Filed 11/10/15 P. v. Scott CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040176
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 179796)

         v.

JAYE RAMON SCOTT, JR.,

         Defendant and Appellant.


         Defendant Jaye Ramon Scott, Jr., is currently serving a “Three Strikes” sentence.
He filed a petition for resentencing under Penal Code section 1170.126.1 Although he
was eligible to be resentenced, the trial court exercised its discretion to find that
resentencing him “would pose an unreasonable risk of danger to public safety”
(§ 1170.126, subd. (f)) and denied his petition.
         Defendant appeals from the trial court’s denial of his petition, arguing:
(1) substantial evidence does not support the court’s conclusion that resentencing him
would pose an unreasonable risk of danger to public safety, (2) the court failed to
understand and consider certain mitigating factors that showed he was not an
unreasonable risk, (3) the court failed to consider postrelease conditions that would
mitigate any risk and failed to consider the fiscal impact of his incarceration, (4) the court
applied the wrong legal standard when determining that he should not be resentenced,
and (5) the trial court erred by failing to obtain a supplemental probation report prior to

         1
             Unspecified statutory references are to the Penal Code.
denying the petition. In a supplemental brief, defendant argues that reversal is also
required because section 1170.18, enacted in November 2014, changed the definition of
“unreasonable risk of danger to public safety” as used in section 1170.126. We find no
merit in any of defendant’s arguments and affirm the order denying his petition for
resentencing.
                       FACTUAL AND PROCEDURAL BACKGROUND
       On October 29, 1994, Sherry Cann and her son, Nathan, were walking on a street.2
They suddenly heard the victim, Sharon Llewellyn, shout, “stop, thief.” Sherry and
Nathan saw defendant running towards them with a purse tucked underneath his arm.
Nathan attempted to grab the defendant but failed. Nathan gave chase, but a few blocks
later defendant was picked up in a car driven by his wife, Linda Scott. Nearby, Nathan
retrieved several items that had dropped from Llewellyn’s purse.
       Llewellyn had attempted to chase after defendant. She eventually caught up to
Sherry, and Sherry and Nathan drove her home at her request. Llewellyn was
experiencing chest pains, so her family members called 911. Llewellyn died of a heart
attack approximately one hour after the theft.
       Nathan told officers the license plate number of the car that had picked defendant
up. After tracing the license plate, officers arrived at defendant’s apartment, where Linda
consented to a search. Linda told officers that she had seen defendant going through a
purse after they arrived home. Officers found Llewellyn’s purse in a dumpster in the
parking lot of the apartment complex. Nathan and Sherry identified defendant, and
Nathan was able to identify defendant’s car.
       On April 24, 1995, defendant was charged by information with murder (§ 187),
grand theft (§§ 484, 487, subd. (c)), petty theft with a prior conviction (§ 666), and
       2
       Some of the witnesses and parties share the same surname, so we use their first
names for clarity.


                                               2
robbery (§§ 211, 212.5, subd. (b)). It was further alleged that defendant had three prior
strike convictions and had served four prior prison terms. (§§ 667, subds. (b)-(i), 667.5,
subd. (b).)
       On December 21, 1995, defendant entered into a negotiated disposition and
pleaded no contest to involuntary manslaughter and grand theft. He also admitted two
prior strike convictions that qualified as two prior serious felony convictions and
admitted that he had served two prior prison terms. The trial court sentenced him a total
term of 35 years to life, which included two determinate five-year prison terms for his
two prior serious felony convictions.
       Both of defendant’s strike priors were for convictions of robbery. The first strike
was committed in 1987. There, defendant grabbed the victim’s purse and hit her on the
side of the face. The second strike offense occurred in 1990, when defendant was still on
parole for the first offense. In that case, defendant yanked a necklace off the victim’s
neck after she refused his offer to pay $20 for it.
       On January 14, 2013, defendant filed a petition for resentencing under
section 1170.126.
       The People conceded that defendant’s offenses rendered him eligible for
resentencing but opposed the petition, arguing that the court should exercise its discretion
to find that resentencing him would pose an unreasonable risk of danger to public safety.
       The People attached records of defendant’s prison records, which included three
serious prison rules violations. In August 1997, defendant was found to have committed
mutual combat in the prison yard. In June 1998, defendant was found in possession of
inmate manufactured alcohol. In March 2002, defendant was found to have used state
property to type personal letters and admitted giving the letters to another inmate to sneak
out without permission. Defendant’s prison record also contained information regarding



                                              3
instances where he did not fully comply with prison rules, including an instance when he
failed to report to work.
       In December 2009, defendant was validated as a Black Guerrilla Family (BGF)
gang member or associate, a finding which he disputed. In 2011, defendant requested to
review his central file. During the review, defendant became agitated and accused prison
staff as placing the “BGF” label on all black inmates. The correctional officer described
defendant as committing a “racially verbal assault” during that incident.
       Defendant had previously admitted to being addicted to crack cocaine when he
was first admitted to prison. At that time, he said he had no interest in pursuing
substance abuse counseling programs.
       However, defendant did pursue rehabilitation programs during the course of his
incarceration. He completed anger management programs and substance abuse
programs. In support of granting the petition for resentencing, defendant submitted a
letter indicating he had been accepted into the San Jose Salvation Army adult
rehabilitation center. He also asserted that he would have the support of his two
daughters.
       On August 5, 2013, defendant filed a motion requesting that the court either grant
the petition for resentencing or order a jury trial on the petition for resentencing. The
People opposed the motion.
       A week later, the court held a hearing on the motion requesting a jury trial and the
petition for resentencing. The court denied defendant’s request for a jury trial.
       During the hearing, an expert on the BGF prison gang testified about the history of
the gang and the violence it perpetrates in communities. One of defendant’s daughters
testified that she would support her father if he was released.
       After considering all the evidence, the court noted that it believed defendant’s
third strike could have been charged as a robbery, a disqualifying offense, based on the

                                              4
factual circumstances of the crime. However, the court noted that by itself this could not
be a reason for denying the petition, because defendant was not actually convicted of a
robbery. Therefore, defendant was eligible to be resentenced. Nonetheless, the court
stated that the circumstances of defendant’s offense constituted evidence that it could
consider in making its dangerousness determination.
       The court further stated that it did not think it needed to decide whether defendant
had been correctly validated as a BGF gang member or associate, because “[t]here is a lot
more about prison gangs that have to do with what occurs in prison than there is with
what occurs on the streets.” However, the court noted that in 2011, when defendant was
discussing his BGF validation with correctional staff, he had become verbally abusive
towards them. Further, defendant’s interactions with correctional officers and other law
enforcement personnel demonstrated that although he had completed anger management
courses, they had not worked.
       Lastly, the court found that defendant’s rehabilitation, though commendable, was
recent and short-lived. Therefore, it denied his petition after finding he would pose an
unreasonable risk to public safety if resentenced.
       Defendant appealed.
                                       DISCUSSION
       1. The Denial of Defendant’s Petition
              A. Statutory Background
       In the November 6, 2012 election, California voters approved Proposition 36, the
so-called Three Strikes Reform Act of 2012 (hereafter the Reform Act). Prior to the
passage of Proposition 36, the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12)
required that a defendant convicted of two prior serious or violent felonies be subject to a
sentence of 25 years to life upon conviction of a third felony. As amended by the Reform
Act, section 1170.12, subdivision (c)(2)(C), and section 667, subdivision (e)(2)(C), now

                                             5
mandate that a defendant with two or more strikes who is convicted of a felony that is
neither serious nor violent be sentenced as a second strike offender (unless certain
exceptions apply).
       The Reform Act also added section 1170.126, which allows eligible inmates who
are currently subject to 25-years-to-life sentences under the Three Strikes law to petition
the court for resentencing. “Section 1170.126, subdivisions (a) and (b), broadly
describe who is eligible to file a petition and to be resentenced. Subdivision (a) of
section 1170.126 states: ‘The resentencing provisions under this section and related
statutes are intended to apply exclusively to persons presently serving an indeterminate
term of imprisonment pursuant to paragraph (2) of subdivision (e) of Section 667 or
paragraph (2) of subdivision (c) of Section 1170.12, whose sentence under this act would
not have been an indeterminate life sentence.’ ” (Teal v. Superior Court (2014) 60
Cal.4th 595, 598.) “Subdivision (b) of section 1170.126 states: ‘Any person serving an
indeterminate term of life imprisonment imposed pursuant to paragraph (2) of
subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12
upon conviction, whether by trial or plea, of a felony or felonies that are not defined as
serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of
Section 1192.7, may file a petition for a recall of sentence. . . .’ ” (Id. at p. 599.)
       An eligible prisoner “shall be resentenced” as a second strike offender unless the
court determines that resentencing him or her “would pose an unreasonable risk of danger
to public safety.” (§ 1170.126, subd. (f).)
              B. Substantial Evidence
       First, defendant argues substantial evidence does not support the court’s
conclusion that he would pose an unreasonable risk to public safety if resentenced. He
argues that we should review the trial court’s decision for “substantial evidence that



                                               6
resentencing [him] would unreasonably threaten public safety.” Defendant errs in his
characterization of the applicable standard of review.
       Correctly stated, the trial court does not need to find substantial evidence that
defendant would pose an unreasonable risk of danger to public safety. Rather, whether a
defendant poses an unreasonable risk of danger to public safety is a discretionary
decision that the trial court must make based on the facts presented in the case. However,
the facts considered by the trial court must be established by the People by a
preponderance of the evidence.
       On appeal, we review the court’s finding of an unreasonable risk of danger for an
abuse of discretion. However, we apply a substantial evidence standard of review to the
facts or evidence supporting the court’s finding. Therefore, a factor relied on by the court
that is not supported by a preponderance of the evidence cannot form the basis of the
court’s determination. (People v. Cluff (2001) 87 Cal.App.4th 991, 998 [holding that a
trial court abuses its discretion when its factual findings are not supported in the record].)
With the correct standard of review in mind, we turn to defendant’s arguments regarding
the sufficiency of evidence.
       First, defendant argues that the trial court improperly characterized the facts
surrounding his taking of Llewellyn’s purse. He argues there is no substantial evidence
that he physically took the purse from Llewellyn, therefore committing an act amounting
to a robbery. We agree with defendant’s claim on this point.
       Section 1170.126, subdivision (g)(1) specifies that a court may consider a
petitioner’s criminal conviction history including the types of crimes committed and the
extent of injury to victims. Also, section 1170.126, subdivision (g)(3) broadly provides
that a court may consider “[a]ny other evidence [that] the court, within its discretion,
determines to be relevant in deciding whether a new sentence would result in an



                                              7
unreasonable risk of danger to public safety.” Therefore, the circumstances of
defendant’s most current offense certainly falls within either of these categories.
       However, a problem arises because there is no evidence in the record to support
the court’s characterization of defendant’s third strike offense. Defendant pleaded no
contest to the allegations, and the only information pertaining to the offense in the record
is the summary provided in the probation report, which recounted the circumstances of
the crime based on facts taken from a police report. The probation report does not
contain a statement of the victim’s version of the events. The report summarized that
eyewitnesses saw defendant running with the purse. There is nothing in the report
indicating that defendant physically took the purse from the victim. And, it does not
appear that defendant ever admitted he grabbed the purse from the victim’s person. In
defendant’s version of the events, he took the purse from a flower pillar. Based on this
record, substantial evidence does not support the court’s factual finding that the crime
committed amounted to an assault or a robbery.
       However, even though the court erred in its characterization of the circumstances
of defendant’s third strike, the error was not prejudicial, because it is not reasonably
probable defendant would have achieved a more favorable result absent the error.
(People v. Watson (1956) 46 Cal.2d 818, 836.) During the hearing on the petition, the
court reiterated that its focus was to evaluate whether defendant posed a present risk to
public safety and noted the remoteness of defendant’s prior offenses. Although the trial
court noted that it considered the circumstances of defendant’s third strike, that by itself
was not the determinative factor in its decisionmaking process. Aside from the factual
circumstances of defendant’s third strike offense, the court focused on a number of
legitimate concerns that were supported by the record.
       First, the court found that defendant’s lengthy prior record was probative of his
risk of danger to public safety if released. Unlike defendant’s third strike conviction, the

                                              8
court did not mischaracterize the nature of defendant’s additional offenses, which
included forceful thefts where he punched a victim and yanked a necklace off a victim’s
neck. And, the court did not abuse its discretion when it considered this information,
because a defendant’s prior criminal conviction history is something the court is entitled
to consider under section 1170.126, subdivision (g)(1).
       Second, the court concluded that defendant had not taken advantage of programs
that could have assisted with his issues, such as his problems with substance abuse.
Defendant disagrees with the court’s interpretation, arguing that it erroneously ignored
the fact that he had addressed his substance abuse problems while incarcerated, which he
claims was one of the triggers of his past criminality. Defendant notes that the only time
he was found to have abused any substance or used alcohol since he was incarcerated was
in 1998, when inmate manufactured alcohol was found in his cell.
       However, the record belies defendant’s claim that the court did not properly
consider his history of substance abuse. More precisely, the court considered defendant’s
substance abuse history but interpreted the facts in a negative, rather than a positive,
light. Prior to the hearing on his petition for resentencing, defendant had drafted a letter
to the court, asserting that he had not been aware of programs to assist him with his
problems prior to his incarceration. The court disagreed with defendant’s
characterization of his background, finding instead that defendant’s overall history
reflected that he was aware of programs that existed to assist him in overcoming his
problems but did not take advantage of them. The court noted that defendant had been
ordered into treatment for his cocaine addiction and had been dismissed from the
program due to his poor attendance the day before he was convicted of his third strike.
Additionally, the court negatively characterized the incident where he was found to be in
possession of inmate manufactured alcohol, commenting that this incident occurred
shortly after he began his prison sentence. Although there was no current evidence that

                                              9
defendant was using drugs or abusing alcohol, he had also been living in a structured and
controlled environment in prison. Defendant had completed some substance abuse
programs, but there was little affirmative evidence that he would be able to avoid
controlled substances outside the confines of prison.
       The court also found that defendant’s rehabilitation was current and had been
short-lived. Again, defendant disagrees with the court’s interpretation of the facts,
arguing that it erroneously relied on his prison record.
       However, the record supports the trial court’s conclusion. Defendant verbally
lashed out at correctional officers when reviewing his central file in 2011. This outburst
happened despite the fact that defendant had completed anger management courses,
supporting the court’s determination that the anger management courses had not
sufficiently rehabilitated defendant. Further, defendant had other incidents of misconduct
in prison. In August 1997, defendant was found to have committed mutual combat in the
prison yard. In June 1998, he was found in possession of inmate manufactured alcohol.
In March 2002, he was found to have used state property to type personal letters and
admitted giving the letters to another inmate to sneak out without permission.
       In sum, the factors described by the trial court, including defendant’s criminal
history, his ability to deal with his substance abuse problems, and his performance in
prison and ability to manage his anger, support its determination that defendant would
pose an unreasonable risk of danger to public safety if resentenced. “The appropriate test
for abuse of discretion is whether the trial court exceeded the bounds of reason. When
two or more inferences can reasonably be deduced from the facts, the reviewing court has
no authority to substitute its decision for that of the trial court.” (Shamblin v. Brattain
(1988) 44 Cal.3d 474, 478-479.) The court made its determination based on legitimate




                                              10
factors that are supported by substantial evidence. Therefore, we do not find it abused its
discretion.3
               C. Failure to Consider Factors in Mitigation
       Defendant further claims that the court failed to consider various factors in
mitigation, such as the remoteness of his convictions, his age, and his low CDC
(California Department of Corrections) classification score.
       In part, defendant relies on cases involving the board of parole hearing’s denial of
parole to defendants that were reversed or remanded due to inadequate consideration of
suitability factors. For example, in In re Stoneroad (2013) 215 Cal.App.4th 596, the
appellate court granted the inmate defendant’s petition for writ of habeas corpus after
concluding the board of parole hearing’s decision did not reflect due consideration of
statutory and regulatory factors bearing on parole suitability, which it is required to do.
(Id. at p. 601.)
       We decline to consider whether cases involving a board of parole hearing’s denial
of parole are informative regarding the standard of review to be employed by a trial court
considering a petition for resentencing. However, we do note that here, all of the
mitigating factors discussed by defendant on appeal were presented to the court and were
part of the trial court’s record, including his low CDC classification score. Furthermore,
unlike a parole decision, there is no requirement that the trial court’s decision on a
petition for resentencing be accompanied with a statement of reason. Nonetheless, the
trial court did state its reasons for denying the petition on the record. And, it concluded,
based on the record before it, that defendant posed an unreasonable risk to public safety.



       3
          Defendant also notes that his BGF validation was “highly suspect.” However,
the trial court stated during the hearing on the resentencing petition that it was not relying
on defendant’s gang status in determining his risk to public safety.


                                             11
       In coming to this decision, the trial court did not expressly touch upon all of the
factors that it may have found to have mitigated the risk to public safety. However, we
must presume that the court considered all the presented evidence, absent evidence to the
contrary. (Evid. Code, § 664; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
       Essentially, defendant argues that the court erred because it did not accord certain
factors the weight he believes they deserve. We disagree. Simply because defendant
does not agree with the court’s conclusion does not mean the court abused its discretion.
And, since the court’s decision is supported by factual findings that are in turn supported
by substantial evidence, our inquiry must end. Even though there were factors that
tended to weigh in favor of resentencing defendant, it was ultimately up to the trial court
to determine whether defendant would pose an unreasonable risk of danger to public
safety if resentenced. Defendant essentially urges us to reweigh the evidence, which is
not our role as the appellate court.
              D. Failure to Consider Postrelease Conditions and the
                 Cost of Imprisonment
       Defendant also argues the court erred in failing to consider postrelease conditions
that could mitigate any unreasonable risk to public safety. For example, defendant opines
that the court has the duty to fashion an appropriate disposition, including additional
constraints on his freedom, which could have assuaged its concerns.
       We reject defendant’s claim that the court failed to consider the mitigating effects
of any additional postrelease requirements. Under section 1170.126, subdivision (f), the
court must determine whether a defendant will pose an unreasonable risk to public safety
if resentenced as a second strike offender. Implicit in the court’s finding that
resentencing defendant would pose an unreasonable risk of danger to public safety is its
determination that defendant would pose a risk of danger to public safety even if
resentenced and released under conditions such as postrelease community supervision.
Although the court here did not specifically state that it considered the mitigating effects
                                             12
of additional conditions on defendant’s release, we cannot presume that it failed to do so.
And, again, we must presume that it did, since we have no contrary indication. (Evid.
Code, § 664; Denham v. Superior Court, supra, 2 Cal.3d at p. 564.)
       Additionally, defendant argues the court failed to take the fiscal impact of his
future imprisonment into consideration. However, we fail to see how monetary
considerations should factor into a court’s determination that resentencing an inmate will
pose an unreasonable risk of danger to public safety. Saving money is one of the Reform
Act’s stated goals. However, the primary purpose of both the three strikes law and
Proposition 36 is to protect public safety. (People v. Osuna (2014) 225 Cal.App.4th
1020, 1036-1037.) The trial court was not required to weigh the potential to reduce costs
by releasing inmates like defendant against the need to protect public safety. In essence,
the electorate already conducted its own cost-benefit analysis by determining that those
inmates whose resentencing would pose an unreasonable risk of danger to public safety
should not be released, even if resentencing may provide some cost savings to the state.

              E. Presumptions and Standards for a Trial Court’s Denial of a
                 Petition for Resentencing
       Defendant argues the court abused its discretion, because section 1170.126 creates
a presumption that a petitioner’s sentence should be reduced.
       First, defendant points to the language of section 1170.126, subdivision (f), which
states that “the petitioner shall be resentenced pursuant to [a second-strike term] unless
the court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.” (Italics added.) He argues that the
“shall/unless” language establishes a presumption in favor of resentencing a petitioner
that can only be overcome if the court finds the petitioner would present an unreasonable
risk of danger to public safety.




                                             13
       To support this proposition, defendant relies on People v. Guinn (1994) 28
Cal.App.4th 1130 (Guinn), People v. Murray (2012) 203 Cal.App.4th 277, and
People v. Ybarra (2008) 166 Cal.App.4th 1069. These cases all discuss section 190.5,
subdivision (b), the juvenile life-without-parole (LWOP) statute. Guinn concluded that
section 190.5’s language and structure, including the use of the word “shall,” made it so
certain juveniles “must be sentenced to LWOP, unless the court, in its discretion, finds
good reason” to impose a less severe sentence. (Guinn, supra, at p. 1141.) Therefore,
Guinn concluded that section 190.5 created a presumptive penalty of LWOP. (Guinn,
supra, at p. 1145.)
       The cases relied on by defendant, including Guinn, were disapproved of by
our high court in People v. Gutierrez (2014) 58 Cal.4th 1354. The Gutierrez court
stated: “Contrary to Guinn, . . . our review of the text and history of section 190.5[,
subdivision] (b) does not lead us to conclude that the statute establishes a presumption in
favor of life without parole. The text of the statute appears ambiguous on this point. As
noted, section 190.5[, subdivision] (b) says the penalty for special circumstance murder
committed by a 16- or 17-year-old offender ‘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.’
It is not unreasonable to read this text, as Guinn did, to mean that a court ‘shall’ impose
life without parole unless ‘at the discretion of the court’ a sentence of 25 years to life
appears more appropriate. [Citation.] But it is equally reasonable to read the text to
mean that a court may select one of the two penalties in the exercise of its discretion, with
no presumption in favor of one or the other. The latter reading accords with common
usage. For example, if a teacher informed her students that ‘you must take a final exam
or, at your discretion, write a term paper,’ it would be reasonable for the students to
believe they were equally free to pursue either option. The text of section 190.5[,



                                               14
subdivision] (b) does not clearly indicate whether the statute was intended to make life
without parole the presumptive sentence.” (Id. at p. 1371.)
       We find that Gutierrez’s interpretation of section 190.5’s syntax is equally
applicable to section 1170.126, subdivision (f)’s syntax. We therefore disagree with
defendant’s interpretation that the “shall/unless” construction used in section 1170.126,
subdivision (f) creates a presumption in favor of resentencing. It is true that a court faced
with an eligible petition for resentencing is required to resentence the petitioner unless it
finds that doing so would pose an unreasonable risk of danger to public safety. However,
this in no way means that its discretion is limited in that it can only find dangerousness in
circumscribed circumstances. Rather, a trial court is vested with the discretion to either
resentence a petitioner or conclude a petitioner poses an unreasonable risk of danger
based on the totality of the circumstances presented in each case.
       Nonetheless, defendant persists in his claim that section 1170.126 creates a
presumption in favor of resentencing. He insists that a hearing on a section 1170.126
petition is essentially the converse of a Romero4 hearing and therefore establishes that a
court may only deviate from the newly established “norm” of a second-strike sentence in
extraordinary cases when there is proof of current dangerousness.
       In People v. Carmony (2004) 33 Cal.4th 367, our Supreme Court discussed the
legislative purpose behind the three strikes law and the standards sentencing courts
should follow in order to determine whether to strike or vacate a prior strike. It noted that
“the three strikes law not only establishes a sentencing norm, it carefully circumscribes
the trial court’s power to depart from this norm and requires the court to explicitly justify
its decision to do so. In doing so, the law creates a strong presumption that any sentence
that conforms to these sentencing norms is both rational and proper.” (Id. at p. 378.)


       4
           People v. Superior Court (Romero) (1996) 13 Cal.4th 497.


                                              15
       As the Fifth Appellate District explained in People v. Blakely (2014) 225
Cal.App.4th 1042, “[t]he purpose of the three strikes law has been variously stated as
being ‘ “to ensure longer prison sentences and greater punishment for those who commit
a felony and have been previously convicted of serious and/or violent felony offenses” ’
[citation] and ‘to promote the state’s compelling interest in the protection of public safety
and in punishing recidivism’ [citation]. Although the [Reform] Act ‘diluted’ the three
strikes law somewhat [citation], ‘[e]nhancing public safety was a key purpose of the
[Reform] Act.’ ” (Id. at p. 1054.)
       Since public safety remains the key focus of the Reform Act, we disagree with
defendant’s assertion that a decision on a section 1170.126 petition must be subject to the
same scrutiny as a Romero hearing. A section 1170.126 petition is not the converse of a
Romero hearing, and section 1170.126 does not establish a new sentencing norm.
       Additionally, we reject defendant’s claim that the trial court should deny an
eligible petition for resentencing only in extraordinary cases. This would undermine the
intent of the voters in passing the Reform Act—to preserve public safety.
               F. Burden of Proof and Right to a Jury Trial
       Next, defendant claims the requisite burden of proof of dangerousness is beyond a
reasonable doubt, because the trial court’s dangerousness finding effectively increases his
maximum sentence from nine years four months (if he was resentenced as a second-strike
offender) to 25 years to life. He also claims the court erred in denying his request for a
jury trial on the petition.
       The Second Appellate District addressed this very issue in People v. Superior
Court (Kaulick) (2013) 215 Cal.App.4th 1279 (Kaulick), and determined that the
applicable burden of proof is preponderance of the evidence.5 (Id. at pp. 1301-1305.)
       5
        The Fifth Appellate District concurred with Kaulick’s conclusion in People v.
Blakely, supra, 225 Cal.App.4th 1042.


                                             16
       We agree with Kaulick. The United States Supreme Court has 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 v. New Jersey (2000) 530 U.S. 466, 490.)
       In Kaulick, the appellate court noted that the maximum sentence that Kaulick was
subject to was, and will always be, an indeterminate life term. (Kaulick, supra, 215
Cal.App.4th at p. 1303.) And, although the Reform Act “presents [Kaulick] with an
opportunity to be resentenced to a lesser term, unless certain facts are established, he is
nonetheless still subject to the third strike sentence based on the facts established at the
time he was originally sentenced. As such, a court’s discretionary decision to decline to
modify the sentence in his favor can be based on any otherwise appropriate factor (i.e.,
dangerousness), and such factor need not be established by proof beyond a reasonable
doubt to a jury.” (Ibid.)
       Kaulick relied on Dillon v. United States (2010) 560 U.S. 817. In Dillon, the court
considered whether a two-step sentence modification procedure implicated the Sixth
Amendment. (Id. at pp. 826-829.) If eligible for a sentence modification, a reduction in
the defendant’s sentence could be ordered. (Id. at pp. 826-827.) Dillon concluded that “a
defendant’s Sixth Amendment right to have essential facts found by a jury beyond a
reasonable doubt do not apply to limits on downward sentence modifications due to
intervening laws.” (Kaulick, supra, 215 Cal.App.4th at p. 1304.) Kaulick found Dillon’s
rationale to be equally applicable to the Reform Act, since “[t]he retrospective part of the
[Reform] Act is not constitutionally required, but an act of lenity on the part of the
electorate.” (Ibid.) The resentencing scheme is not plenary, instead it provides for a
proceeding where the original indeterminate life term can be modified downward.
Kaulick concluded that this did not implicate any Sixth Amendment issues, and therefore



                                              17
there was no requirement that the facts underlying a dangerousness finding be established
beyond a reasonable doubt.
       We follow the reasoning set forth in Kaulick and find that there is no requirement
that the dangerousness finding be established beyond a reasonable doubt. Accordingly,
we conclude the trial court did not err in denying defendant’s motion for a jury trial,
because a Sixth Amendment right to a jury trial does not arise in a petition for
resentencing under section 1170.126, subdivision (f).
       2. Failure to Obtain a Supplemental Probation Report
       Defendant claims the court should have obtained a supplemental probation report
prior to denying his petition for resentencing. Defendant argues that a supplemental
probation report was necessary, because the decision to resentence him is functionally the
equivalent of a decision to place him on probation.
       Defendant has forfeited this argument. He did not request a supplemental
probation report below, nor did he object to proceeding without one.
       Defendant claims his lack of objection does not waive or forfeit his claim, citing to
People v. Dobbins (2005) 127 Cal.App.4th 176, 178 (Dobbins). However, Dobbins is
inapplicable, because the defendant there remained eligible for probation upon remand.
(Id. at pp. 181-182.) Therefore, a probation report was mandated by law, unless a written
or oral stipulation was entered by the prosecuting and defense attorneys. (§ 1203,
subd. (b)(4).) Since the attorneys did not waive or stipulate to proceed without the
probation report, the Dobbins defendant did not forfeit his claim of error even though he
failed to object below. (Dobbins, supra, at p. 182.)
       Here, defendant would not have been eligible for probation as a second strike
offender, a fact that defendant acknowledges. (§§ 667, subd. (c)(2), 1170.12,
subd. (a)(2); People v. Johnson (1999) 70 Cal.App.4th 1429, 1431-1432.) Accordingly,
unlike Dobbins, a waiver or stipulation to proceed without a probation report was not

                                             18
required below. Therefore, defendant’s failure to request a supplemental probation report
or object to its omission forfeits his claim on appeal. (People v. Murray, supra, 203
Cal.App.4th at p. 289, fn. 12; People v. Johnson, supra, at pp. 1431-1432.)
       Regardless, we would reject defendant’s contention even if we were to consider it
on the merits. The Fifth Appellate District considered and rejected a similar argument in
People v. Franco (2014) 232 Cal.App.4th 831 (Franco), and we agree with the Franco
court’s reasoning.
       As we previously discussed, when a defendant is convicted of a felony and is
eligible for probation, referral of the matter to the probation officer for an investigation
and report is mandatory. (§ 1203, subd. (b)(1); Cal. Rules of Court, rule 4.411(a).)
However, referral for a report is discretionary when a defendant is ineligible for
probation, except when the amount of a restitution fine must be calculated. (§ 1203,
subd. (g); Cal. Rules of Court, rule 4.411(b).)
       Since defendant is not eligible for probation even as a second strike offender,
“neither statute nor rule of court required the trial court to obtain a supplemental report.”
(Franco, supra, 232 Cal.App.4th at p. 834.) Therefore, we “decline to impose a
mandatory duty on the trial court where the statutes and rules of court granting authority
for probation reports do not so provide.”6 (Id. at p. 835.)
       3. The Definition of an “Unreasonable Risk of Danger to Public Safety”
                A. Background
       In November 2012, voters enacted section 1170.126 as part of the Reform Act.
(People v. Yearwood (2013) 213 Cal.App.4th 161, 167.) As discussed above,
section 1170.126, subdivision (f) specifies that a petitioner shall be resentenced unless
“the court, in its discretion, determines that resentencing the petitioner would pose an


       6
           Based on the foregoing, we need not address defendant’s claim of prejudice.


                                              19
unreasonable risk of danger to public safety.” Section 1170.126 does not contain a
definition of the phrase “unreasonable risk of danger to public safety,” but does include a
nonexclusive list of criteria a court may consider in making a determination of
dangerousness. (§ 1170.126, subd. (g).)
       Two years later in November 2014, voters enacted Proposition 47, the “Safe
Neighborhoods and Schools Act.” The Legislative Analyst described Proposition 47 as
having three main aspects: reducing penalties for certain offenders convicted of
nonserious and nonviolent property and drug crimes, allowing certain offenders
previously convicted of such crimes to apply for reduced sentences, and requiring state
savings resulting from the measure be spent to support various services.7 (Voter
Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst,
p. 35.) Proposition 47 does not mention the Reform Act.
       However, it did establish procedures for certain offenders to apply for a reduced
sentence. Section 1170.18, subdivision (a) provides that defendants convicted of certain
nonserious, nonviolent property and drug felonies can file a petition requesting
resentencing. A court that receives the 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.” (§ 1170.18, subd. (b).)
       Pertinent here, 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.”




       7
        We take judicial notice of the text of Proposition 47 and its accompanying ballot
materials. (Evid. Code, §§ 452, 459.)


                                             20
              B. Analysis
       Defendant argues the narrow definition of an unreasonable risk of danger to public
safety set forth in section 1170.18, subdivision (c) applies to the phrase as used in
section 1170.126.8 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. [Citation.] 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.)
Whether the use of a word is the result of a drafting error “can only be determined by
reference to the purpose of the section and the intent of the electorate in adopting it.” (Id.
at p. 776.)
       Based on the intent of the electorate in passing Proposition 47, we are compelled
to conclude that the word “Code” in section 1170.18, subdivision (c) was erroneously
used in place of the word “Act,” to refer to the Safe Neighborhoods and Schools Act.
There is nothing to indicate that in passing Proposition 47 the electorate intended to
somehow modify or change the Reform Act or section 1170.126.
       Defendant disagrees and argues that it is clear from the language of
sections 1170.18 and 1170.126 that the electorate intended to modify section 1170.126.
Notably, defendant opines that both propositions sought to improve public safety. And,
defendant claims that the plain language of Proposition 47 unambiguously applies the
definition of an unreasonable risk of danger to public safety to Proposition 36.
Furthermore, when Proposition 47 was enacted, the only other instance in the Penal Code


       8
        This issue is currently pending review in the California Supreme Court in People
v. Valencia (2014) 232 Cal.App.4th 514 (review granted Feb. 18, 2015, S223825).


                                             21
where the phrase “unreasonable risk of danger to public safety” was used was in
Proposition 36.
        We find defendant’s arguments unpersuasive. The ballot materials and proposed
statutory language accompanying Proposition 47 contain no reference to Proposition 36.
Additionally, there is no indication that the drafters intended Proposition 47 to have any
impact on offenders who did not commit the specified nonserious, nonviolent property or
drug crimes described in the Safe Neighborhoods and Schools Act. Furthermore, the
ballot materials emphasized that the resentencing provisions set forth in Proposition 47
were limited to those persons serving sentences for the specified nonserious, nonviolent
drug or property crimes. It strains credulity to imagine that Proposition 47 was also
somehow intended to modify Proposition 36. If it was, it was a particularly roundabout
method of doing so.
        Second, Proposition 36 requires that petitions for resentencing be brought within
two years of its passage unless the trial court concludes the existence of good cause for
filing a late petition. (§ 1170.126, subd. (b).) By the time Proposition 47 took effect, the
two-year period for filing a petition under section 1170.126 was nearly over. It is
illogical to conclude that Proposition 47 was meant to modify Proposition 36 when most
of the petitions filed under section 1170.126 were already adjudicated and decided by that
time.
        Third, section 1170.18 itself specifically provides that, “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).) Applying the definition of
“unreasonable risk of danger to public safety” from section 1170.18 to section 1170.126,
would undoubtedly diminish the finality of those Three Strikes judgments that do not
involve a nonserious, nonviolent property or drug crime.



                                              22
       Based on the foregoing, we conclude that section 1170.18, subdivision (c) contains
a drafting error that must be judicially corrected. Under a corrected reading of the
statute, we find that the word “Code” must be read as “Act.” Accordingly, we find no
merit in defendant’s argument that the order denying his petition must be reversed.9
                                       DISPOSITION
       The order denying defendant’s petition for recall of sentence is affirmed.




       9
        Based on our conclusion that Proposition 47’s definition of an “unreasonable risk
of danger to public safety” is inapplicable to section 1170.126, we need not address
defendant’s claim regarding the retroactivity of that definition. That issue is also
presently pending review in the California Supreme Court. (People v. Chaney (2014)
231 Cal.App.4th 1391, review granted Feb. 18, 2015, S223676.)


                                            23
                                                            Walsh, J.*




      WE CONCUR:




             Rushing, P. J.




             Elia, J.




People v. Scott
H040176

      *
        Judge of the Santa Clara County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
