Filed 6/25/15 P. v. Buck 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Lassen)
                                                            ----



THE PEOPLE,                                                                                  C076569

                   Plaintiff and Respondent,                                     (Super. Ct. No. CH024889)

         v.

GREGORY ALLEN BUCK,

                   Defendant and Appellant.




         Defendant Gregory Allen Buck appeals from the trial court’s denial of his petition
for resentencing under the Three Strikes Reform Act of 2012 (the Act) based on the
court’s finding that resentencing would pose an unreasonable risk of danger to public
safety. (Pen. Code, § 1170.126.)1 He contends that he has a right to a jury trial on the
danger to public safety issue. In a supplemental brief, he contends that the definition of
unreasonable risk of danger to public safety found in the resentencing provision of



1   Undesignated statutory references are to the Penal Code.

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Proposition 47, section 1170.18, applies to the determination of whether resentencing
would pose such a risk.
       We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       We take the facts of defendant’s current crime from this court’s opinion affirming
his conviction and sentence. (See People v. Guilford (2014) 228 Cal.App.4th 651, 660-
661 [prior appellate opinion admissible to prove ineligibility in a section 1170.126
proceeding].)
       Defendant, an inmate at High Desert State Prison, and another inmate attacked a
third inmate, causing the victim to sustain puncture wounds to his chest and right side.
(People v. Buck (June 25, 2010, C061898) [nonpub. opn.] slip opn. at pp. 2-3 (Buck).) A
jury convicted defendant of assault with a deadly weapon or by force likely to cause great
bodily injury by an inmate serving less than a life sentence. (§ 4501; Buck, at p. 1.) The
trial court found two strike allegations true and sentenced defendant to 25 years to life,
consecutive to the term he had been serving at the time of the assault. (Buck, at pp. 1-2.)
       On November 8, 2013, defendant filed a petition for resentencing pursuant to
section 1170.126. The trial court found defendant was potentially eligible for
resentencing and ordered a hearing on the matter.
       Harold Wagner, a deputy warden at High Desert State Prison, was the sole
witness. Deputy Wagner recited defendant’s criminal record, which consisted of the
following convictions: vandalism in 1981; misdemeanor petty theft in 1982;
misdemeanor petty theft with a prior in 1986; unlawful taking of a vehicle, receiving
stolen property, and giving false identification to a police officer in 1987; assault with a
deadly weapon, unlawfully taking a vehicle, and second degree robbery in 1988;
misdemeanor petty theft with a prior in 1990; misdemeanor possession of dangerous
drugs without a prescription and misdemeanor possession of a controlled substance in
1991; being under the influence of a controlled substance, misdemeanor hit and run

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causing death or injury, and misdemeanor possession of a dangerous weapon in 1993;
misdemeanor second degree burglary, two incidents of misdemeanor possession of a
controlled substance, possession of a dangerous weapon, and receiving stolen property in
1994; unlawful taking of a vehicle, receiving stolen property, and possession of a
controlled substance for sale in 1995; assault with a deadly weapon with a great bodily
injury enhancement in 1998; and the current 2009 conviction for assault by a prisoner.
       Defendant had four sustained prison rules violations in the 1990’s. In 2001, he
had sustained violations for battery on an inmate and delaying a peace officer. He
sustained a violation for possession of a hypodermic kit in 2002. In 2003, he sustained a
charge of possession of a deadly weapon. He sustained violations for manufacture of
alcohol, mutual combat, and delaying a peace officer in 2005. In 2009 and 2011,
defendant sustained violations for attempted murder. Defendant also sustained violations
for possession of a weapon in 2009 and for possession of a controlled substance for
distribution in 2013. Defendant had pending rules violation reports for attempted murder
in 2013 and for possession of dangerous contraband and possession of a weapon in 2014.
       The trial court denied the petition, finding that resentencing defendant would pose
an unreasonable risk of danger to public safety.
                                       DISCUSSION
                               I. Right to Jury Trial Claim
       Defendant contends he has a Sixth Amendment and due process right to have a
jury determine whether his resentencing would pose an unreasonable risk of danger to
public safety.
       Following 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, subds. (e)(2)(A), (e)(2)(C), 1170.12, subds. (c)(2)(A),
(c)(2)(C); People v. Yearwood (2013) 213 Cal.App.4th 161, 170.)

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       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
offender. (§ 1170.126, subd. (a).)2 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).)
       Defendant contends that for a defendant who, like himself, is eligible for
resentencing, then the Act establishes the two strike sentence as the “mandatory
minimum sentence” unless future danger to public safety is established. Citing
Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], defendant contends he is
entitled to a jury trial on the future danger issue because a finding of future danger
effectively increases his punishment from the mandatory minimum.




2  Although a minute order shows defendant was convicted of assault with a deadly
weapon by an inmate, which is a serious felony offense under section 1192.7, subdivision
(c)(13), this court’s appellate opinion says defendant was convicted of assault with a
deadly weapon or by force likely to cause great bodily injury by an inmate. (Buck, supra,
slip opn. at p. 1.) Assault by force likely to cause great bodily injury by an inmate is not
a serious or violent felony offense unless the defendant caused great bodily injury.
(§ 667.5, subd. (c)(8) [defining violent felony offense as including a felony offense where
the defendant inflicts great bodily injury]; § 1192.7, subd. (c)(8) [defining serious felony
offense as including a felony offense where the defendant personally inflicts great bodily
injury]; see also § 1192.7, subd. (c)(23) [defining serious felony offense as including any
felony offense in which the defendant personally used a deadly weapon].) The
coperpetrator in defendant’s commitment offense is the person who actually used the
weapon and caused injury to the victim. (Buck, at pp. 2-4, 6, 8.) Thus, defendant’s
commitment offense does not qualify as a serious or violent felony offense and does not
disqualify him from sentence reduction consideration under section 1170.126.

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       This issue has been resolved and we need not elaborate. Defendant’s contention
was rejected by another appellate court in People v. Superior Court (Kaulick) (2013)
215 Cal.App.4th 1279. We reject defendant’s contention for the reasons stated in
Kaulick. (Kaulick, at pp. 1301-1303; cf. People v. Blakely (2014) 225 Cal.App.4th 1042,
1060 [no right to jury trial concerning eligibility determination]; People v. Osuna (2014)
225 Cal.App.4th 1020, 1039-1040 [same].)
            II. Definition of Unreasonable Risk of Danger to Public Safety
       In a supplemental brief, defendant argues that the standard for determining
dangerousness enacted in Proposition 47 should apply to his resentencing hearing. We
disagree.
       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”) 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

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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).)
       Defendant asserts the definition of “ ‘unreasonable risk of danger to public
safety’ ” in section 1170.18, subdivision (c), supersedes the definition of that term in
section 1170.126. Section 1170.18, subdivision (c), 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’s argument that the new definition of “ ‘unreasonable risk of danger to
public safety’ ” is 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
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 the Supreme Court’s most recent interpretation of Estrada.
“Estrada is . . . properly understood, not as weakening or modifying the default rule of

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prospective operation codified in section 3,[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.” (Id. at p. 324.) 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.
       Accordingly, we reject defendant’s request for retroactive application of the
language in section 1170.18 to his petition for resentencing pursuant to section 1170.126.




3 Section 3 provides that no part of the Penal Code is retroactive “unless expressly so
declared.”

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                                    DISPOSITION
     The trial court’s orders are affirmed.



                                                  MURRAY   , J.



We concur:



     RAYE                 , P. J.



     BLEASE               , J.




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