Filed 8/11/14 P. v. Escobedo CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                   2d Crim. No. B251093
                                                                            (Super. Ct. No. CR38966)
     Plaintiff and Respondent,                                                  (Ventura County)

v.

LUPE GONZALES ESCOBEDO,

     Defendant and Appellant.



                   Lupe Gonzales Escobedo appeals an order denying his petition for
resentencing under Penal Code section 1170.1261 of the Three Strikes Reform Act of
2012 (§§ 667, 1170.12, 1170.126; Prop. 36, as approved by voters, Gen. Elec. (Nov. 6,
2012).) Escobedo contends that he is entitled to resentencing because the People did not
prove beyond a reasonable doubt that he poses an unreasonable risk of danger to the
public if released. We conclude that a lower sentence modification under section
1170.126 of the Three Strikes Reform Act does not implicate Sixth Amendment
concerns. We affirm.




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    All statutory references are to the Penal Code unless otherwise stated.
                      FACTUAL AND PROCEDURAL HISTORY
              Escobedo is serving a term of 50 years to life under the three strikes law for
a 1998 conviction upon plea of guilty to two counts of receiving stolen property. (§ 496,
subd. (a).) Escobedo's criminal history include serious and violent felony convictions.
              Escobedo petitioned the trial court to recall his sentence and to resentence
him as a second strike offender under section 1170.126. The People opposed the petition.
The court conducted a hearing in which it received evidence of Escobedo's criminal
history and his conduct while incarcerated. It also heard testimony from Escobedo and
three other witnesses about his reform.
              The trial court found that Escobedo is eligible to be considered for
resentencing because he is serving an indeterminate term under the three strikes law and
his current sentence was not imposed for a serious or violent felony. (§ 1170.126, subd.
(e).) But the court exercised its discretion not to resentence Escobedo because it found
that he would pose an unreasonable risk of danger to public safety. (Id. subd. (f).) The
court explained its reasons in a written decision. It expressed concern about Escobedo's
serious and violent criminal conviction history and his lengthy record of discipline while
incarcerated. The trial court concluded that, "the People have proven, by a
preponderance of the evidence, that the defendant poses an unreasonable risk of danger to
the public safety should he be released. If the correct standard of proof in a petition such
as this is proof beyond a reasonable doubt, the court would not find that the People have
met their burden."
                                      DISCUSSION
                               The Three Strikes Reform Act
              Under the three strikes law as it existed before Proposition 36, a defendant
convicted of two prior serious or violent felonies was subject to a sentence of 25 years to
life upon conviction of any third felony. The Three Strikes Reform Act of 2012 reduces
punishment for certain non-violent third-strike offenders. Prisoners such as Escobedo,
who are currently serving an indeterminate sentence for a third felony conviction which


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was not a serious or violent felony, may seek resentencing as a second strike offender to a
determinate term. (§ 1170.126.)
               Upon such petition, the trial court determines whether the inmate is eligible
to be considered for resentencing. It is undisputed that Escobedo is eligible. When a
petitioner is eligible, the trial court must decide whether resentencing the petitioner poses
an unreasonable risk to public safety. (§ 1170.126, subd. (f).)
                                       Standard of Review
               The electorate entrusted to the trial court's sound discretion the question
whether resentencing poses an unreasonable risk to public safety. Section 1170.126,
subdivision (f) provides that the petitioner "shall be" resentenced as a second striker
"unless the court, in its discretion, determines that resentencing the petitioner would pose
an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).) In exercising
its discretion, the trial court may consider "the petitioner's criminal conviction history . . .
[¶] . . . disciplinary record . . . [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." (Id., subd. (g)(1)-(3).)
               The trial court's discretion to resentence under section 1170.126 is akin to
other sentencing decisions. A trial court has "discretion to make numerous other
sentencing choices, such as whether to grant or deny probation, impose consecutive
sentences, or strike the punishment for an enhancement." (People v Sandoval (2007) 41
Cal.4th 825, 850.) An appellant who attempts to show abuse of such discretion bears a
heavy burden to show the court's decision was arbitrary, capricious or exceeded the
bounds of reason. (People v. Welch (1993) 5 Cal.4th 228, 234 [decision whether to grant
probation].)
                        The Trial Court Did Not Abuse Its Discretion
               The trial court exercised its discretion not to resentence Escobedo in the
manner prescribed by section 1170.126. It "plac[ed] emphasis on Mr. Escobedo's
criminal history and his history of bad conduct while in prison." It noted Escobedo's
"weapons and drug violations in 2001, 2002 and 2003" and observed that his prior strike

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convictions "were numerous and involved threats of death to multiple victims." The
People met their burden to convince the trial court of these facts by a preponderance of
the evidence. (Evid. Code, § 115.) No more was required.
              The current conviction was not serious or violent, but the court expressed
concern that "at the time of his arrest, Mr. Escobedo told the arresting officers it was
good that they prevented him from getting to the shotgun in the motel room in which he
had been staying, since he had little to lose by killing an officer, given his status as a
person subject to the [three] strikes law. This has not changed. Should Mr. Escobedo be
released and then be subject to rearrest on a new, three strike case, the logic he set forth
in 1997 still holds."
              The trial court acknowledged that Escobedo's last serious disciplinary
violation was in 2003 "where he was using intravenous narcotics in the shower," but
discredited Escobedo's testimony that he was a "changed man." The court noted that
Escobedo had "two write-ups in 2011 for disobeying staff" and that "the petitioner's
attitude toward staff which led to the latest violations is of great concern."
                        No Proof To Jury Beyond A Reasonable Doubt
              We reject Escobedo's contention that "unreasonable risk of danger to public
safety" is a fact that must be pled and proved to a jury beyond a reasonable doubt. We
agree with People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1285.
              Any fact that increases the penalty for a crime beyond the statutory
maximum must be proved to a jury beyond a reasonable doubt in order to satisfy the
Sixth Amendment right to a jury trial. (Apprendi v. New Jersey (2000) 530 U.S. 466,
490; Alleyne v. U.S. (2013) __ U.S. __ [133 S.Ct. 2151].) But this constraint applies only
to a fact that is "legally essential to punishment." (Blakely v. Washington (2004) 542
U.S. 296, 313.) It does not, however, apply to a proceeding in which a trial court may, in
its discretion, modify downward a properly imposed sentence. (Dillon v. United States
(2010) 560 U.S. 817, 828-829; Kaulick, supra, 215 Cal.App.4th 1279 [decision whether
resentencing would pose "unreasonable risk of danger" for purposes of section 1170.126,
subdivision (f) does not implicate Sixth Amendment rights]; see People v. Osuna (2014)

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225 Cal.App.4th 1020, 1038 [decision whether a petitioner was armed with a firearm
during the current offense and is therefore ineligible for resentencing under section
1170.126, subdivision (e), does not implicate Sixth Amendment rights]; accord People v.
Blakely (2014) 225 Cal.App.4th 1042, 1063.)
              Like the petitioner in Kaulick, Escobedo contends that the Three Strikes
Reform Act establishes a new statutory maximum penalty for eligible petitioners–a
second strike sentence. He points out that the presumptive outcome for an eligible
petitioner under section 1170.126 is resentencing, "unless" the court finds unreasonable
risk. He contends the factor "unreasonable risk" increases the new statutory maximum
and therefore implicates Sixth Amendment rights. We reject the contention for the same
reasons expressed by our colleagues in Division Three. (Kaulick, supra, 215 Cal.App.4th
at pp. 1301-1303.)
              Escobedo is serving a lawful statutory sentence of 50 years to life based on
facts he either admitted or were proven to a jury beyond a reasonable doubt. "[T]he
factual finding at issue [does not] increase[] the maximum potential penalty for the
offense." (People v. Towne (2008) 44 Cal.4th 63, 77.) The resentencing provision of the
Three Strikes Reform Act is an act of lenity on the part of the electorate. "It does not
provide for wholesale resentencing of eligible petitioners. Instead, it provides for a
proceeding where the original sentence may be modified downward." (Kaulick, supra,
215 Cal.App.4th at pp. 1304-1305.) These proceedings do not implicate Sixth
Amendment concerns.
                     Section 1170.126 Is Not Unconstitutionally Vague
              The phrase "unreasonable risk of danger to public safety" as used in section
1170.126 is not unconstitutionally vague. A statute is void for vagueness only if "persons
of common intelligence must . . . guess [as to] its meaning and differ as to its
application[s]." (Schweitzer v. Westminster Investments (2007) 157 Cal.App.4th 1195,
1206.) Section 1170.126 provides adequate notice that the trial court may deny
resentencing if, in its discretion with reference to the petitioner's criminal and disciplinary
history, it concludes that a reduced sentence would pose an unreasonable risk of danger

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to the public. Standards such as "reasonable" are "not impermissively vague, provided
their meaning can be objectively ascertained by reference to common experiences of
mankind." (People v. Morgan (2007) 42 Cal.4th 593, 606.) Section 1170.126 is not
impermissibly vague.
                                    DISPOSITION
             The order appealed from is affirmed.
             NOT TO BE PUBLISHED.




                                        GILBERT, P.J.


We concur:



             YEGAN, J.



             PERREN, J.




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                               James P. Cloninger, Judge

                           Superior Court County of Ventura

                          ______________________________


             Stephen P. Lipson, Public Defender, Michael C. McMahon, Chief Deputy,
for Defendant and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, Mark E. Weber, Deputy Attorney
General, for Plaintiff and Respondent.




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