Filed 12/16/14




                      CERTIFIED FOR PARTIAL PUBLICATION*


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                   F067946
        Plaintiff and Respondent,
                                                          (Super. Ct. No. CRF30714)
                 v.

DAVID JOHN VALENCIA,                                             OPINION
        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of Tuolumne County. Eleanor
Provost, Judge.
        Stephanie L. Gunther for Defendant and Appellant.
        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Peter
W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
                                         -ooOoo-




*       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part I of the Discussion.
                                    INTRODUCTION
       The Three Strikes Reform Act of 2012 (hereafter Proposition 36 or the Act)
created a postconviction release proceeding for third strike offenders serving
indeterminate life sentences for crimes that are not serious or violent felonies. If such an
inmate meets the criteria enumerated in Penal Code section 1170.126, subdivision (e), he
or she will be resentenced as a second strike offender unless the court determines such
resentencing would pose an unreasonable risk of danger to public safety.1 (§ 1170.126,
subd. (f); People v. Yearwood (2013) 213 Cal.App.4th 161, 168.)
       After the Act went into effect, David John Valencia (defendant), an inmate serving
a term of 25 years to life following conviction of a felony that was not violent (as defined
by § 667.5, subd. (c)) or serious (as defined by § 1192.7, subd. (c)), filed a petition for
recall of sentence and request for resentencing under the Act. Following a hearing, the
trial court found defendant to be an unreasonable risk to public safety and denied the
petition.
       We conclude the trial court did not abuse its discretion by denying the petition. In
the unpublished portion of our opinion, we reject defendant’s claims the trial court used
the wrong standard, failed to properly evaluate whether defendant posed an unreasonable
risk to society, and had to appoint an expert to evaluate defendant regarding current
dangerousness; and his claim the prosecution did not meet its burden of establishing
dangerousness; his claim his sentence of 25 years to life constitutes cruel and unusual
punishment; and his claim the errors violated his right to due process. In the published
portion, we conclude recently enacted section 1170.18, subdivision (c) does not modify
section 1170.126, subdivision (f). We affirm.




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



                                              2.
                       FACTS AND PROCEDURAL HISTORY
       On September 13, 2009, neighbors heard an argument between defendant and his
wife, Carrie Kobel. They were yelling and screaming and Kobel was crying.2 Kobel was
then seen coming down her driveway, with defendant following. Defendant pushed
Kobel, causing her to fall to the ground, then punched her multiple times. When Kobel,
who was screaming for help, asked witnesses to call the police, defendant told them to
mind their own business and became aggressive and intimidating toward them. When the
police arrived, Kobel related she and defendant had gotten into an argument when she
went to move her truck into the driveway so friends coming over would have a place to
park. Kobel’s driver’s license had been suspended due to a vehicle accident in which she
had been under the influence of alcohol. Defendant objected to her driving because the
couple had been drinking and he thought she was going to leave. Kobel told him she was
only moving the truck, but when she went to do so, defendant hit her in the back of the
head. Defendant denied there had been a fight; he said Kobel was intoxicated and
attempting to leave, and he was only trying to stop her. Although he denied hitting
Kobel, injuries to his knuckles were inconsistent with that claim. Kobel was treated for a
laceration on her head that was closed with staples.
       At trial, a woman who had been in a relationship with defendant in 2000 testified
defendant had assaulted her by hitting her “full force” with his fist between her temple
and ear. She suffered a ruptured eardrum from the incident.
       On December 2, 2009, a jury convicted defendant of felony spousal abuse
(§ 273.5). He admitted suffering five felony convictions, two of which constituted
strikes. On January 6, 2010, he was sentenced to prison for 25 years to life.


2      The facts of defendant’s commitment offense are taken from our opinion in People
v. Valencia (Mar. 3, 2011, F059244) [nonpub. opn.], which is contained in the clerk’s
transcript of the present appeal.



                                            3.
         On May 13, 2013, defendant filed a petition to recall sentence and request for
resentencing under section 1170.126.3 Defendant represented his strike record consisted
of a 1995 conviction for kidnapping (§ 207, subd. (a)) and a 1996 conviction for making
a criminal threat (§ 422). Appended to the petition was a letter from defendant’s parents,
stating their support for him and willingness to assist him in obtaining psychological help
and drug/alcohol treatment; a letter from the Salvation Army Adult Rehabilitation Center
in San Francisco, stating it appeared defendant was eligible for intake; letters from the
Delancey Street Foundation in San Francisco, thanking defendant for his interest and
explaining how to apply upon release, but stating acceptance could not be guaranteed;4 an
informational “chrono,” dated March 8, 2010, documenting defendant requested
segregated housing because he feared for his safety after refusing to sign a petition being
submitted by other White inmates, one of whom accused him of being a coward, after
which defendant was told he had to stab the person who called him a coward or he would
be “‘dealt with’”; and an inmate request, dated March 12, 2013, in which defendant asked
to be placed on waiting lists for anger management and Alcoholics Anonymous (AA)
meetings. Defendant also related he had enrolled in a mail-order anger management
course. He subsequently presented a certificate, dated May 15, 2013, attesting to his
completion of the “‘Grant me the Serenity Workbook” for AA, and inmate passes
showing he was issued a pass allowing him to attend AA meetings on April 24, May 8,
and May 15, 2013.5




3     The petition was originally filed on April 15, 2013. It is unclear from the record
why the petition was refiled.
4        Several of the letters were from 2009.
5        Although the passes contained spaces for arrival and departure times, none were
noted.



                                              4.
       The People opposed the petition. They asserted that in addition to the strike
convictions, defendant had felony convictions for violating section 273.5 in 2000,
section 69 in 1996, and Vehicle Code section 23152, subdivision (a) in 1996, in addition
to 12 misdemeanor convictions between 1987 and 2007. The People set out the
comments made by the trial court when it denied defendant’s request to dismiss one of
his strikes for purposes of sentencing on his commitment offense, and argued
circumstances had not changed. They asserted defendant’s prior record documented his
violence, his continuous pattern of criminal conduct, and his failure to learn despite being
offered treatment and rehabilitation programs. They also asserted defendant had not
participated in any programs while imprisoned to address his violent tendencies.
Accordingly, they argued he posed an unreasonable risk of danger.
       In his reply to the opposition, defendant noted his commitment offense was not for
a serious or violent felony, so if he were sentenced now, the court would not have the
option of sentencing him to 25 years to life; the prosecutor offered him a six-year
sentence prior to trial; and the commitment offense involved him “wrestl[ing]” with his
wife in an attempt to stop her from driving because she was intoxicated. Defendant
argued the People had the burden of establishing he was an unreasonable risk to public
safety, and his crimes from a decade earlier were insufficient. He noted he had not had
any further convictions while incarcerated, and asserted his prison record did not
demonstrate patterns of violent and predatory behavior.
       The petition was heard August 9, 2013, before the judge who sentenced defendant
to the third strike term.6 At the outset, the court found defendant eligible for
resentencing, and placed the burden on the People with respect to whether resentencing


6      We recite the evidence and argument at the hearing, and the court’s ruling, in
some detail due to the way defendant has excerpted minor portions — particularly of the
court’s comments — as a basis for many of his claims on appeal.



                                             5.
defendant would pose an unreasonable risk of danger to public safety. Over the
prosecutor’s objection, the trial court admitted a document showing defendant’s in-prison
risk classification was one, which was low.
       The defense called witnesses at the hearing. Defendant’s mother testified she had
not seen defendant during his most recent prison stay until the Sunday before the hearing,
as she was partially disabled and unable to travel, although they communicated by letter
and sporadically by telephone. Since defendant was no longer under the influence of
alcohol, his mother noticed his attitude was changing. He had apologized for being such
a disappointment. If defendant were released from prison, he would be able to live with
his parents in Sonora.
       Defendant testified he had been in prison this last time almost four years, and he
had two prior prison terms.7 During his current term, he had no disciplinary actions.
During his previous terms, he had one write-up for brewing alcohol. Defendant related
that during his current prison term, he was in AA and had been taking a mail-order course
on anger management and learning how to live a better life. Due to overcrowding, he
was “in reception” for 28 months, where nothing was offered. Now, however, he
attended AA meetings once a week. The mail-order course, which he only recently
discovered, involved a curriculum where the school sent information, the student
completed and returned it, and the school gave a score. Defendant had done the first six
lessons. He did not know how many were left before he received his certificate. He
started both AA and the mail-order course around April 2013.



7      The prison term defendant had before his current term was for felony domestic
battery. He pled guilty and was sentenced to four years. Defendant admitted having
violated probation at various times, but denied violating a protective order in his prior
domestic violence case. He completed a 52-week batterer’s course in conjunction with
that domestic violence case.



                                              6.
         Defendant related that since 2010, he had been housed in protective custody. He
was asked to stab someone and refused. He explained that the gangs run the prison, and
if an inmate does not do what they say, he will be next. Because defendant did not want
to be violent, he went into protective custody.
         Prior to trial, defendant was offered a six-year sentence. He turned it down
because his wife said she bumped her head when she got in the truck. Defendant did not
remember much about the day the incident happened, but knew he stopped her from
drinking and driving. He did not make the right decisions, but was under the impression
he had some type of reduced culpability.
         If defendant were released from prison, he planned to enter a residential program
such as the Salvation Army or Delancey Street, so he could learn to change his life. Both
were one- or two-year programs. Defendant represented he was accepted into Delancey
Street earlier, and had been accepted into the Salvation Army program since he had been
in prison.
         Defendant apologized for what he had done and stated he had learned his lesson.
He professed a desire to change his life. He stated he was ready to change his life and be
sober.
         At the conclusion of the hearing, defense counsel argued that anyone with strike
priors would have a history like defendant, so something more was needed to show he
would pose an unreasonable risk of danger. Counsel argued the strikes were 17 and 18
years old, and the felony before the commitment offense was nine years earlier. Counsel
pointed to defendant’s lack of in-prison disciplinary record, and noted that if the current
case occurred now, defendant’s maximum sentence would be eight years. Counsel
argued defendant wanted to change his life and was going to go into a program. Given
all the circumstances, he asserted, the People had not met their burden of showing
defendant was an unreasonable risk.



                                              7.
       The prosecutor argued that being a good prisoner was not the same thing as being
a safe citizen. He acknowledged that anyone in a three strikes case had a history, but in
defendant’s case, the nature of that history, intervening events, and conduct showed he
was an unreasonable risk in society. The prosecutor argued that defendant had been
given “break after break” and “program after program,” but had done nothing to stop and
in fact was continuing to be violent. The prosecutor noted that although defendant’s
strike convictions were some time ago, defendant continued criminal conduct in the
intervening time, including violence against women that resulted in injury even after his
completion of a 52-week batterers’ course. The prosecutor also pointed out that
defendant did not even start his AA or mail-order programs until a month before he filed
his petition.
       This ensued:

              “THE COURT: … My concern is not whether today he would be
       facing the same charges.… I spent probably the last month almost thinking
       about it …, because … this does kind of make me think about, did I make a
       mistake in that sentence?

              “I was well aware of Romero[8] when I sentenced him. I knew I
       could strike a strike. I have struck prior strikes as the DA’s Office
       knows.…

               “I think that Prop. 36 was based on the idea that judges would be
       sentencing people to prison … for like a billy club when you are a two
       striker. They were for thefts when you were a two striker. They were for
       drugs, possession and even transportation and maybe even possession with
       intent to sell. All of those would have been the kind of things I think that
       the public was looking at. It’s hard for me to think that they intended
       somebody … who I do believe is dangerous to be out again. I can’t think
       of a better predictor of future conduct than past conduct.

             “And as [the prosecutor] points out, what you do in prison really
       doesn’t have a whole lot to do with what you do when you’re outside there

8      People v. Superior Court (Romero) (1996) 13 Cal.4th 497.



                                            8.
and you have access to drugs and alcohol. In this case, primarily alcohol, I
think. I picture the idea of his coming home and living on Stewart Street
and there are bars within a block. [¶] … [¶]

       “THE DEFENDANT: I won’t come back to Sonora. I’ll go to
Delancey Street. My wife’s bipolar. I’m done with domestic violence and
I’m done with drinking. I’m ready to change my life. You guys got me
scared straight.

       “THE COURT: But we’ve heard that before. [¶] … [¶] … You had
a previous alcohol program; did you not? What did you do that time?

       “THE DEFENDANT: Stole a bottle —

       “THE COURT: But you did a program for alcohol?

       “THE DEFENDANT: Yeah.

       “THE COURT: How long of a program?

       “THE DEFENDANT: I don’t know. Like, I was in AA and stuff
for a year and I stayed sober the whole time. It’s when I stopped
participating in recovery that —

       “THE COURT: Then you did a fifty-two week domestic violence
program, yet we still have this offense with very serious — I think any time
you have sutures, that’s a big deal. Most people can be hit … without
requiring sutures. This was serious.

       “THE DEFENDANT: Yeah. But see —

       “THE COURT: I cannot bring myself to do this. I think he is a
danger to public safety. And as I said during the sentencing, he had nine
grants of probation and was on probation when this happened. It was for
something fairly minor.… [¶] … [¶] … But this was serious injuries to a
victim and unprovoked. I just thought unprovoked. I could not and the
jury could not buy the idea that you had to do something and that it was
absolutely necessary for you to clobber on her to make her not drive. That
was just pure nonsense and I thought so at the time and obviously the jury
did too. [¶] … [¶] … I cannot grant this. I just feel that he is a danger. He
is an unreasonable risk to public safety. And, in particular, to the women
he’s around. I just can’t do this.

       “So I’m going to deny the petition.… [¶] … [¶]



                                     9.
              “THE DEFENDANT: I will be appealing this then. I have a right to
       an appeal .… [¶] … [¶] … I went to trial, so this new law will attach to it,
       so I would like for you to file a Notice of Appeal. [¶] … [¶] … Because I
       can show it’s more likely than not that the Court would have accepted my
       plea, so it’s not really genuine that you believe I’m a risk to public safety,
       because you — the other three strikers with the same case would take deals.
       [¶] … [¶] … I’m not a risk to public safety. This is not right.”
                                       DISCUSSION
       Defendant says the trial court erred by denying his petition because (1) the court
used the wrong standard, (2) the court failed to properly evaluate whether defendant
posed an unreasonable risk to society, (3) the prosecution failed to meet its burden of
establishing dangerousness by a preponderance of the evidence, (4) the prosecution failed
to meet its burden of establishing some evidence that defendant currently posed an
unreasonable risk, and (5) the court should have sua sponte appointed an expert to
evaluate defendant with respect to current dangerousness. Defendant further contends a
sentence of 25 years to life constitutes cruel and unusual punishment in violation of the
Eighth Amendment to the United States Constitution, and that the various errors violated
his due process rights. Finally, defendant contends the definition of “unreasonable risk of
danger to public safety” contained in section 1170.18, subdivision (c) applies to
resentencing proceedings under the Act. We reject his arguments.
                                              I*
              The trial court did not err by denying defendant’s petition.
       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 1170.126.9 (People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979,

*      See footnote, ante, page 1.
9      “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)


                                             10.
989.) If the inmate satisfies all these criteria, as did defendant, he or she “shall be
resentenced [as a second strike offender] unless the court, in its discretion, determines
that resentencing the [inmate] would pose an unreasonable risk of danger to public
safety.” (§ 1170.126, subd. (f).) In exercising this discretion, “the court may consider:
[¶] (1) The [inmate’s] criminal conviction history, including the type of crimes
committed, the extent of injury to victims, the length of prior prison commitments, and
the remoteness of the crimes; [¶] (2) The [inmate’s] disciplinary record and record of
rehabilitation while incarcerated; and [¶] (3) Any other evidence the court, within its
discretion, determines to be relevant in deciding whether a new sentence would result in
an unreasonable risk of danger to public safety.” (Id., subd. (g).)
       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
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


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).)


                                              11.
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.”’ [Citation.]” (People v. Carmony,
supra, 33 Cal.4th at pp. 376-377.)
        “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. [Citation.]” (Costco Wholesale Corp. v. Superior
Court (2009) 47 Cal.4th 725, 733.)
        Under the clear language of section 1170.126, we review the trial court’s ultimate
determination whether to resentence a petitioner for abuse of discretion. Of course, if
there is no evidence in the record to support the decision, the decision constitutes an
abuse of discretion. (See In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.) Thus, the
questions arise which party has the burden of producing such evidence, and to what
degree of certainty, and what level of support — what standard of proof — is required for
a trial court to rely on such evidence? (See People v. Mower (2002) 28 Cal.4th 457,
476.)
        Division Three of the Second District Court of Appeal has stated that, where a
court’s discretion under section 1170.126, subdivision (f) is concerned, the People bear
the burden of proving “dangerousness” by a preponderance of the evidence. (People v.
Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301-1305 & fn. 25 (Kaulick);
see Evid. Code, § 115.) That court determined this is so — and Apprendi v. New Jersey
(2000) 530 U.S. 466 (Apprendi) and its progeny do not apply — because “dangerousness
is not a factor which enhances the sentence imposed when a defendant is resentenced



                                             12.
under the Act; instead, dangerousness is a hurdle which must be crossed in order for a
defendant to be resentenced at all.” (Kaulick, supra, at p. 1303.)
       We agree with Kaulick that the applicable standard is preponderance of the
evidence.10 This does not mean, however, that the trial court must apply that standard in
making its ultimate determination whether to resentence a petitioner, or we must review
that determination for substantial evidence.11 Nor does it mean evidence of
dangerousness must preponderate over evidence of rehabilitation in order for
resentencing to be denied. Instead, taking into account the language of subdivisions (f)
and (g) of section 1170.126, we conclude it means the People have the burden of
establishing, by a preponderance of the evidence, facts from which a determination
resentencing the petitioner would pose an unreasonable risk of danger to public safety
can reasonably be made.12 Stated another way, evidence showing a petitioner poses a


10     We have previously discussed Kaulick in the context of the initial determination
whether an inmate is eligible for resentencing under the Act. (People v. Blakely (2014)
225 Cal.App.4th 1042, 1058, 1060-1061; People v. Osuna (2014) 225 Cal.App.4th 1020,
1033, 1039-1040.) Nothing we say here should be taken as disagreement with or
modification of those opinions. We deal here with a different aspect of the retrospective
portion of the Act and a subject not before us in our prior cases.
11      The substantial evidence test applies to an appellate court’s review of findings
made under the preponderance of the evidence standard. (People v. Wong (2010) 186
Cal.App.4th 1433, 1444.) Under that test, the appellate court reviews the record in the
light most favorable to the challenged finding, to determine whether it discloses evidence
that is reasonable, credible, and of solid value such that a reasonable trier of fact could
make the finding by a preponderance of the evidence. The appellate court “resolve[s] all
conflicts in the evidence and questions of credibility in favor of the [finding], and …
indulge[s] every reasonable inference the [trier of fact] could draw from the evidence.
[Citation.]” (Ibid.)
12     Courts and parties have assumed whatever burden exists is on the People. (E.g.,
People v. Flores (2014) 227 Cal.App.4th 1070, 1075-1076; Kaulick, supra, 215
Cal.App.4th at p. 1301, fn. 25.) Such allocation is in harmony with the language of
section 1170.126, subdivision (f) that an eligible petitioner “shall be resentenced …
unless” the court makes the required determination.



                                            13.
risk of danger to public safety must be proven by the People by a preponderance of the
evidence. The reasons a trial court finds resentencing would pose an unreasonable risk of
danger, or its weighing of evidence showing dangerousness versus evidence showing
rehabilitation, lie within the court’s discretion. The ultimate determination that
resentencing would pose an unreasonable risk of danger is a discretionary one. While the
determination must be supported by record evidence established by a preponderance, the
trial court need not itself find an unreasonable risk of danger by a preponderance of the
evidence. (See In re Robert L., supra, 21 Cal.App.4th at pp. 1065-1067 [discussing
abuse of discretion and preponderance of the evidence standards].)
       Such an interpretation is consistent with California’s noncapital sentencing
scheme.13 Under the determinate sentencing law (DSL) as it existed prior to
Cunningham v. California (2007) 549 U.S. 270 (Cunningham), “three terms of
imprisonment [were] specified by statute for most offenses. The trial court’s discretion in
selecting among [those] options [was] limited by section 1170, subdivision (b), which
direct[ed] that ‘the court shall order imposition of the middle term, unless there are
circumstances in aggravation or mitigation of the crime.’” (People v. Black (2007) 41
Cal.4th 799, 808, fn. omitted.) Trial courts had “broad discretion” to impose the lower or
upper term instead of the middle term of imprisonment (People v. Scott (1994) 9 Cal.4th
331, 349), and generally were required by 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

13     The determination of the appropriate penalty in a capital case “‘is “essentially
moral and normative …, and therefore … there is no burden of proof or burden of
persuasion. [Citation.]” [Citation.]’ [Citations.]” (People v. McKinzie (2012) 54
Cal.4th 1302, 1362.)



                                             14.
Cunningham, so as to eliminate judicial factfinding in selection of the appropriate term
when three possible prison terms are specified by statute, establishment of facts by a
preponderance of the evidence remains necessary with respect to certain discretionary
sentencing decisions. (See In re Coley (2012) 55 Cal.4th 524, 557-558.)14
       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.)
       We do not read the foregoing statement as suggesting the People bear no burden in
a proceeding to determine whether a petitioner should be resentenced under the Act.
Subdivision (g) of section 1170.126 contemplates the trial court’s consideration of
evidence. It stands to reason someone must produce that evidence. Under Evidence
Code section 115, “‘[b]urden of proof’ means the obligation of a party to establish by
evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or
the court.… [¶] Except as otherwise provided by law, the burden of proof requires proof
by a preponderance of the evidence.”




14      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.”



                                                15.
       However, the trial court’s ultimate determination when considering a petition for
resentencing under section 1170.126 — whether resentencing the petitioner would pose
an unreasonable risk of danger to public safety — is analogous to an evaluation of the
relative weight of mitigating and aggravating circumstances. Such an evaluation “is not
equivalent to a factual finding.” (People v. Black, supra, 41 Cal.4th at p. 814, fn. 4.) It
follows, then, that the trial court need not apply a preponderance of the evidence
standard, in that it need not find resentencing the petitioner would, more likely than not,
pose an 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’”].)
       Kaulick found the prosecution bears the burden of establishing “dangerousness”
by a preponderance of the evidence against a claim the Apprendi line of cases requires
proof beyond a reasonable doubt. (Kaulick, supra, 215 Cal.App.4th at pp. 1301-1302.)
As a result, it had no real occasion to address the interplay between the burden of proof
and the trial court’s exercise of discretion as that issue is presented here, or to clarify
whether the prosecution is required to establish “dangerousness” in the sense of facts
upon which the trial court may base the ultimate determination resentencing a petitioner
would pose an unreasonable risk of danger to public safety, or in the sense of establishing
that determination itself. Nevertheless, we believe it supports our interpretation. Kaulick
stated, in part: “The maximum sentence to which Kaulick, and those similarly situated to
him, is subject was, and shall always be, the indeterminate life term to which he was
originally sentenced. While [the Act] presents him with an opportunity to be resentenced
to a lesser term, unless certain facts are established, he is nonetheless still subject to the
third strike sentence based on the facts established at the time he was originally
sentenced. As such, a court’s discretionary decision to decline to modify the sentence in
his favor can be based on any otherwise appropriate factor (i.e., dangerousness), and
such factor need not be established by proof beyond a reasonable doubt to a jury.” (Id.
at p. 1303, italics added.) The court further stated: “[I]t is the general rule in California

                                              16.
that once a defendant is eligible for an increased penalty, the trial court, in exercising its
discretion to impose that penalty, may rely on factors established by a preponderance of
the evidence. [Citation.]” (Id. at p. 1305, italics added.)
          Finally, Kaulick rejected the suggestion a trial court could determine resentencing
a petitioner would pose an unreasonable risk of danger to public safety, yet still have the
discretion to resentence that petitioner to a second strike term. (Kaulick, supra, 215
Cal.App.4th at pp. 1293-1294, fn. 12.) The court explained: “The language of …
section 1170.126, subdivision (f), states that the petitioner shall be resentenced unless the
court finds an unreasonable risk of danger. It does not state that if the court finds an
unreasonable risk of danger, it can nonetheless resentence the petitioner. In any event,
the ballot arguments in support of Proposition 36 emphasized that the Act would not
benefit ‘“truly dangerous criminals.”’ [Citation.] It is impossible to believe that the
voters intended to allow a court the discretion to resentence defendants whose
resentencing that court had already found would present an unreasonable risk of danger.”
(Ibid.)
          We concur with Kaulick’s rejection of the argument. Nevertheless, it seems to us
that if the prosecution had the burden of proving the ultimate issue in a resentencing
proceeding, a trial court necessarily would be divested of its discretion to resentence in
any case in which that burden of proof was met. Yet the language of section 1170.126,
subdivision (f) expressly provides the petitioner shall be resentenced unless the court, in
its discretion, makes a determination that resentencing would pose an unreasonable risk
of danger. The statute does not say the petitioner shall be resentenced unless the People
prove resentencing would pose such a risk.
          To summarize, a trial court need not determine, by a preponderance of the
evidence, that resentencing a petitioner would pose an unreasonable risk of danger to
public safety before it can properly deny a petition for resentencing under the Act. Nor is
the court’s ultimate determination subject to substantial evidence review. Rather, its

                                               17.
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.15 If a factor (for example, that the petitioner recently committed a battery, is
violent due to repeated instances of mutual combat, etc.) is not established by a
preponderance of the evidence, it cannot form the basis for a finding of unreasonable risk.
(See People v. Cluff (2001) 87 Cal.App.4th 991, 998 [trial court abuses its discretion
when factual findings critical to decision find no support in record]; cf. People v. Read
(1990) 221 Cal.App.3d 685, 689-691 [where trial court erroneously determined defendant
was statutorily ineligible for probation, reviewing court was required to determine
whether trial court gave sufficient other reasons, supported by facts of case, for probation
denial].)
       Applying these principles to the present case, and examining the record as a
whole, rather than cherry-picked fragments, it is readily apparent the trial court did not
err by denying defendant’s petition. We generally presume a trial court has properly
followed established law. Although this presumption does not apply where the law was
unclear or uncertain when the lower court acted (People v. Diaz (1992) 3 Cal.4th 495,
567), Kaulick was decided several months before the sentencing court ruled on
defendant’s petition. Moreover, the parties’ pleadings and arguments, and the court’s
own comments (either at the hearing itself or on one of the occasions when the matter




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



                                               18.
was continued) show the court was aware of which party had to establish what and to
what level of certainty.
       Contrary to defendant’s claim, the manner in which the court mentioned its prior
Romero ruling does not suggest it mistook its broad authority to resentence defendant
under section 1170.126 for the limited authority to dismiss a strike under that case. Nor
do we agree with defendant’s assertion the court failed to properly evaluate whether
defendant posed an unreasonable risk to public safety by basing its finding solely on
information it had at the time of the original sentencing. Evidence concerning the factors
set out in subdivision (g) of section 1170.126, including defendant’s lack of in-prison
disciplinary record, his low-risk assessment score, and his attendance of AA meetings
and participation in a mail-order anger management class, was all before the court (as
was the fact defendant only started participating in AA and the mail-order class about one
month before he filed his resentencing petition). That the trial court may not have
expressly mentioned some of these factors does not mean it failed to consider them and,
in the absence of any showing to the contrary, we presume it did so. (Evid. Code, § 664;
see Denham v. Superior Court (1970) 2 Cal.3d 557, 564; cf. People v. Sparks (1968) 262
Cal.App.2d 597, 600-601.) Defendant’s true argument is that the court did not credit
them in the manner and to the extent defendant thinks is appropriate. We find the court
acted well within its discretion, however, and — again contrary to defendant’s claim —
made its finding based on its view of defendant’s current risk to society, a view that was
supported by record evidence.
       Defendant says the prosecution failed to meet its burden of establishing
dangerousness by a preponderance of the evidence. He apparently bases this on the fact
he presented witnesses while the People did not. The prosecutor adduced evidence
through his cross-examination of defendant and defendant’s mother, however, and was
entitled to rely on information (such as defendant’s criminal history, the circumstances of
the commitment offense, and defendant’s presently belated and previously unsuccessful

                                            19.
rehabilitation efforts) that was already before the trial court and established at least by a
preponderance.16 We have explained the applicable burden and standard of proof, ante.
The evidence before the court was sufficient to permit a rational trier of fact to conclude
resentencing defendant would pose an unreasonable risk of danger to public safety, as
required by section 1170.126, subdivision (f).
       Apparently analogizing a resentencing proceeding under the Act to a parole
proceeding for an inmate serving a life term (see § 3041; In re Lawrence (2008) 44
Cal.4th 1181, 1223-1224), defendant chides the court for failing to appoint, sua sponte,
an expert to evaluate defendant with respect to current dangerousness and his
psychological or mental attitude. He says it is “clear” expert psychological evidence was
required to address the issue of defendant’s current threat to society, if any. He is wrong.
       Defendant cites Evidence Code section 730 for the proposition an expert may be
appointed by a court sua sponte for the purpose of obtaining an impartial expert
opinion.17 (See Mercury Casualty Co. v. Superior Court (1986) 179 Cal.App.3d 1027,
1032.) That statute “does not authorize the appointment of experts after trial in
connection with sentencing proceedings.” (People v. Stuckey (2009) 175 Cal.App.4th
898, 905; id. at p. 913.) Regardless of whether a proceeding under section 1170.126 is
likened to a trial or is part of a sentencing proceeding, “a trial court has inherent power,
independent of statute, to exercise its discretion and control over all proceedings relating


16      “‘Evidence’ means testimony, writings, material objects, or other things presented
to the senses that are offered to prove the existence or nonexistence of a fact.” (Evid.
Code, § 140.)
17     Evidence Code section 730 provides, in relevant part: “When it appears to the
court, at any time before or during the trial of an action, that expert evidence is or may be
required by the court …, the court on its own motion … may appoint one or more experts
to investigate, to render a report as may be ordered by the court, and to testify as an
expert at the trial of the action relative to the fact or matter as to which the expert
evidence is or may be required.”



                                              20.
to the litigation before it [citation],” including “the power to obtain evidence upon which
the judgment of the court may rest [citation].” (Johnson v. Banducci (1963) 212
Cal.App.2d 254, 260; see Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.)
Thus, it appears a court could appoint an expert, on its own motion, to conduct an
evaluation concerning the risk of danger currently posed to public safety by an inmate
seeking resentencing under the Act.18
       However, “[t]he decision on the need for the appointment of an expert lies within
the discretion of the trial court and the trial court’s decision will not be set aside absent an
abuse of that discretion. [Citations.]” (People v. Gaglione (1994) 26 Cal.App.4th 1291,
1304, disapproved on other grounds in People v. Martinez (1995) 11 Cal.4th 434, 452 &
People v. Levesque (1995) 35 Cal.App.4th 530, 539; accord, People v. Vatelli (1971) 15
Cal.App.3d 54, 61; see In re Eric A. (1999) 73 Cal.App.4th 1390, 1394, fn. 4.) Whatever
the similarities between the decisions whether to resentence under the Act and to grant
parole to an inmate serving a life term, appointment of an expert did not fall outside the
bounds of reason in this case. The question before the court was whether resentencing
defendant would pose an unreasonable risk of danger to public safety. Given the
information already before the court, the court could make the required determination
itself, without the input of an expert. As has been stated in the context of a claim the
word “unreasonable” is impermissibly vague, “Surely 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 the public safety.
[Citation.]” (People v. Flores, supra, 227 Cal.App.4th at p. 1075.)19

18     Accordingly, we need not determine the source of a court’s authority to do so.
19      In re Lawrence, supra, 44 Cal.4th 1181, does not hold to the contrary. In that
case, the Governor reversed a parole grant in part based on negative language found in
early psychiatric evaluations of the inmate that suggested the inmate’s release would pose
an unreasonable risk of danger to the public. (Id. at pp. 1190, 1223.) The California


                                              21.
       Defendant next contends his sentence of 25 years to life constitutes cruel and
unusual punishment as prohibited by the Eighth Amendment to the United States
Constitution. We question whether this issue is properly before us, since the trial court
did not impose sentence, but merely left intact a sentence we already concluded was
constitutional. (People v. Valencia, supra, F059244.)
       In any event, for the reasons we cited in People v. Ingram (1995) 40 Cal.App.4th
1397, 1412-1416, disapproved on another ground in People v. Dotson (1997) 16 Cal.4th
547, 560, footnote 8, defendant’s history of habitual criminal behavior renders his claim
meritless. It is not the current charge that qualifies defendant for this term, but rather his
history as a repeat offender. “[H]abitual offender statutes have long withstood the
constitutional claim of cruel or unusual punishment. [Citations.]” (Ingram, at p. 1413.)
Defendant has proven he holds little regard for the law and is immune to resultant
punishments for his conduct. In this instance, “it becomes the duty of government to
seek some other method to curb his criminal propensities that he might not continue to
further inflict himself upon law-abiding members of society. This, we think, may be
done even to the extent of depriving him permanently of his liberty.…” (In re
Rosencrantz (1928) 205 Cal. 534, 539.)
       Defendant appears to base his claim on the premise that because now an offender
in his position would be sentenced to no more than eight years for violating
section 273.5, defendant’s sentence is unconstitutionally disproportionate. He says:


Supreme Court rejected the Governor’s conclusion, stating: “[T]he passage of time is
highly probative to the determination before us, and reliance upon outdated psychological
reports — clearly contradicted by [the inmate’s] successful participation in years of
intensive therapy, a long series of reports declaring [the inmate] to be free of
psychological problems and no longer a threat to public safety, and [the inmate’s] own
insight into her participation in this crime — does not supply some evidence justifying
the Governor’s conclusion that [the inmate] continues to pose a threat to public safety.”
(Id. at p. 1224.)



                                              22.
“The sentence imposed for a violation of … section 273.5 for any other defendant in any
jurisdiction in California is not the same as [defendant’s] sentence. [Defendant] was
sentenced to an indeterminate sentence while any other defendant would be sentenced to
no more than eight years.”
       Defendant’s premise is faulty. Any third strike offender convicted of violating
section 273.5 before the Act amended sections 667 and 1170.12 is serving a sentence of
at least 25 years to life, like defendant, unless he or she has been determined not to pose
an unreasonable risk of danger to public safety. Defendant cites no authority for the
proposition that a subsequent downward modification in a statutorily prescribed sentence
renders unconstitutional a punishment that was constitutional when imposed. (See, e.g.,
Ewing v. California (2003) 538 U.S. 11, 28-31 (lead opn. of O’Connor, J.) [three strikes
sentence of 25 years to life not unconstitutionally disproportionate where current offense
was grand theft].)
       Last, defendant contends the various errors committed by the trial court in the
section 1170.126 proceeding and the disproportionality of his sentence violated his due
process rights. He says the section 1170.126 hearing was fundamentally unfair because
of the trial court’s errors and because the hearing was defendant’s “only shot at
resentencing.”
       We have rejected all defendant’s claims of error and cruel and unusual
punishment. To the extent defendant may be arguing section 1170.126, subdivision (b)
violates due process because it limits a defendant to the filing of a single petition and
requires that, unless good cause is shown, the petition must be filed within two years after
the effective date of the Act, we find no fundamental unfairness. We reach the same
conclusion if we interpret defendant’s argument as a claim that, because of the two-year
limit, he was unfairly deprived of the opportunity to demonstrate a lengthy period of
nonviolence that would have allayed the trial court’s concerns. The ability to seek
resentencing “is not constitutionally required, but an act of lenity on the part of the

                                             23.
electorate.” (Kaulick, supra, 215 Cal.App.4th at p. 1304.)20 There was no due process
violation.
                                              II
         Section 1170.18, subdivision (c), enacted pursuant to Proposition 47,
                  does not modify section 1170.126, subdivision (f).
       On November 4, 2014, voters enacted Proposition 47, “the Safe Neighborhoods
and Schools Act” (hereafter Proposition 47). It went into effect the next day. (Cal.
Const., art. II, § 10, subd. (a).) Insofar as is pertinent here, Proposition 47 renders
misdemeanors certain drug- and theft-related offenses that previously were felonies or
“wobblers,” unless they were committed by certain ineligible defendants. Proposition 47
also created a new resentencing provision — section 1170.18 — by which a person
currently serving a felony sentence for an offense that is now a misdemeanor, may
petition for a recall of that sentence and request resentencing in accordance with the
offense statutes as added or amended by Proposition 47. (§ 1170.18, subd. (a).) A
person who satisfies the criteria in subdivision (a) of section 1170.18 shall have his or her
sentence recalled and be “resentenced to a misdemeanor … unless the court, in its




20      We express no opinion whether an inmate could bring more than one petition, or
file a petition and then seek a lengthy continuance in order to establish a prolonged
period of rehabilitation, or whether the desire to establish such a period would constitute
good cause for filing a petition beyond the two-year period. The record established
previous attempts to rehabilitate defendant (through, for example, a 52-week batterers’
course) were woefully unsuccessful. The evidence further suggested his current belated
efforts were undertaken not for purposes of true rehabilitation, but with a view toward
convincing the court to resentence him. Moreover, his crimes were not particularly
remote and his most recent offense involved violence his record amply demonstrated was
not an instance of aberrant behavior.



                                              24.
discretion, determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety.” (Id., subd. (b).)21
       Hidden in the lengthy, fairly abstruse text of the proposed law, as presented in the
official ballot pamphlet — and nowhere called to voters’ attention — is the provision at
issue in the present appeal. Subdivision (c) of section 1170.18 provides: “As used
throughout this Code, ‘unreasonable risk of danger to public safety’ means an
unreasonable risk that the petitioner will commit a new violent felony within the meaning
of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.”
Section 667, subdivision (e)(2)(C)(iv) lists the following felonies, sometimes called
“super strike” offenses:

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

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

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

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

              “(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.



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



                                                25.
             “(VII) Possession of a weapon of mass destruction, as defined in
       paragraph (1) of subdivision (a) of Section 11418.

              “(VIII) Any serious and/or violent felony offense punishable in
       California by life imprisonment or death.”
       The question is whether section 1170.18, subdivision (c) now limits a trial court’s
discretion to deny resentencing under the Act to those cases in which resentencing the
defendant would pose an unreasonable risk he or she will commit a new “super strike”
offense. Defendant says it does. The People disagree. We agree with the People.22


22     We solicited supplemental briefing concerning Proposition 47. Among the
questions we asked counsel to answer were whether defendant met the criteria for
resentencing under section 1170.18 and, if so, whether we needed to determine the
applicability, if any, of section 1170.18, subdivision (c) to resentencing proceedings
under section 1170.126. We are satisfied it is appropriate for us to reach the issue of
applicability regardless of whether defendant might obtain resentencing under
Proposition 47.
        It appears that a number of inmates will be eligible to seek resentencing under
both the Act and Proposition 47. Such an inmate need not wait to file a petition under
Proposition 47 until the trial court’s ruling on the inmate’s petition under the Act is final.
A trial court is not divested of jurisdiction over a Proposition 47 petition by the fact a
petition under the Act is pending, whether in a trial court or a Court of Appeal, with
respect to the same inmate. (Cf. People v. Mayfield (1993) 5 Cal.4th 220, 222-227;
People v. Johnson (1992) 3 Cal.4th 1183, 1256-1257; People v. Alanis (2008) 158
Cal.App.4th 1467, 1472-1473.) While the general rule is that “an appeal from an order in
a criminal case removes the subject matter of that order from the jurisdiction of the trial
court [citations]” (Anderson v. Superior Court (1967) 66 Cal.2d 863, 865), the subject
matter of a ruling on a petition under the Act is legally independent from a petition under
Proposition 47 (see People v. Superior Court (Gregory) (2005) 129 Cal.App.4th 324,
332).
       In light of the differences between the two proceedings — for instance, an inmate
resentenced under Proposition 47 is generally subject to one year of parole (§§ 1170.18,
subd. (d), 3000.08), while an inmate resentenced under the Act is subject to up to three
years of postrelease community supervision (§ 3451; People v. Tubbs (2014) 230
Cal.App.4th 578, 585-586, petn. for review pending, petn. filed Nov. 12, 2014; People v.
Espinoza (2014) 226 Cal.App.4th 635, 637-638) — we express no opinion concerning
whether the granting of a Proposition 47 petition would render moot resentencing
proceedings, whether in a trial court or on appeal, under the Act.



                                             26.
       “‘In interpreting a voter initiative …, we apply the same principles that govern
statutory construction. [Citation.]’ [Citation.] ‘“The fundamental purpose of statutory
construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of
the law. [Citations.]”’ [Citation.]” (People v. Superior Court (Cervantes) (2014) 225
Cal.App.4th 1007, 1014.) Thus, in the case of a provision adopted by the voters, “their
intent governs. [Citations.]” (People v. Jones (1993) 5 Cal.4th 1142, 1146.)
       To determine intent, “‘we look first to the words themselves. [Citations.]’”
(People v. Superior Court (Cervantes), supra, 225 Cal.App.4th at p. 1014.) We give the
statute’s words “‘a plain and commonsense meaning. [Citation.] We do not, however,
consider the statutory language “in isolation.” [Citation.] Rather, we look to “the entire
substance of the statute … in order to determine the scope and purpose of the
provision .… [Citation.]” [Citation.] That is, we construe the words in question “‘in
context, keeping in mind the nature and obvious purpose of the statute .…’ [Citation.]”
[Citation.] We must harmonize “the various parts of a statutory enactment … by
considering the particular clause or section in the context of the statutory framework as a
whole.” [Citations.]’ [Citation.]” (People v. Acosta (2002) 29 Cal.4th 105, 112.) We
“accord[] significance, if possible, to every word, phrase and sentence in pursuance of the
legislative purpose. A construction making some words surplusage is to be avoided.…
[S]tatutes or statutory sections relating to the same subject must be harmonized, both
internally and with each other, to the extent possible. [Citations.]” (Dyna-Med, Inc. v.
Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.)
       “‘“When statutory language is clear and unambiguous, there is no need for
construction and courts should not indulge in it.” [Citation.]’ [Citation.]” (People v.
Hendrix (1997) 16 Cal.4th 508, 512.) On its face, “[a]s used throughout this Code,” as
employed in section 1170.18, subdivision (c), clearly and unambiguously refers to the
Penal Code, not merely section 1170.18 or the other provisions contained in
Proposition 47. (See People v. Bucchierre (1943) 57 Cal.App.2d 153, 164-165, 166; see

                                            27.
also Marshall v. Pasadena Unified School Dist. (2004) 119 Cal.App.4th 1241, 1254-
1255; People v. Vasquez (1992) 7 Cal.App.4th 763, 766.)
       This does not mean, however, that the definition contained in section 1170.18,
subdivision (c) must inexorably be read into section 1170.126, subdivision (f). (Cf.
Marshall v. Pasadena Unified School Dist., supra, 119 Cal.App.4th at p. 1255.) “The
literal language of a statute does not prevail if it conflicts with the lawmakers’ intent .…
[Citations.]” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1033-1034.) “‘The
apparent purpose of a statute will not be sacrificed to a literal construction.’ [Citation.]”
(Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 733.) Rather, “the literal meaning
of a statute must be in accord with its purpose.” (People v. Mohammed (2008) 162
Cal.App.4th 920, 927.) “[I]t is settled that the language of a statute should not be given a
literal meaning if doing so would result in absurd consequences that the [voters] did not
intend” (In re Michele D. (2002) 29 Cal.4th 600, 606), or would “frustrate[] the manifest
purposes of the legislation as a whole .…” (People v. Williams (1992) 10 Cal.App.4th
1389, 1393.) “To this extent, therefore, intent prevails over the letter of the law and the
letter will be read in accordance with the spirit of the enactment. [Citation.]” (In re
Michele D., supra, 29 Cal.4th at p. 606; accord, People v. Ledesma (1997) 16 Cal.4th 90,
95.)
       Thus, “‘we look to a variety of extrinsic aids, including the ostensible objects to be
achieved, the evils to be remedied, the legislative history, public policy,
contemporaneous administrative construction, and the statutory scheme of which the
statute is a part. [Citations.]’ [Citation.] We also ‘“refer to other indicia of the voters’
intent, particularly the analyses and arguments contained in the official ballot pamphlet.”
[Citation.]’ [Citation.]” (People v. Osuna, supra, 225 Cal.App.4th at p. 1034.) We
consider “the consequences that will flow from a particular interpretation” (Dyna-Med,
Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at p. 1387), as well as “the
wider historical circumstances” of the statute’s or statutes’ enactment (ibid.). “‘Using

                                             28.
these extrinsic aids, we “select the construction that comports most closely with the
apparent intent of the [electorate], with a view to promoting rather than defeating the
general purpose of the statute, and avoid an interpretation that would lead to absurd
consequences.” [Citation.]’ [Citation.]” (People v. Osuna, supra, 225 Cal.App.4th at
pp. 1034-1035.)
       Proposition 47 and the Act address related, but not identical, subjects. As we
explain, reading them together, and considering section 1170.18, subdivision (c) in the
context of the statutory framework as a whole (see People v. Acosta, supra, 29 Cal.4th at
p. 112; Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 658-659; In re
Cindy B. (1987) 192 Cal.App.3d 771, 781), we conclude its literal meaning does not
comport with the purpose of the Act, and applying it to resentencing proceedings under
the Act would frustrate, rather than promote, that purpose and the intent of the electorate
in enacting both initiative measures (see People v. Disibio (1992) 7 Cal.App.4th Supp. 1,
5).
       As is evidenced by its title, the Act was aimed solely at revising the three strikes
law. That law, as originally enacted by the Legislature, was described by us as follows:

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



                                             29.
               “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.)23
       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 (2012) 55 Cal.4th 524, 528-529.)
       Clearly, by approving the Act, voters resolved this controversy in favor of strike
offenders. Thus, one of the “Findings and Declarations” of the Act stated the Act would
“[r]estore the Three Strikes law to the public’s original understanding by requiring life
sentences only when a defendant’s current conviction is for a violent or serious crime.”
(Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of proposed law, § 1, p. 105.)
Nowhere, however, do the ballot materials for the Act suggest voters intended essentially
to open the prison doors to existing third strike offenders in all but the most egregious
cases, as would be the result if the definition of “‘unreasonable risk of danger to public


23      The foregoing applies equally to the three strikes initiative measure that added
section 1170.12 to the Penal Code. The following statement of intent preceded the text of
the statute in Proposition 184, which was approved by voters on November 8, 1994: “‘It
is the intent of the People of the State of California in enacting this measure to ensure
longer prison sentences and greater punishment for those who commit a felony and have
been previously convicted of serious and/or violent felony offenses.’” (See Historical
and Statutory Notes, 50C West’s Ann. Pen. Code (2004 ed.) foll. § 1170.12, p. 239.)



                                            30.
safety’” contained in section 1170.18, subdivision (c) were engrafted onto resentencing
proceedings under section 1170.126, subdivision (f). That voters did not intend such a
result is amply demonstrated by the fact an indeterminate life term remains mandatory
under the Act for a wide range of current offenses even if the offender does not have a
prior conviction for a “super strike” offense (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)),
and that an inmate is rendered ineligible for resentencing under section 1170.126 for an
array of reasons beyond his or her having suffered such a prior conviction (§ 1170.126,
subd. (e)(2)).
       The Act clearly placed public safety above the cost savings likely to accrue as a
result of its enactment. Thus, uncodified section 7 of the Act provides: “This act is an
exercise of the public power of the people of the State of California for the protection of
the health, safety, and welfare of the people of the State of California, and shall be
liberally construed to effectuate those purposes.” (Voter Information Guide, Gen. Elec.
(Nov. 6, 2012), supra, text of proposed law, p. 110, original italics omitted, italics
added.) As we explained in People v. Osuna, supra, 225 Cal.App.4th at page 1036,
“Although the Act ‘diluted’ the three strikes law somewhat [citation], ‘[e]nhancing public
safety was a key purpose of the Act’ [citation].”
       In contrast, Proposition 47 — while titled “the Safe Neighborhoods and Schools
Act” — emphasized monetary savings. The “Findings and Declarations” state: “The
people of the State of California find and declare as follows: [¶] The people enact the
Safe Neighborhoods and Schools Act to ensure that prison spending is focused on violent
and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to
invest the savings generated from this act into prevention and support programs in K-12
schools, victim services, and mental health and drug treatment. This act ensures that
sentences for people convicted of dangerous crimes like rape, murder, and child
molestation are not changed.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text
of proposed law, § 2, p. 70.) Uncodified section 15 of the measure provides: “This act

                                             31.
shall be broadly construed to accomplish its purposes,” while uncodified section 18
states: “This act shall be liberally construed to effectuate its purposes.” (Voter
Information Guide, Gen. Elec. (Nov. 4, 2014), supra, text of proposed law, p. 74.)
Proposition 47 requires misdemeanor sentences for various drug possession and property
offenses, unless the perpetrator has a prior conviction for a “super strike” offense or for
an offense requiring sex offender registration pursuant to section 290, subdivision (c).
(Health & Saf. Code, §§ 11350, subd. (a), 11357, subd. (a), 11377, subd. (a); §§ 459.5,
subd. (a), 473, subd. (b), 476a, subd. (b), 490.2, subd. (a), 496, subd. (a), 666, subd. (b).)
Section 1170.18 renders ineligible for resentencing only those inmates whose current
offense would now be a misdemeanor, but who have a prior conviction for a “super
strike” offense or for an offense requiring sex offender registration pursuant to
section 290, subdivision (c). (§ 1170.18, subds. (a), (i).)
       Nowhere in the ballot materials for Proposition 47 were voters given any
indication that initiative, which dealt with offenders whose current convictions would
now be misdemeanors rather than felonies, had any impact on the Act, which dealt with
offenders whose current convictions would still be felonies, albeit not third strikes. For
instance, the Official Title and Summary stated, in pertinent part, that Proposition 47
would “[r]equire[] resentencing for persons serving felony sentences for these offenses[,
i.e., offenses that require misdemeanor sentences under the measure] unless court finds
unreasonable public safety risk.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014),
supra, official title and summary, p. 34.) In explaining what Proposition 47 would do,
the Legislative Analyst stated: “This measure reduces penalties for certain offenders
convicted of nonserious and nonviolent property and drug crimes. This measure also
allows certain offenders who have been previously convicted of such crimes to apply for
reduced sentences.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra,
analysis of Prop. 47 by Legis. Analyst, p. 35, italics added.) With respect to the
resentencing provision, the Legislative Analyst explained:

                                              32.
               “This measure allows offenders currently serving felony sentences
       for the above crimes[, i.e., grand theft, shoplifting, receiving stolen
       property, writing bad checks, check forgery, and drug possession] to apply
       to have their felony sentences reduced to misdemeanor sentences. In
       addition, certain offenders who have already completed a sentence for a
       felony that the measure changes could apply to the court to have their
       felony conviction changed to a misdemeanor. However, no offender who
       has committed a specified severe crime could be resentenced or have their
       conviction changed. In addition, the measure states that a court is not
       required to resentence an offender currently serving a felony sentence if the
       court finds it likely that the offender will commit a specified severe crime.
       Offenders who are resentenced would be required to be on state parole for
       one year, unless the judge chooses to remove that requirement.” (Id. at
       p. 36, italics added.)
       Similarly, the arguments in favor of and against Proposition 47 spoke in terms
solely of Proposition 47, and never mentioned the Act. The Argument in Favor of
Proposition 47 spoke in terms of prioritizing serious and violent crime so as to stop
wasting prison space “on petty crimes,” stop “wasting money on warehousing people in
prisons for nonviolent petty crimes,” and stop California’s overcrowded prisons from
“incarcerating too many people convicted of low-level, nonviolent offenses.” (Voter
Information Guide, Gen. Elec. (Nov. 4, 2014), supra, argument in favor of Prop. 47,
p. 38.) The Rebuttal to Argument Against Proposition 47 reiterated these themes, and
never suggested Proposition 47 would have any effect on resentencing under the Act.
(See Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, rebuttal to argument
against Prop. 47, p. 39.) Although the Rebuttal to Argument in Favor of Proposition 47
asserted 10,000 inmates would be eligible for early release under the measure, and that
many of them had prior convictions “for serious crimes, such as assault, robbery and
home burglary” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, rebuttal to
argument in favor of Prop. 47, p. 38), there is no suggestion the early release provisions
would extend to inmates whose current offenses remained felonies under the Act. The
same is true of the discussion of resentencing contained in the Argument Against




                                            33.
Proposition 47. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, argument
against Prop. 47, p. 39.)
       In light of the foregoing, we cannot reasonably conclude voters intended the
definition of “‘unreasonable risk of danger to public safety’” contained in
section 1170.18, subdivision (c) to apply to that phrase as it appears in section 1170.126,
subdivision (f), despite the former section’s preamble, “As used throughout this
Code .…” Voters cannot intend something of which they are unaware.
       We are cognizant one of the Act’s authors has taken the position Proposition 47’s
definition of “unreasonable risk of danger” applies to resentencing proceedings under the
Act. (St. John & Gerber, Prop. 47 Jolts Landscape of California Justice System (Nov. 5,
2014) Los Angeles Times <http://www.latimes.com/local/politics/la-me-ff-pol-
proposition47-20141106-story.html> [as of Dec. 16, 2014].) Looking at the information
conveyed to voters, however, this clearly was not their intent and so an author’s desire is
of no import. (Cf. People v. Garcia (2002) 28 Cal.4th 1166, 1175-1176, fn. 5; People v.
Bradley (2012) 208 Cal.App.4th 64, 83; Kaufman & Broad Communities, Inc. v.
Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 30.)
       We are also mindful “it has long been settled that ‘[t]he enacting body is deemed
to be aware of existing laws and judicial constructions in effect at the time legislation is
enacted’ [citation], ‘and to have enacted or amended a statute in light thereof’ [citation].
‘This principle applies to legislation enacted by initiative. [Citation.]’ [Citation.]”
(People v. Superior Court (Cervantes), supra, 225 Cal.App.4th at p. 1015; accord, In re
Lance W. (1985) 37 Cal.3d 873, 890, fn. 11.) Thus, we presume voters were aware
“unreasonable risk of danger to public safety,” as used in section 1170.126,
subdivision (f), had been judicially construed as not being impermissibly vague, but as
nevertheless having no fixed definition. (People v. Garcia (2014) 230 Cal.App.4th 763,
769-770, petn. for review pending, petn. filed Nov. 18, 2014; People v. Flores (2014) 227
Cal.App.4th 1070, 1075.) Because nowhere in the ballot materials for Proposition 47

                                             34.
was it called to voters’ attention the definition of the phrase contained in section 1170.18,
subdivision (c) would apply to resentencing proceedings under the Act, we simply cannot
conclude voters intended Proposition 47 to alter the Act in that respect. Voters are not
asked or presumed to be able to discern all potential effects of a proposed initiative
measure; this is why they are provided with voter information guides containing not only
the actual text of such a measure, but also a neutral explanation and analysis by the
Legislative Analyst and arguments in support of and in opposition to the measure. As we
have already observed, none of those materials so much as hinted that Proposition 47
could have the slightest effect on resentencing under the Act. (Cf. Marshall v. Pasadena
Unified School Dist., supra, 119 Cal.App.4th at pp. 1255-1256 [legislative history of
enactment included information bill would add definition of particular term to Public
Contract Code].)24
       We are asked to infer an intent to extend section 1170.18, subdivision (c)’s
definition to proceedings under section 1170.126 because the phrase in question only
appears in those sections of the Penal Code. We cannot do so. The only resentencing
mentioned in the Proposition 47 ballot materials was resentencing for inmates whose
current offenses would be reduced to misdemeanors, not those who would still warrant
second strike felony terms. There is a huge difference, both legally and in public safety
risked, between someone with multiple prior serious and/or violent felony convictions
whose current offense is (or would be, if committed today) a misdemeanor, and someone
whose current offense is a felony. Accordingly, treating the two groups differently for
resentencing purposes does not lead to absurd results, but rather is eminently logical.

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



                                             35.
       We recognize “[i]t is an established rule of statutory construction … that when
statutes are in pari materia similar phrases appearing in each should be given like
meanings. [Citations.]” (People v. Caudillo (1978) 21 Cal.3d 562, 585, overruled on
another ground in People v. Martinez (1999) 20 Cal.4th 225, 229, 237, fn. 6 &
disapproved on another ground in People v. Escobar (1992) 3 Cal.4th 740, 749-751 &
fn. 5; see Robbins v. Omnibus R. Co. (1867) 32 Cal. 472, 474.) We question whether
Proposition 47 and the Act are truly in pari materia: That phrase means “[o]n the same
subject; relating to the same matter” (Black’s Law Dict. (9th ed. 2009) p. 862), and the
two measures (albeit with some overlap) address different levels of offenses and
offenders. In any event, “canons of statutory construction are merely aids to ascertaining
probable legislative intent” (Stone v. Superior Court (1982) 31 Cal.3d 503, 521, fn. 10);
they are “mere guides and will not be applied so as to defeat the underlying legislative
intent otherwise determined [citation]” (Dyna-Med, Inc. v. Fair Employment & Housing
Com., supra, 43 Cal.3d at p. 1391).
       The Act was intended to reform the three strikes law while keeping intact that
scheme’s core commitment to public safety. Allowing trial courts broad discretion to
determine whether resentencing an eligible petitioner under the Act “would pose an
unreasonable risk of danger to public safety” (§ 1170.126, subd. (f)) clearly furthers the
Act’s purpose. Whatever the wisdom of Proposition 47’s policy of near-universal
resentencing where misdemeanants are concerned — and “[i]t is not for us to gainsay the
wisdom of this legislative choice” (Bernard v. Foley (2006) 39 Cal.4th 794, 813) —
constraining that discretion so that all but the worst felony offenders are released
manifestly does not, nor does it comport with voters’ intent in enacting either measure.
       Accordingly, Proposition 47 has no effect on defendant’s petition for resentencing
under the Act. Defendant is not entitled to a remand so the trial court can redetermine
defendant’s entitlement to resentencing under the Act utilizing the definition of



                                             36.
“‘unreasonable risk of danger to public safety’” contained in section 1170.18,
subdivision (c).25
                                     DISPOSITION
       The judgment is affirmed.

                                                                _____________________
                                                                           DETJEN, J.
I CONCUR:


 _____________________
 LEVY, Acting P.J.




25     Recently, the Third District Court of Appeal held section 1170.18,
subdivision (c)’s definition of “‘unreasonable risk of danger to public safety’” does not
apply retroactively to defendants whose petitions for resentencing under the Act were
decided before the effective date of Proposition 47. (People v. Chaney (Dec. 1, 2014,
C073949) ___ Cal.App.4th ___, ___-___ [2014 D.A.R. 15934, 15935-15936].) Chaney
did not decide whether Proposition 47’s definition applies prospectively to such petitions.
(Chaney, supra, at p. ___, fn. 3 [2014 D.A.R. 15934, 15936, fn. 3].) Were we to
conclude section 1170.18, subdivision (c) modifies section 1170.126, subdivision (f), we
would agree with Chaney that it does not do so retroactively. We believe, however, that
a finding of nonretroactivity inexorably leads to the possibility of prospective-only
application, and that prospective-only application of Proposition 47’s definition to
resentencing petitions under the Act would raise serious, perhaps insurmountable, equal
protection issues. “Mindful of the serious constitutional questions that might arise were
we to accept a literal construction of the statutory language, and of our obligation
wherever possible both to carry out the intent of the electorate and to construe statutes so
as to preserve their constitutionality [citations]” (People v. Skinner (1985) 39 Cal.3d 765,
769), we rest our holding on the reasoning set out in our opinion, ante.



                                            37.
PEÑA, J.,
       I concur in the judgment and the majority opinion with the exception of part II. I
agree defendant may not take advantage of Proposition 47’s1 newly enacted definition of
“unreasonable risk of danger to public safety,” as provided in Penal Code section
1170.18, subdivision (c) (1170.18(c)). I do so not because there is any ambiguity in the
language used in section 1170.18(c) or the notion that the statute does not mean what it
says, i.e., that the new definition applies “throughout this Code.” Rather, in my view,
there is no indication the electorate, in enacting section 1170.18(c), intended it to apply
retroactively to resentencing determinations under Proposition 36, the Three Strikes
Reform Act of 2012 (the Act).
I.     After November 4, 2014, the definition of “unreasonable risk of danger” in
       Section 1170.18(c) applies throughout the Penal Code
       Section 1170.18(c) provides: “As used throughout this Code, ‘unreasonable risk
of danger to public safety’ means an unreasonable risk that the petitioner will commit a
new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph
(2) of subdivision (e) of Section 667.”
       This section and subdivision were enacted on November 4, 2014, when California
voters passed Proposition 47, long past the time of defendant’s resentencing hearing.
Unless the legislation was designed or intended to apply retroactively, the definition in
section 1170.18(c) cannot apply to defendant. This is the only inquiry we must make to
resolve the issue of whether the definition in section 1170.18(c) applies to defendant.
However, the majority has opted to determine whether the new definition applies to any
resentencing provisions under the Act, past, present, or future. I respectfully disagree
with the majority’s analysis and conclusion on this broader issue.


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




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

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

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



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




                                                4.
       Defendant relies on People v. Sandoval (2007) 41 Cal.4th 825 to support his
position the new definition should be applied retroactively to cases like his, which are
currently pending appeal from a denial of resentencing under the Act. However, the
Sandoval case presented much different considerations from those present here. There,
the court granted review for the following reasons:

       “[T]o determine whether defendant’s Sixth Amendment rights as defined in
       Cunningham v. California (2007) 549 U.S. 270 … were violated by the
       imposition of an upper term sentence and, if so, the remedy to which [he or]
       she is entitled. In Cunningham, the United States Supreme Court disagreed
       with this court’s decision in People v. Black (2005) 35 Cal.4th 1238 … and
       held that California’s determinate sentencing law … violates a defendant’s
       federal constitutional right to a jury trial under the Sixth and Fourteenth
       Amendments to the United States Constitution by assigning to the trial
       judge, rather than to the jury, the authority to find the facts that render a
       defendant eligible for an upper term sentence. We conclude that
       defendant’s Sixth Amendment right to a jury trial was violated and,
       although harmless error analysis applies to such violations, the error in the
       present case was not harmless beyond a reasonable doubt and the case must
       be remanded for resentencing. For the reasons explained below, we also
       conclude that upon remand, the trial court may exercise its discretion to
       impose any of the three terms available for defendant’s offense.” (People
       v. Sandoval, supra, 41 Cal.4th at pp. 831-832.)
       In the interim between People v. Black, supra, 35 Cal.4th 1238 and People v.
Sandoval, supra, 41 Cal.4th 825, the Legislature amended the determinate sentencing law
to cure its constitutional defect as found in Cunningham v. California, supra, 549 U.S.
270. Although the Legislature failed to provide for retroactive application, the Sandoval
court decided it was responsible for fashioning “a constitutional procedure for
resentencing in cases in which Cunningham requires a reversal of an upper term
sentence.” (People v. Sandoval, supra, at p. 846.) The court explained:

              “If we assume that the new legislation does not apply directly to
       cases pending on appeal that are remanded for resentencing, our task in
       deciding the appropriate sentencing procedure to be applied by a trial court
       on remand is somewhat analogous to what we faced in In re Hawthorne
       [(2005)] 35 Cal.4th 40. There, the Legislature enacted a statute intended to


                                             5.
       implement the United States Supreme Court’s decision in Atkins v. Virginia
       (2002) 536 U.S. 304, which held that the federal Constitution prohibits
       execution of the mentally retarded. (See In re Hawthorne, supra, 35
       Cal.4th at p. 44.) The legislation, however, did not provide for cases in
       which the death penalty already had been imposed. (In re Hawthorne,
       supra, 35 Cal.4th at p. 45.) In such a situation, ‘[t]he task thus falls to this
       court to formulate appropriate procedures for resolving postconviction
       claims.’ (Ibid.)

               “In Hawthorne, we adopted procedures for postconviction claims
       that tracked the statute ‘as closely as logic and practicality permit,’ in order
       ‘to maintain consistency with our own [state’s] legislation … and to avoid
       due process and equal protection implications.’ (In re Hawthorne, supra,
       35 Cal.4th at p. 47.) Likewise, in the present case, we direct that
       sentencing proceedings to be held in cases that are remanded because the
       sentence imposed was determined to be erroneous under Cunningham,
       supra, 549 U.S. 270, are to be conducted in a manner consistent with the
       amendments to the [determinate sentencing law] adopted by the
       Legislature.” (People v. Sandoval, supra, 41 Cal.4th at p. 846.)
       In this case, there is no constitutional violation in the manner the trial court
conducted its sentencing determination. Thus, there is no occasion to remand this case,
and we instead affirm the trial court’s determination. Defendant has identified no due
process or equal protection concerns that might invalidate Proposition 47 or the Act if he
is denied retroactive application.2 I perceive none.
       Although defendant has not relied upon In re Estrada (1965) 63 Cal.2d 740 to
argue retroactive application, the People have cited it as distinguishable from this case. I
discuss the Estrada case out of an abundance of caution.
       In Estrada, the court stated:

       “When the Legislature amends a statute so as to lessen the punishment it
       has obviously expressly determined that its former penalty was too severe
       and that a lighter punishment is proper as punishment for the commission
       of the prohibited act. It is an inevitable inference that the Legislature must
       have intended that the new statute imposing the new lighter penalty now

2Defendant   did not raise any due process or equal protection arguments relating to the
retroactivity issue in his supplemental briefing.



                                              6.
       deemed to be sufficient should apply to every case to which it
       constitutionally could apply. The amendatory act imposing the lighter
       punishment can be applied constitutionally to acts committed before its
       passage provided the judgment convicting the defendant of the act is not
       final. This intent seems obvious, because to hold otherwise would be to
       conclude that the Legislature was motivated by a desire for vengeance, a
       conclusion not permitted in view of modern theories of penology.” (In re
       Estrada, supra, 63 Cal.2d at p. 745.)
       One may argue that under the Estrada case, unless there is a “savings clause”
providing for prospective application, a statute lessening punishment is presumed to
apply to all cases not yet reduced to a final judgment on the statute’s effective date. (In
re Estrada, supra, 63 Cal.2d at pp. 744-745, 747-748.) However, the Estrada case has
been revisited by our Supreme Court on several occasions. In People v. Brown, supra, 54
Cal.4th at page 324 the court stated: “Estrada is today properly understood, not as
weakening or modifying the default rule of prospective operation codified in [Penal
Code] section 3, but rather as informing the rule’s application in a specific context by
articulating the reasonable presumption that a legislative act mitigating the punishment
for a particular criminal offense is intended to apply to all nonfinal judgments.” “The
holding in Estrada was founded on the premise that ‘“[a] legislative mitigation of the
penalty for a particular crime represents a legislative judgment that the lesser penalty or
the different treatment is sufficient to meet the legitimate ends of the criminal law.”’”
(Id. at p. 325.) In Brown, the court did not apply the Estrada rule because “a statute
increasing the rate at which prisoners may earn credits for good behavior does not
represent a judgment about the needs of the criminal law with respect to a particular
criminal offense, and thus does not support an analogous inference of retroactive intent.”
(People v. Brown, supra, at p. 325.)
       Similarly here, Estrada does not control because applying the definition of
“unreasonable risk to public safety” in Proposition 47 to petitions for resentencing under
the Act does not reduce punishment for a particular crime. Instead, the downward
modification of a sentence authorized by the Act is dependent not just on the current

                                             7.
offense but on any number of unlimited factors related to the individual offender,
including criminal conviction history, disciplinary and rehabilitation records, and “[a]ny
other evidence the court, within its discretion, determines to be relevant in deciding
whether a new sentence would result in an unreasonable risk of danger to public safety.”
(Pen. Code, § 1170.126, subd. (g)(3).)
       Because section 1170.18(c)’s definition of “unreasonable risk of danger to public
safety” does not apply retroactively to the Act, the sentencing court applied the correct
standard in exercising its discretion to not resentence defendant.3 Since defendant has
failed to show an abuse of that discretion, I concur in the majority’s affirmance of the
judgment.

                                                          __________________________
                                                                             PEÑA, J.




3Recently  in People v. Chaney (Oct. 29, 2014 C073949) __ Cal.App.4th __ the Third
District Court of Appeal held the definition of “unreasonable risk of danger to public
safety” as provided in section 1170.18(c) does not apply retroactively. I agree.



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