Filed 1/26/16

                            CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT


THE PEOPLE,                                        H040765
                                                  (Santa Clara County
        Plaintiff and Respondent,                  Super. Ct. No. CC235364)

        v.

FRANCISCO VELASQUEZ GARCIA,

        Defendant and Appellant.



        Defendant Francisco Velasquez Garcia appeals from the superior court’s order
                                                                           1
denying his petition for resentencing under Penal Code section 1170.126. Although
defendant was “eligible” for resentencing, the superior court exercised its discretion
under section 1170.126 to refuse to resentence him because “resentencing the petitioner
would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) On
appeal, defendant contends that (1) the court erroneously placed the burden of proof on
him rather than on the prosecution, (2) equal protection precluded the court from refusing
to resentence him, (3) section 1170.126 establishes a presumption favoring resentencing,
and (4) his constitutional rights were violated when the superior court denied him a jury
trial with a beyond-a-reasonable-doubt standard of proof. We reject his contentions and
affirm the superior court’s order.



1
        Subsequent statutory references are to the Penal Code unless otherwise specified.
                                      I. Background
       Defendant’s strike priors are two 1992 residential burglaries and a 1996 robbery.
The two burglaries were committed within minutes of each other. In the first burglary,
defendant stole jewelry. In the second burglary, he was interrupted by the victim. The
robbery involved “entering a residence, brandishing knives and demanding money from
the victim.” Defendant also suffered three other felony convictions and 13 misdemeanor
convictions prior to his current conviction. One of his misdemeanor convictions was a
                                                       2
1996 indecent exposure (§ 314, subd. (1)) conviction. A number of defendant’s
convictions were for narcotics offenses.
       The current conviction arose from an incident in September 2001. Defendant
approached an intoxicated man at 2:00 a.m. and asked him for money. When the man
pulled out his wallet, defendant pushed the man down, grabbed the wallet out of the
man’s hand, and ran away. The wallet contained $400.
       Defendant was charged with robbery (§ 211, 212.5, subd. (c)) and grand theft of
property over $400 (§ 484, former § 487, subd. (a)), and it was further alleged that he had
suffered three prior strikes (§ 1170.12), two prior serious felony convictions (§ 667,
subd. (a)), and two prison priors (§ 667.5, subd. (b)). In 2002, he entered into a plea
agreement under which he pleaded guilty to the grand theft count and admitted the strike
and prison prior allegations in exchange for dismissal of the robbery count and the prior




2
       Defendant’s section 314, subdivision (1) conviction made him ineligible for relief
under Proposition 47. Grand theft of less than $950 was redefined by Proposition 47 as
misdemeanor petty theft except where the defendant has a prior conviction “for an
offense requiring registration pursuant to subdivision (c) of Section 290.” (§ 490.2,
subd. (a).) Section 290, subdivision (c) requires registration for anyone convicted of a
violation of “subdivision 1 or 2 of Section 314.” (§ 290, subd. (c).)


                                             2
                                       3
serious felony conviction allegations. Defendant admitted that he had a substance abuse
problem, and he told the probation officer that he “has been hearing voices that direct him
to do ‘bad’ things . . . .” He had been deported several times. The court struck the prison
priors and sentenced defendant to prison for 25 years to life.
       During his 11 years in prison for his 2002 conviction, defendant has not been a
model prisoner. He has repeatedly disobeyed correctional officers and refused to comply
with their orders. Defendant has been repeatedly involved in fights with other prisoners
throughout his time in prison. These fights occurred in 2004, 2006, 2008, 2010, twice in
2012, and four times in 2013.
       In February 2013, defendant filed a petition for resentencing under section
1170.126. Defendant asked the court to summarily grant his petition on equal protection
grounds. He requested a jury trial with a standard of proof beyond a reasonable doubt on
the issue of whether resentencing “would pose an unreasonable risk of danger to public
safety.” Defendant also insisted that the “risk assessment hearing” should be “an
evidentiary hearing in which the prosecution has the burden of proving that Petitioner is
not entitled to relief for which he is statutorily eligible.” He argued that the prosecution
bore the burden of rebutting a presumption that he was entitled to resentencing.
Defendant also asserted that, if he was not entitled to a jury trial and proof beyond a
reasonable doubt, the standard of proof was preponderance and “the rules of evidence
apply.”
       The defense submitted a report by Richard Subia, a former California Department
of Corrections and Rehabilitation (CDCR) division director and warden. Subia had


3
        The abstract of judgment reflects a conviction for grand theft of property over
$400 (former § 487, subd. (a)). At the original sentencing hearing, defendant’s trial
counsel, the prosecutor, and the court all referred to the count defendant had pleaded
guilty to as “grand theft person” (former § 487, subd. (c)).


                                              3
interviewed defendant and reviewed defendant’s prison record, and defendant had told
Subia that he was defending himself in most of the fights in which he was involved in
prison. Defendant told Subia that he was targeted because of his “ ‘R’ ” designation (due
to his indecent exposure conviction) and “his size.” Subia’s opinion was that defendant
did not currently pose an unreasonable risk of danger to public safety.
       The defense asserted that defendant’s misconduct in prison was not indicative of
his risk to public safety because it was entirely the result of his need to protect himself
from assaults by other inmates that arose from the “ ‘R’ suffix” designation. It argued
that defendant was “not a fighter when he’s out of prison.” The defense also asserted that
the fact that defendant had not been found to be using drugs or alcohol in prison showed
that he “no longer has a drug problem.” Defendant’s trial counsel argued that “the Court
should give weight to the incidents that are reported in the C file [(defendant’s prison
records)], but I also think that they should be looked at with a grain of salt . . . .”
       The prosecution conceded that defendant was eligible for resentencing, but it
opposed defendant’s petition on the ground that he remained a public safety risk and
asserted that he was not entitled to have the risk assessment hearing be a jury trial. The
prosecution submitted certified copies of defendant’s CDCR records, which documented
defendant’s behavior in prison between 2002 and 2013.
       At the outset of the risk assessment hearing, the superior court denied defendant’s
request that it summarily grant the petition on equal protection grounds. It also denied
defendant’s request for a jury trial. The court ruled that the risk assessment hearing
would be a “sentencing hearing,” not an “evidentiary hearing,” and that the rules of
evidence did not apply. The court rejected the defense argument that defendant’s CDCR
file (his “C file”) was hearsay.
       Subia testified at the hearing that he had reviewed defendant’s entire CDCR file
and interviewed defendant. Subia explained that defendant’s prior conviction for
indecent exposure resulted in the CDCR’s giving him “an R suffix or a suffix that

                                                4
identifies him as some sort of sex-related offen[s]e or sex crime.” In Subia’s experience,
other inmates recognize an inmate with an R suffix and victimize him. In addition,
defendant was “small in stature” and “had some effeminate behaviors” that would also
expose him to victimization by other inmates. Subia admitted that, with regard to his
analysis of why defendant had been involved in so many fights in prison, “[a] lot of it is
going to be speculation.” Subia also conceded that defendant “does” pose a risk to public
safety. “He poses a risk because he’s going to be an ex-felon on the streets without a
job. . . . So he poses a risk. But is that risk unreasonable? In my findings based on the
whole picture I didn’t think it was an unreasonable risk.”
       The superior court was not persuaded by Subia’s testimony because it believed
that Subia had “sugarcoated” his review of defendant’s CDCR record. The court relied
on defendant’s criminal history, his commitment offense, and his conduct in prison. “He
has not been a productive member of the community when he was in the community. He
doesn’t have any history of any type of employment or trade or anything of that sort. He
had made a conscious decision to be in the United States illegally. . . . He’s been
deported three times, and he has apparently c[o]me back, and I have to infer . . . that he
came back under circumstances which were not legal. [¶] He has 22 aliases.” The court
noted that defendant had done nothing positive in prison but instead had been “involved
in numerous acts of misconduct in prison . . . .” “He’s done nothing in prison to help
himself by way of any type of rehabilitation or counseling or things of that sort that
would be very productive if he were to be released into the community. [¶] So based
upon my evaluation of all of this, I’m going to conclude that he has not done anything to
prove to me that he would be anything other than a danger to the community if he were
released, and for that reason I order the petition be denied.” Defendant timely filed a
notice of appeal.




                                             5
                                       II. Discussion
                                    A. Burden of Proof
       Defendant claims that the superior court erroneously placed the burden of proof on
him rather than on the prosecutor. We conclude that the record demonstrates that the
court properly imposed the burden of proof on the prosecutor.
       At the commencement of the hearing, the superior court offered an extended
monologue regarding the burden of proof. “Is there a burden of proof? If there is, what
is it? What is the issue subject to the burden of proof? What criteria does the Court use
to decide the issue as to whether or not he might pose a danger to the community if he
were released? Is that something within the sound exercise of the Court’s discretion? Is
that something the People have to prove by a preponderance of the evidence? If so, what
are the elements the People have to prove? A lot of that is a matter of semantics. [¶]
I’ve taken the position in the pas[t] that the People do have a burden of proof to prove by
a preponderance of the evidence some type of a contested issue of fact, but ultimately the
decision the Court has to make is based upon an evaluation of the criteria and the statute,
and ultimately the Court has to exercise the Court’s discretion taking into account all of
those factors as well as anything else that might be presented that is relevant to the issue,
and ultimately then to decide whether or not if released the defendant would constitute
a[n] unreasonable risk of danger to the community, and that’s a discretionary call. So it’s
really semantics. And I’m not sure how to articulate the difference between saying the
People have a burden to prove by a preponderance of the evidence the fact that the
defendant is dangerous versus the decision the Court has to make based upon the Court’s
discretion as to whether or not he would pose unreasonable risk of danger to the
community. So that’s all I could say about that. [¶] I take the position ultimately it’s the
Court’s call based upon the Court’s discretion [and] that the People have the burden to
prove by a preponderance of the evidence any type of a contested issue that might be



                                              6
relevant as it bears upon the issue of dangerousness. [¶] So that’s the Court’s ruling if
you understood it.” (Italics added.)
       The court explained that the distinction it was making was that “I might make a
decision and based upon findings contrary to what the People argue.” “[T]he Court in its
own discretion might say I don’t put a lot of weight on those reasons [relied upon by the
prosecution]. I have other reasons. I’m relying upon what I have heard in this case . . . .”
The court’s position was that it was not bound by the prosecution’s arguments but could
base its decision on something “they haven’t argued.” The court expressly acknowledged
that “[t]he People have the burden to prove by a preponderance of the evidence a
contested issue of fact.” (Italics added.) At the conclusion of the hearing, the court
pointed out that defendant had done nothing positive in prison but instead had been
“involved in numerous acts of misconduct in prison.” “He’s done nothing in prison to
help himself by way of any type of rehabilitation or counseling or things of that sort that
would be very productive if he were to be released into the community. [¶] So based
upon my evaluation of all of this, I’m going to conclude that he has not done anything to
prove to me that he would be anything other than a danger to the community if he were
released, and for that reason I order the petition be denied.” (Italics added.)
       Defendant insists that the superior court placed the burden of proof on him
because the court said, at the very end of the hearing, “he has not done anything to prove
                                                                                  4
to me that he would be anything other than a danger to the community . . . .” The


4
        In a footnote to his burden of proof argument in his reply brief, defendant asserts
that the superior court erred in failing “to properly consider the question of what
‘unreasonably dangerous’ means.” He maintains that “unreasonable risk of danger” as
used in section 1170.126 was defined in Proposition 47, which took effect in early
November 2014, long after the superior court denied defendant’s petition.
      Defendant did not raise this issue in his opening brief, which was filed prior to
Proposition 47’s passage. He also did not raise this issue in his supplemental opening
                                                                                 (continue)

                                              7
conclusion that defendant reaches is untenable. The superior court repeatedly and
expressly acknowledged that the prosecutor bore the burden of proof. The single
sentence upon which defendant relies, taken in context, does not reflect that the court
placed the burden of proof on defendant. Instead it reflects that the court found that
defendant had not engaged in positive conduct in prison that demonstrated that he no
longer posed the unreasonable risk of danger to public safety that he had posed before his
incarceration.
       Defendant claims that there was “obvious confusion” in the court’s statements
about the burden of proof. We disagree. The court acknowledged from the beginning of
the hearing that the prosecution bore the burden of proof. The statements by the court
that defendant finds confusing were aimed at articulating the court’s accurate distinction
between the prosecution’s burden of proof and the prosecution’s arguments. As the court
explained, it was not bound by the specific arguments made by the prosecution but could
rely on a different basis for its decision so long as the prosecution had presented evidence
that satisfied the prosecution’s burden of proof.


                                   B. Equal Protection
       Defendant claims that his right to equal protection precluded the superior court
from even considering the risk that he posed to public safety. He reasons that criminal
defendants sentenced before the passage of Proposition 36 are similarly situated to
criminal defendants sentenced after the passage of Proposition 36. As only those


brief, which was filed after Proposition 47’s passage. And he has not sought leave to file
another supplemental opening brief addressing this issue. We decline to reach this issue
in this appeal because, by raising it for the first time in his reply brief, defendant has
deprived the Attorney General of the opportunity to address it. (People v. Clayburg
(2012) 211 Cal.App.4th 86, 93.) We note that this issue is currently before the California
Supreme Court in People v. Valencia (2014) 232 Cal.App.4th 514, review granted Feb.
18, 2015, S223825.


                                             8
defendants sentenced before the passage of Proposition 36 are subjected to risk
assessment hearings in order to qualify for resentencing to something other than a life
term, defendant claims that his right to equal protection has been violated.
       Proposition 36 amended sections 667 and 1170.12 to preclude the imposition of
life terms after the passage of Proposition 36 on defendants who have two prior strike
convictions and are convicted of a current offense that is not serious and not violent,
except under certain circumstances. (§ 1170.12, subd. (c)(2)(C).) Unless the prosecution
pleads and proves one of several statutory circumstances, such a defendant is to be
sentenced as if he or she had only one prior strike conviction. Proposition 36 also
enacted section 1170.126, which created the resentencing petition procedures. Those
procedures expressly apply to prisoners currently serving a life sentence under the former
versions of sections 667 and 1170.12 and do not permit resentencing without a risk
assessment hearing.
       In People v. Yearwood (2013) 213 Cal.App.4th 161 (Yearwood), the Fifth District
Court of Appeal rejected defendant’s equal protection contention. The Fifth District held
that there was no constitutional impediment to prospective-only application of an
ameliorative, punishment-lessening statute. (Yearwood, at p. 178.) It held that the State
had a legitimate interest in ensuring that a prisoner already sentenced to a life term would
not present an unreasonable risk of danger to public safety if he or she were resentenced
to a lesser term. (Yearwood, at pp. 178-179.)
       Defendant challenges the Fifth District’s analysis in Yearwood. He claims that
strict scrutiny applies. It does not. A statutory distinction between two groups in the
length of imprisonment is subjected to rational basis review, not strict scrutiny. (People
v. Wilkinson (2004) 33 Cal.4th 821, 838; People v. Turnage (2012) 55 Cal.4th 62, 74
(Turnage).) Defendant argues that the distinction cannot survive even rational basis
review. He maintains that the distinction does not serve any legitimate state interests.
Rational basis review is very deferential. “When conducting rational basis review, we

                                             9
must accept any gross generalizations and rough accommodations that the Legislature [or
the electorate] seems to have made. A classification is not arbitrary or irrational simply
because there is an ‘imperfect fit between means and ends.’ ” (Turnage, at p. 77.)
       Here, the voters could plausibly conclude that the differences between the two
groups of defendants justified the distinction in punishment. First, when a defendant is
sentenced after the passage of Proposition 36, the provisions of section 1170.12,
subdivision (c)(2)(C), as amended by Proposition 36, provide an avenue for a prosecutor
to ensure that a life term is possible by pleading and proving one of the listed statutory
circumstances where one of them applies. For those defendants sentenced before the
passage of Proposition 36, that avenue was not available. Second, since most criminal
defendants resolve their cases through plea agreements, prosecutors negotiating with
defendants after the passage of Proposition 36 could be expected to tailor plea
agreements to the new scheme, something that was not possible before the passage of
Proposition 36. Third, a trial court sentencing a defendant after the passage of
Proposition 36 has the opportunity to base the sentence on the court’s assessment of the
risk of danger that the defendant poses to public safety. A trial court that sentenced a
defendant before the passage of Proposition 36 would have had little incentive to do
further tailoring based on a risk assessment in light of the fact that it was imposing an
indeterminate life term. That trial court could expect the parole board to engage in risk
assessment before releasing the defendant. We recognize that these rationales do not
necessarily apply to all criminal defendants sentenced after the passage of Proposition 36,
but the “ ‘imperfect fit’ ” is just one of those “rough accommodations” that are permitted
under rational basis scrutiny. (Turnage, supra, 55 Cal.4th at p. 77.) Since there were
plausible reasons for the distinction drawn by the voters, we find no equal protection
violation.




                                             10
                         C. Presumption and Sixth Amendment
         Defendant contends that section 1170.126 creates a “strong presumption” that an
eligible petitioner will be resentenced, and he argues that a superior court denying a
petition must “state its grounds” for the denial and “articulate a rational nexus between
                                                                     5
those grounds and the ultimate question of current dangerousness.” (Italics omitted.)
Defendant also asserts that the superior court violated his Sixth Amendment rights by
denying him a jury trial and failing to utilize a standard of proof beyond a reasonable
         6
doubt.
         People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279 (Kaulick) held
that there was no presumption in favor of resentencing and that the Sixth Amendment did
not apply to section 1170.126 resentencing petitions. The defendant in Kaulick
contended that the prosecution was required to prove “ ‘unreasonable risk of danger’ ”
under section 1170.126, subdivision (f) beyond a reasonable doubt because this finding
increased the statutory maximum for his offense. (Kaulick, at p. 1301.) He argued that,


5
       Defendant’s argument does not clearly explain how he believes the superior court
erred in this case with regard to the alleged presumption and the alleged need for express
findings. The court plainly stated “its grounds” for the denial and explained how those
grounds were linked to the risk of danger defendant posed to public safety. To the extent
that defendant is arguing that the superior court failed to apply a presumption in favor of
his petition, we consider his contention and find that there was no error because there is
no presumption.
6
       Defendant briefly asserts that the superior court erred in admitting hearsay
evidence at the risk assessment hearing because such a hearing is not a sentencing
hearing and therefore “the rules of evidence must apply.” The only authority he cites is
Evidence Code section 300. Evidence Code section 300 provides: “Except as otherwise
provided by statute, this code applies in every action before the Supreme Court or a court
of appeal or superior court . . . .” (Evid. Code, § 300.) Since defendant submits no
substantial argument on this issue, we consider it forfeited. We note that risk assessment
hearings are plainly part of potential resentencing hearings, and courts have long been
permitted to consider hearsay evidence at sentencing hearings. (People v. Peterson
(1973) 9 Cal.3d 717, 725-726.)


                                            11
once he was found eligible for resentencing under section 1170.126, the “ ‘ “statutory
maximum” ’ ” for his offense was presumptively a determinate term rather than the “Three
Strikes” life term to which he had been originally sentenced. (Kaulick, at pp. 1301-
1302.)
         The Second District Court of Appeal rejected Kaulick’s contentions on the ground
that the statutory maximum for his offense was always a life sentence. In Apprendi v.
New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held that
the Sixth Amendment requires that, “[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, at p. 490, italics
added.) The Second District found that there was no presumption under section 1170.126
that an eligible petitioner was entitled to resentencing. Instead, “unreasonable risk of
danger” was a “hurdle which must be crossed” before a petitioner would become entitled
to resentencing. Thus, a petitioner is statutorily subject to his or her Three Strikes term
until that hurdle is crossed, making the Three Strikes term the statutory maximum for
Sixth Amendment purposes. (Kaulick, supra, 215 Cal.App.4th at pp. 1302-1303.) Since
the Sixth Amendment did not apply to the “unreasonable risk of danger” finding, the
standard of proof was not beyond a reasonable doubt. (Kaulick, at p. 1303.)
         The Second District found support for its analysis in the United States Supreme
Court’s decision in Dillon v. United States (2010) 560 U.S. 817 (Dillon). In Dillon, the
court considered whether a two-step sentence modification procedure implicated the
Sixth Amendment. (Dillon, at pp. 826-829.) The first step of the procedure was a
determination of eligibility and the amount of the potential reduction. If the prisoner was
eligible, the second step involved a determination of whether a reduction should be
ordered. (Dillon, at pp. 826-827.) The court held that such a procedure did not implicate
the Sixth Amendment because it did not lead to a “plenary resentencing” proceeding.
(Dillon, at p. 827.) Since the original sentence remained statutorily authorized, the two-

                                             12
step procedure did not involve a change to the statutory maximum for the offense and
therefore did not implicate the Sixth Amendment. (Dillon, at pp. 828-829.)
       Dillon supports the Second District’s conclusion in Kaulick that section 1170.126
does not implicate the Sixth Amendment. Defendant challenges that analysis and claims
that People v. Guinn (1994) 28 Cal.App.4th 1130 (Guinn) establishes that section
1170.126 creates a presumption. The Guinn court held, based on a statutory construction
analysis, that section 190.5 established a presumption of life without parole as the
sentence for a 16- or 17-year-old minor convicted of a special circumstance murder.
(Guinn, at pp. 1141-1142.) Section 190.5 provides that the penalty “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.” (§ 190.5, subd. (b).) In People v. Gutierrez (2014) 58 Cal.4th
1354 (Gutierrez), the California Supreme Court disapproved Guinn and disagreed with its
holding that the language of section 190.5 established a presumption. (Gutierrez, at
p. 1371.) Instead, the court found that section 190.5’s language was ambiguous and
resolved the ambiguity based on the avoidance of possible unconstitutionality.
(Gutierrez, at pp. 1372-1373.)
       Defendant’s Guinn-based claim is that the structure of section 190.5 is similar to
the structure of section 1170.126, subdivision (f) and therefore a presumption should
apply. However, the California Supreme Court’s decision in Gutierrez disapproved of
the Guinn court’s reliance on the structure of section 190.5 to support a conclusion that a
presumption should apply. The language and structure of section 1170.126 are not
ambiguous with respect to whether a presumption should apply. The statute’s heavy
emphasis on the court’s duty to evaluate whether “resentencing” would pose an
unreasonable risk of danger to public safety necessarily implies that the court’s finding
on that issue is a predicate to the petitioner’s entitlement to resentencing rather than an
issue that comes up only as a possible rebuttal of a presumption.



                                               13
       We agree with the Second District’s holding in Kaulick and its reliance on Dillon.
A petition for resentencing under section 1170.126 does not implicate the Sixth
Amendment because it does not establish a presumption that an eligible petitioner is
entitled to resentencing. Since the original Three Strikes sentence remained the statutory
maximum for defendant’s offense, the Sixth Amendment did not entitle defendant to a
jury trial or to application of a standard of proof beyond a reasonable doubt.


                                     III. Disposition
       The order is affirmed.




                                            14
                                   _______________________________
                                   Mihara, J.



WE CONCUR:




_____________________________
Bamattre-Manoukian, Acting P. J.




_____________________________
Márquez, J.




People v. Francisco Garcia
H040765



                                    15
Trial Court:                            Santa Clara County Superior Court


Trial Judge:                            HonorableThomas Hastings


Attorney for Defendant and Appellant:   Keith Allen Wattley
                                        Under Appointment by the Sixth District
                                        Appellate Program


Attorneys for Plaintiff and Respondent: Kamala D. Harris
                                        Attorney General of California

                                        Gerald A. Engler
                                        Chief Assistant Attorney General

                                        Jeffrey M. Laurence
                                        Supervising Deputy Attorney General

                                        Arthur P. Beever
                                        Deputy Attorney General

                                        Lauren Apter
                                        Deputy Attorney General

                                        Na’Shaun Neal
                                        Deputy Attorney General




People v. Francisco Garcia
H040765
