the petitioner would pose an unreasonable risk of danger to
public safety.”
       As explained by the Second District Court of Appeal Division Three,
dangerousness is a hurdle that must be cleared in order for a defendant to be resentenced.
“[S]ection 1170.126, subdivision (f) 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). Instead, the statute provides that he ‘shall be resentenced’ to a second strike
sentence ‘unless the court . . . determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.’ In other words, 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.” (People v.
Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1302-1303, fn. omitted
(Kaulick).) Agreeing with Kaulick, we do not read the text as creating a presumption for
resentencing.
       Even if we did consider the text ambiguous regarding a presumption in favor of
resentencing (see People v. Gutierrez (2014) 58 Cal.4th 1354, 1372 [finding ambiguous
section 190.5, which stated a defendant between the ages of 16 and 18 convicted of
special circumstances murder, “ ‘shall be confine[d] in the state prison for life without the
possibility of parole or, at the discretion of the court, 25 years to life’ ”]), we first turn to

                                                9
the Act’s legislative history to resolve the ambiguity. “Where there is ambiguity in the
language of the measure, ‘[b]allot summaries and arguments may be considered when
determining the voters’ intent and understanding of a ballot measure.’ [Citation.]”
(Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016,
1037.) The Voter Information Guide states that the Act “[a]uthorizes resentencing for
offenders currently serving life sentences if third strike conviction was not serious or
violent and judge determines sentence does not pose unreasonable risk to public safety.”
(Voter Information Guide, Gen. Elec. (Nov. 6, 2012) p. 48.) This description of the
resentencing provisions of the Act is inconsistent with a presumption in favor of
resentencing. There is no presumption; the Act does no more than authorize a court to
resentence a defendant if the Act’s conditions are met. We accordingly conclude that the
trial court’s discretion under section 1170.126, subdivision (f) is not circumscribed by a
presumption in favor of resentencing.
       We likewise reject defendant’s contention that a section 1170.126 petition for
resentencing is the converse of a motion to strike one or more strikes. Our Supreme
Court found the three strikes law was intended “to restrict courts’ discretion in sentencing
repeat offenders” based on the ballot arguments stating that the law would not allow a
sentencing court to “grant probation, suspend execution or imposition of sentence
[citations], divert the defendant, or commit the defendant to any facility other than state
prison [citations].” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 528.) In
contrast, the Act specifically grants the trial court authority to deny a defendant’s petition
for resentencing based on the risk of danger to public safety and contains no text or
history limiting that discretion. Accordingly, a trial court exercises its discretion in
applying section 1170.126 as it does in the many other instances where the Legislature
vests discretion with the trial court. Since the record does not show that the trial court did
not understand its discretion, there was no legal error and therefore no abuse of
discretion.

                                              10
                                              II

                                 The Evidentiary Standard

       Defendant contends the trial court erred in applying the preponderance of evidence
rather than the proof beyond a reasonable doubt standard to the question of the danger to
public safety if defendant did not serve out his three-strikes sentence. According to
defendant, section 1170.126 is much more like the determinate sentencing law found
unconstitutional in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856],
than the discretionary regime that replaced it. He claims that in his case, “the maximum
sentence otherwise available would be 14 years and four months, while a dangerousness
finding authorizes a minimum sentence of 25 years and a maximum sentence of life.”
From this, he concludes that pursuant to Apprendi v. New Jersey (2000) 530 U.S. 466
[147 L.Ed.2d 435] (Apprendi), he has a due process right to the beyond a reasonable
doubt standard on the danger to public safety question.
       We have rejected this argument in another case, finding it based on the mistaken
premise that the two strikes sentence is now the presumptive sentence. “Reducing the
sentence of an individual like the current petitioner, who is serving a valid sentence
imposed more than a decade ago, is not constitutionally compelled; it would be an act of
lenity. The trial court takes ‘the original sentence as given’; doing so leads to the
inevitable determination that section 1170.126 merely provides a limited mechanism
within which the trial court may consider a reduction of the sentence below the original
term. Section 1170.126, like the statutory mechanism under federal law for a sentencing
reduction, is distinguishable from other sentencing proceedings, and the potential
reduction of the sentence is narrowly circumscribed by the statute. The result of a
proceeding under section 1170.126 may well be that the petitioner’s originally imposed,
lawful sentence remains undisturbed. Under the circumstances, the trial court’s
determination of facts that affect whether the defendant will be resentenced does not


                                             11
implicate the right to a jury trial as described in the Apprendi cases.” (People v. Bradford
(2014) 227 Cal.App.4th 1322, 1336; see also Kaulick, supra, 215 Cal.App.4th at
pp. 1302-1303 [Apprendi does not apply to dangerousness finding under
section 1170.126 as two strikes sentence is not the presumed sentence].)
       Apprendi applies only when a fact is used to subject a defendant to a greater
potential sentence. (People v. Towne (2008) 44 Cal.4th 63, 77.) Since the danger to
public safety finding that disqualifies defendant from resentencing does not increase his
sentence, Apprendi does not apply.

                                             III

                              Supplemental Probation Report

       Defendant contends the trial court erred in failing to order a supplemental
probation report. Defendant admits that neither he nor the prosecution requested a
supplemental probation report. While recognizing that as a third strike or (if resentenced)
second strike offender, he is not eligible for probation (§ 667, subd. (c)(2)), he
nonetheless claims since the decision on whether to resentence him “is functionally the
equivalent of the probation decision,” he was entitled to a supplemental probation report
(see People v. Dobbins (2005) 127 Cal.App.4th 176, 180-181 [supplemental probation
report mandatory when a significant period of time lapses between the original report and
a sentencing or resentencing]; Cal. Rules of Court, rule 4.411(b) [court should order
probation report even if defendant not eligible for probation]).
       Since defendant is ineligible for probation, his failure to request a supplemental
probation report forfeits the contention on appeal. (People v. Franco (2014)
232 Cal.App.4th 831, 834 (Franco).)
       Defendant’s contention also fails on the merits. A court is not required to order a
probation report if a defendant is statutorily ineligible for probation such as when a
defendant has a prior strike. (Franco, supra, 232 Cal.App.4th at p. 834; People v.


                                             12
Dobbins, supra, 127 Cal.App.4th at p. 180.) In Franco, the Court of Appeal declined the
defendant’s invitation to impose such a duty in the context of a section 1170.126 hearing.
(Franco, at pp. 833, 835.) Agreeing with Franco, we reject defendant’s request to
impose such a duty here.

                                             IV

                         Standard for Determining Dangerousness

       In a supplemental brief, defendant argues that the standard for determining
dangerousness enacted in Proposition 47 should apply to his petition for resentencing and
that we should return the matter to the trial court for a new determination of defendant’s
continued danger to public safety under that standard. This issue is currently before the
California Supreme Court. (See, e.g., People v. Valencia (2014) 232 Cal.App.4th 514,
review granted Feb. 18, 2015, S223825; People v. Chaney (2014) 231 Cal.App.4th 1391,
review granted Feb. 18, 2015, S223676.)
       The stated “[p]urpose and [i]ntent” of Proposition 47 include, among other things,
“[r]equir[ing] misdemeanors instead of felonies for nonserious, nonviolent crimes like
petty theft and drug possession, unless the defendant has prior convictions for specified
violent or serious crimes”; “[a]uthoriz[ing] consideration of resentencing for anyone who
is currently serving a sentence for any of the offenses listed herein that are now
misdemeanors”; and “[r]equir[ing] a thorough review of criminal history and risk
assessment of any individuals before resentencing to ensure that they do not pose a risk to
public safety.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3,
subds. (3), (4) & (5), p. 70.)
       Proposition 47 also enacted section 1170.18, under which: “[a] person currently
serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who
would have been guilty of a misdemeanor under the act that added this section (‘this act’)




                                             13
had this act been in effect at the time of the offense may petition for a recall of sentence
. . . [and] request resentencing. [¶] . . . [¶]
       “If the petitioner satisfies the criteria in subdivision (a), the petitioner’s felony
sentence shall be recalled and the petitioner resentenced to a misdemeanor . . . unless the
court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety. In exercising its discretion, the court may
consider all of the following: [¶] (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. [¶] (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.”
(§ 1170.18, subds. (a), (b).) Subdivision (c) of section 1170.18 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.”
       Defendant asserts the definition of “unreasonable risk to public safety” in
section 1170.18 supersedes the definition of that term in section 1170.126 as applied in
his case. His argument is primarily based on the rule of retroactivity set forth in In re
Estrada (1965) 63 Cal.2d 740 (Estrada). Under the Estrada rule, a legislative
amendment that lessens criminal punishment is presumed to apply to all cases not yet
final (the Legislature deeming its former penalty too severe), unless there is a “saving
clause” providing for prospective application. (Id. at pp. 742, 745, 748.) According to
defendant, section 1170.18, like section 1170.126, is remedial legislation that is therefore
“entitled to the fullest retroactive application.”
       Estrada does not apply here because applying the definition of “unreasonable risk
of danger to public safety” in Proposition 47 to petitions for resentencing under the Act

                                                  14
does not reduce punishment for a particular crime. Rather, it arguably changes the lens
through which the dangerousness determinations under the Act are made.
       This is consistent with our Supreme Court’s most recent interpretation of Estrada.
“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.” (People v. Brown (2012) 54 Cal.4th 314, 324.) Expanding
Estrada’s scope to include the definition of “unreasonable risk of danger to public safety”
in Proposition 47 in a petition for resentencing under the Act would conflict with
“section 3[’s] . . . default rule of prospective operation” (Ibid.) Since there is no
evidence in Proposition 47 that this definition was to apply retrospectively to petitions for
resentencing under the Act, applying Estrada here would be improper given that the
definition of “unreasonable risk of danger to public safety” in Proposition 47 does not
reduce punishment for a particular crime. Therefore, the definition of “unreasonable risk
of danger to public safety” found in Proposition 47 does not apply to section 1170.126
petitions for resentencing decided before the effective date of Proposition 47.
       Defendant relies on Holder v. Superior Court (1969) 269 Cal.App.2d 314. Since
Holder was decided before the Supreme Court’s interpretation of Estrada in Brown, it is
inapposite.
       We accordingly reject defendant’s request for retroactive application of the
language in section 1170.18 to his petition for resentencing pursuant to section 1170.126.




                                              15
                                     DISPOSITION

     The trial court’s orders are affirmed.



                                                   HULL   , J.



We concur:



     RAYE                 , P. J.



     BUTZ                 , J.




                                              16
