Filed 3/10/16 P. v. Jimenez CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068356

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS272077)

ESTEBAN JIMENEZ,

         Defendant and Appellant.


         APPEAL from a postjudgment order of the Superior Court of San Diego County,

David J. Danielsen, Judge. Affirmed.

         Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C.

Taylor and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

         On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods

and Schools Act (the Act), which went into effect the next day. (Cal. Const., art. II, § 10,
subd. (a).) In this case, we are asked to interpret a portion of Penal Code1 section

1170.18, a new sentencing provision created by the Act.

       Under section 1170.18, subdivision (a), "[a] person currently serving a sentence

for a conviction, whether by trial or plea, of a felony or felonies who would have been

guilty of a misdemeanor under the act that added this section had this act been in effect at

the time of the offense may petition for a recall of sentence before the trial court that

entered the judgment of conviction in his or her case" and request resentencing. Here,

Esteban Jimenez filed a motion to be resentenced under section 1170.18, subdivision (a).

There is no dispute that Jimenez satisfies the criteria under that subdivision. However,

the superior court declined to resentence Jimenez because it determined that Jimenez

would pose an unreasonable risk of danger to public safety. (See § 1170.18, subd. (b).)

Jimenez challenges that determination.

       Jimenez contends the superior court misconstrued the unreasonable risk of danger

to public safety "test" and that, considering the correct interpretation of that test,

Jimenez's circumstances do not support any determination that he would be an

unreasonable risk to public safety under section 1170.18, subdivision (b). In the

alternative, Jimenez maintains that section 1170, subdivision (b) is unconstitutionally

vague and violates his federal due process rights.

       Jimenez's contentions present an issue of first impression. Neither party has cited

any authority that has interpreted section 1170, subdivision (b). Our independent



1      Statutory references are to the Penal Code unless otherwise specified.
                                               2
research has not found any as well. We are aware that multiple cases involving the Act

are currently pending before our high court. However, none of these cases involve the

precise issue before us, but it is possible that those cases could impact the instant matter

in some way. We thus proceed cautiously with this case and look forward to the

Supreme Court's guidance on the Act in the near future.

          We determine that there is no merit to Jimenez's challenge to the Act. We

conclude the superior court properly applied section 1170.18, subdivision (b) to Jimenez

and did not abuse its discretion in finding that he was not eligible for resentencing

because he was an unreasonable risk of danger to public safety. Likewise, Jimenez's

constitutional attack on the Act fares no better. The language the voters approved in

section 1170.18, subdivision (b), namely the unreasonable risk of danger to public safety

is similar to language in other statutes and has been used in a variety of circumstances

under California law. We therefore determine that section 1170.18, subdivision (b) is not

unconstitutionally vague and Jimenez's due process challenge fails. Accordingly, we

affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

          On May 9, 2014, police officers recognized Jimenez in the passenger seat of his

girlfriend's car and conducted a stop because they knew a warrant had been issued for his

arrest due to a parole violation. The occupants were ordered to place their hands outside

the car, but twice Jimenez pulled his hands back into the car. An officer observed

Jimenez throw three small bindles of marijuana, methamphetamine, and heroin out of the



                                               3
window. Jimenez's girlfriend was in the driver's seat and her three-year-old son was in

the back seat of the car.

       On May 14, 2014, the San Diego County District Attorney's Office charged

Jimenez with two counts of possession of a controlled substance (Health & Saf. Code,

§§ 11350, subd. (a), 11377, subd. (a)). It was further alleged that he had one prior strike

conviction (§§ 667, subds. (b)-(i), 1170.12, 668), three prison priors (§§ 667.5, subd. (b),

668), and four probation denial prior felony convictions (§ 1203, subd. (e)(4)).

       On July 25, 2014, Jimenez pled guilty to both counts and admitted all prior

conviction allegations.

       On August 21, 2014, Jimenez was sentenced to 32 months in prison. The sentence

included a concurrent low term of 16 months for each count, doubled due to the prior

strike conviction. The court struck the other prior allegations for purposes of sentencing.

       On November 17, 2014, Jimenez filed a petition for recall of sentence under the

Act. In support of his petition, Jimenez presented evidence of the education program he

completed and a letter of support from his fiancé, explaining that Jimenez is needed at

home to help raise their children. The petition stated Jimenez had been employed in

prison, was motivated to take care of his family, and had not sustained a parole violation

since July 15, 2011.

       In opposition to the petition, the People agreed that Jimenez was eligible for relief

(§ 1170.18, subd. (i)), but argued that he posed an unreasonable risk of committing one of

the enumerated "super strikes" (§ 667, subd. (e)(2)(C)(iv)). Specifically, the People

argued that he would commit attempted murder. In support of their argument, the

                                             4
People described Jimenez as a "gangster" whose history "is replete with ties to his gang,

the use and possession of weapons, and bloodshed."

       The People also emphasized Jimenez's criminal history. Jimenez had a strike

conviction for assault with a deadly weapon (§ 245, subd. (a)(1)), which stemmed from a

February 5, 2012, incident when Jimenez approached a stranger and "stabbed the victim

in the abdomen for no apparent reason." The wound was an inch deep and spanned two

to three inches of the victim's torso. When the victim attempted to defend himself, two of

Jimenez's fellow gang members attacked the victim while yelling their gang's name, "Old

Town National City." As a result, Jimenez was charged with attempted murder (§§ 187,

subd. (a), 664) and assault with a deadly weapon (§ 245, subd. (a)(1)). It was alleged he

committed the crimes to benefit his gang (§ 186.22, subd. (b)(1)), and that the crimes

were serious felonies (§ 1192.7, subds. (c)(8) & (c)(23)). Ultimately, Jimenez pled guilty

to assault with a deadly weapon and the serious felony allegation (§ 1192.7, subd.

(c)(23)), and was sentenced to four years in prison. He later violated the terms of his

parole in that case.

       The People also presented evidence that Jimenez had an extensive adult criminal

history leading up to the strike offense: a prison prior in 2009 (§ 4502, subd. (b)),

manufacture of a dirk or dagger in prison (after two prisoners attacked a third inmate by

stabbing him 16 times, Jimenez recovered the weapon, ran to the bathroom and flushed

it); another prison prior in 2009 (§ 12022, subd. (a)(1)), possession of brass knuckles

(police conducting a probation compliance search saw Jimenez throw a loaded syringe

onto the floor and crawl out the bedroom window while in possession of brass knuckles);

                                              5
possession of ammunition by a prohibited person in 2006 (§ 12316, subd. (b)(1));

contempt of court in 2006 (§ 166, subd. (a)(4); Jimenez was found with two other

documented gang members and thus found in violation of a court-ordered gang

injunction); a prison prior in 2005 (Veh. Code, § 10851, subd. (a), taking a vehicle

without consent (Jimenez was found driving a stolen truck)); possession of a controlled

substance in 2005 (Health & Saf. Code, § 11377, subd. (a)); possession of less than an

ounce of marijuana in 2004 (Health & Saf. Code, § 11357, subd. (b)).

       The People also noted that Jimenez violated probation or parole in every case in

which he was placed under supervision. For his 2005 prison prior, Jimenez's probation

was revoked six times before he was placed on parole in 2007, and he violated the terms

of his parole in 2009. He violated parole on his 2009 convictions as late as September

2011 and violated parole on his strike conviction in May 2014.

       The People maintained Jimenez had a violent adult record while in prison. Aside

from the 2009 incident involving him disposing of a slashing weapon after an attack on

an inmate, Jimenez was administratively disciplined in 2008 for physically attacking

another inmate. Four months earlier, Jimenez was disciplined after attacking an inmate

on the basketball court. Finally, in September 2007, Jimenez was placed in

administrative segregation after attacking an inmate because the disciplinary committee

concluded that " 'release to the general population at this time would jeopardize the safety

and security of the institution.' "

       Jimenez's criminal behavior began as a juvenile. In February 2002, as a teenager,

a true finding was made that Jimenez committed vandalism (§ 594, subds. (a) &

                                             6
(b)(2)(A)) after he tagged his gang's name and moniker on a park wall. In May 2002, a

true finding was made that he committed second degree burglary (§ 459). In October

2001, Jimenez brandished a metal pipe at a man and threatened to strike the victim if he

did not give him his wallet. Though Jimenez did not strike the victim with the pipe, the

victim was punched in the face (by either Jimenez or the juvenile with him). As a result,

Jimenez was convicted of attempted robbery and sentenced to various terms including

gang conditions.

       The People asserted that Jimenez's violent behavior as a teenager continued when

in custody. For example, in 2002, he was disciplined several times: fighting (May, July

and Aug. 2002), gang-related fighting (May and Oct. 2002), and killing a bird (Aug.

2002). Jimenez claimed to have joined the Old Town National City gang at age 10. He

also started drinking alcohol at that time. He began using marijuana a year later.

       Additionally, the People highlighted criminal activity that did not result in a

conviction. In 2005 when on parole, Jimenez jumped from a car after it was pursued and

ran from police. Also in 2005, Jimenez was stopped by officers while riding a bicycle

and admitted smoking methamphetamine that day. In 2002, officers stopped a car after a

bottle was thrown from the car at a passing motorist. Sixteen-year-old Jimenez was in

the car and so intoxicated he could not walk without assistance.

       The court held a hearing on Jimenez's petition. At the hearing, Jimenez's attorney

attempted to minimize Jimenez's previous criminal activity, arguing that Jimenez was not

an unreasonable risk of danger to public safety.



                                             7
       At the hearing, the superior court considered Jimenez's petition, the People's

opposition, the defense's brief in support of the petition, and the probation officer's report

prepared for the original sentencing. Noting the high standard set for any court to

disqualify a person from the Act's benefits, the court explained it was the People's burden

to prove by a preponderance of the evidence that Jimenez posed an unreasonable risk.

The court defined an unreasonable risk as a "demonstrated [] substantial danger, a serious

and well-founded risk, that the individual will commit super strike crimes" if released.

The court explained that a chance or mere possibility that Jimenez would commit an

enumerated offense would not satisfy the standard.

       The court ultimately denied the petition as follows:

          "Mr. Jimenez is an individual who has yet to enjoy his 30th birthday
          that's coming up shortly. In his short life, commencing as a juvenile,
          he has shown a propensity for persistent criminality. Consistent with
          that criminality there is also a consistent or persistent use of force
          with violence that is characteristic of his interactions when free in
          the community, and ironically it does not seem to be abated by
          incarceration. In fact, it is more pronounced as being his means of
          expressing himself. [¶] In addition to the persistent criminality and
          persistent use of violence, there are two significant events in his life
          that this court deems to be extremely important. One was he did
          utilize a knife on another human being resulting in serious injuries
          for which he was convicted. In addition, during his time in the
          institution, he participated in a stabbing incident. It is noted that his
          participation is somewhat limited, but he did participate, took the
          stabbing instrument attempting to dispose of it to protect those that
          were utilizing it. [¶] On balance, Mr. Jimenez is an individual that
          this court is convinced that he is likely to engage in violence with a
          weapon if free in the community. The court deems his record, as I
          review it in totality, as one which does present a substantial danger
          and serious well-founded risk that he would likely commit a super
          strike if free in the community. That risk of danger is unreasonable
          under the circumstances and the petition accordingly is denied."


                                              8
       Jimenez timely appealed.

                                       DISCUSSION

       "Proposition 47 'was intended to reduce penalties "for certain nonserious and

nonviolent property and drug offenses from wobblers or felonies to misdemeanors." ' "

(T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 652.) " 'In interpreting a voter

initiative . . . we apply the same principles that govern statutory construction. [Citation.]

Thus, "we turn first to the language of the statute, giving the words their ordinary

meaning." [Citation.] The statutory language must also be construed in the context of

the statute as a whole and the overall statutory scheme [in light of the electorate's intent].

[Citation.] When the language is ambiguous, "we refer to other indicia of the voters'

intent, particularly the analyses and arguments contained in the official ballot pamphlet."

[Citation.]' [Citation.] In other words, 'our primary purpose is to ascertain and effectuate

the intent of the voters who passed the initiative measure.' " (People v. Briceno (2004) 34

Cal.4th 451, 459.)

       As established by the Act, section 1170.18 created a procedure by which eligible

defendants currently serving felony sentences for certain drug possession and theft

offenses may petition to recall their sentences and seek resentencing to reduce those

offenses to misdemeanors. "Under section 1170.18, a person 'currently serving' a felony

sentence for an offense that is now a misdemeanor under Proposition 47, may petition for

a recall of that sentence and request resentencing in accordance with the statutes that

were added or amended by Proposition 47. [Citation.] A person who satisfies the criteria

in section 1170.18 shall have his or her sentence recalled and be 'resentenced to a

                                              9
misdemeanor . . . unless the court, in its discretion, determines that resentencing the

petitioner would pose an unreasonable risk of danger to public safety.' [Citation.]

Subdivision (c) of section 1170.18 defines the term 'unreasonable risk of danger to public

safety,' and subdivision (b) of the statute lists factors the court must consider in

determining 'whether a new sentence would result in an unreasonable risk of danger to

public safety.' " (People v. Rivera (2015) 233 Cal.App.4th 1085, 1092.)

       Here, there is no dispute that Jimenez pled guilty to felonies that would qualify to

be resentenced as misdemeanors under section 1170.18, subdivision (a). As such, we

need not interpret that subdivision. Instead, we focus on subdivisions (b) and (c).

       Section 1170.18, subdivision (b) sets forth the criteria for the superior court to

consider, in its discretion, to determine whether a petitioner is an unreasonable risk of

danger to public safety. The factors are as follows:

           "(1) The petitioner'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 petitioner's disciplinary record and record of rehabilitation
           while incarcerated.

           "(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." (§ 1170.18, subd.
           (b)(1)-(3).)

       In addition, section 1170.18, subdivision (c) further defines "unreasonable risk of

danger to public safety" as "an unreasonable risk that the petitioner will commit a new"




                                              10
super strike offense, such as murder, rape, or child molestation. (§§ 1170.18, subd. (c);

667, subd. (e)(2)(C)(iv).)2

       Here, Jimenez contends the superior court erred in two ways. First, he asserts the

court misconstrued the unreasonable risk test found in section 1170.18, subdivision (b),

and as such, applied the wrong test. Specifically, he claims the court applied a test based

on "an unrelated statutory standard applicable only to sexually violent predators."

Second, Jimenez maintains that his circumstances do not support that he is an

unreasonable risk under the correct test. We reject both of these contentions.

       As a threshold matter, we note that the plain language of section 1170.18,

subdivision (b) calls for an exercise of the sentencing court's discretion. " 'Discretion is

the power to make the decision, one way or the other.' " (People v. Carmony (2004) 33



2      Section 1170.18, subdivision (c) provides: " '[U]nreasonable risk of danger to
public safety' means an unreasonable risk that the petitioner will commit a new violent
felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667."
       Section 667, subdivision (e)(2)(C)(iv), in turn, lists the following super-strike
offenses: "(I) A 'sexually violent offense' as defined in subdivision (b) of Section 6600 of
the Welfare and Institutions Code. [¶] (II) Oral copulation with a child who is under 14
years of age, and who is more than 10 years younger than he or she as defined by Section
288a, sodomy with another person who is under 14 years of age and more than 10 years
younger than he or she as defined by Section 286, or sexual penetration with another
person who is under 14 years of age, and who is more than 10 years younger than he or
she, as defined by Section 289. [¶] (III) A lewd or lascivious act involving a child under
14 years of age, in violation of Section 288. [¶] (IV) Any homicide offense, including
any attempted homicide offense, defined in Sections 187 to 191.5, inclusive. [¶] (V)
Solicitation to commit murder as defined in Section 653f. [¶] (VI) Assault with a
machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision
(d) of Section 245. [¶] (VII) Possession of a weapon of mass destruction, as defined in
paragraph (1) of subdivision (a) of Section 11418. [¶] (VIII) Any serious and/or violent
felony offense punishable in California by life imprisonment or death."
                                             11
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.' " (People v. Rodrigues (1994) 8

Cal.4th 1060, 1124-1125; italics omitted; see People v. Williams (1998) 17 Cal.4th 148,

162 [abuse of discretion review asks whether ruling in question falls outside bounds of

reason under applicable law and relevant facts].) " ' "[T]he burden is on the party

attacking the sentence to clearly show that the sentencing decision was irrational or

arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to

have acted to achieve legitimate sentencing objectives, and its discretionary

determination . . . will not be set aside on review." ' " (Carmony, supra, at pp. 376-377.)

In addition, a " ' "decision will not be reversed merely because reasonable people might

disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its

judgment for the judgment of the trial judge.' " ' [Citations.] Taken together, these

precepts establish that a trial court does not abuse its discretion unless its decision is so

irrational or arbitrary that no reasonable person could agree with it." (Ibid.)

       "Because 'all discretionary authority is contextual' [citation], we cannot determine

whether a trial court has acted irrationally or arbitrarily . . . without considering the legal

principles and policies that should have guided the court's actions." (People v. Carmony,

supra, 33 Cal.4th at p. 377.) "An abuse of discretion is shown when the trial court

applies the wrong legal standard." (Costco Wholesale Corp. v. Superior Court (2009) 47

Cal.4th 725, 733.)

                                              12
       Here, Jimenez argues the superior court abused its discretion when it applied the

wrong legal standard, namely the standard used to determine if a defendant is a sexually

violent predator. To this end, Jimenez focuses on specific words the superior court used

in explaining its determination that Jimenez would pose an unreasonable risk of danger to

public safety if resentenced. For example, in considering Jimenez's petition under the

Act, the superior court explained: "In my judgment, the type of risk that is an

unreasonable risk can only be presented to the court when there is demonstrated a

substantial danger, a serious and well-founded risk, that the individual will commit super

strike crimes if free in the community." Jimenez points out that appellate courts,

including our Supreme Court, have used the terms "substantial danger" and "serious and

well-founded risk" in construing portions of the Sexually Violent Predators Act (SVPA,

Welf. & Inst. Code, § 6600 et seq.). He is correct. (See People v. Superior Court

(Ghilotti) (2002) 27 Cal.4th 888, 922 (Ghilotti).) Nevertheless, the fact that the superior

court used such language is not of the moment.

       In Ghilotti, our high court interpreted the phrase "likely to engage in acts of sexual

violence" as used in Welfare and Institutions Code section 6601, subdivision (d). In

doing so, the court found that phrase "connotes much more than the mere possibility that

the person will reoffend as a result of a predisposing mental disorder that seriously

impairs volitional control. On the other hand, the statute does not require a precise

determination that the chance of reoffense is better than even. Instead, an evaluator

applying this standard must conclude that the person is 'likely' to reoffend if, because of a

current mental disorder which makes it difficult or impossible to restrain violent sexual

                                             13
behavior, the person presents a substantial danger, that is, a serious and well-founded

risk, that he or she will commit such crimes if free in the community." (Ghilotti, supra,

27 Cal.4th at p. 922, original italics.) Also, the court made clear that it was not persuaded

"that a valid involuntary commitment law requires proof that the person is more likely

than not to reoffend." (Id. at p. 923, original italics.)

       Jimenez contends the superior court's use of the SVPA to interpret unreasonable

risk of danger to public safety under the Act was improper for two reasons. First,

Jimenez emphasizes the purpose of the SVPA is to "fill up state institutional spaces (i.e.,

state hospitals) with certain identified violent sex offenders" while, in contrast, the Act's

purpose is to "free up state institutional spaces . . . now occupied by nonserious,

nonviolent felons who should be treated as misdemeanants and released sooner rather

than later from incarceration." Although we do not quibble with Jimenez's description of

the Act's purpose (see T.W. v. Superior Court, supra, 236 Cal.App.4th 646, 652), the

portion of the Act at issue, section 1170.18, subdivision (b), provides the court with the

discretion to conclude that a petitioner, who otherwise qualifies to have his sentence

reduced under the Act, should not be released earlier because he or she would pose an

unreasonable risk of danger to public safety. (See §1170.18, subd. (b).) In other words,

the portion of the Act Jimenez challenges here, much like Welfare and Institutions Code

section 6601, subdivision (d), provides a standard by which a court must evaluate a

defendant to determine if he or she poses a certain type of danger to society. As such, we

are not troubled that the superior court invoked the terms "substantial danger" and

"serious and well-founded risk" in denying Jimenez's petition under the Act.

                                               14
       Second, Jimenez maintains that by using the SVPA as a guide to interpret section

1170.18, subdivision (b)'s "unreasonable risk" language, the court "set[] a significantly

lower bar . . . to exclude a large group of eligible people from the benefits of

misdemeanor resentencing than the Act intends." To this end, Jimenez asserts that

"unreasonable" means, in "everyday usage," "excessive" or "immoderate." Armed with

this definition, Jimenez concludes, "[c]ommonsensically, a risk that something is less

likely to occur than not cannot be called an excessive or immoderate risk by any stretch

of the imagination." Essentially, Jimenez argues that the phrase "unreasonable risk of

danger to public safety," as used in section 1170.18, subdivision (b), requires a court to

find that a petitioner is more likely than not to commit a super strike if released early.

We find no support for this urged interpretation.

       The Act does not create the phrase "unreasonable risk of danger to public safety"

out of whole cloth. This same phrase can be found in section 1170.126, subdivision (f) as

added by the Three Strikes Reform Act of 2012. That subdivision gives a court

discretion to deny a petition for resentencing under the Three Strikes Reform Act if the

court "determines that resentencing the petitioner would pose an unreasonable risk of

danger to public safety." (§ 1170.126, subd. (f).)

       We observe "it has long been settled that '[t]he enacting body is deemed to be

aware of existing laws and judicial constructions in effect at the time legislation is

enacted' [citation], 'and to have enacted or amended a statute in light thereof' [citation].

'This principle applies to legislation enacted by initiative.' " (People v. Superior Court

(Cervantes) (2014) 225 Cal.App.4th 1007, 1015; accord, In re Lance W. (1985) 37 Cal.3d

                                              15
873, 890, fn. 11.) Thus, we presume voters were aware "unreasonable risk of danger to

public safety," as used in section 1170.126, subdivision (f), had been judicially construed

as not being impermissibly vague, but as nevertheless having no fixed definition.3 (See

People v. Garcia (2014) 230 Cal.App.4th 763, 769-770 (Garcia); People v. Flores (2014)

227 Cal.App.4th 1070, 1075 (Flores).)

       As such, if the drafters had intended to require a court to find that a petitioner was

more likely than not to commit a super strike to be found to be an unreasonable risk of

danger to public safety, they could have written the Act as such. They did not. We

cannot read into a statute qualifications or modifications that will materially affect its

operation as to conform to a supposed intention not expressed by the voters. (See Taylor

v. McKay (1975) 53 Cal.App.3d 644, 651-652; Ogle v. Heim (1968) 69 Cal.2d 7, 9.)

       The Act's provision that allows a court to determine if a petitioner presents an

unreasonable risk of danger is nothing new in California law. (See In re Shaputis, supra,

53 Cal.4th at p. 219; Garcia, supra, 230 Cal.App.4th at pp. 769-770; Flores, supra, 227

Cal.App.4th at p. 1075.) The Act merely asks the court to make a dangerousness

determination. A dangerousness determination is a factual inquiry guided by a superior

court's review of certain enumerated criteria. Under the Act, the court must determine



3       In addition, similar language is found elsewhere in California law. For example,
in reviewing a decision by the California Board of Parole to deny a prisoner parole, an
appellate court considers only "whether some evidence supports the ultimate conclusion
that the inmate poses an unreasonable risk to public safety if released." (In re Shaputis
(2011) 53 Cal.4th 192, 219.) Jimenez has not provided us with any authority wherein the
unreasonable risk within the parole context requires a more likely than not finding of
dangerousness. Our independent research has not uncovered any either.
                                              16
whether an unreasonable risk exists that the petitioner will commit a new super strike

offense, such as murder, rape, or child molestation, if he is released from prison early.

(§ 1170.18, subds. (b), (c).) Further, the Act specifically tells the court what factors to

consider. (See § 1170.18, subd. (b).) There is no indication in the record, and Jimenez

has not persuaded us otherwise, that the superior court did not consider the appropriate

factors. And the fact that the court, here, in making the dangerousness determination,

said certain words that have been used in the SVPA context does not mean that it applied

the wrong test.

       Having concluded that the superior court did not apply the wrong test, we next

analyze whether the court abused its discretion in finding Jimenez was not eligible for

resentencing under the Act because he posed an unreasonable risk of danger. We

conclude the court did not abuse its discretion.

       Jimenez possesses a long criminal history marked with violence. He joined a

criminal street gang at age 10. He, while armed with a metal pipe, attempted to rob a

person. He stabbed a person in the stomach with a knife, was charged with attempted

murder, and ultimately pled guilty to assault with a deadly weapon, serving four years in

prison. During his prison sentence, Jimenez flushed a stabbing weapon down the toilet

that had been used to stab another inmate 16 times.

       While incarcerated, Jimenez has a history of physical violence, including three

attacks on other inmates. Even as a juvenile, Jimenez's time in custody was littered with

various acts of physical violence, such as fighting and killing a bird.



                                              17
       Despite multiple instances of physical violence, Jimenez nevertheless maintains

that the superior court's finding that he was an unreasonable risk to commit a super strike

constituted an abuse of discretion because he has never been convicted of a specific intent

crime. However, there is no such required finding under the Act. Instead, section

1170.18, subdivision (b) tasks the superior court with determining whether a petitioner is

an unreasonable risk of danger to public safety by considering the petitioner's criminal

history, disciplinary record while incarcerated, and any other relevant evidence.

(§ 1170.18, subd. (b).) There is nothing that requires a petitioner to have been convicted

of or pled guilty to a specific intent crime.

       In short, we are satisfied that the superior court's finding that resentencing Jimenez

would pose an unreasonable risk of danger to public safety was not arbitrary, irrational,

or capricious. The court therefore did not abuse its discretion.

       Jimenez next challenges the Act on constitutional grounds. He insists that section

1170.18, subdivision (b), specifically the phrase "unreasonable risk of danger to public

safety" is unconstitutionally vague, and thus, violates his federal due process rights. We

disagree.

       "The constitutional interest implicated in questions of statutory vagueness is that

no person be deprived of 'life, liberty, or property without due process of law,' as assured

by both the federal Constitution [citation] and the California Constitution [citation].)"

(Williams v. Garcetti (1993) 5 Cal.4th 561, 567.) The government violates this guarantee

by taking away someone's life, liberty, or property under a criminal law so vague that it

fails to give ordinary people fair notice of the conduct it punishes, or so standardless that

                                                18
it invites arbitrary enforcement. (Kolender v. Lawson (1983) 461 U.S. 352, 357-358.)

"All presumptions and intendments favor the validity of a statute and mere doubt does

not afford sufficient reason for a judicial declaration of invalidity. Statutes must be

upheld unless their unconstitutionality clearly, positively and unmistakably appears."

(Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 484.)

       No appellate court in California has addressed the constitutionality of section

1170.18, subdivision (b). However, there are two reported cases wherein an appellant

challenged analogous language found in the Three Strikes Reform Act of 2012. In

Garcia, supra, 230 Cal.App.4th 763, the appellant contended that section 1170.126 was

unconstitutionally vague because the term "unreasonable risk of danger to public safety"

was not defined. (Garcia, supra, at p. 768.) In finding that the term was not

unconstitutionally vague, the court noted that the meaning of "unreasonable risk of

danger to public safety" is made clear by reference to examples of evidence the superior

court could consider in making the determination. (Id. at p. 769.) The criteria set forth in

section 1170.126, subdivision (f) is identical to that found in section 1170.18.,

subdivision (b). (See §§ 1170.126, subd. (g); 1170.18, subd. (b).)

       In addition, the court in Garcia, supra, 230 Cal.App.4th 763, emphasized that

"unreasonable risk of danger to public safety did not have to be defined with

mathematical precision to avoid being unconstitutionally vague. The court explained:

          "The critical inquiry, however, is not whether the risk is quantifiable,
          but rather, whether the risk would be 'unreasonable.' [Citation.]
          ' "The law is replete with instances in which a person must, at his
          peril, govern his conduct by such nonmathematical standards as
          'reasonable,' 'prudent,' 'necessary and proper,' 'substantial,' and the

                                             19
          like. Indeed, a wide spectrum of human activities is regulated by
          such terms: thus one man may be given a speeding ticket if he
          overestimates the 'reasonable or prudent' speed to drive his car in the
          circumstances [citation], while another may be incarcerated in state
          prison on a conviction of willful homicide if he misjudges the
          'reasonable' amount of force he may use in repelling an assault
          [citation]. As the Supreme Court stated in Go–Bart Importing Co. v.
          United States (1931) 282 U.S. 344, 357 . . . , 'There is no formula for
          the determination of reasonableness.' Yet standards of this kind are
          not impermissively vague, provided their meaning can be objectively
          ascertained by reference to common experiences of mankind." ' "
          (Garcia, supra, at pp. 769-770.)

       Similarly, in Flores, supra, 237 Cal.App.4th 1070, the court determined that the

word "unreasonable" as used in the phrase "pose an unreasonable risk of danger to public

safety" in section 1170.126, subdivision (f) was not impermissibly vague. (Flores, supra,

at p. 1074.) The court reasoned, "[s]urely a superior court judge is capable of exercising

discretion, justly applying the public safety exception and determining whether a lesser

sentence would pose an unreasonable risk of harm to public safety." (Id. at p. 1075.)

       In his reply brief,4 Jimenez argues that we should not follow Garcia, supra, 230

Cal.App.4th 763 or Flores, supra, 227 Cal.App.4th 1070 because they concern a different

statute. We are not persuaded. Instead, we find the reasoning in both Garcia and Flores

instructive. The challenged language in section 1170.18, subdivision (b) is identical to

the language challenged in Garcia and Flores except the language in the former is more

specific. The phrase "unreasonable risk of danger to public safety" in section 1170.18.

subdivision (b) is further defined in section 1170.18, subdivision (c). (See § 1170.18,



4      Jimenez did not cite or discuss Garcia, supra, 230 Cal.App.4th 763 or Flores,
supra, 227 Cal.App.4th 1070 in his opening brief.
                                            20
subdivision (c) ["As used throughout this Code, 'unreasonable risk of danger to public

safety' means an unreasonable risk that the petitioner will commit a new violent felony

within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e)

of Section 667."].) As such, we follow Garcia and Flores to conclude section 1170.18,

subdivision (b) is not unconstitutionally vague. It provides the superior court with

specific criteria to consider and further instructs the court that to find a petitioner an

unreasonable risk of danger to public safety, it must determine that there exists an

unreasonable risk that the petitioner will commit a super strike. Such a task is well

within the capability of a superior court judge. (See Flores, supra, at p. 1075.)

       We also are not swayed by Jimenez's reliance on Johnson v. United States (2015)

576 U.S. ___; 135 S.Ct. 2551 (Johnson). That case addressed whether the residual clause

of the Armed Career Criminal Act of 1984 (ACCA; 18 U.S.C. § 924(e)(2)(B)), violated

the Constitution's prohibition of vague criminal laws. Under the ACCA, a defendant

convicted of being a felon in possession of a firearm faces more severe punishment if he

has "three or more previous convictions for a 'violent felony,' a term defined to include

any felony that 'involves conduct that presents a serious potential risk of physical injury

to another.' "5 (Johnson, supra, at p. 2555; italics added.) The italicized words of this




5        The ACCA defines "violent felony" as follows: "any crime punishable by
imprisonment for a term exceeding one year . . . that -- [¶] (i) has as an element the use,
attempted use, or threatened use of physical force against the person of another; or [¶]
(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves
conduct that presents a serious injury to another." (18 U.S.C. § 924(e)(2)(B).)
                                              21
definition have come to be known as the ACCA's residual clause. (Johnson, supra, at

p. 2556.)

       The United States Supreme Court determined that the ACCA's residual clause was

unconstitutionally vague. It observed that the "indeterminacy of the wide-ranging inquiry

required by the residual clause both denies fair notice to defendants and invites arbitrary

enforcement by judges." (Johnson, supra, 135 S.Ct. at p. 2557.)

       The court was troubled that the residual clause left "grave uncertainty about how

to estimate the risk posed by a crime." (Johnson, supra, 135 S.Ct. at p. 2557.) The court

also was bothered that the residual clause left "uncertainty about how much risk it takes

for a crime to qualify as a violent felony." (Id. at p. 2558.) The court commented, "It is

one thing to apply an imprecise 'serious potential risk' standard to real-world facts; it is

quite another to apply it to a judge-imagined abstraction." (Ibid.)

       None of the concerns plaguing the court in Johnson, supra, 135 S.Ct. 1551 are

present here. Importantly, while the ACCA could increase a defendant's sentence, the

Act operates to reduce a sentence. The ACCA allows federal courts to punish certain

defendants more harshly. Indeed, the Supreme Court was especially concerned about the

potential to increase a defendant's sentence under the ACCA. The court held that

"[i]ncreasing a defendant's sentence under the [residual] clause denies due process of

law." (Johnson, supra, at p. 2557.) Here, the Act does not involve the potential to

increase a defendant's punishment. To the contrary, the Act operates to potentially lower

a defendant's sentence that was found proper and warranted under the existing law.

Therefore, in the instant matter, the superior court did not increase Jimenez's sentence.

                                              22
Instead, the court merely determined that the sentence should not be shortened.

Moreover, unlike the appellant in Johnson, Jimenez does not argue that he was

improperly sentenced in the first instance. Based on this critical distinction alone, we

find Johnson unhelpful in the instant matter.6

       Moreover, the Act does not require a court to estimate the risk associated with a

crime in the abstract or to determine how much risk it takes for a crime to qualify as a

violent crime. Instead, section 1170.18, subdivisions (b) and (c) inform the court that it

must determine whether petitioner is an "unreasonable risk" to commit a super strike if

resentenced to a lesser sentence based on certain criteria. Simply put, the Act does not

invite arbitrary enforcement as the Supreme Court determined the ACCA did. Johnson,

supra, 135 S.Ct. 2551 does not support Jimenez's position.

       As part of Jimenez's constitutional challenge to section 1170.18, subdivision (b),

he urges this court to judicially construe the subdivision to require the People to prove a

petitioner is an "unreasonable risk of danger to public safety" by clear and convincing

evidence. He contends this requirement is necessary to save subdivision (b) from being

unconstitutionally vague. Because we determine the challenged subdivision is not

unconstitutionally vague, we need not address this issue. That said, we find nothing in

the Act or any authority construing the Act that suggests that the People's burden of


6      In addition, the United States Supreme Court was concerned that the ACCA's
residual clause denies fair notice regarding what conduct a defendant needs to avoid.
(See Johnson, supra, 135 S.Ct. at p. 2557.) In other words, the residual clause leaves
defendants to guess at what conduct could result in more severe sentences. Here, there is
no analogous concern under the Act where a defendant is not subject to a more severe
sentence based on a vague statute.
                                             23
proving a defendant an unreasonable risk of danger to public safety would require

anything more than proof by a preponderance of the evidence.

                                    DISPOSITION

      The order is affirmed.




                                                                HUFFMAN, Acting P. J.

WE CONCUR:


                     HALLER, J.


                 McDONALD, J.




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