Filed 1/30/15 P. v. Allen CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067704
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CF97598580)
                   v.

ERNEST LEE ALLEN,                                                                        OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
         Michael Satris, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari
Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




                                          SEE CONCURRING OPINION
                                     INTRODUCTION
       The Three Strikes Reform Act of 2012 (hereafter Proposition 36 or the Act)
created a postconviction release proceeding for third strike offenders serving
indeterminate life sentences for crimes that are not serious or violent felonies. If such an
inmate meets the criteria enumerated in Penal Code section 1170.126, subdivision (e), he
or she will be resentenced as a second strike offender unless the court determines such
resentencing would pose an unreasonable risk of danger to public safety. 1 (§ 1170.126,
subd. (f); People v. Yearwood (2013) 213 Cal.App.4th 161, 168.)
       After the Act went into effect, Ernest Lee Allen (defendant), an inmate serving a
term of 25 years to life following conviction of a felony that was not violent (as defined
by § 667.5, subd. (c)) or serious (as defined by § 1192.7, subd. (c)), filed a petition for
recall of sentence and request for resentencing under the Act. Finding defendant posed
an unreasonable risk and danger to the community should he be resentenced, the trial
court denied defendant’s petition.
       We reject defendant’s claims, inter alia, that the trial court’s determination of
dangerousness must be reviewed for substantial evidence, the court “misapprehend[ed]”
the burden of proof and scope of its discretion, the court had to explore placement
possibilities for defendant and weigh fiscal considerations, and the court failed to
consider all relevant evidence and criteria. We further conclude recently enacted
section 1170.18, subdivision (c) does not modify section 1170.126, subdivision (f). We
hold the court did not abuse its discretion by denying defendant’s petition and we affirm.
                       FACTS AND PROCEDURAL HISTORY
       On September 2, 1997, defendant, and the woman who was the mother of his child
and with whom he lived, went to the Department of Social Services in Fresno County.
Defendant had been drinking. While waiting in line, he began to yell at the woman, then,

1      Further statutory references are to the Penal Code unless otherwise stated.



                                              2.
after threatening to beat her, grabbed her by the shirt and dragged her, kicking and
screaming, across the floor. He pushed her through the front doors and threw her down
on the sidewalk. A security guard intervened just as defendant raised his hand to strike
the woman. Defendant ran away, threatening to return later.
       On January 23, 1998, a jury convicted defendant of felony spousal abuse.
(§ 273.5.) Defendant pled guilty to a misdemeanor battery charge (§ 242) arising out of
an incident that occurred August 31, 1996, and the court found he had suffered two prior
strike convictions (§ 667, subds. (b)-(i)). On February 20, 1998, defendant was sentenced
to prison for 25 years to life.
       On December 19, 2012, defendant filed a petition for recall of sentence and
request for resentencing hearing under section 1170.126. The trial court appointed
counsel for defendant, and directed the parties to submit briefs addressing all relevant
issues including defendant’s criminal conviction history, disciplinary record and record
of rehabilitation while incarcerated, and any other evidence the parties wished to submit
regarding risk of danger to public safety.2
       On February 26, 2013, defense counsel filed a more complete recall petition.
Counsel asserted defendant’s prior strike offenses consisted of 1985 convictions for
voluntary manslaughter and assault with a deadly weapon; and the remainder of
defendant’s criminal conviction history consisted of a 1992 conviction for sexual battery
(with violations of probation in 1992 and 1997), a 1981 conviction for battery, a 1976
violation of a protective order, and a 1974 conviction for burglary. Defendant’s in-prison
disciplinary record was not yet available, but counsel submitted three certificates of
completion/achievement. Counsel also submitted a letter from defendant, in which


2      The judge who imposed defendant’s third strike sentence was no longer a member
of the Fresno County bench, so the matter was handled by a different judge. (See
§ 1170.126, subd. (j).)



                                              3.
defendant explained an in-prison fight. Counsel argued defendant’s two prior strike
offenses occurred over 27 years before, and that they were related to drug and alcohol
abuse.
         The People requested additional time to obtain all relevant information,
particularly defendant’s prison records. They did, however, lodge information
concerning defendant’s prior convictions and related probation officer’s report. The
report listed defendant’s year of birth as 1956. It described an event that occurred on
March 3, 1985, during which defendant shot a woman in the head causing her to lose an
eye. Defendant had previously cohabited with the woman and she was the mother of his
then-two-year-old child. Before shooting her, defendant told her, “‘If I can’t have you,
can’t nobody have you.’” Defendant also shot the woman’s mother twice, once in the
chest, killing her. Defendant told the mother of his child, “‘This is going to hurt you
more than me,’” as he shot her mother the second time. He then left the residence,
locking the front door. He later turned himself in to the police and was charged with
murder. At the time of the offense, defendant had a blood-alcohol level of 0.23 percent.
The report listed an “indication” defendant had “a history of substance abuse including
alcohol and inhalants.” Defendant reported a history of psychological problems.
         Defense counsel subsequently filed a supplemental recall petition that contained
additional “chronos” showing defendant’s educational achievements in custody and a
letter of support from defendant’s brother. Counsel represented defendant had been
classified with the Mental Health Services Delivery System and Enhanced Outpatient
Program (EOP) throughout his incarceration, but could take care of himself, and should
be able to do so once released. Defendant would, however, need assistance obtaining
disability income and housing.
         The People opposed resentencing arguing it would pose an unreasonable danger to
public safety. They cited to defendant’s criminal history which, they argued, was lengthy
and showed great violence in domestic circumstances. They pointed to his failure to

                                              4.
benefit from repeated efforts by society to correct his behavior. They argued defendant’s
persistent inability or unwillingness to program in a productive manner, his unresolved
mental health issues, current need for psychotropic medications, and continued need for
EOP or psychiatric services. They set out his in-prison disciplinary history arguing his
proclivity toward violence in spite of medication. There were four findings of behavior
conducive to violence: in 2011 defendant was involved in a race/gang-related incident
involving a verbal argument that escalated to clenched fists and fighting stances; in 2004
defendant was involved in a mutual combat; in 2000 defendant disobeyed a direct order,
took a “bladed” stance and said he would not be taken to the acute care hospital for
psychiatric evaluation; and in 1999 defendant and another inmate faced each other in a
fighting stance and threatened to fight.3 The People acknowledged defendant’s prison
classification score was low, but argued he had failed to engage in any meaningful self-
help, work, vocational training, or education. They also noted he had no postrelease
plans.
         Defense counsel subsequently submitted a number of defendant’s mental health
and medication records. Counsel argued, while defendant had been diagnosed with major
depressive disorder and recurrent and psychotic disorder, he was not considered a danger
to himself or others; he had participated in extensive therapy sessions while incarcerated;
and he had a good record with his prescribed medications, which he had taken daily for
over 15 years. Counsel furnished portions of defendant’s mental health treatment plans,
showing defendant’s participation in various self-help and similar programs for the years
2001 through 2003. Counsel also submitted his own declaration, setting out a
conversation he had with a staff psychiatrist and staff psychologist at San Quentin State
Prison. Those persons represented that defendant was transferred to San Quentin in mid-

3     For ease of reading, some formatting (such as boldface or capitalization) has been
omitted from our quotations from the documentary evidence.



                                            5.
2012 due to the perception that a higher level of mental health care was required for him
than had been available at Corcoran. Since his transfer, it was the opinion of Dr. Miller,
who most recently treated defendant, that defendant’s mental health condition had
stabilized to the point he would only require a basic level of mental health care — either
on a residential or out-patient basis — should he be released from prison. The records
showed defendant was on two primary medications: Risperidone, an antipsychotic
medication; and Zoloft, and antidepressant medication. He was also receiving Cogentin
for the possible side effects of Risperidone.
       On June 28, 2013, the court referred the matter to the probation department for a
supplemental report that was to include information regarding the possibility of
supervision under postrelease community supervision (PRCS), and of mental health
services. The court also appointed Dr. Terrell, who was board certified in psychiatry and
forensic psychiatry, to examine defendant.
       Prior to the hearing on the petition, the court received a report from EIS-
Consultation Services for the Criminal Justice System detailing that group’s efforts with
defense counsel to find community supportive services for defendant, should he be
resentenced. The report outlined various possible living and treatment scenarios, but
concluded ongoing services could not be readily achieved.
       Terrell conducted a 55-minute forensic psychiatric evaluation of defendant on
July 6, 2013. In addition to the pleadings filed by the parties, Terrell considered
documentation from the California Department of Corrections and Rehabilitation
(CDCR). He noted defendant was 56 years old and had been incarcerated for most of his
adult life. Defendant reported he last experienced hallucinations and paranoia around
2000, and had not received antipsychotic medication since approximately March 2013
although he continued to receive antidepressant medication. Defendant further related he




                                                6.
last used street drugs approximately 15 years earlier.4 Defendant stated that, if released,
he would live with his cousin. He received disability benefits for mental illness prior to
his incarceration, had done farm labor work in the past, and kitchen work while in
CDCR. His brother had offered to help him financially. Defendant said he would report
to Fresno County Mental Health to obtain psychiatric treatment if released, and would do
whatever the doctor recommended.
       Terrell found defendant’s reality contact to be good and his judgment fair, but his
insight extremely poor. Terrell gave defendant a number of diagnoses, most of which
were in institutional remission. He determined the most likely cause of defendant’s
violent criminal behavior over the years was antisocial personality disorder combined
with a long-standing history of substance abuse, and complicated by major depressive
episodes with psychotic features. Terrell expressed “grave[] concern[]” over defendant’s
“extremely poor insight and complete lack of remorse for his violent actions,” and found
defendant’s lack of insight, lack of guilt, and lack of any evidence of remorse represented
“very ominous signs for the possibility of success” if defendant were released back into
the community. Because of the lack of evidence of remorse, guilt, or insight, Terrell
opined defendant would be “a very high risk” of resuming his abuse of street drugs and
alcohol which, combined with defendant’s antisocial personality, would put defendant at
“an extremely-high risk” of paranoia, psychosis, and a repeat of “extremely violent”
behavior. Terrell believed there was an “extremely high likelihood” that, if released,
defendant would “resume his pathological behavior and soon become a very high risk of
imminent danger to the community.” Accordingly, Terrell recommended “release be
denied.”


4     Defendant reported sniffing paint off and on in the late 1970’s and early 1980’s,
frequently abusing alcohol in the 1970’s to 1990’s, using PCP in the 1980’s, and trying
cocaine in the 1980’s.



                                             7.
       The probation officer recommended that, although defendant was not disqualified
from resentencing, he should not be resentenced because of his prior record (criminal
behavior with primarily violent crimes for almost 40 years), the circumstances of the
commitment offense, his behavior in custody, and Terrell’s report. The probation officer
pointed out that, after shooting the mother of one of his children and taking her mother’s
life, defendant continued to engage in behavior in prison that could lead to violence.
       The petition was heard July 26, 2013. The People maintained their opposition to
resentencing describing it as “amplified … by Dr. Terrell’s report” and stating “the
interest in community safety is the paramount consideration.” Defense counsel argued
defendant’s housing was “a work in progress,” and pointed out defendant might be able
to live in Westcare and that it would be easier to provide things such as mental health
services once defendant’s social security benefits were reinstated. Defense counsel
argued that Terrell spent little time with defendant, while defendant’s mental health
condition, though still “a work in progress,” impressed the CDCR doctors who had
worked with him for a number of years. Counsel suggested Terrell’s concern with
defendant’s tendency to minimize and find justifications for the past incidents was a
moral judgment, rather than a professional one. Counsel argued defendant’s criminal
history was not “exceptionally voluminous,” asserted most of defendant’s in-prison
violations were “early on in the process,” and noted defendant’s classification score still
had been reduced over time from 58 to 19, the lowest score that could be given a life
inmate. Counsel also argued defendant was 57 years old and, according to statistics,
became less of a risk as he aged.
       The trial court denied the petition. It stated in part:

       “Much of this is beyond [defendant’s] control, which is actually the
       concern of the Court. [Defendant] suffers from substantial mental health
       problems, significant mental health problems.




                                              8.
               “So the record is clear, his initial offense was a manslaughter in
       1985. There is subsequent violent behavior in 1998, a 273.5, which was a
       strike. But between the manslaughter and the third strike, he has more
       assaultive behavior, a 243.4, 242, a violation of the Court’s stay away prior
       to that. He has discipline in [prison] including mutual combat in 2004 and
       an incident 8/13 of 2011, that was described as ‘could lead to violence.’

              “Significantly, Dr. Terrell states, ‘his lack of insight, lack of guilt,
       and lack of any evidence of remorse represents an ominous sign.’ I
       understand your argument, [defense counsel], that that plays into his mental
       health issue. But then Dr. Terrell continues, ‘That there is an extremely
       highly [sic] likelihood if released from CDCR, that [defendant] will begin
       pathological behavior, and soon become a high risk of eminent [sic]
       danger.’

               “I — this is perhaps a textbook example of the necessity of
       appropriate mental health services to be provided to an inmate. I am not
       saying from a judicial perspective that the Department of Corrections has
       failed to provide those services to [defendant], but whatever services had
       been provided to [defendant] has not assisted him in a recovery. He still
       remains a significant danger to the community. For those reasons, his
       petition for resentencing is denied, and the original sentence stands.
       [¶] … [¶] … I’m finding … there is an unreasonable risk of danger to the
       community should [defendant] be resentenced; therefore, his petition for
       resentencing is denied.”
                                       DISCUSSION
                                               I
                             APPLICABLE LEGAL PRINCIPLES
       In order to be eligible for resentencing as a second strike offender under the Act,
the inmate petitioner must satisfy the three criteria set out in subdivision (e) of
section 1170.126.5 (People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979,

5      “An inmate is eligible for resentencing if: [¶] (1) The inmate is serving an
indeterminate term of life imprisonment imposed pursuant to paragraph (2) of
subdivision (e) of Section 667 or subdivision (c) of Section 1170.12 for a conviction 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. [¶] (2) The inmate’s current
sentence was not imposed for any of the offenses appearing in clauses (i) to (iii),
inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or


                                              9.
989.) If the inmate satisfies all three criteria, as did defendant, he or she “shall be
resentenced [as a second strike offender] unless the court, in its discretion, determines
that resentencing the [inmate] would pose an unreasonable risk of danger to public
safety.” (§ 1170.126, subd. (f).) In exercising this discretion, “the court may consider:
[¶] (1) The [inmate’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 [inmate’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.” (Id., subd. (g).)

    A.   A TRIAL COURT’S ULTIMATE DETERMINATION REGARDING DANGEROUSNESS LIES
         WITHIN ITS DISCRETION; ITS RULING, THEREFORE, IS REVIEWED FOR ABUSE OF
         DISCRETION.

         Defendant argues the trial court’s decision regarding dangerousness should be
reviewed for substantial evidence. 6 We disagree. The plain language of subdivisions (f)
and (g) of section 1170.126 calls for an exercise of the sentencing court’s discretion.
“‘Discretion is the power to make the decision, one way or the other.’ [Citation.]”


clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of
Section 1170.12. [¶] (3) The inmate has no prior convictions for any of the offenses
appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of
Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of
Section 1170.12.” (§ 1170.126, subd. (e).)
6       The substantial evidence test applies to an appellate court’s review of findings
made under the preponderance of the evidence standard. (People v. Wong (2010) 186
Cal.App.4th 1433, 1444.) Under that test, the appellate court reviews the record in the
light most favorable to the challenged finding, to determine whether it discloses evidence
that is reasonable, credible, and of solid value such that a reasonable trier of fact could
make the finding by a preponderance of the evidence. The appellate court “resolve[s] all
conflicts in the evidence and questions of credibility in favor of the [finding], and …
indulge[s] every reasonable inference the [trier of fact] could draw from the evidence.
[Citation.]” (Ibid.)



                                              10.
(People v. Carmony (2004) 33 Cal.4th 367, 375.) “Where, as here, a discretionary power
is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed
on appeal except on a showing that the court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a manifest miscarriage of justice.
[Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see
People v. Williams (1998) 17 Cal.4th 148, 162 [abuse-of-discretion review asks whether
ruling in question falls outside bounds of reason under applicable law and relevant
facts].)
         Under the clear language of section 1170.126, the ultimate determination that
resentencing would pose an unreasonable risk of danger is a discretionary one. We,
therefore, review that determination for abuse of discretion. Of course, if there is no
evidence in the record to support the decision, the decision constitutes an abuse of
discretion. (See In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.)

    B.   THE BURDEN OF PROOF IS PREPONDERANCE OF THE EVIDENCE AND IT APPLIES TO
         PROOF OF THE FACTS, NOT TO THE TRIAL COURT’S ULTIMATE DETERMINATION.

         Defendant asserts the trial court misapprehended the burden of proof; that
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) requires resentencing not be
denied due to dangerousness unless the People have proved dangerousness beyond a
reasonable doubt.7

                 “The standard of proof, the United States Supreme Court has said,
         ‘serves to allocate the risk of error between the litigants and to indicate the
         relative importance attached to the ultimate decision.’ [Citation.] At one

7      The Attorney General contends defendant forfeited any claims concerning the
standard/burden of proof by failing to present them in the trial court. We have the
authority to reach defendant’s claims, regardless. (People v. Smith (2003) 31 Cal.4th
1207, 1215; People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.) In light of the
newness of the Act at the time defendant’s petition was heard, as well as the potential for
an allegation that failure to raise the issues constituted ineffective assistance of counsel,
we review the claims on the merits. (See People v. Crittenden (1994) 9 Cal.4th 83, 146.)



                                               11.
       end of the spectrum is the ‘preponderance of the evidence’ standard, which
       apportions the risk of error among litigants in roughly equal fashion.
       [Citation.] At the other end of the spectrum is the ‘beyond a reasonable
       doubt’ standard applied in criminal cases, in which ‘our society imposes
       almost the entire risk of error upon itself.’ [Citation.] Between those two
       standards is the intermediate standard of clear and convincing evidence.
       [Citation.] These three standards are codified in California’s Evidence
       Code. Section 115 of that code states: ‘The burden of proof may require a
       party to … establish the existence or nonexistence of a fact by a
       preponderance of the evidence, by clear and convincing proof, or by proof
       beyond a reasonable doubt. [¶] Except as otherwise provided by law, the
       burden of proof requires proof by a preponderance of the evidence.’
       (Italics added.)

             “If the Legislature has not established a standard of proof, a court
       must determine the appropriate standard by considering all aspects of the
       law. [Citation.] No standard of proof is specified in section [1170.126] .…

               “‘The standard of proof that is required in a given instance has been
       said to reflect “… the degree of confidence our society thinks [the fact
       finder] should have in the correctness of factual conclusions for a particular
       type of adjudication.” … The standard of proof may therefore vary,
       depending upon the gravity of the consequences that would result from an
       erroneous determination of the issue involved.’ [Citations.]” (People v.
       Arriaga (2014) 58 Cal.4th 950, 961-962.)

       “In enacting section 1170.126 as part of Proposition 36, the issue before the voters
was not whether a defendant could or should be punished more harshly for a particular
aspect of his or her offense, but whether, having already been found to warrant an
indeterminate life sentence as a third strike offender, he or she should now be eligible for
a lesser term.” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1036.) Although voters
could have permitted automatic resentencing, under any and all circumstances, of those
eligible therefor, they did not do so. This demonstrates a recognition of two highly
plausible scenarios: (1) Some inmates sentenced to indeterminate terms under the
original version of the three strikes law for crimes not defined as serious or violent
felonies may have started out not posing any greater risk of danger than recidivists who
will now be sentenced to determinate terms as second strike offenders under the
prospective provisions of the Act, but have become violent or otherwise dangerous while


                                             12.
imprisoned, or (2) Enough time might have passed since some inmates committed their
criminal offenses so that those offenses no longer make such inmates dangerous, but
other factors do. Because of the severe consequences to society that may result if a
dangerous inmate is resentenced as a second strike offender and released to the
community upon completion of his or her term with little or no supervision (see, e.g.,
§ 3451) and without undergoing any suitability assessment (see, e.g., In re Lawrence
(2008) 44 Cal.4th 1181, 1204), we believe it appropriate to apportion the risk of error in
roughly equal fashion.
       Division Three of the Second District Court of Appeal has similarly so found. It
has stated that, where a court’s discretion under section 1170.126, subdivision (f) is
concerned, the People bear the burden of proving “dangerousness” by a preponderance of
the evidence. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301-
1305 & fn. 25 (Kaulick); see Evid. Code, § 115.) That court determined this is so
because “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.” (Kaulick, supra, at p. 1303.)
Kaulick explained:
              “The maximum sentence to which Kaulick, and those similarly
       situated to him, is subject was, and shall always be, the indeterminate life
       term to which he was originally sentenced. While [the Act] presents him
       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.)

       In People v. Blakely (2014) 225 Cal.App.4th 1042, 1059-1062 (Blakely), we
rejected the claim an inmate seeking resentencing pursuant to section 1170.126 had a
Sixth Amendment right to a jury determination, beyond a reasonable doubt, on the
question of conduct constituting a disqualifying factor. We concluded that Apprendi,
supra, 530 U.S. 466 and its progeny (e.g., Alleyne v. United States (2013) 570 U.S. ___

                                            13.
[133 S.Ct. 2151]; Cunningham v. California (2007) 549 U.S. 270 (Cunningham); Blakely
v. Washington (2004) 542 U.S. 296) “do not apply to a determination of eligibility for
resentencing under the Act.” (Blakely, supra, 225 Cal.App.4th at p. 1060.) We also
relied heavily on Kaulick.
       In rejecting application of the beyond a reasonable doubt standard, Kaulick
discussed the United States Supreme Court’s conclusion in Dillon v. United States (2010)
560 U.S. 817, 828 (Dillon), 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.”8 (Kaulick, supra, 215 Cal.App.4th at
p. 1304.) Kaulick found Dillon’s language applicable. Since the retrospective part of the
Act is not constitutionally required, but an act of lenity on the part of the electorate and
provides for a proceeding where the original sentence may be modified downward, any
facts found at such a proceeding, such as dangerousness, do not implicate Sixth
Amendment issues. Thus, there is no constitutional requirement that the facts be
established beyond a reasonable doubt. (Kaulick, supra, at pp. 1304-1305.)
       Although in Blakely, we applied Kaulick’s analysis to the initial determination of
eligibility for resentencing under the Act (Blakely, supra, 225 Cal.App.4th at p. 1061), it
applies equally to the issue whether resentencing the petitioner would pose an
unreasonable risk of danger to public safety. A denial of an inmate’s petition does not
increase the penalty to which that inmate is already subject, but instead removes the
inmate from the scope of an act of lenity on the part of the electorate to which he or she is
not constitutionally entitled. (Id. at p. 1062.) That the denial is based on a determination
of dangerousness does not change that conclusion.




8      Pepper v. United States (2011) 562 U.S. 476 [131 S.Ct. 1229] does not undermine
Dillon’s or Kaulick’s reliance thereon. Unlike Dillon, Pepper involved a plenary
resentencing after the defendant’s sentence had been set aside on appeal. (Pepper, supra,
562 U.S. at p. ___ [131 S.Ct. at p. 1236].)



                                             14.
        We hold preponderance of the evidence is the applicable standard of proof,
regardless whether we analyze the issue as one of Sixth Amendment jurisprudence or due
process. (See People v. Flores (2014) 227 Cal.App.4th 1070, 1076.)9
        This does not, however, mean the trial court must apply that standard in making its
ultimate determination whether to resentence a petitioner, or we must review that
determination for substantial evidence. Nor does it mean evidence of dangerousness
must preponderate over evidence of rehabilitation for resentencing to be denied.
        The language of section 1170.126, subdivision (f) expressly provides the petitioner
shall be resentenced unless the court, in its discretion, makes a determination that
resentencing would pose an unreasonable risk of danger. The statute does not say the
petitioner shall be resentenced unless the People prove resentencing would pose such a
risk.
        Considering the language of subdivisions (f) and (g) of section 1170.126, we
conclude the People have the burden of establishing, by a preponderance of the evidence,
facts from which a determination resentencing the petitioner would pose an unreasonable
risk of danger to public safety can reasonably be made. The reasons a trial court finds
resentencing would pose an unreasonable risk of danger, or its weighing of evidence
showing dangerousness versus evidence showing rehabilitation, lie within the court’s
discretion. The ultimate determination that resentencing would pose an unreasonable risk
of danger is a discretionary one. While the determination must be supported by facts
established by a preponderance, the trial court need not itself find an unreasonable risk of
danger by a preponderance of the evidence. (See In re Robert L., supra, 21 Cal.App.4th


9      We recognize that in the case of people who are involuntarily committed as
narcotics addicts or for analogous reasons, the California Supreme Court has found the
appropriate standard of proof to be beyond a reasonable doubt. (See, e.g., People v.
Thomas (1977) 19 Cal.3d 630, 637-638.) Defendant received the protections of that
standard of proof (and the right to a jury trial) at the time he was found to have suffered
his prior strike convictions, however. (People v. Nguyen (2009) 46 Cal.4th 1007, 1015;
People v. Towers (2007) 150 Cal.App.4th 1273, 1277.)



                                             15.
at pp. 1065-1067 [discussing abuse of discretion and preponderance of the evidence
standards].)
       Kaulick found the prosecution bears the burden of establishing “dangerousness”
by a preponderance of the evidence against a claim the Apprendi line of cases requires
proof beyond a reasonable doubt. (Kaulick, supra, 215 Cal.App.4th at pp. 1301-1302.)
As a result, it had no real occasion to address the interplay between the burden of proof
and the trial court’s exercise of discretion as that issue is presented here, or to clarify
whether the prosecution is required to establish “dangerousness” in the sense of facts
upon which the trial court can base the ultimate determination resentencing a petitioner
would pose an unreasonable risk of danger to public safety, or in the sense of establishing
that determination itself.10 Nevertheless, we believe it supports our interpretation.
       Such an interpretation is consistent with California’s noncapital sentencing
scheme. 11 Under the determinate sentencing law (DSL) as it existed prior to
Cunningham, “three terms of imprisonment [were] specified by statute for most offenses.
The trial court’s discretion in selecting among [those] options [was] limited by
section 1170, subdivision (b), which direct[ed] that ‘the court shall order imposition of
the middle term, unless there are circumstances in aggravation or mitigation of the
crime.’” (People v. Black (2007) 41 Cal.4th 799, 808, fn. omitted.) Trial courts had
“broad discretion” to impose the lower or upper term instead of the middle term of
imprisonment (People v. Scott (1994) 9 Cal.4th 331, 349), and generally were required by


10      As noted, ante, we have previously discussed Kaulick in the context of the initial
determination whether an inmate is eligible for resentencing under the Act. (Blakely,
supra, 225 Cal.App.4th at pp. 1058, 1060-1061; People v. Osuna, supra, 225 Cal.App.4th
at pp. 1033, 1039-1040.) Nothing we say here should be taken as disagreement with or
modification of those opinions. We deal here with a different aspect of the retrospective
portion of the Act and a subject not before us in our prior cases.
11     The determination of the appropriate penalty in a capital case “‘is “essentially
moral and normative …, and therefore … there is no burden of proof or burden of
persuasion. [Citation.]” [Citation.]’ [Citations.]” (People v. McKinzie (2012) 54
Cal.4th 1302, 1362.)



                                              16.
the statutes and sentencing rules to state reasons for their discretionary sentencing choices
(ibid.). Such reasons had to be “supported by a preponderance of the evidence in the
record” and reasonably related to the particular sentencing determination. (Ibid.; see
former Cal. Rules of Court, rule 4.420(b).) Even after the DSL was reformed and
amended in response to Cunningham, so as to eliminate judicial factfinding in selection
of the appropriate term when three possible prison terms are specified by statute,
establishment of facts by a preponderance of the evidence remains necessary with respect
to certain discretionary sentencing decisions. (See In re Coley (2012) 55 Cal.4th 524,
557-558.)12
       In People v. Sandoval (2007) 41 Cal.4th 825, 850-851, the California Supreme
Court stated that, in making its discretionary sentencing choices post-Cunningham, “the
trial court need only ‘state [its] reasons’ [citation]; it is not required to identify
aggravating and mitigating factors, apply a preponderance of the evidence standard, or
specify the ‘ultimate facts’ that ‘justify[] the term selected.’ [Citations.] Rather, the
court must ‘state in simple language the primary factor or factors that support the exercise
of discretion.’ [Citation.]” (Italics added.)
       The trial court’s ultimate determination when considering a petition for
resentencing under section 1170.126 is analogous to an evaluation of the relative weight
of mitigating and aggravating circumstances. Such an evaluation “is not equivalent to a
factual finding.” (People v. Black, supra, 41 Cal.4th at p. 814, fn. 4.) It follows, then,
that the trial court need not apply a preponderance of the evidence standard, in that it
need not find resentencing the petitioner would, more likely than not, pose an

12      After Cunningham concluded the DSL violated a defendant’s Sixth Amendment
right to a jury trial (Cunningham, supra, 549 U.S. at p. 281), the Legislature amended
section 1170 so that now “(1) the middle term is no longer the presumptive term absent
aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the
discretion to impose an upper, middle or lower term based on reasons he or she states.”
(People v. Wilson (2008) 164 Cal.App.4th 988, 992.) Subdivision (b) of section 1170
states the court “shall select the term which, in the court’s discretion, best serves the
interests of justice.”



                                                17.
unreasonable risk of danger to public safety. (See Kaulick, supra, 215 Cal.App.4th at
p. 1305, fn. 28 [preponderance standard means “‘more likely than not’”].)
          To summarize, a trial court need not determine, by a preponderance of the
evidence, that resentencing a petitioner would pose an unreasonable risk of danger to
public safety before it can properly deny a petition for resentencing under the Act. Nor is
the court’s ultimate determination subject to substantial evidence review. Rather, its
finding will be upheld if it does not constitute an abuse of discretion, i.e., if it falls within
“the bounds of reason, all of the circumstances being considered. [Citations.]” (People
v. Giminez (1975) 14 Cal.3d 68, 72.) The facts or evidence upon which the court’s
finding of unreasonable risk is based must be proven by the People by a preponderance of
the evidence, however, and are themselves subject to our review for substantial
evidence. 13 If a factor (for example, that the petitioner recently committed a battery, is
violent due to repeated instances of mutual combat, etc.) is not established by a
preponderance of the evidence, it cannot form the basis for a finding of unreasonable risk.
(See People v. Cluff (2001) 87 Cal.App.4th 991, 998 [trial court abuses its discretion
when factual findings critical to decision find no support in record]; cf. People v. Read
(1990) 221 Cal.App.3d 685, 689-691 [where trial court erroneously determined defendant
was statutorily ineligible for probation, reviewing court was required to determine
whether trial court gave sufficient other reasons, supported by facts of case, for probation
denial].)
     C.   SECTION 1170.126 DOES NOT ESTABLISH OR CONTAIN A PRESUMPTION A
          PETITIONER’S SENTENCE BE REDUCED.

          Defendant essentially argues, however, that sentence reduction under the Act is
now the rule, not the exception. This being the case, he says, trial courts have only



13     We agree with defendant that “substantial evidence,” not the significantly more
deferential “some evidence” standard applicable to review of executive branch decisions
in parole cases (see In re Rosenkrantz (2002) 29 Cal.4th 616, 658, 665), is the appropriate
appellate standard.



                                               18.
limited or “narrowly-circumscribed” discretion in denying relief on the ground of
unreasonable danger to public safety.
       First, defendant argues a section 1170.126 resentencing “is the converse of” a
Romero hearing and establishes a presumption that the life term be reduced to a second
strike sentence.
       In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the
California Supreme Court held that trial courts retain discretion to strike, in furtherance
of justice under section 1385, subdivision (a), prior felony conviction allegations in cases
brought under the three strikes law. (Romero, supra, at pp. 529-530.) The court
subsequently clarified, however, that in deciding whether to do so, “the court in question
must consider whether, in light of the nature and circumstances of his present felonies
and prior serious and/or violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside the scheme’s spirit, in
whole or in part, and hence should be treated as though he had not previously been
convicted of one or more serious and/or violent felonies.” (People v. Williams, supra, 17
Cal.4th at p. 161.)
       Because the three strikes law was intended to restrict trial courts’ discretion in
sentencing repeat offenders, the state high court determined there were “stringent
standards” sentencing courts must follow in order to find a defendant should be treated as
falling outside the three strikes scheme. (People v. Carmony, supra, 33 Cal.4th at
p. 377.) The court explained:

              “[T]he 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.

              “In light of this presumption, a trial court will only abuse its
       discretion in failing to strike a prior felony conviction allegation in limited
       circumstances. For example, an abuse of discretion occurs where the trial

                                             19.
       court was not ‘aware of its discretion’ to dismiss [citation], or where the
       court considered impermissible factors in declining to dismiss [citation].
       Moreover, ‘the sentencing norms [established by the Three Strikes law
       may, as a matter of law,] produce[] an “arbitrary, capricious or patently
       absurd” result’ under the specific facts of a particular case. [Citation.]

              “But ‘[i]t is not enough to show that reasonable people might
       disagree about whether to strike one or more’ prior conviction allegations.
       [Citation.] … Because the circumstances must be ‘extraordinary … by
       which a career criminal can be deemed to fall outside the spirit of the very
       scheme within which he squarely falls once he commits a strike as part of a
       long and continuous criminal record, the continuation of which the law was
       meant to attack’ [citation], the circumstances where no reasonable people
       could disagree that the criminal falls outside the spirit of the three strikes
       scheme must be even more extraordinary.” (People v. Carmony, supra, 33
       Cal.4th at p. 378.)
       As we explained in Blakely, supra, 225 Cal.App.4th at page 1054, “The 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 Act ‘diluted’ the three strikes law somewhat
[citation], ‘[e]nhancing public safety was a key purpose of the Act’ [citation].” Because
public safety remains a key purpose of the law under the Act, we reject defendant’s
assertion that a section 1170.126 proceeding is the converse of a Romero determination,
so that any refusal to resentence an eligible inmate must be subjected to the same
rigorous scrutiny as the granting of a Romero motion.14


14     Because a trial court can deny resentencing under section 1170.126,
subdivision (f), only upon a finding of unreasonable risk of danger to public safety, a trial
court would abuse its discretion, as in a Romero situation, by refusing to resentence a
petitioner because of antipathy toward the Act or a personal belief a particular defendant
deserved an indeterminate term for reasons other than dangerousness. (See People v.
Williams, supra, 17 Cal.4th at pp. 159, 161.)



                                             20.
       Second, defendant points to the syntax of section 1170.126, subdivision (f).
Relying on People v. Guinn (1994) 28 Cal.App.4th 1130, 1141-1142, 1145 and its
progeny (e.g., People v. Murray (2012) 203 Cal.App.4th 277, 282; People v. Ybarra
(2008) 166 Cal.App.4th 1069, 1089), all of which deal with section 190.5,
subdivision (b), defendant contends the “shall”/“unless” formulation employed in
subdivision (f) of section 1170.126 “establishes a presumption in favor of resentencing,
with a sentencing court’s discretion to depart from that generally mandatory prescription
narrowly circumscribed and reserved for extraordinary cases.”15 Because resentencing
an eligible petitioner to a second strike term is the “‘generally mandatory’ disposition,”
defendant argues, a trial court retains only “‘circumscribed’ discretion upon proof of an
‘unreasonable’ danger to ‘public safety’ to leave intact the more draconian punishment
that the … Act now abolishes.”
       The California Supreme Court recently disapproved the cases relied on by
defendant. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1370, 1387.) Leaving aside
constitutional questions raised by establishing a presumption in favor of life without
parole for juveniles after the United States Supreme Court’s opinion in Miller v. Alabama
(2012) 567 U.S. ___ [132 S.Ct. 2455], the state high court’s review of the text of
section 190.5, subdivision (b) led it to conclude the syntax is ambiguous concerning any
presumption. The court stated: “It is not unreasonable to read this text … 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


15     Section 190.5, subdivision (b) provides, in pertinent part: “The penalty for a
defendant found guilty of murder in the first degree, in any case in which one or more
special circumstances … has been found to be true …, who was 16 years of age or older
and under the age of 18 years at the time of the commission of the crime, 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.”



                                             21.
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[, subdivision ](b) does not clearly indicate whether the statute was intended
to make life without parole the presumptive sentence.” (People v. Gutierrez, supra, 58
Cal.4th at p. 1371.)
       The same example can be applied to the syntax of section 1170.126,
subdivision (f). Thus, we do not agree with defendant that resentencing to a second strike
term is the generally mandatory disposition, subject only to circumscribed discretion to
retain the indeterminate third strike term. A court considering whether to resentence an
eligible petitioner under section 1170.126, subdivision (f) has circumscribed discretion in
the sense it can only refuse to resentence if it finds that to do so would pose an
unreasonable risk of danger to public safety on the facts of the particular case before it.
This does not mean, however, its discretion is circumscribed in the sense it can only find
dangerousness in extraordinary cases. To the contrary, it can do so in any case in which
such a finding is rational under the totality of the circumstances.
       Such a conclusion comports with the plain language of the statute. Moreover, a
conclusion there is a strong presumption in favor of resentencing that will only be
overcome in an extraordinary case, due to the trial court’s circumscribed discretion,
would run directly contrary to the intent of the voters in passing the Act. (See People v.
Gutierrez, supra, 58 Cal.4th at pp. 1371-1372 [examining legislative history and voter
intent in attempt to resolve statutory ambiguity].) As we stated in People v. Osuna,
supra, 225 Cal.App.4th at page 1036, “‘[e]nhancing public safety was a key purpose of
the Act’ [citation].” Thus, although one purpose of the Act was to save taxpayer dollars
(People v. Osuna, supra, at p. 1037), “[i]t is clear the electorate’s intent was not to throw

                                             22.
open the prison doors to all third strike offenders whose current convictions were not for
serious or violent felonies, but only to those who were perceived as nondangerous or
posing little or no risk to the public.” (Id. at p. 1038, second italics added.) Had voters
intended to permit retention of an indeterminate term only in extraordinary cases, they
would have said so in subdivision (f) of section 1170.126, rather than employing
language that affords courts broad discretion to find dangerousness. They also would not
have afforded the court the power to consider any evidence it determined to be relevant to
the issue as they did in subdivision (g)(3) of the statute.
                                              II
                               THE TRIAL COURT’S RULING
       Applying the foregoing principles to the trial court’s ruling, we find no abuse of
discretion. Several of defendant’s assertions require brief discussion, however.
       First, defendant claims that, given the “strong basis” for his past behavior in his
mental illness coupled with substance abuse and his low intellectual ability, the trial court
“was required to explore the possibilities of placement for [defendant] upon resentencing
that could be available and which could address any concerns regarding unpredictability
due to his mental condition and low intellectual functioning before peremptorily
slamming the door under the Act .…” The terms of the court’s referral of the matter to
the probation department for a supplemental report and its consideration of the EIS report
show the court did indeed explore the possibilities of appropriate placement.
       Defendant appears to recognize this fact when he says “explorative efforts had
been made to identify a residential group setting to which [defendant] could be released
in which his life would be structured and supervised and he would receive support.” He
argues, however, that the problems found by Terrell (e.g., the likelihood defendant would
again abuse substances once released) would have been ameliorated if social services
could place defendant in a supervised, structured group home where he could be
monitored and receive appropriate support services. Defendant says: “That such

                                              23.
placement had not yet been found at the time of the hearing here did not mean that such
placement was forever unavailable”; hence, the trial court “was obliged to leave such
avenue open for a reasonable time.” But the section 1170.126 hearing had to be held at
some point or another. Moreover, it appears, from the EIS report, that even if an
appropriate placement could have been found, it would have taken several months for
defendant to be admitted, either because of space considerations or because he could not
afford to pay until his social security benefits were reinstated, something that could not
occur until he was released from prison. The problem here is that if defendant relapsed
— something Terrell, an expert, felt likely if defendant were simply released back into
the community — there was a strong probability defendant would not merely return to
property crimes, but would revert to the sort of violent behavior that had marred his past
and resulted in him being sentenced to a third strike term in the first place. Under the
circumstances, we do not believe the trial court was required to resentence him and then
cross its fingers.16
       Defendant also contends the trial court failed to credit the evidence defendant had
not used alcohol or drugs for the last 15 years, despite their wide availability in prison,
and that he was compliant with the prescribed treatment program for his mental illness.
Defendant also says the trial court failed to consider evidence with regard to the criteria
set out in section 1170.126, subdivision (g), such as the remoteness of defendant’s crimes
and his low classification score. These matters were, however, all before the court
through reports, the parties’ pleadings, or argument. That the court did not expressly


16     Had defendant been resentenced, he would have been subject to mandatory PRCS
upon release. (People v. Tubbs (2014) 230 Cal.App.4th 578, 585-586; People v.
Espinoza (2014) 226 Cal.App.4th 635, 637-638.) The trial court considered the
possibility of PRCS, however, and nothing in the record suggests such supervision would
have been sufficient to meet defendant’s needs so as to allay public safety concerns,
especially in light of Terrell’s conclusions.



                                             24.
mention them does not mean it failed to consider them and, in the absence of any
showing to the contrary, we presume it did so. (Evid. Code, § 664; see Denham v.
Superior Court (1970) 2 Cal.3d 557, 564; cf. People v. Sparks (1968) 262 Cal.App.2d
597, 600-601.)
       Finally, defendant contends that, in light of the Act’s express purpose of “a more
rational and cost-effective allocation of the crippling expenses of California’s prison
system,” trial courts are required to weigh fiscal considerations in deciding resentencing
petitions, something the trial court here did not do. In our view, the notion that the cost
of incarceration has some bearing on whether resentencing a particular inmate would
pose an unreasonable risk of danger to public safety is a non sequitur. Although saving
money is a goal of the Act, it does not override the primary purpose of the three strikes
law and the Act as a whole — the protection of public safety. (See People v. Osuna,
supra, 225 Cal.App.4th at pp. 1036-1038.) The trial court was not required to take the
cost of continued imprisonment into account or undertake the equivalent of a cost-benefit
analysis in determining whether resentencing defendant would pose an unreasonable risk
of danger to public safety; the Act already did so, and the electorate has determined
keeping criminals who pose an unreasonable risk of danger to public safety behind bars
for their full three strikes sentence is more important than saving money.
                                              III
                            SECTION 1170.18, SUBDIVISION (C)
       On November 4, 2014, voters enacted Proposition 47, “the Safe Neighborhoods
and Schools Act” (hereafter Proposition 47). It went into effect the next day. (Cal.
Const., art. II, § 10, subd. (a).) Insofar as is pertinent here, Proposition 47 renders
misdemeanors certain drug- and theft-related offenses that previously were felonies or
“wobblers,” unless they were committed by certain ineligible defendants. Proposition 47
also created a new resentencing provision — section 1170.18 — by which a person
currently serving a felony sentence for an offense that is now a misdemeanor, may

                                              25.
petition for a recall of that sentence and request resentencing in accordance with the
offense statutes as added or amended by Proposition 47. (§ 1170.18, subd. (a).) A
person who satisfies the criteria in subdivision (a) of section 1170.18 shall have his or her
sentence recalled and be “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.” (Id., subd. (b).)17
       Hidden in the lengthy, fairly abstruse text of the proposed law, as presented in the
official ballot pamphlet — and nowhere called to voters’ attention — is the provision at
issue in the present appeal. 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.”
Section 667, subdivision (e)(2)(C)(iv) lists the following felonies, sometimes called
“super strike” offenses:

              “(I) A ‘sexually violent offense’ as defined in subdivision (b) of
       Section 6600 of the Welfare and Institutions Code.

              “(II) Oral copulation with a child who is under 14 years of age, and
       who is more than 10 years younger than he or she as defined by Section
       288a, sodomy with another person who is under 14 years of age and more
       than 10 years younger than he or she as defined by Section 286, or sexual
       penetration with another person who is under 14 years of age, and who is
       more than 10 years younger than he or she, as defined by Section 289.

              “(III) A lewd or lascivious act involving a child under 14 years of
       age, in violation of Section 288.

              “(IV) Any homicide offense, including any attempted homicide
       offense, defined in Sections 187 to 191.5, inclusive.

17     Proposition 47 also created a process whereby eligible persons who have already
completed their sentences may have the particular conviction or convictions designated
as misdemeanors. (§ 1170.18, subds. (f), (g).)



                                                26.
              “(V) Solicitation to commit murder as defined in Section 653f.

              “(VI) Assault with a machine gun on a peace officer or firefighter, as
       defined in paragraph (3) of subdivision (d) of Section 245.

              “(VII) Possession of a weapon of mass destruction, as defined in
       paragraph (1) of subdivision (a) of Section 11418.

              “(VIII) Any serious and/or violent felony offense punishable in
       California by life imprisonment or death.”
       The question is whether section 1170.18, subdivision (c) now limits a trial court’s
discretion to deny resentencing under the Act to those cases in which resentencing the
defendant would pose an unreasonable risk he or she will commit a new “super strike”
offense. Defendant says it does. The People disagree. We agree with the People.18
       “‘In interpreting a voter initiative …, we apply the same principles that govern
statutory construction. [Citation.]’ [Citation.] ‘“The fundamental purpose of statutory
construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of
the law. [Citations.]”’ [Citation.]” (People v. Superior Court (Cervantes) (2014) 225
Cal.App.4th 1007, 1014.) Thus, in the case of a provision adopted by the voters, “their
intent governs. [Citations.]” (People v. Jones (1993) 5 Cal.4th 1142, 1146.)
       To determine intent, “‘we look first to the words themselves. [Citations.]’”
(People v. Superior Court (Cervantes), supra, 225 Cal.App.4th at p. 1014.) We give the
statute’s words “‘a plain and commonsense meaning. [Citation.] We do not, however,
consider the statutory language “in isolation.” [Citation.] Rather, we look to “the entire
substance of the statute … in order to determine the scope and purpose of the

18     We solicited supplemental briefing concerning Proposition 47. Among the
questions we asked counsel to answer were whether defendant met the criteria for
resentencing under section 1170.18 and, if so, whether we needed to determine the
applicability, if any, of section 1170.18, subdivision (c) to resentencing proceedings
under section 1170.126. We are satisfied it is appropriate for us to reach the issue of
applicability regardless of whether defendant might obtain resentencing under
Proposition 47.



                                            27.
provision .… [Citation.]” [Citation.] That is, we construe the words in question “‘in
context, keeping in mind the nature and obvious purpose of the statute .…’ [Citation.]”
[Citation.] We must harmonize “the various parts of a statutory enactment … by
considering the particular clause or section in the context of the statutory framework as a
whole.” [Citations.]’ [Citation.]” (People v. Acosta (2002) 29 Cal.4th 105, 112.) We
“accord[] significance, if possible, to every word, phrase and sentence in pursuance of the
legislative purpose. A construction making some words surplusage is to be avoided.…
[S]tatutes or statutory sections relating to the same subject must be harmonized, both
internally and with each other, to the extent possible. [Citations.]” (Dyna-Med, Inc. v.
Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.)
       “‘“When statutory language is clear and unambiguous, there is no need for
construction and courts should not indulge in it.” [Citation.]’ [Citation.]” (People v.
Hendrix (1997) 16 Cal.4th 508, 512.) On its face, “[a]s used throughout this Code,” as
employed in section 1170.18, subdivision (c), clearly and unambiguously refers to the
Penal Code, not merely section 1170.18 or the other provisions contained in
Proposition 47. (See People v. Bucchierre (1943) 57 Cal.App.2d 153, 164-165, 166; see
also Marshall v. Pasadena Unified School Dist. (2004) 119 Cal.App.4th 1241, 1254-
1255; People v. Vasquez (1992) 7 Cal.App.4th 763, 766.)
       This does not mean, however, that the definition contained in section 1170.18,
subdivision (c) must inexorably be read into section 1170.126, subdivision (f). (Cf.
Marshall v. Pasadena Unified School Dist., supra, 119 Cal.App.4th at p. 1255.) “The
literal language of a statute does not prevail if it conflicts with the lawmakers’ intent .…
[Citations.]” (People v. Osuna, supra, 225 Cal.App.4th at pp. 1033-1034.) “‘The
apparent purpose of a statute will not be sacrificed to a literal construction.’ [Citation.]”
(Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 733.) Rather, “the literal meaning
of a statute must be in accord with its purpose.” (People v. Mohammed (2008) 162
Cal.App.4th 920, 927.) “[I]t is settled that the language of a statute should not be given a

                                             28.
literal meaning if doing so would result in absurd consequences that the [voters] did not
intend” (In re Michele D. (2002) 29 Cal.4th 600, 606), or would “frustrate[] the manifest
purposes of the legislation as a whole .…” (People v. Williams (1992) 10 Cal.App.4th
1389, 1393.) “To this extent, therefore, intent prevails over the letter of the law and the
letter will be read in accordance with the spirit of the enactment. [Citation.]” (In re
Michele D., supra, 29 Cal.4th at p. 606; accord, People v. Ledesma (1997) 16 Cal.4th 90,
95.)
       Thus, “‘we look to a variety of extrinsic aids, including the ostensible objects to be
achieved, the evils to be remedied, the legislative history, public policy,
contemporaneous administrative construction, and the statutory scheme of which the
statute is a part. [Citations.]’ [Citation.] We also ‘“refer to other indicia of the voters’
intent, particularly the analyses and arguments contained in the official ballot pamphlet.”
[Citation.]’ [Citation.]” (People v. Osuna, supra, 225 Cal.App.4th at p. 1034.) We
consider “the consequences that will flow from a particular interpretation” (Dyna-Med,
Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at p. 1387), as well as “the
wider historical circumstances” of the statute’s or statutes’ enactment (ibid.). “‘Using
these extrinsic aids, we “select the construction that comports most closely with the
apparent intent of the [electorate], with a view to promoting rather than defeating the
general purpose of the statute, and avoid an interpretation that would lead to absurd
consequences.” [Citation.]’ [Citation.]” (People v. Osuna, supra, 225 Cal.App.4th at
pp. 1034-1035.)
       Proposition 47 and the Act address related, but not identical, subjects. As we
explain, reading them together, and considering section 1170.18, subdivision (c) in the
context of the statutory framework as a whole (see People v. Acosta, supra, 29 Cal.4th at
p. 112; Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 658-659; In re
Cindy B. (1987) 192 Cal.App.3d 771, 781), we conclude its literal meaning does not
comport with the purpose of the Act, and applying it to resentencing proceedings under

                                             29.
the Act would frustrate, rather than promote, that purpose and the intent of the electorate
in enacting both initiative measures (see People v. Disibio (1992) 7 Cal.App.4th Supp. 1,
5).
       As is evidenced by its title, the Act was aimed solely at revising the three strikes
law. That law, as originally enacted by the Legislature, was described by us as follows:

               “Under the three strikes law, defendants are punished not just for
       their current offense but for their recidivism. Recidivism in the
       commission of multiple felonies poses a danger to society justifying the
       imposition of longer sentences for subsequent offenses. [Citation.] The
       primary goals of recidivist statutes are: ‘… to deter repeat offenders and, at
       some point in the life of one who repeatedly commits criminal offenses
       serious enough to be punished as felonies, to segregate that person from the
       rest of society for an extended period of time. This segregation and its
       duration are based not merely on that person’s most recent offense but also
       on the propensities he has demonstrated over a period of time during which
       he has been convicted of and sentenced for other crimes. Like the line
       dividing felony theft from petty larceny, the point at which a recidivist will
       be deemed to have demonstrated the necessary propensities and the amount
       of time that the recidivist will be isolated from society are matters largely
       within the discretion of the punishing jurisdiction.’ [Citation.]

               “By enacting the three strikes law, the Legislature acknowledged the
       will of Californians that the goals of retribution, deterrence, and
       incapacitation be given precedence in determining the appropriate
       punishment for crimes. Further, those goals were best achieved by
       ensuring ‘longer prison sentences and greater punishment’ for second and
       third ‘strikers.’” (People v. Cooper (1996) 43 Cal.App.4th 815, 823-
       824.)19



19      The foregoing applies equally to the three strikes initiative measure that added
section 1170.12 to the Penal Code. The following statement of intent preceded the text of
the statute in Proposition 184, which was approved by voters on November 8, 1994: “‘It
is the intent of the People of the State of California in enacting this measure 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.’” (See Historical
and Statutory Notes, 50C West’s Ann. Pen. Code (2004 ed.) foll. § 1170.12, p. 239.)



                                             30.
       A few months before the November 6, 2012, election, the California Supreme
Court observed: “One aspect of the [three strikes] law that has proven controversial is
that the lengthy punishment prescribed by the law may be imposed not only when … a
defendant [who has previously been convicted of one or more serious or violent felonies]
is convicted of another serious or violent felony but also when he or she is convicted of
any offense that is categorized under California law as a felony. This is so even when the
current, so-called triggering, offense is nonviolent and may be widely perceived as
relatively minor. [Citations.]” (In re Coley, supra, 55 Cal.4th at pp. 528-529.)
       Clearly, by approving the Act, voters resolved this controversy in favor of strike
offenders. Thus, one of the “Findings and Declarations” of the Act stated the Act would
“[r]estore the Three Strikes law to the public’s original understanding by requiring life
sentences only when a defendant’s current conviction is for a violent or serious crime.”
(Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of proposed law, § 1, p. 105.)
Nowhere, however, do the ballot materials for the Act suggest voters intended essentially
to open the prison doors to existing third strike offenders in all but the most egregious
cases, as would be the result if the definition of “‘unreasonable risk of danger to public
safety’” contained in section 1170.18, subdivision (c) were engrafted onto resentencing
proceedings under section 1170.126, subdivision (f). That voters did not intend such a
result is amply demonstrated by the fact an indeterminate life term remains mandatory
under the Act for a wide range of current offenses even if the offender does not have a
prior conviction for a “super strike” offense (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)),
and that an inmate is rendered ineligible for resentencing under section 1170.126 for an
array of reasons beyond his or her having suffered such a prior conviction (§ 1170.126,
subd. (e)(2)).
       The Act clearly placed public safety above the cost savings likely to accrue as a
result of its enactment. Thus, uncodified section 7 of the Act provides: “This act is an
exercise of the public power of the people of the State of California for the protection of

                                             31.
the health, safety, and welfare of the people of the State of California, and shall be
liberally construed to effectuate those purposes.” (Voter Information Guide, Gen. Elec.
(Nov. 6, 2012), supra, text of proposed law, p. 110, original italics omitted, italics
added.) As we explained in People v. Osuna, supra, 225 Cal.App.4th at page 1036,
“Although the Act ‘diluted’ the three strikes law somewhat [citation], ‘[e]nhancing public
safety was a key purpose of the Act’ [citation].”
       In contrast, Proposition 47 — while titled “the Safe Neighborhoods and Schools
Act” — emphasized monetary savings. The “Findings and Declarations” state: “The
people of the State of California find and declare as follows: [¶] The people enact the
Safe Neighborhoods and Schools Act to ensure that prison spending is focused on violent
and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to
invest the savings generated from this act into prevention and support programs in K-12
schools, victim services, and mental health and drug treatment. This act ensures that
sentences for people convicted of dangerous crimes like rape, murder, and child
molestation are not changed.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text
of proposed law, § 2, p. 70.) Uncodified section 15 of the measure provides: “This act
shall be broadly construed to accomplish its purposes,” while uncodified section 18
states: “This act shall be liberally construed to effectuate its purposes.” (Voter
Information Guide, Gen. Elec. (Nov. 4, 2014), supra, text of proposed law, p. 74.)
Proposition 47 requires misdemeanor sentences for various drug possession and property
offenses, unless the perpetrator has a prior conviction for a “super strike” offense or for
an offense requiring sex offender registration pursuant to section 290, subdivision (c).
(Health & Saf. Code, §§ 11350, subd. (a), 11357, subd. (a), 11377, subd. (a); §§ 459.5,
subd. (a), 473, subd. (b), 476a, subd. (b), 490.2, subd. (a), 496, subd. (a), 666, subd. (b).)
Section 1170.18 renders ineligible for resentencing only those inmates whose current
offense would now be a misdemeanor, but who have a prior conviction for a “super



                                              32.
strike” offense or for an offense requiring sex offender registration pursuant to
section 290, subdivision (c). (§ 1170.18, subds. (a), (i).)
       Nowhere in the ballot materials for Proposition 47 were voters given any
indication that initiative, which dealt with offenders whose current convictions would
now be misdemeanors rather than felonies, had any impact on the Act, which dealt with
offenders whose current convictions would still be felonies, albeit not third strikes. For
instance, the Official Title and Summary stated, in pertinent part, that Proposition 47
would “[r]equire[] resentencing for persons serving felony sentences for these offenses[,
i.e., offenses that require misdemeanor sentences under the measure] unless court finds
unreasonable public safety risk.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014),
supra, official title and summary, p. 34.) In explaining what Proposition 47 would do,
the Legislative Analyst stated: “This measure reduces penalties for certain offenders
convicted of nonserious and nonviolent property and drug crimes. This measure also
allows certain offenders who have been previously convicted of such crimes to apply for
reduced sentences.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra,
analysis of Prop. 47 by Legis. Analyst, p. 35, italics added.) With respect to the
resentencing provision, the Legislative Analyst explained:

               “This measure allows offenders currently serving felony sentences
       for the above crimes[, i.e., grand theft, shoplifting, receiving stolen
       property, writing bad checks, check forgery, and drug possession] to apply
       to have their felony sentences reduced to misdemeanor sentences. In
       addition, certain offenders who have already completed a sentence for a
       felony that the measure changes could apply to the court to have their
       felony conviction changed to a misdemeanor. However, no offender who
       has committed a specified severe crime could be resentenced or have their
       conviction changed. In addition, the measure states that a court is not
       required to resentence an offender currently serving a felony sentence if the
       court finds it likely that the offender will commit a specified severe crime.
       Offenders who are resentenced would be required to be on state parole for
       one year, unless the judge chooses to remove that requirement.” (Id. at
       p. 36, italics added.)



                                             33.
       Similarly, the arguments in favor of and against Proposition 47 spoke in terms
solely of Proposition 47, and never mentioned the Act. The Argument in Favor of
Proposition 47 spoke in terms of prioritizing serious and violent crime so as to stop
wasting prison space “on petty crimes,” stop “wasting money on warehousing people in
prisons for nonviolent petty crimes,” and stop California’s overcrowded prisons from
“incarcerating too many people convicted of low-level, nonviolent offenses.” (Voter
Information Guide, Gen. Elec. (Nov. 4, 2014), supra, argument in favor of Prop. 47,
p. 38.) The Rebuttal to Argument Against Proposition 47 reiterated these themes, and
never suggested Proposition 47 would have any effect on resentencing under the Act.
(See Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, rebuttal to argument
against Prop. 47, p. 39.) Although the Rebuttal to Argument in Favor of Proposition 47
asserted 10,000 inmates would be eligible for early release under the measure, and that
many of them had prior convictions “for serious crimes, such as assault, robbery and
home burglary” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, rebuttal to
argument in favor of Prop. 47, p. 38), there is no suggestion the early release provisions
would extend to inmates whose current offenses remained felonies under the Act. The
same is true of the discussion of resentencing contained in the Argument Against
Proposition 47. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, argument
against Prop. 47, p. 39.)
       In light of the foregoing, we cannot reasonably conclude voters intended the
definition of “‘unreasonable risk of danger to public safety’” contained in
section 1170.18, subdivision (c) to apply to that phrase as it appears in section 1170.126,
subdivision (f), despite the former section’s preamble, “As used throughout this
Code .…” Voters cannot intend something of which they are unaware.
       We are cognizant one of the Act’s authors has taken the position Proposition 47’s
definition of “unreasonable risk of danger” applies to resentencing proceedings under the
Act. (St. John & Gerber, Prop. 47 Jolts Landscape of California Justice System (Nov. 5,

                                            34.
2014) L.A. Times <http://www.latimes.com/local/politics/la-me-ff-pol-proposition47-
20141106-story.html> [as of Jan. 30, 2015].) Looking at the information conveyed to
voters, however, this clearly was not their intent and so an author’s desire is of no import.
(Cf. People v. Garcia (2002) 28 Cal.4th 1166, 1175-1176, fn. 5; People v. Bradley (2012)
208 Cal.App.4th 64, 83; Kaufman & Broad Communities, Inc. v. Performance Plastering,
Inc. (2005) 133 Cal.App.4th 26, 30.)
       We are also mindful “it has long been settled that ‘[t]he enacting body is deemed
to be aware of existing laws and judicial constructions in effect at the time legislation is
enacted’ [citation], ‘and to have enacted or amended a statute in light thereof’ [citation].
‘This principle applies to legislation enacted by initiative. [Citation.]’ [Citation.]”
(People v. Superior Court (Cervantes), supra, 225 Cal.App.4th at p. 1015; accord, In re
Lance W. (1985) 37 Cal.3d 873, 890, fn. 11.) Thus, we presume voters were aware
“unreasonable risk of danger to public safety,” as used in section 1170.126,
subdivision (f), had been judicially construed as not being impermissibly vague, but as
nevertheless having no fixed definition. (People v. Garcia (2014) 230 Cal.App.4th 763,
769-770; People v. Flores, supra, 227 Cal.App.4th at p. 1075.) Because nowhere in the
ballot materials for Proposition 47 was it called to voters’ attention the definition of the
phrase contained in section 1170.18, subdivision (c) would apply to resentencing
proceedings under the Act, we simply cannot conclude voters intended Proposition 47 to
alter the Act in that respect. Voters are not asked or presumed to be able to discern all
potential effects of a proposed initiative measure; this is why they are provided with voter
information guides containing not only the actual text of such a measure, but also a
neutral explanation and analysis by the Legislative Analyst and arguments in support of
and in opposition to the measure. As we have already observed, none of those materials
so much as hinted that Proposition 47 could have the slightest effect on resentencing
under the Act. (Cf. Marshall v. Pasadena Unified School Dist., supra, 119 Cal.App.4th



                                             35.
at pp. 1255-1256 [legislative history of enactment included information bill would add
definition of particular term to Public Contract Code].)20
       We are asked to infer an intent to extend section 1170.18, subdivision (c)’s
definition to proceedings under section 1170.126 because the phrase in question only
appears in those sections of the Penal Code. We cannot do so. The only resentencing
mentioned in the Proposition 47 ballot materials was resentencing for inmates whose
current offenses would be reduced to misdemeanors, not those who would still warrant
second strike felony terms. There is a huge difference, both legally and in public safety
risked, between someone with multiple prior serious and/or violent felony convictions
whose current offense is (or would be, if committed today) a misdemeanor, and someone
whose current offense is a felony. Accordingly, treating the two groups differently for
resentencing purposes does not lead to absurd results, but rather is eminently logical.
       We recognize “[i]t is an established rule of statutory construction … that when
statutes are in pari materia similar phrases appearing in each should be given like
meanings. [Citations.]” (People v. Caudillo (1978) 21 Cal.3d 562, 585, overruled on
another ground in People v. Martinez (1999) 20 Cal.4th 225, 229, 237, fn. 6 &
disapproved on another ground in People v. Escobar (1992) 3 Cal.4th 740, 749-751 &
fn. 5; see Robbins v. Omnibus R. Co. (1867) 32 Cal. 472, 474.) We question whether
Proposition 47 and the Act are truly in pari materia: That phrase means “[o]n the same
subject; relating to the same matter” (Black’s Law Dict. (9th ed. 2009) p. 862), and the
two measures (albeit with some overlap) address different levels of offenses and
offenders. In any event, “canons of statutory construction are merely aids to ascertaining

20     For the same reasons, we reject any suggestion the definition contained in
section 1170.18, subdivision (c) was intended to clarify the true meaning of
“unreasonable risk of danger to public safety” as used in section 1170.126,
subdivision (f). (Cf. Re-Open Rambla, Inc. v. Board of Supervisors (1995) 39
Cal.App.4th 1499, 1511; In re Connie M. (1986) 176 Cal.App.3d 1225, 1238.)



                                            36.
probable legislative intent” (Stone v. Superior Court (1982) 31 Cal.3d 503, 521, fn. 10);
they are “mere guides and will not be applied so as to defeat the underlying legislative
intent otherwise determined [citation]” (Dyna-Med, Inc. v. Fair Employment & Housing
Com., supra, 43 Cal.3d at p. 1391).
       The Act was intended to reform the three strikes law while keeping intact that
scheme’s core commitment to public safety. Allowing trial courts broad discretion to
determine whether resentencing an eligible petitioner under the Act “would pose an
unreasonable risk of danger to public safety” (§ 1170.126, subd. (f)) clearly furthers the
Act’s purpose. Whatever the wisdom of Proposition 47’s policy of near-universal
resentencing where misdemeanants are concerned — and “[i]t is not for us to gainsay the
wisdom of this legislative choice” (Bernard v. Foley (2006) 39 Cal.4th 794, 813) —
constraining that discretion so that all but the worst felony offenders are released
manifestly does not, nor does it comport with voters’ intent in enacting either measure.
       Accordingly, Proposition 47 has no effect on defendant’s petition for resentencing
under the Act. Defendant is not entitled to a remand so the trial court can redetermine
defendant’s entitlement to resentencing under the Act utilizing the definition of
“‘unreasonable risk of danger to public safety’” contained in section 1170.18,
subdivision (c).21

21      Recently, the Third District Court of Appeal held section 1170.18,
subdivision (c)’s definition of “‘unreasonable risk of danger to public safety’” does not
apply retroactively to defendants whose petitions for resentencing under the Act were
decided before the effective date of Proposition 47. (People v. Chaney (2014) 231
Cal.App.4th 1391, 1395-1396, petn. for review pending, petn. filed Jan. 8, 2015.)
Chaney did not decide whether Proposition 47’s definition applies prospectively to such
petitions. (Chaney, supra, at p. 1397, fn. 3.) Were we to conclude section 1170.18,
subdivision (c) modifies section 1170.126, subdivision (f), we would agree with Chaney
that it does not do so retroactively. We believe, however, that a finding of
nonretroactivity inexorably leads to the possibility of prospective-only application, and
that prospective-only application of Proposition 47’s definition to resentencing
petitions under the Act would raise serious, perhaps insurmountable, equal protection


                                             37.
                                     DISPOSITION
       The judgment is affirmed.



                                                                _____________________
                                                                          DETJEN, J.
I CONCUR:


 _____________________
 LEVY, Acting P.J.




issues. “Mindful of the serious constitutional questions that might arise were we to
accept a literal construction of the statutory language, and of our obligation wherever
possible both to carry out the intent of the electorate and to construe statutes so as to
preserve their constitutionality [citations]” (People v. Skinner (1985) 39 Cal.3d 765, 769),
we rest our holding on the reasoning set out in our opinion, ante.



                                            38.
PEÑA, J.,
       I concur in the judgment and the majority opinion with the exception of part III. I
agree defendant Ernest Lee Allen may not take advantage of Proposition 47’s1 newly
enacted definition of “unreasonable risk of danger to public safety,” as provided in Penal
Code section 1170.18, subdivision (c) (1170.18(c)). I do so not because there is any
ambiguity in the language used in section 1170.18(c) or the notion that the statute does
not mean what it says, i.e., that the new definition applies “throughout this Code.”
Rather, in my view, there is no indication the electorate, in enacting section 1170.18(c),
intended it to apply retroactively to resentencing determinations under Proposition 36, the
Three Strikes Reform Act of 2012 (the Act).
I.     After November 4, 2014, the definition of “unreasonable risk of danger” in
       Section 1170.18(c) applies throughout the Penal Code
       Section 1170.18(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.”
       This section and subdivision were enacted on November 4, 2014, when California
voters passed Proposition 47, long past the time of defendant’s resentencing hearing.
Unless the legislation was designed or intended to apply retroactively, the definition in
section 1170.18(c) cannot apply to defendant. This is the only inquiry we must make to
resolve the issue of whether the definition in section 1170.18(c) applies to defendant.
However, the majority has opted to determine whether the new definition applies to any
resentencing provisions under the Act, past, present, or future. I respectfully disagree
with the majority’s analysis and conclusion on this broader issue.


1The Safe Neighborhood and Schools Act (Prop. 47, as approved by voters, Gen. Elec.
(Nov. 4, 2014)).
               “‘When construing a statute, we must “ascertain the intent of the
       Legislature so as to effectuate the purpose of the law.”’ [Citations.] ‘[W]e
       begin with the words of a statute and give these words their ordinary
       meaning.’ [Citation.] ‘If the statutory language is clear and unambiguous,
       then we need go no further.’ [Citation.] If, however, the language supports
       more than one reasonable construction, we may consider ‘a variety of
       extrinsic aids, including the ostensible objects to be achieved, the evils to
       be remedied, the legislative history, public policy, contemporaneous
       administrative construction, and the statutory scheme of which the statute is
       a part.’ [Citation.] Using these extrinsic aids, we ‘select the construction
       that comports most closely with the apparent intent of the Legislature, with
       a view to promoting rather than defeating the general purpose of the statute,
       and avoid an interpretation that would lead to absurd consequences.’
       [Citation.]” (People v. Sinohui (2002) 28 Cal.4th 205, 211-212.)
       Where the statutory language is so clear and unambiguous, there is no need for
statutory construction or to resort to legislative materials or other outside sources.
(Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366, 1371.) Absent ambiguity, it is
presumed the voters intend the meaning apparent on the face of an initiative measure, and
the courts may not add to the statute or rewrite it to conform to a presumed intent not
apparent in its language. (People v. ex rel. Lungren v. Superior Court (1996) 14 Cal.4th
294, 301.)
       In determining whether the words enacted here are unambiguous, we do not write
on a blank slate. For example, in Marshall v. Pasadena Unified School Dist. (2004) 119
Cal.App.4th 1241, 1255, the court stated there “is nothing ambiguous about the phrase
‘as used in this code.’” It held the definition of “Emergency, as used in this code”
applied to the entire Public Contract Code, and it was not limited to a particular chapter,
article, or division of that code. Also, in People v. Bucchierre (1943) 57 Cal.App.2d 153,
166, the court held: “The words ‘as in this code provided’ (Penal Code, § 182) refer to
the Penal Code.”
       In a similar vein, the court in People v. Leal (2004) 33 Cal.4th 999, 1007-1008,
applied the plain meaning rule as follows:




                                              2.
               “The statutory language of the provision defining ‘duress’ in each of
       the rape statutes is clear and unambiguous. The definition of ‘duress’ in
       both the rape and spousal rape statutes begins with the phrase, ‘As used in
       this section, “duress” means ….’ (§§ 261, subd. (b), 262, subd. (c).) This
       clear language belies any legislative intent to apply the definitions of
       ‘duress’ in the rape and spousal rape statutes to any other sexual offenses.

              “Starting from the premise that in 1990 the Legislature incorporated
       into the rape statute a definition of ‘duress’ that already was in use for other
       sexual offenses, defendant argues that the Legislature must have intended
       its 1993 amendment of the definition of ‘duress’ in the rape statute, and the
       incorporation of this new definition into the spousal rape statute, to apply as
       well to other sexual offenses that use the term ‘duress.’ Defendant
       observes: ‘The legislative history does not suggest any rationale for why
       the Legislature would want its 1993 amendment of the definition of
       “duress” to apply only to rape so that it would have one meaning when the
       rape statutes use the phrase “force, violence, duress, menace, or fear of
       immediate and unlawful bodily injury” but another, much more expansive
       meaning when the identical phrase is used in the statutes defining sodomy,
       lewd acts on a child, oral copulation and foreign object rape.’

               “But the Legislature was not required to set forth its reasons for
       providing a different definition of ‘duress’ for rape and spousal rape than
       has been used in other sexual offenses; it is clear that it did so. ‘When
       “‘statutory language is … clear and unambiguous there is no need for
       construction, and courts should not indulge in it.’” [Citations.] The plain
       meaning of words in a statute may be disregarded only when that meaning
       is “‘repugnant to the general purview of the act,’ or for some other
       compelling reason ….” [Citations.]’ [Citation.] As we said in an
       analogous situation: ‘It is our task to construe, not to amend, the statute.
       “In the construction of a statute … the office of the judge is simply to
       ascertain and declare what is in terms or in substance contained therein, not
       to insert what has been omitted or omit what has been inserted ….”
       [Citation.] We may not, under the guise of construction, rewrite the law or
       give the words an effect different from the plain and direct import of the
       terms used.’ [Citation.]”
       The majority pays lip service to the plain meaning rule and then ignores it. While
acknowledging the language used is unambiguous, it nonetheless engages in statutory
construction to determine whether the electorate really intended to say what it actually
enacted. The end result is a rewriting of the statute so that it comports with the majority’s



                                              3.
view of what the voters really intended. The majority has rewritten section 1170.18(c) so
that it now states: “As used in this section only, ‘unreasonable risk of danger to public
safety’ means ….” The majority does so without providing a compelling reason to do so
and without showing the plain language used has a “‘meaning [that] is “‘repugnant to the
general purview of the act.’”’” (People v. Leal, supra, 33 Cal.4th at p. 1008.) Because
the Act had not previously defined the phrase “unreasonable risk of danger to public
safety,” the definition in section 1170.18(c) cannot be repugnant or contradictory to the
Act, nor does the majority claim the definition is repugnant to the general purview of
Proposition 47. For these reasons, I respectfully disagree with the majority on this part of
the opinion.
II.    Section 1170.18(c) has no application to defendant’s resentencing under the
       Act
       I do concur in the result because there is nothing in Proposition 47 to indicate the
definition enacted under section 1170.18(c) is to be applied retroactively to defendant
under the Act.
       I begin my analysis with section 3 of the Penal Code, which provides that “[n]o
part of it is retroactive, unless expressly so declared.” “Whether a statute operates
prospectively or retroactively is, at least in the first instance, a matter of legislative intent.
When the Legislature has not made its intent on the matter clear,” section 3 provides the
default rule. (People v. Brown (2012) 54 Cal.4th 314, 319.) Proposition 47 is silent on
the question of whether it applies retroactively to proceedings under the Act. The
analysis of Proposition 47 by the legislative analyst and the arguments for and against
Proposition 47 are also silent on this question. (Voter Information Guide, Gen. Elec.
(Nov. 4, 2014) pp. 34-39.) Because the statute contains no express declaration that
section 1170.18(c) applies retroactively to proceedings under the Act, and there is no
clearly implied intent of retroactivity in the legislative history, the default rule applies.




                                                4.
       Defendant cites In re Estrada (1965) 63 Cal.2d 740 to argue retroactive
application.
       In Estrada, the court stated:

       “When the Legislature amends a statute so as to lessen the punishment it
       has obviously expressly determined that its former penalty was too severe
       and that a lighter punishment is proper as punishment for the commission
       of the prohibited act. It is an inevitable inference that the Legislature must
       have intended that the new statute imposing the new lighter penalty now
       deemed to be sufficient should apply to every case to which it
       constitutionally could apply. The amendatory act imposing the lighter
       punishment can be applied constitutionally to acts committed before its
       passage provided the judgment convicting the defendant of the act is not
       final. This intent seems obvious, because to hold otherwise would be to
       conclude that the Legislature was motivated by a desire for vengeance, a
       conclusion not permitted in view of modern theories of penology.” (In re
       Estrada, supra, 63 Cal.2d at p. 745.)
       One may argue that under the Estrada case, unless there is a “savings clause”
providing for prospective application, a statute lessening punishment is presumed to
apply to all cases not yet reduced to a final judgment on the statute’s effective date. (In
re Estrada, supra, 63 Cal.2d at pp. 744-745, 747-748.) However, the Estrada case has
been revisited by our Supreme Court on several occasions. In People v. Brown, supra, 54
Cal.4th at page 324 the court stated: “Estrada is today properly understood, not as
weakening or modifying the default rule of prospective operation codified in [Penal
Code] 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.” “The
holding in Estrada was founded on the premise that ‘“[a] legislative mitigation of the
penalty for a particular crime represents a legislative judgment that the lesser penalty or
the different treatment is sufficient to meet the legitimate ends of the criminal law.”’”
(Id. at p. 325.) In Brown, the court did not apply the Estrada rule because “a statute
increasing the rate at which prisoners may earn credits for good behavior does not


                                             5.
represent a judgment about the needs of the criminal law with respect to a particular
criminal offense, and thus does not support an analogous inference of retroactive intent.”
(People v. Brown, supra, at p. 325.)
       Similarly here, Estrada does not control because applying the definition of
“unreasonable risk to public safety” in Proposition 47 to petitions for resentencing under
the Act does not reduce punishment for a particular crime. 2 Instead, the downward
modification of a sentence authorized by the Act is dependent not just on the current
offense but on any number of unlimited factors related to the individual offender,
including criminal conviction history, disciplinary and rehabilitation records, and “[a]ny
other evidence the court, within its discretion, determines to be relevant in deciding
whether a new sentence would result in an unreasonable risk of danger to public safety.”
(Pen. Code, § 1170.126, subd. (g)(3).)
       Because section 1170.18(c)’s definition of “unreasonable risk of danger to public
safety” does not apply retroactively to the Act, the sentencing court applied the correct
standard in exercising its discretion to not resentence defendant.3 Since defendant has
failed to show an abuse of that discretion, I concur in the majority’s affirmance of the
judgment.

                                                         ___________________________
                                                                             PEÑA, J.




2For this reason, Holder v. Superior Court (1969) 269 Cal.App.2d 314, also relied upon
by defendant, does not apply because its analysis and conclusion were based on Estrada
prior to its clarification by subsequent California Supreme Court cases.
3Recently  in People v. Chaney (2014) 231 Cal.App.4th 1391, the Third District Court of
Appeal held the definition of “unreasonable risk of danger to public safety” as provided
in section 1170.18(c) does not apply retroactively. I agree.



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