Filed 6/24/15 P. v. Williams CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                         H040681
                                                                   (Santa Clara County
         Plaintiff and Respondent,                                  Super. Ct. No. C9925466)

         v.

SYLVESTER FRANK WILLIAMS,

         Defendant and Appellant.


         The Three Strikes Reform Act of 2012 (hereafter the Act or Proposition 36)
created a post conviction 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), 1
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. (§ 1170.126,
subd. (f); People v. Yearwood (2013) 213 Cal.App.4th 161, 168.)
         On November 26, 2012, after the Act went into effect, defendant Sylvester Frank
Williams,2 an inmate serving a term of 25 years to life following conviction of a felony
(§ 314.1) that was not violent as defined by section 667.5, subdivision (c) or serious as




         1
         All further statutory references are to the Penal Code unless otherwise indicated.
         2
         In all his filings with the court defendant uses the name Sylester Williams.
However, most of the court documents associated with defendant’s case use the name
Sylvester Williams.
defined by section 1192.7, subdivision (c), filed a petition for recall of sentence and
request for resentencing under the Act.3
       Subsequently, on February 7, 2014, finding defendant “poses an unreasonable risk
of danger to public safety” should he be resentenced, the trial court denied defendant’s
petition.
       Defendant filed a timely notice of appeal.4
       In essence, defendant claims that the lower court overrode the voters’ intent in
denying his petition because Proposition 36 reversed the presumption that the original
three strikes law created—life sentences—in favor of second-strike sentences; that equal
protection principles forbid the heightened standard applied to already sentenced
third-strike prisoners; that Proposition 36 creates a mandatory presumption in favor of a
sentence reduction, which the prosecution must rebut by proving an unreasonable risk of
violence; and that under Apprendi,5 the risk assessment hearing must be in accordance
with the rules of evidence and a jury must find dangerousness beyond a reasonable doubt.
We are not persuaded by any of defendant’s arguments and affirm the lower court’s
decision denying defendant’s petition for resentencing.




       3
          Defendant submitted an informal request dated November 19, 2012, seeking
various documents in which he requested resentencing under the provisions of
section 1170.126. The lower court construed his request, which was filed on
November 26, 2012, as a petition brought under the authority of section 1170.126. The
lower court found that defendant “may qualify for resentencing under the provisions of
the Three Strikes Reform Act.” Accordingly, the court appointed the public defender to
represent defendant and set a briefing schedule.
        4
          In Teal v. Superior Court (2014) 60 Cal.4th 595, our Supreme Court held that
the denial of a motion for recall and resentencing is an appealable postconviction order.
(Id. at pp. 599-601.)
        5
          Apprendi v. New Jersey (2000) 530 U.S. 466.
                                              2
                                        Background

	      In an unpublished opinion, this court summarized the facts of defendant’s
conviction for indecent exposure.6 We explained that following a court trial defendant
was convicted of a felony violation of section 314. The court found true allegations that
defendant had suffered five prior felony convictions or strikes within the meaning of
sections 667, subdivisions (b) through (i) and 1170.12 and had served two prison terms
within the meaning of section 667 subdivision (b). The lower court denied defendant’s
motion to strike his prior conviction allegations and sentenced defendant to 25 years to
life in prison plus a two-year consecutive term.7
       According to the transcript of the sentencing hearing, defendant’s five prior
convictions were for five robberies.
       As to the facts underlying defendant’s crime of indecent exposure, we explained
that defendant exposed himself to three young girls by a closed restroom at Arbuckle
Elementary School. Defendant motioned for the girls to come to him; he was fully
clothed except his penis was sticking out of his pants. Defendant’s hands were on his
penis and he was moving them up and down. Defendant lived one-half mile from the
school. After his arrest he told the police that he was familiar with the school and that if
he had exposed himself it was because he was drunk or high on drugs. He admitted that
he had been using alcohol and cocaine for a while before the offense and that alcohol and
cocaine increased his sex drive and caused him to do “stupid stuff.”
       We noted that in 1993, defendant had been convicted of two misdemeanor counts
of annoying or molesting a child under the age of 18 and in 1994 was convicted of a



       6
         We have taken judicial notice of (People v. Williams (May 7, 2002, H021986)
[nonpub. opn.]).
       7
         The court imposed the two-year term for the two prior prison terms he had
served (§ 667.5, subd. (b)).
                                              3
felony count of annoying or molesting a child and a misdemeanor count of indecent
exposure.8
                                    Proceedings Below
        On September 23, 2013, counsel for defendant filed a motion to grant defendant’s
petition on the basis of eligibility alone—that is without a risk assessment hearing9—or in
the alternative to order a jury trial on the issue of dangerousness. On the same date,
defendant’s counsel asked the court to make in limine rulings regarding the procedural
rules for the section 1170.126 hearing. Counsel argued that the proceeding should be an
evidentiary hearing, as opposed to a sentencing hearing, in which the state has the burden
of proving that defendant was not entitled to relief for which he was statutorily eligible
and the rules of evidence should apply.
        On October 11, 2013, the People filed their opposition to defendant’s motion for a
jury trial.
        On October 18, 2013, the court held a hearing to address defendant’s motions.
The court denied both defendant’s motion for a jury trial and his motion for resentencing
without a risk assessment hearing. The court determined that the rules of evidence do not
apply at a section 1170.126 hearing.
        On October 30, 2013, the People filed their opposition to defendant’s request for
resentencing. Attached to the opposition as exhibits were police records and the
probation officer’s report in defendant’s indecent exposure case, the transcript of the
sentencing hearing at which the court imposed a 25-year-to-life sentence, this court’s
unpublished opinion on appeal, a report documenting Dr. Vicky Campagna’s assessment
of defendant as a result of interviews of defendant that were conducted in 1999, police


        8
         It was the previous violation of section 314 that elevated defendant’s crime to a
felony. (§ 314)
       9
         Defendant’s counsel relied on equal protection principles to argue that defendant
could not be subjected to the dangerousness evaluation.
                                             4
reports documenting the facts underlying defendant’s crimes in 1993 for indecent
exposure and child molestation, the probation officer’s report in that case, police reports
documenting other indecent exposures by defendant, the probation officer’s report in
defendant’s grand theft and robbery case, and defendant’s prison file, which fills almost
two volumes of the clerk’s transcript.
       Defendant filed a response to the People’s opposition on February 5, 2014.
       On February 7, 2014, the court conducted a hearing to determine whether
defendant’s petition for resentencing should be granted.10 The court indicated that the
People had the burden of proof at the hearing. The court noted that defendant’s previous
motions requesting a jury trial and asking that the rules of evidence apply and that
defendant’s prison file or C file be excluded from evidence were preserved for appellate
review.
       The People took the position that resentencing defendant would pose an
unreasonable risk of danger to the community, “in particular young children, young
females, and older female adults.” The People posited that “[i]f past conduct is a
predictor of future conduct, releasing the defendant . . . would pose an unreasonable risk
to the community. There was nothing . . . in the prison records or even in the defendant’s
brief to suggest that he is remorseful, that he has accepted responsibility for his conduct
and that he was going to be willing or able to change his ways.”
       The court noted that the People’s opposition to defendant’s request for
resentencing had 11 exhibits attached; the court indicated that it was going to receive all
the exhibits into evidence over the objection of defendant’s counsel. The court admitted
a letter written by one of the victims from defendant’s most recent indecent exposure
case, again over counsel’s objection.

       10
           Defendant was not present in the courtroom; rather, through counsel he asked
the court if he could stay in the holding cell and listen to the proceedings via an audio
system.
                                              5
         The People pointed out that defendant’s criminal history showed he was out of
custody for only a few months after his first conviction for indecent exposure and
annoying or molesting a child before he committed another indecent exposure; and after
he was discharged from that prison commitment he committed another indecent
exposure.
         The People argued that there were no “rehabilitative efforts” in the prison records
or in defendant’s briefs to suggest that defendant had changed. Further, defendant’s
prison record showed that there had been “seven incidents of violence or threatened
violence.” The People noted, “there’s no demonstrated effort to comply with any work
orders that may have been done in prison to participate in any programming to
demonstrate that . . . he’s different from the person that Judge Fernandez sentenced in
2000.”
         Defendant’s counsel countered that defendant was “different. He is 52 years old
now. He’s very different. And more importantly perhaps is that the law is different.”
Defendant’s counsel pointed out that defendant’s strikes were over 25 years old and were
“[t]he most basic low level purse snatching you could . . . imagine” where defendant
“rode up on a bike and steals a purse off the arm of a woman that was walking on the
sidewalk.” Counsel went on to argue that defendant’s robberies all occurred within a
three-month period and “his RAP sheet is devoid of violence.”
         As to defendant’s prison record, his counsel argued that although defendant had
37 disciplinary infractions, he did not have “the most egregious prison record.” Counsel
conceded that defendant had continued to expose himself in prison, and had engaged in
four mutual combat fights, but pointed out that all of his disciplinary infractions had to do
with his fear of having a cellmate.
         The court told defendant’s counsel that what the court was most interested in was
defendant’s “apparent propensity to commit acts of indecent exposure.” In essence,
defendant’s counsel argued that because of his age defendant was less likely to reoffend
                                               6
and had not received the treatment in prison that he needed, but would be able to receive
such treatment if he was released.
       The court asked defendant’s counsel whether she was suggesting that if upon
release defendant committed an indecent exposure, that would not constitute a risk of
danger to the public safety. Defendant’s counsel conceded that any crime is dangerous to
public safety; she believed, however, that the court had to consider whether “there is an
increase in risk of violence.”
       The court indicated that it would recess to consider counsels’ presentations. After
the recess, the court ruled as follows: “First, the Court recognizes that the People have
the burden of proof and that the defendant is entitled to resentencing unless the People
present evidence that satisfies by a preponderance of the evidence the Court that a finding
in its discretion that the defendant poses an unreasonable risk to public safety currently
should preclude him from entitlement to resentencing under our current law. [¶] The
Court believes first that with respect to the evidence before the Court, it is more likely
than not that the defendant poses a risk to public safety. The Court believes that the
defendant particularly poses a risk of committing additional acts of indecent exposure in
violation of Penal Code Section 314 if he were to be released from custody and even if he
were to continue to remain in custody. [¶] The Court believes that the evidence before it
indicating a more than 20 year history of committing acts of indecent exposure an Axis I
diagnosis of exhibitionism, the relative recency of the commission of an act of indecent
exposure while in custody, all lead the Court to believe that there is a risk that the
defendant will continue to commit such acts. The Court believes that a violation of Penal
Code section 314 in an active indecent exposure is a crime that places public safety at
risk. Even in the abstract, particularly for a defendant[,] however[,] who has a prior
conviction and the defendant has more than one, and is therefore, subject to a felony
prosecution and is committing acts that the [L]egislature has deemed to be felonious.
[¶] Penal Code Section 314 not only impacts the community and the victims of its
                                              7
commission [sic] because of the emotional harm that it can cause to a victim of a
violation of Penal Code Section 314, but also to the disturbances it causes within our
community. The fear that a violation of Penal Code Section 314 instills in the
community when it is committed, the fear of victimization, the fear of sexual assault, the
fear of child molest, all of this has caused the [L]egislature to deem a violation of Penal
Code section 314 to be criminal, to be felonious if committed when there is a prior
conviction or under other circumstances to be subject to sex offender registration. For all
these reasons the Court has no question that a violation of Penal Code section 314 is a
public safety concern. [¶] With respect to this particular defendant, . . . he has particular
characteristics with respect to his commission of acts of Penal Code Section 314. His
acts have been acts not simply of exposure, but have also included engaging in
masturbation, which is not necessary for violation of Penal Code Section 314, the
defendant’s history includes the victimization of children, has included performance of
such acts in and around school grounds, and has continued despite his incarceration with
the evidence before the Court of 17 violations within the State Prison of acts amounting
to or similar to violations of Penal Code Section 314.”
       The court continued, “Based on the defendant’s repeated conduct, the extensive
pattern of conduct, his commission of additional acts of [indecent exposure] while
incarcerated, his diagnosis of exhibitionism and the lack of persuasive evidence . . . that
there has been any particular progress toward a rehabilitation, the Court . . . believes that
the evidence . . . establishes that it is more likely than not that the defendant poses an
unreasonable risk of danger to public safety, and that if he were to be resentenced and
released, the high likelihood that he would continue to commit [indecent exposures] is so
great that to ignore that risk would be unreasonable.”




                                              8
       The court discounted the argument by defendant’s counsel that defendant’s
exhibitionism had decreased and would continue to decrease because of his age.11 The
court stated that the “defendant’s likelihood of recidivism with respect to indecent
exposure may be minimized given his age and the reference to the diagnostic and
statistics manual that has a very brief statement indicating that advanced or increasing
age may suggest a decrease in incidents of indecent exposure for a person who has been
diagnosed with exhibitionism.” The court stated that it did not believe this to be
“concrete scientific evidence.”
       The court based its ruling “primarily” on the defendant’s propensity to commit
acts of indecent exposure; however, the court stated that it could not ignore or discount
defendant’s strike priors and evidence “presented within the prison records of some acts
of physical violence” by defendant while in prison. The court indicated that this evidence
alone “would [not] necessarily form the basis of a denial” of resentencing, but that the
court “does take it into consideration as part of the totality of the circumstances that the
Court must consider.”
       Accordingly, as noted, the court found that defendant poses an unreasonable risk
of danger to public safety and denied his petition for resentencing.
                                  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. “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)

       11
          In her response to the People’s opposition to resentencing, defendant’s counsel
wrote that the “DSM” notes that “few arrests are made in the older age groups, which
may suggest that [exhibitionism] becomes less severe after age 40.”
                                              9
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
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).)
       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.” (§ 1170.126, subd. (g).)
       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.]” (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


                                              10
148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds
of reason under applicable law and relevant facts].)
       As noted, the language of section 1170.126, subdivision (f) expressly provides that
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 that the People have the burden of establishing, by a preponderance of the
evidence, facts from which a determination that resentencing the petitioner would pose an
unreasonable risk of danger to public safety can be made. The reasons that a trial court
finds resentencing would pose an unreasonable risk of danger, and the court’s 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 of the evidence, the trial court need
not itself find an unreasonable risk of danger by a preponderance of the evidence. (See
In re Robert L. (1993) 21 Cal.App.4th 1057, 1065-1067 [discussing abuse of discretion
and preponderance of the evidence standards].)
       People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279 (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. (Id. 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, 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 that resentencing a
petitioner would pose an unreasonable risk of danger to public safety, or in the sense of
                                             11
establishing that determination itself. Nevertheless, we believe it supports our
interpretation of the standard of review.
       In sum, 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.
If a factor such as that the defendant recently committed a battery, or is violent due to
repeated instances of mutual combat, 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, 689691 [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].)
       Such a conclusion is consistent with California’s noncapital sentencing scheme.
Under the determinate sentencing law (DSL) as it existed prior to Cunningham,12
“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


       12
            Cunningham v. California (2007) 549 U.S. 270 (Cunningham).
                                               12
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 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 Cunningham13 so as to eliminate judicial fact finding 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.)
       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

       13
           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.”
                                                13
factual finding.” (People v. Black, supra, 41 Cal.4th at p. 814, fn. 4.) Accordingly, it
follows that the trial court need not apply a preponderance of the evidence standard, in
that it need not find that resentencing the petitioner would, more likely than not, pose an
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].)
       With this in mind we turn to defendant’s arguments as to why the lower court
abused its discretion.
                                         Discussion
       Defendant argues that the lower court overrode the voters’ intent by denying his
resentencing petition. He bases this assertion on his belief that the original three strikes
law created a presumption in favor of life sentences and that Proposition 36 has reversed
this presumption in favor of a second-strike sentence. He argues that with the Act the
California electorate turned the sentencing scheme upside down by creating a strong
presumption that defendants whose third strike was neither serious nor violent would not
be sentenced to life in prison.
       In essence, defendant argues that sentence reduction under the Act is now the rule
or the “ ‘norm[.]’ ” As such, he posits that the discretion of the court to refuse sentencing
is “narrowly proscribed.” He asserts that case law under the old three strikes law now
strongly favors recall under Proposition 36 and People v. Superior Court (Romero)
(1996) 13 Cal.4th 497 (Romero), should inform the construction and application of
section 1170.126, subdivision (f), but with a crucial and substantial twist—a
diametrically opposite presumption now guides the sentencing court’s decision making.
We disagree.
       In 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.) Subsequently, the court clarified, however, that in deciding whether to do
                                             14
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.)
       Since 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 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
                                              15
criminal falls outside the spirit of the three strikes scheme must be even more
extraordinary.” (Id. at p. 378.)
       As the Fifth District Court of Appeal explained in People v. Blakely (2014) 225
Cal.App.4th 1042, 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].” (Id. at
p. 1054.) Since public safety remains a key purpose of the law under the Act, we reject
defendant’s assertion that a section 1170.126 decision must be subjected to the same
rigorous scrutiny as the granting of a Romero motion.
       Furthermore, we reject defendant’s argument that a second strike sentence is now
the “norm”; we are not persuaded that it is any such thing. As noted, the language of
subdivision (f) of section 1170.126 reads that a petitioner who meets the eligibility
criteria “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.” It is not unreasonable to read this text to mean that a court
“shall” impose a second strike sentence unless “at the discretion of the court” the
petitioner’s original sentence of 25 years to life appears more appropriate because of an
unreasonable risk of danger to the public. However, it is equally reasonable to read the
text to mean that a court may select one of the two penalties (a second strike sentence or
the original life sentence) 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.” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1371.)
                                              16
The text of subdivision (f) of section 1170.126 does not plainly indicate that a second
strike sentence is the presumptive sentence.
       In sum, we do not agree with defendant that Proposition 36 creates a presumption
in favor of a second strike sentence. Such a conclusion comports with the plain language
of the statute. Moreover, a conclusion resentencing to a second strike term is a generally
mandatory presumption from which courts can depart only in extraordinary cases, would
run directly contrary to the intent of the voters in passing the Act.
       Defendant argues that because a qualified prisoner already serving a determinate
term must surmount the risk assessment determination, but this does not exist for those
defendants yet to be sentenced, equal protection principles are violated. Thus, in essence,
defendant argues that equal protection requires the application of the same standard for
recalled sentences as defendants who are currently being sentenced. We reject his claim.
       Defendant argues that two sentencing groups are similarly situated for purposes of
Proposition 36. Members of both groups have at least two prior convictions for serious
and violent felonies as well as a current nonserious, nonviolent offense that would
previously have subjected them to a three strikes sentence of 25 years to life.
       “The concept of equal protection recognizes that persons who are similarly
situated with respect to a law’s legitimate purposes must be treated equally. [Citation.]
Accordingly, ‘ “[t]he first prerequisite to a meritorious claim under the equal protection
clause is a showing that the state has adopted a classification that affects two or more
similarly situated groups in an unequal manner.” ’ [Citation.] ‘This initial inquiry is not
whether persons are similarly situated for all purposes, but “whether they are similarly
situated for purposes of the law challenged.” ’ [Citation.]” (People v. Brown (2012) 54
Cal.4th 314, 328; accord, People v. Wutzke (2002) 28 Cal.4th 923, 943.)
       Defendant is not merely entering the prison system; rather, he has been confined
there for a substantial period of time. Nor is he someone who has completed his sentence
and now is being subjected to additional confinement. “Instead, [defendant] was
                                               17
properly sentenced to prison for an indefinite term because he was properly convicted
(beyond a reasonable doubt, by a unanimous jury) of a third felony after he had
committed two prior serious or violent felonies. It was his third felony conviction which,
pursuant to the law in effect at the time, subjected him to an indeterminate sentence.
Now, due to the adoption of the Act, [defendant] may be entitled to a downward
modification of this indeterminate term to a determinate second strike sentence. That he
may be denied such downward modification due to a finding of dangerousness based on a
preponderance of the evidence does not mean that he would be subjected to indefinite
confinement based on this finding. He is subject to the indeterminate term due to his
original third strike sentence; the dangerousness finding would simply deny him a
downward modification. This process does not deny [defendant] his constitutional right
to equal protection of the law.” (Kaulick, supra, 215 Cal.App.4th at p. 1306, fn.omitted.)
       The rational relationship test has been deemed appropriate to an equal protection
challenge such as this one. (People v. Floyd (2003) 31 Cal.4th 179, 187-188, 191; People
v. Cruz (2012) 207 Cal.App.4th 664, 678-680.) Prisoners are not a suspect class. The
status of being incarcerated is neither an immutable characteristic nor an invidious basis
of classification. (People v. Cruz, supra, at pp. 675-676, fn. 11.) Under the rational
relationship test, “equal protection of the law is denied only where there is no ‘rational
relationship between the disparity of treatment and some legitimate governmental
purpose.’ [Citation.]” (People v. Turnage (2012) 55 Cal.4th 62, 74.)
       The discretionary public safety exception to second strike sentencing that is
present in section 1170.126, is rationally related to a legitimate state interest. “It
increases the likelihood that prisoners whose sentences are reduced or who are released
due to the Act will not pose an unreasonable risk of danger to the public.” (People v.
Yearwood, supra, 213 Cal.App.4th at p. 179.) Since there is a rational relationship
between the disparate treatment and a legitimate governmental purpose, the distinction
drawn between felony offenders sentenced before and after the Act’s effective date does
                                              18
not violate defendant’s state or federal equal protection rights. (Floyd, supra, 31 Cal.4th
at pp. 188-191; see also People v. Cruz, supra, 207 Cal.App.4th at pp. 674-680.)
         Defendant argues that Proposition 36 creates a mandatory presumption in favor of
a sentence reduction, which the prosecution must rebut by “proving an unreasonable risk
of violence.” As noted ante, we disagree that Proposition 36 creates a mandatory
presumption in favor of a sentence reduction. We disagree that the prosecution must
prove an unreasonable risk of violence.
         “ ‘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 (Cervantes).) 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.]’ ”
(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 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.” (Dyna-Med, Inc. v.
Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.) “[S]tatutes or
                                                19
statutory sections relating to the same subject must be harmonized, both internally and
with each other, to the extent possible. [Citations.]” (Ibid.)
       Although one purpose of the Act was to save taxpayer dollars (People v. Osuna
(2014) 225 Cal.App.4th 1020, 1037), “[i]t is clear the electorate’s intent was not to throw
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.)
       The Act was aimed solely at revising the three strikes law. That law, as originally
enacted by the Legislature, was described by one of our sister courts 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.)
                                              20
       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.)
       Although the ballot materials concerning Proposition 36 focused on violent
criminals, 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 the health, safety, and welfare of the
people of the State of California, and shall be liberally construed to effectuate those
purposes. To condition resentencing denials upon the likelihood of future violence would
run contrary to the language of section 1170.126, subdivision (f) and voters’ intent, and
would not effectuate the purposes of the Act. 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” were read to mean a court must find that
the petitioner poses an unreasonable risk of committing another violent crime. The Act
was added by the initiative process. Ballot pamphlet arguments have been recognized as
a proper extrinsic aid in construing voter initiatives adopted by popular vote. (People v.
Floyd, supra, 31 Cal.4th at pp. 187-188.)
       In sum, had voters intended to require a finding of an “unreasonable risk of
violence,” they would have said so in subdivision (f) of section 1170.126. Furthermore,
they 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 section 1170.126. That a
crime (or criminal) can constitute a danger to public safety without being violent is too
                                             21
obvious to dispute. (See, e.g., People v. Hughes (2002) 27 Cal.4th 287, 355; People v.
Villalobos (2006) 145 Cal.App.4th 310, 317.)
       Finally, defendant argues that he has a right to a jury trial under the United States
Constitution’s Sixth Amendment and a finding of dangerousness beyond a reasonable
doubt on downward resentencing. We disagree.
       The United States Supreme Court has clarified that its opinions regarding 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. (Dillon v.
United States (2010) 560 U.S. 817, 828 [taking the original sentence as given, any facts
found by a judge at a modification proceeding do not serve to increase the prescribed
range of punishment].) California appellate courts have applied this principle to petitions
for resentencing under Proposition 36 and more specifically to determinations of
eligibility for resentencing: “Apprendi and its progeny do not apply to a determination of
eligibility for resentencing under the Act.” (People v. Osuna, supra, 225 Cal.App.4th at
p. 1039.)
       Contrary to defendant’s argument, nothing in Alleyne v. United States (2013) 570
U.S. __ [133 S.Ct. 2151] supports his views. As described by our Supreme Court, in
Alleyne “the United States Supreme Court held that the federal Constitution’s Sixth
Amendment entitles a defendant to a jury trial, with a beyond-a-reasonable-doubt
standard of proof, as to ‘any fact that increases the mandatory minimum’ sentence for a
crime.” (People v. Nunez & Satele (2013) 57 Cal.4th 1, 39, fn. 6.) The denial of a recall
petition does not increase the mandatory minimum sentence for a defendant’s crime.
       As the court explained in Kaulick, “[t]he retrospective part of the Act is not
constitutionally required, but 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. Any facts found at
such a proceeding, such as dangerousness, do not implicate Sixth Amendment issues.
                                              22
Thus, there is no constitutional requirement that the facts be established beyond a
reasonable doubt.” (Kaulick, supra, 215 Cal.App.4th at pp. 1304-1305.)
       Simply put, 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. That
the denial is based on a determination of dangerousness does not change that conclusion.
       With all the foregoing in mind, we conclude that defendant has not met his burden
on appeal of establishing that the trial court’s ruling exceeds the bounds of reason. Thus,
we find no abuse of discretion.
       The lower court found that defendant poses an unreasonable risk of danger to
public safety because of the likelihood that he will continue to commit acts of indecent
exposure. The court based this finding on defendant’s 20-year history of committing
these acts, some of which occurred while defendant was incarcerated. Defendant’s prison
record is replete with rules violations for masturbation and indecent exposure, threats to
kill other inmates, refusing to follow rules, and mutual combat. This record shows that
there has been no progress toward rehabilitation. Speculation that defendant could be
helped with therapy and proper oversight does not outweigh the People’s evidence that
even while incarcerated defendant cannot and has not followed the rules.
       It is quite apparent that the trial court was aware it was required to find defendant
currently posed an unreasonable risk to public safety. The trial court’s ruling conveyed
reasoning that established a nexus between the evidence before it and current
dangerousness. The trial court’s ruling here was more than adequate for meaningful
appellate review, and “the application of reasoned analysis” is apparent from its ruling.
(In re Young (2012) 204 Cal.App.4th 288, 306.) Moreover, the court did not merely rely
on long-ago crimes, although defendant’s criminal record, which is extensive, certainly
figured into its determination. As the People point out, life outside of prison walls
requires a measure of self-control that defendant has never demonstrated he possesses
                                             23
either in or out of prison. The fact that defendant is now older and his crimes for robbery
remote in time weighs in favor of defendant only if since those crimes were committed he
has been crime-free, in a cleansing period of rehabilitation after he has had the
opportunity to reflect upon the error of his ways. Defendant has done no such thing.
       Since the trial court considered the statutory factors in section 1170.126,
subdivision (g) in exercising its discretion (trial court may consider petitioner’s criminal
conviction history and the petitioner’s disciplinary record and record of rehabilitation
while incarcerated) and made a reasoned argument as to why the evidence did not support
resentencing defendant, we must uphold the decision even if we might have exercised our
discretion differently.
       We reiterate that “[w]here, 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, supra, 8 Cal.4th at pp. 1124-1125, italics omitted.)
We cannot say that the lower court’s decision was arbitrary, capricious, or patently
absurd.
                                         Disposition
       The order denying defendant’s petition to recall his sentence (§ 1170.126) is
affirmed.




                                             24
                                  _________________________________
                                  ELIA, J.


WE CONCUR:




_______________________________
RUSHING, P. J.




_______________________________
PREMO, J.
