Filed 1/8/15 P. v. Stevenson CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


THE PEOPLE                                                               E058383

         Plaintiff and Respondent,                                       (Super.Ct.No. PEF004508)

v.                                                                       ORDER MODIFYING OPINION
                                                                         AND DENYING PETITION FOR
MARCUS WAYNE STEVENSON,                                                  REHEARING

         Defendant and Appellant.                                        [NO CHANGE IN JUDGMENT]



THE COURT

         The petition for rehearing filed on December 29, 2014, is denied. On the court’s

own motion, the opinion filed in this matter on December 11, 2014, is modified as

follows:

         On page 10, add a new footnote at the end of the first full paragraph, which

begins, “[D]angerousness is not a factor . . . .” The first full paragraph and new footnote

No. 5 should read as follows:

         “[D]angerousness is not a factor which enhances the sentence imposed

         when a defendant is resentenced under the Act; instead, dangerousness is a

         hurdle which must be crossed in order for a defendant to be resentenced at
                                                             1
       all. If the court finds that resentencing a prisoner would pose an

       unreasonable risk of danger, the court does not resentence the prisoner, and

       the petitioner simply finishes out the term to which he or she was originally

       sentenced.” (Kaulick, supra, 215 Cal.App.4th at p. 1303, fn. omitted.)

       “[A] court’s discretionary decision to decline to modify the sentence in [a

       prisoner’s] 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.” (Ibid.) The prosecution bears the burden of

       proving a prisoner’s dangerousness by a preponderance of the evidence.

       (Id. at p. 1305; People v. Flores (2014) 227 Cal.App.4th 1070, 1075-

       1076.)5




       5  In a petition for rehearing, defendant for the first time argues that we should
reverse and remand for the trial court to reconsider his petition in light of Proposition 47,
which “created a new resentencing provision, section 1170.18, under which ‘[a] person
currently serving a sentence for a conviction, whether by trial or plea, of a felony or
felonies who would have been guilty of a misdemeanor under the act that added this
section (“this act”) had this act been in effect at the time of the offense may petition for a
recall of sentence . . .’ and request resentencing. (§ 1170.18, subd. (a).)” (People v.
Chaney (2014) 231 Cal.App.4th 1391, 1395 (Chaney).) Under that provision, an eligible
defendant shall be resentenced to a misdemeanor “unless the court, in its discretion,
determines that resentencing the petitioner would pose an unreasonable risk of danger to
public safety.” (§ 1170.18, subd. (b).) Proposition 47 also provides that, “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.”
(§ 1170.18, subd. (c).)
        Defendant contends the new definition of “unreasonable risk of danger to public
safety” added by Proposition 47 applies to petitions for recall and resentencing filed
pursuant to the Act, and that the trial court would not have found him to be dangerous
and would have resentenced him had it applied that new definition. Two courts have
                                                                  [footnote continued on next page]
                                              2
        With the addition of new footnote No. 5, all subsequent footnotes should be

renumbered accordingly.

        This modification does not change the judgment.

        NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               McKINSTER
                                                                                         J.
We concur:



RAMIREZ
                            P. J.



CODRINGTON
                               J.




[footnote continued from previous page]
recently addressed similar arguments in published decisions, and have rejected it.
(Chaney, supra, 231 Cal.App.4th at pp. 1396-1398 [holding that the definition of
“unreasonable risk of danger to public safety” from Prop. 47 does not apply retroactively
to petitions for recall and resentencing under the Act]; People v. Valencia (Dec. 16, 2014,
F067946) ___ Cal.App.4th ___ [2014 Cal.App. Lexis 1149, *15-36] [holding that the
“literal meaning [of section 1170.18, subdivision (c), as added by Proposition 47] 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”].)

                                             3
Filed 12/11/14 (unmodified version)



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


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                        FOURTH APPELLATE DISTRICT

                                                      DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E058383

v.                                                                        (Super.Ct.No. PEF004508)

MARCUS WAYNE STEVENSON,                                                   OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Affirmed.

         Carl Fabian, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Eric A. Swenson and Michael Pulos, Deputy Attorneys General, for Plaintiff and

Respondent.




                                                              1
       In 2000, defendant Marcus Wayne Stevenson was sentenced to two consecutive

indeterminate terms of 25 years to life for his convictions on two counts of vehicle theft

(Veh. Code, § 10851, subd. (a)), based on his admission that he suffered four prior

serious and violent felony convictions within the meaning of the three strikes law.1

Twelve years later, defendant petitioned the superior court for recall and resentencing

under Proposition 36, known as The Three Strikes Reform Act of 2012 (hereafter the Act

or the Reform Act). The trial court denied the petition because, although defendant is

otherwise eligible for resentencing under the Act, it found that he “pose[s] an

unreasonable risk of danger to public safety.” (Pen. Code,2 § 1170.126, subd. (f).)

Finally, the trial court denied defendant’s renewed petition, concluding it lacked authority

under the Reform Act to resentence defendant on just one of his convictions.

       In this appeal (case no. E058383), defendant contends the record does not support

the trial court’s finding that he is a danger to public safety. In the alternative, defendant

contends the trial court had the authority to resentence him on at least one of his

convictions, notwithstanding the finding of dangerousness. We conclude the trial court

did not abuse its discretion by finding that defendant would pose an unreasonable risk of

danger if he was resentenced, and that the finding of dangerousness renders defendant


       1 We derive the procedural facts of defendant’s underlying convictions and
sentences from the record in defendant’s prior appeal (People v. Stevenson (Apr. 4, 2002,
E028990) [nonpub. opn.]), of which we take judicial notice. (Evid. Code, §§ 452,
subd. (d), 459, subd. (a).)

       2 Unless otherwise indicated, all further undesignated statutory references are to
the Penal Code.


                                              2
ineligible for resentencing on either of his convictions. Therefore, we affirm the denial of

defendant’s petition.

                                             I.

                     FACTS AND PROCEDURAL BACKGROUND

       In an amended information, the People alleged that on May 18, 2000, defendant

stole a Honda motorcycle (Veh. Code, § 10851, subd. (a), count 1), and that on May 9,

2000, he stole a Ford pickup truck (Veh. Code, § 10851, subd. (a), count 2). The People

also alleged for purposes of sentencing that defendant suffered three prior prison terms

(Pen. Code, § 667.5, subd. (b)), and that defendant suffered four prior convictions for

serious and violent felonies (Pen. Code, §§ 667, subds. (c), (e), 1170.12, subd. (c)), to

wit: (1) a June 7, 1989, conviction for first degree burglary (Pen. Code, § 459); (2) a

June 7, 1989, conviction for robbery (Pen. Code, § 211); (3) a June 7, 1989, conviction

for voluntary manslaughter (Pen. Code, § 192); and (4) an October 13, 1981, conviction

for robbery with a firearm (Pen. Code, §§ 211, 12022.5).

       At trial, defendant admitted all of the special allegations, and a jury found

defendant guilty of both counts of vehicle theft. The trial court denied defendant’s

request to strike his strike priors for purposes of sentencing pursuant to People v.

Superior Court (Romero) (1996) 13 Cal.4th 497, and it sentenced defendant under the

three strikes law to an indeterminate term of 25 years to life on counts 1 and 2, to be




                                              3
served consecutively.3 The trial court also sentenced defendant to three one-year

enhancements for defendant’s admitted prison priors, to be served consecutively to the

sentence on counts 1 and 2 (§ 667.5, subd. (b)), for a total sentence of 53 years to life.

This court affirmed the judgment. (People v. Stevenson, supra, E028990.)

       On November 21, 2012, defendant, in propria persona, filed a petition alleging he

was eligible for recall and resentencing under the Act because his current convictions

were “non-serious, non-violent.” The trial court appointed the county public defender to

represent defendant, who then filed a brief also contending defendant was eligible for

resentencing under the Act. In support of the petition, appointed counsel filed reports of

interviews with prison staff indicating that defendant had no serious infractions or

problems while imprisoned and that he would likely be a productive member of society

upon his release from prison.

       In its opposition, the People argued that defendant was not entitled to resentencing

because he posed a danger to public safety. (Pen. Code, § 1170.126, subd. (f).) Using

parole suitability factors as a guide (see Cal. Code Regs., tit. 15, § 2281), the People

argued defendant was unsuitable for resentencing because of his serious and violent

criminal history, his unstable social history, his serious misconduct while in prison, his

lack of remorse, and his inability to live within the law while out of custody. The public

defender filed a memorandum indicating that, contrary to the assertions made in the

       3 As this court noted in its unpublished decision affirming defendant’s convictions
and sentence, the oral pronouncement of sentence incorrectly stated that the
indeterminate term of 25 years to life for counts 1 and 2 were to be served concurrently.
(People v. Stevenson, supra, E028990.)


                                              4
opposition, defendant had no serious prison infractions. Finally, the public defender filed

probation reports from defendant’s 1989 manslaughter case and from the underlying

vehicle theft case, letters from defendant to former Judge Spitzer, who sentenced

defendant in the underlying vehicle theft case, and a letter from defendant’s brother-in-

law to Judge Dugan, who heard defendant’s petition.4

       At the hearing on defendant’s petition, Judge Dugan stated she read the papers and

evidence submitted by the parties in support of and in opposition to the petition, and that

she read this court’s unpublished decision affirming the judgment. Judge Dugan also

noted that she had conducted two unreported conferences in chambers during which she

reviewed records of defendant’s behavior while in prison. Moving to the merits of the

petition, Judge Dugan concluded defendant was “technically eligible” for resentencing

under the Reform Act, and stated that the sole issue to be decided was whether defendant

was “suitable” for resentencing—“[t]hat is, if I release him, is he a danger to the

community?”




       4 “Ordinarily, the original sentencing judge will hear the petition and conduct
resentencing unless that judge is unavailable. (People v. Superior Court (Kaulick) (2013)
215 Cal.App.4th 1279, 1300–1301 . . . [(Kaulick)]; § 1170.126, subds. (b), (j).)” (People
v. Bradford (2014) 227 Cal.App.4th 1322, 1329.) Former Judge Spitzer was not
available to hear defendant’s petition (see Inquiry Concerning Spitzer (2007) 49 Cal.4th
CJP Supp. 254, review den. Mar. 19, 2008, S159603), so it was assigned to Judge Dugan
instead (§ 1770.126, subd. (j)).


                                             5
       With respect to the People’s allegations about defendant’s behavior while in

prison, counsel for defendant argued the People had misrepresented the record in its

opposition and explained that the documented incidents did not show that defendant was

dangerous. Judge Dugan agreed that defendant was “behaving adequately” while in

prison. However, the judge stated to defendant, “The problem is you live your life in the

state prison system, and every time you get out, you commit horrific crimes.” Judge

Dugan noted that defendant had previously pleaded guilty to voluntary manslaughter and

was sentenced to 20 years in state prison for hitting a store clerk on the head with a

baseball bat to steal $46, which resulted in the man’s death “from the horrible injuries

you inflicted on him.” She also noted that “a very short time” after being released from

prison, defendant committed his current vehicle theft crimes, one of which consisted of

defendant taking advantage of someone who was trying to buy drugs. The judge

characterized that act as “typical of [defendant’s] behavior and how [he] us[es] people.”

       Addressing defendant’s conviction for voluntary manslaughter, Judge Dugan

noted that, notwithstanding his guilty plea, defendant later told a probation officer that he

did not hit the man with a baseball bat, and he was not remorseful. In fact, Judge Dugan

noted she had “never seen any document where [defendant] admitted remorse for that at

all.” For example, Judge Dugan read from a 2010 letter defendant wrote to former Judge

Spitzer in which defendant asked to be resentenced. In the letter, defendant expressed

remorse for committing the vehicle thefts, and acknowledged that former Judge Spitzer

said at his sentencing hearing that the term of 25 years to life sentence was “for your

past.” However, Judge Dugan noted that defendant made no mention in the letter of his


                                              6
voluntary manslaughter conviction. “[Y]ou knew that is why [former Judge Spitzer]

sentenced you . . . to the 25 [years] to life. And you didn’t even mention that. You didn’t

even say, ‘I get it.’” Defendant addressed Judge Dugan, and told her, “I am remorseful

and I try my best not to think about that time in my life because it was serious. It was a

bad time in my life.” He explained that he did not mention his voluntary manslaughter

conviction when he wrote to former Judge Spitzer because “he knew about my past.”

Defendant said he did not like to talk about the attack on the store clerk because “it

hurts.”

          Judge Dugan also asked defendant about an aunt who testified against him on the

motorcycle theft count, and asked if he remembered that the aunt also testified that

defendant called her 15 to 20 times before trial and asked her to perjure herself on the

stand. Defendant denied that he asked his aunt to perjure herself, and explained that he

was merely trying to ascertain whether she correctly identified him as the person she saw

pushing the motorcycle in a field. With respect to his comments to the probation officer

denying that he hit the store clerk with a baseball bat, even after pleading guilty to

voluntary manslaughter, defendant explained, “I didn’t want to admit that. I wasn’t

lying. I was lying to myself basically.”

          After further discussion, Judge Dugan denied the petition. She concluded

defendant still lacked insight into his crime of voluntary manslaughter, and he continued

to make excuses for committing his current crimes so soon after being released on parole.

“I just cannot get over—I cannot shake the fact that you kill a man, serve the time for




                                              7
that, and don’t even take a breath when you get out again. Back on drugs, back doing

crimes, back victimizing people.” Defendant filed a notice of appeal that same day.

       Less than a month later, appointed counsel for defendant appeared before Judge

Dugan and requested recall and resentencing on one of defendant’s vehicle theft

convictions. According to counsel, defendant’s two vehicle thefts occurred on separate

occasions, and she argued that section 1170.126 gives the trial court the option to recall

and resentence on just one count. Judge Dugan stated she did not believe she had

jurisdiction under section 1170.126 to separate defendant’s indeterminate life terms.

“I think [section] 1170.126 simply says my job is to look at his petition to recall his

sentence in its entirety . . . and determine whether he is safe to be released to the

community or not at the time I hear the [petition].” Because she had already found that

defendant would pose a danger to the community if he was resentenced, Judge Dugan

denied the request. We granted defendant’s motion to file a constructive notice of appeal

from that order when his appointed counsel failed to do so.

                                              II.

                                       DISCUSSION

       Defendant contends the record on appeal does not contain evidence that he poses a

substantial risk of danger to public safety, so the trial court erred by concluding he is not

eligible for resentencing under the Reform Act. In the alternative, defendant argues that,

even if he is ineligible for resentencing on one of his convictions, he is eligible for

resentencing on his other conviction. We conclude the trial court did not abuse its

discretion by finding that defendant would pose an unreasonable risk of danger to the


                                               8
public safety if he were resentenced, and that a finding of dangerousness renders

defendant completely ineligible for recall and resentencing.

                                              A.

   The Trial Court Did Not Abuse Its Discretion When It Denied Defendant’s Petition

       “On November 6, 2012, the voters approved Proposition 36, the Three Strikes

Reform Act of 2012 (Reform Act), which amended Penal Code sections 667 and 1170.12

and added section 1170.126. [Citation.]” (People v. White (2014) 223 Cal.App.4th 512,

517, fn. omitted.) “[T]here are two parts to the Act: the first part is prospective only,

reducing the sentence to be imposed in future three strike cases where the third strike is

not a serious or violent felony (Pen. Code, §§ 667, 1170.12); the second part is

retrospective, providing similar, but not identical, relief for prisoners already serving

third strike sentences in cases where the third strike was not a serious or violent felony

(Pen. Code, § 1170.126).” (Kaulick, supra, 215 Cal.App.4th at p. 1292.)

       “[U]nder the retrospective part of the Act, if the prisoner’s third strike offense was

not serious or violent, and none of the enumerated exceptions applies, the defendant

‘shall be’ sentenced as if the defendant had only a single prior strike, ‘unless the court, in

its discretion, determines that resentencing the petitioner would pose an unreasonable risk

of danger to public safety.’ (Pen. Code, § 1170.126, subd. (f).)” (Kaulick, supra, 215

Cal.App.4th at p. 1293, fn. omitted; see also § 1170.126, subd. (e).) “In exercising its

discretion in subdivision (f), the court may consider: [¶] (1) The petitioner’s criminal

conviction history, including the type of crimes committed, the extent of injury to

victims, the length of prior prison commitments, and the remoteness of the crimes; [¶]


                                              9
(2) The petitioner’s disciplinary record and record of rehabilitation while incarcerated;

and [¶] (3) Any other evidence the court, within its discretion, determines to be relevant

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

public safety.” (§ 1170.126, subd. (g).)

         “[D]angerousness is not a factor which enhances the sentence imposed when a

defendant is resentenced under the Act; instead, dangerousness is a hurdle which must be

crossed in order for a defendant to be resentenced at all. If the court finds that

resentencing a prisoner would pose an unreasonable risk of danger, the court does not

resentence the prisoner, and the petitioner simply finishes out the term to which he or she

was originally sentenced.” (Kaulick, supra, 215 Cal.App.4th at p. 1303, fn. omitted.)

“[A] court’s discretionary decision to decline to modify the sentence in [a prisoner’s]

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.” (Ibid.) The

prosecution bears the burden of proving a prisoner’s dangerousness by a preponderance

of the evidence. (Id. at p. 1305; People v. Flores (2014) 227 Cal.App.4th 1070, 1075-

1076.)

         The parties agree that denial of defendant’s petition is reviewed for abuse of

discretion, and so do we. Subdivisions (f) and (g) of section 1170.126 speak expressly of

the trial court’s discretion to deny a petition for resentencing, notwithstanding the

prisoner’s statutory eligibility, if it concludes that resentencing would pose an

unreasonable risk of danger to the public. “To establish an abuse of discretion,

defendants must demonstrate that the trial court’s decision was so erroneous that it ‘falls


                                              10
outside the bounds of reason.’ [Citations.] A merely debatable ruling cannot be deemed

an abuse of discretion. [Citations.] An abuse of discretion will be ‘established by “a

showing the trial court exercised its discretion in an arbitrary, capricious, or patently

absurd manner that resulted in a manifest miscarriage of justice . . . .”’ [Citation.]”

(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.)

       Defendant contends the trial court’s ruling was based on factual

misunderstandings and an incomplete record, so the trial court could not have made an

informed decision and, therefore, it abused its discretion. For instance, defendant

contends Judge Dugan was wrong when she based her denial, in part, on defendant’s

failure to express remorse over his killing of the store clerk. He argues the matter should

be remanded for Judge Dugan to consider the transcript from defendant’s 2001

sentencing hearing (which Judge Dugan apparently did not consider) in which defendant

expressed remorse.

       True, at his sentencing hearing in February 2001, defendant told former Judge

Spitzer, “I would never hurt anyone like back in the ‘80s. That was stupid, and it started

as a beer run and it ended up as something else, and I regret that to this day. I swear I do.

I pray.” But, as Judge Dugan noted, just 16 days after pleading guilty to voluntary

manslaughter, defendant “denied responsibility for this offense” during an interview with

the probation department. During the hearing on his petition, defendant still did not

unconditionally express remorse. Defendant told Judge Dugan that he was “remorseful”

for what he did, but in the same sentence he said, “I try my best not to think about that

time in my life because it was serious.” And defendant explained that he did not mention


                                              11
his manslaughter conviction in his 2010 letter to former Judge Spitzer because “it hurts,”

and because he “didn’t want to admit it.” He still showed a lack of insight by denying

that he lied to the probation officer when he denied hitting the store clerk with the bat,

telling Judge Dugan, “I wasn’t lying. I was lying to myself basically.” We are not

convinced that Judge Dugan would have reached a different conclusion about defendant’s

lack of remorse had she considered the transcript of defendant’s 2001 sentencing.

       Defendant also contends the matter should be remanded to Judge Dugan to

consider the sentencing transcript because it contradicts her conclusion that defendant

attempted to suborn perjurious testimony from his aunt. At defendant’s sentencing, the

prosecutor stated he was “trouble[ed] that the defendant tried to get off by getting his

aunt to commit perjury.” Defendant denied that he tried to suborn his aunt’s perjury, and

former Judge Spitzer expressed his belief that defendant’s pretrial phone calls to his aunt

did not amount to attempted subornation of perjury. Even if Judge Dugan had the

sentencing transcript in front of her, the result would not likely have been different. True,

when explaining why she was about to deny the petition, Judge Dugan mentioned that

defendant “wanted [his] aunt to lie.” But that was only one of the reasons Judge Dugan

provided for her ruling. Judge Dugan’s ruling was also based on defendant’s lack of

insight into his crime of voluntary manslaughter, defendant’s continued pattern of making

excuses for that crime and for his current crimes, and the fact that defendant committed

additional crimes so soon after his release from prison and he was likely to commit

crimes after release if he were to be resentenced.




                                             12
       The record contains ample evidence that defendant lacked insight into his crimes

and failed to take advantage of programming in prison to achieve such insight. He was

unable to articulate any insight into why he had committed the vehicle thefts so soon after

his parole other than to rely on the excuses that he lost his job and was in a bad

environment. His proposed solution was to be released into another community or state.

Therefore, we conclude the trial court did not abuse its discretion by denying defendant’s

petition.5

                                             B.

      Defendant’s Dangerousness Renders Him Entirely Ineligible for Resentencing

       Defendant also argues that, even if the trial court’s finding of dangerousness

meant he could not be resentenced on both of his convictions for which he is serving

indeterminate life sentences, he was nonetheless eligible for resentencing on at least one

of them. We disagree and conclude that a finding of dangerousness permeates all of a




       5
       That Judge Dugan focused on whether defendant would be dangerous to the
community if immediately released, as opposed to whether he would pose a danger to the
community if he was resentenced, as required by section 1170.126, subdivision (f), is of
no moment.



                                             13
prisoner’s current convictions and renders him entirely ineligible for recall and

resentencing under the Reform Act.6

       “‘In interpreting a voter initiative like [the Act], we apply the same principles that

govern statutory construction.’” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1034.)

“‘In construing statutes, “our fundamental task is ‘to ascertain the intent of the lawmakers

so as to effectuate the purpose of the statute.’ [Citations.] We begin by examining the

statutory language because it generally is the most reliable indicator of legislative intent.

[Citation.] We give the language its usual and ordinary meaning, and ‘[i]f there is no

ambiguity, then we presume the lawmakers meant what they said, and the plain meaning

of the language governs.’ [Citation.]”’” (People v. Gutierrez (2014) 58 Cal.4th 1354,

1369.) If the language of a voter initiative is unclear or ambiguous on its face, “we may

resort to extrinsic sources, including the analyses and arguments contained in the official

ballot pamphlet, and the ostensible objects to be achieved. [Citations.]” (People v. Lopez

(2005) 34 Cal.4th 1002, 1006.) Resort to external sources of legislative or voter intent is

also permissible to confirm an interpretation of the plain language of a statute. (See

Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 279.)


       6  We are aware of no published decision that has addressed this issue. A similar
split resentencing issue is pending in the California Supreme Court: “Is an inmate
serving an indeterminate term of life imprisonment under the Three Strikes Law (Pen.
Code, §§ 667, subds. (b)-(j), 1170.12), which was imposed for a conviction of an offense
that is not a serious or violent felony, eligible for resentencing on that conviction under
the Three Strikes Reform Act if the inmate is also serving an indeterminate term of life
imprisonment under the Three Strikes Law for a conviction of an offense that is a serious
or violent felony?” (Braziel v. Superior Court, review granted July 30, 2014, S218503;
People v. Machado, review granted July 30, 2014, S219819.)


                                             14
       The Reform Act clearly provides that the trial court shall recall and resentence an

eligible defendant, “unless the court, in its discretion, determines that resentencing the

petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126,

subd. (f).) The trial court did not limit its finding of dangerousness to only one of

defendant’s current convictions, and a finding that defendant currently poses a risk to

public safety must logically apply to all of his convictions and render him ineligible for

resentencing under section 1170.126, subdivision (f). Put another way, if defendant is

currently dangerous, then he is dangerous in a broader sense, and that dangerousness is

not limited to just one of his convictions. The plain language of the Reform Act simply

cannot be interpreted to mean the trial court may recall and resentence a prisoner on one

conviction notwithstanding a finding of dangerousness.7 We therefore wholeheartedly

agree with the People that “the plainly all-or-nothing factual determination of whether

[defendant] ‘poses an unreasonable risk of danger to public safety’—i.e., whether or not

[defendant] is dangerous—is inherently incompatible with the count-by-count

resentencing [defendant] requests here. It would make little sense to parse [defendant’s]

convictions so as to find that he poses ‘an unreasonable risk of danger to public safety’ as

to one count but not to the other.”




       7  Because the Reform Act is not susceptible to “‘“‘two reasonable interpretations
[that] stand in relative equipoise,’”’” (People v. Manzo (2012) 53 Cal.4th 880, 889) we
disagree with defendant that the rule of lenity requires us to interpret section 1170.126 to
provide for recall and resentencing on just one conviction.


                                             15
       Further evidence in support of our conclusion is found in the official ballot

pamphlet for Proposition 36, prepared by the Secretary of State.8 In their arguments in

favor of Proposition 36, the supporters argued, “Precious financial and law enforcement

resources should not be improperly diverted to impose life sentences for some non-

violent offenses. Prop. 36 will assure that violent repeat offenders are punished and not

released early.” (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) argument in favor

of Prop. 36, p. 52.)9 They argued that reform of the three strikes law would save

taxpayers money, while at the same time the law “will continue to punish dangerous

career criminals who commit serious violent crimes—keeping them off the streets for 25

years to life.” (Ibid., italics added.) Under the heading “Make Room in Prison for

Dangerous Felons,” the supporters argued, “Prop. 36 will help stop clogging

overcrowded prisons with non-violent offenders, so we have room to keep violent felons

off the streets.” (Ibid.; see also People v. Yearwood (2013) 213 Cal.App.4th 161, 171

(Yearwood).) The proponents asserted, “Prosecutors, judges and police officers

support[ed] Prop. 36 because Prop. 36 helps ensure that prisons can keep dangerous

criminals behind bars for life. Prop. 36 will keep dangerous criminals off the streets.”

(Voter Information Guide, Gen. Elec., supra, argument in favor of Prop. 36, p. 52, italics

added.) Finally, the supporters argued, “Criminal justice experts and law enforcement

       8 We grant the People’s request that we take judicial notice of the official ballot
pamphlet. (Evid. Code, §§ 452, subd. (c), 459, subd. (a); St. John’s Well Child & Family
Center v. Schwarzenegger (2010) 50 Cal.4th 960, 967, fn. 5.)

       9 Available at <http://vig.cdn.sos.ca.gov/2012/general/pdf/36-arg-rebuttals.pdf >
(as of Dec. 11, 2014).


                                            16
leaders carefully crafted Prop. 36 so that truly dangerous criminals will receive no

benefits whatsoever from the reform.” (Ibid., italics added; see also Yearwood, at p. 171.)

       In their arguments against adoption of Proposition 36, the opponents argued the

initiative was another attempt by “opponents of tough criminal laws” to reform the three

strikes law, and that Proposition 36 would “allow[] dangerous criminals to get their

prison sentence REDUCED and then RELEASED FROM PRISON!” (Voter Information

Guide, Gen. Elec., supra, argument against Prop. 36, p. 53.) In rebuttal, supporters of

Proposition 36 argued, “Today, dangerous criminals are being released early from prison

because jails are overcrowded with nonviolent offenders who pose no risk to the public.

Prop. 36 prevents dangerous criminals from being released early. People convicted of

shoplifting a pair of socks, stealing bread or baby formula don’t deserve life sentences.”

(Voter Information Guide, Gen. Elec., supra, rebuttal to argument against Prop. 36, p. 53,

italics added; see also Yearwood, supra, 213 Cal.App.4th at p. 171.)

       None of the aims expressed by the proponents of Proposition 36 is consistent with

permitting a prisoner, who is found to pose a substantial risk of danger to the public, to be

resentenced on either of his current convictions for which he was sentenced to an

indeterminate term of life. To the contrary, the ballet pamphlet clearly states that the

proponents of Proposition 36 intended that dangerous criminals serving indeterminate life

terms would not benefit from its passage.




                                             17
       Defendant nonetheless contends the Reform Act contemplates recall and

resentencing on just one of a prisoner’s current convictions, and he cites subdivisions (h)

and (i) of section 1170.126 as evidence that the voters intended such a result.

Subdivision (h) provides that, if the superior court grants the petition, at the prisoner’s

resentencing it may not “impo[se] a term longer than the original sentence.”

(§ 1170.126, subd. (h); see Kaulick, supra, 215 Cal.App.4th at p. 1303 [“The maximum

sentence to which [the defendant], and those similarly situated to him, is subject was, and

shall always be, the indeterminate life term to which he was originally sentenced”].) And

subdivision (i) provides that a prisoner may waive his personal presence at the hearing on

his petition and, if the petition is granted, he may waive his presence at resentencing so

long as the accusatory pleading is not amended and the trial court does not conduct a new

trial or retrial on the underlying counts in his absence. (§ 1170.126, subd. (i); Kaulick, at

pp. 1299-1300.) Neither subdivision in any way addresses whether the trial court may

grant a petition to recall and resentence a prisoner on just one of his convictions,

notwithstanding a finding under subdivision (f) of section 1170.126 that the prisoner is

dangerous.

       Finally, subdivision (k) of section 1170.126 does not support defendant’s

argument either. That subdivision provides: “Nothing in this section is intended to

diminish or abrogate any rights or remedies otherwise available to the defendant.”

(§ 1170.126, subd. (k).) According to defendant, this means a trial court may recall and

resentence a prisoner on one of his convictions because, under existing authority, it has

the authority to strike just one prior conviction under Romero while leaving others intact


                                              18
for purposes of sentencing. (See People v. Garcia (1999) 20 Cal.4th 490, 500 (Garcia);

People v. Carrillo (2001) 87 Cal.App.4th 1416, 1419, fn. 3.) We are not persuaded.

“Section 1170.126(k) protects prisoners from being forced to choose between filing a

petition for a recall of sentence and pursuing other legal remedies to which they might be

entitled (e.g., petition for habeas corpus).” (Yearwood, supra, 213 Cal.App.4th at p. 178,

italics added.) We need not decide whether relief under Romero is still available to

defendant, but we decline to engraft onto section 1170.126 the trial court’s distinct

discretion under section 1385 and Romero.

       In sum, we conclude the trial court correctly declined to separate defendant’s

convictions and resentence defendant on just one of them.

                                            III.

                                      DISPOSITION

       The postjudgment orders are affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                McKINSTER
                                                                                         J.
We concur:


RAMIREZ
                        P. J.


CODRINGTON
                           J.




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