Filed 2/5/15 P. v. Lorta CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067122
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. SC078430A)
                   v.

GILBERT LORTA,*                                                                          OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Michael B.
Lewis, Judge.
         Sylvia Whatley Beckham, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N.
Farris, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


*     Defendant is also known as Joe Mendez, and is apparently so known in California
Department of Corrections and Rehabilitation records.



                                          SEE CONCURRING OPINION
       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, Gilbert Lorta (defendant), an inmate serving a term
of one year plus 25 years to life in prison 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 resentencing under the Act. The trial court found defendant
represented an unreasonable risk of danger to public safety.
       We hold the trial court (1) did not misallocate the burden of proof, and (2) was not
required to appoint an expert to evaluate defendant on the question of present
dangerousness. We further hold recently enacted section 1170.18, subdivision (c) did not
modify section 1170.126, subdivision (f). We affirm.
                       FACTS AND PROCEDURAL HISTORY
       On the night of August 23, 1999, officers responding to a silent burglary alarm at a
business in an industrial area of Bakersfield encountered defendant, who was riding his
bicycle and carrying a large duffle bag. A search of the bag revealed roadside assistance
items that had been taken from company trucks belonging to the business at which the
alarm had been activated. On December 1, 1999, following a court trial, defendant was
convicted of receiving stolen property (§ 496, subd. (a)) and was found to have two prior
strike convictions — a 1988 conviction for attempted burglary (§§ 459, 664) and a 1991
conviction for burglary (§ 459). He was also found to have served a prior prison term
1      Further statutory references are to the Penal Code unless otherwise stated.



                                             2.
following a 1994 conviction for resisting an executive officer in the performance of his
duties (§ 69) and possessing stolen property (§ 496, subd. (a)). On December 30, 1999,
defendant was sentenced to prison for one year plus 25 years to life.
       On February 28, 2013, defendant filed a petition to recall his sentence and be
resentenced pursuant to the Act. He represented he was statutorily eligible for such
relief, and asserted he was “the exact type of defendant that [the Act] intended to assist”
— a nonviolent third strike offender whose nonviolent, nonserious drug-related crime
resulted in a life sentence. Defendant also submitted a letter from his brother, setting out
an offer of employment and postrelease housing plans, as well as numerous laudatory
“chronos,” and education and achievement certificates defendant attained while in prison.
       The People opposed the petition. They implicitly conceded defendant was not
disqualified from resentencing under the Act, but argued he should not be resentenced
because he would pose an unreasonable risk of danger to public safety.2 The People
pointed to defendant’s numerous convictions as an adult; the facts of his strike offenses
(in one, defendant entered a residence at 2:40 a.m., while its occupants were sleeping,
and stole Christmas presents; in the other, defendant entered a residence with a knife and
was originally charged with first degree burglary with a deadly weapon enhancement and
assault with a deadly weapon); the “continuous life of crime” defendant led before and
after his strike convictions; defendant’s 24 rule violation reports from his time in prison,
two of which (one from 2004 and the other from 2012) were for possession of a weapon
(a five and one-half inch sharpened weapon made from the broken arm of a pair of
eyeglasses in one instance and a razor blade in the other) and 11 of which (ranging from
2004 to 2012) involved defendant physically fighting with another inmate or engaging in
conduct that would lead to violence; and the fact defendant’s current custody

2     In their opposition, the People stated the burden of proof was preponderance of the
evidence.



                                             3.
classification was “Close A Custody,” meaning staff had to watch him at all times and do
an extra inmate count at noon, and he was housed in a Level IV facility, which was the
most secure facility. The People asserted defendant posed an unreasonable risk of danger
to public safety because the foregoing information showed he refused to follow rules, did
not have any known parole plans, and was currently violent and dangerous.
       The petition was heard March 28, 2013.3 Defense counsel stated: “I believe
prison has done for [defendant] exactly what it was supposed to do, give him time away
from society. He has certainly gone in different courses the last several years, and based
upon the totality of everything, I’d ask the Court to grant the petition.” The prosecutor
stated the People were “strongly opposed to this one,” particularly in light of the number
and type of in-prison rule violations and defendant’s current custody classification. The
prosecutor argued: “[Defendant] may not have been violent initially in his strike priors,
but he’s certainly become violent in prison, and that makes him a danger to public
safety.” As a result, the prosecutor asserted, “the People have met their burden to show
that he is currently an unreasonable risk of danger to public safety.” Defense counsel
responded that defendant’s current offense was minor, counsel had had several clients
beaten up in prison but charged with mutual combat, and counsel had submitted a lot of
“good stuff” to the court.
       The court stated:

       “Counsel, it concerns the Court that [defendant] is now approximately 50
       years of age, a relatively young man in the Court’s point of view, and that
       he is still demonstrating offenses and crimes of physical violence that he
       did not demonstrate prior to entering the correctional system.

              “As pointed out by the People, the Court’s notes were something in
       excess of 20 rule violations, two of which involved weapons .…

3      The sentencing judge having retired, the matter was heard by a different judge.
(See § 1170.126, subd. (j).) Defendant waived his presence and did not attend the
hearing.



                                             4.
              “At this point the Court is not convinced that there is sufficient
       assurances to the Court that at this time [defendant] does not represent an
       unreasonable risk of danger to public safety based on the increasing
       violence that he has shown and the use of weapons.

             “At this point I’ll deny [defendant] the petition to re-call sentence
       pursuant to 1170.126.”
                                       DISCUSSION
                                               I
    The trial court did not err by denying defendant’s petition for resentencing.
       Defendant says he is entitled to a remand for reconsideration of his petition,
because the sentencing court used the wrong legal standard and abused its discretion in
considering the evidence. We disagree.4 Before addressing the issues defendant
specifically raises, however, we explain the interplay, in the section 1170.126 context,
between the abuse of discretion and preponderance of the evidence standards.
       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. 5 (People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979,

4      The Attorney General contends defendant forfeited his claims by failing to raise
them in the trial court. We have the authority to reach defendant’s claims, regardless.
(People v. Smith (2003) 31 Cal.4th 1207, 1215; People v. Williams (1998) 17 Cal.4th
148, 161-162, fn. 6.) In light of the newness of the Act at the time defendant’s petition
was heard, as well as the potential allegation defense counsel’s failure to raise the issues
constituted ineffective assistance of counsel, we review the claims on the merits. (See
People v. Crittenden (1994) 9 Cal.4th 83, 146.)
5      “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)
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


                                              5.
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, supra, 17 Cal.4th
at p. 162 [abuse-of-discretion review asks whether ruling in question falls outside bounds
of reason under applicable law and relevant facts].) “‘“[T]he burden is on the party
attacking the sentence to clearly show that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to
have acted to achieve legitimate sentencing objectives, and its discretionary


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).)



                                              6.
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
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.)




                                             7.
       We agree with Kaulick that the applicable standard is preponderance of the
evidence.6 This does not, however, mean 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.7 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.8 Stated another way, evidence showing a petitioner poses a risk
of danger to public safety must be proven by the People by a preponderance. The reasons
a trial court finds resentencing would pose an unreasonable risk of danger, or its


6      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.
7       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.)
8      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.



                                             8.
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 evidence standards].)
       Such an interpretation is consistent with California’s noncapital sentencing
scheme.9 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 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

9      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.)



                                             9.
remains necessary with respect to certain discretionary sentencing decisions. (See In re
Coley (2012) 55 Cal.4th 524, 557-558.)10
       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.”
       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


10      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.”



                                                10.
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
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.)

                                              11.
          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 states 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
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

                                               12.
finding of unreasonable risk is based must be proven by the People by a preponderance of
the evidence, however, and are themselves subject to our review for substantial evidence.
If a factor (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].)
       Turning to the present case, we generally presume a trial court has properly
followed established law. This presumption does not apply, however, where the law was
unclear or uncertain when the lower court acted. (People v. Diaz (1992) 3 Cal.4th 495,
567.) Kaulick was not decided until slightly more than a month after the sentencing court
ruled on defendant’s petition. Accordingly, the presumption does not apply here.
       Despite this fact, the court stated it had received, read, and considered both the
petition and the People’s opposition thereto. The People’s opposition presaged Kaulick
and stated the burden of proof as preponderance of the evidence. At the hearing, the
prosecutor acknowledged the burden of proof was on the People by expressly arguing the
People had met their burden. Defendant did not dispute the allocation of the burden or
the standard of proof. In light of the totality of the court’s comments, we conclude it
properly placed the burden of proof on the People and determined resentencing defendant
would pose an unreasonable risk of danger to public safety.
       Defendant complains the court based its decision “entirely upon the negative
aspects of [defendant’s] in-prison record of past discipline.” Ignoring that the court
expressly stated it had received, read, and considered the reports and certificates in
support of the petition, defendant says it was error for the court to do so when defendant

                                             13.
“was physically absent from the proceedings without the benefit of an expert evaluation
for present dangerousness.” Defendant says the court was confronted with a situation
similar to the decision whether to grant parole to a life prisoner (see § 3041); in that
context, current psychological evaluations are generally most relevant to an assessment of
current dangerousness (see In re Lawrence (2008) 44 Cal.4th 1181, 1223-1224); and an
expert evaluation was “especially necessary” in this case in light of the evidence showing
a mixture of good behavior and accomplishments with rules violations.
       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.11 (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
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.


11     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 an action relative to the fact or matter as to which the expert evidence
is or may be required.”



                                             14.
       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 not why defendant’s
conduct showed such a mixture of good and bad, but whether resentencing him would
pose an unreasonable risk of danger to public safety. Given the information already
before the court, including the recency of a number of in-prison rule violations that
involved violence or the very real possibility of violence, the court reasonably could
make the required determination itself, without the input of an expert, even in defendant’s
physical absence.12
       The trial court’s determination that resentencing defendant would pose an
unreasonable risk of danger to public safety did not exceed the bounds of reason, all of



12      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
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.)



                                              15.
the circumstances being considered. Accordingly, the court properly denied defendant’s
petition to recall sentence and request for resentencing.
                                                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
discretion, determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety.” (Id., subd. (b).)13
       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.”

13    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).)



                                                16.
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.

             “(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.14


14     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


                                            17.
       “‘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,


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; 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. Nothing we say should be read as expressing any opinion concerning
defendant’s eligibility to seek, or the appropriate result should he seek, resentencing
under Proposition 47.



                                             18.
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
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, supra, 225 Cal.App.4th at pp. 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

                                             19.
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
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

                                             20.
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.]

               “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.)15


15      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


                                             21.
       A few months before the November 6, 2012, election, the California Supreme
Court observed: “One aspect of the [three strikes] law that has proven controversial is
that the lengthy punishment prescribed by the law may be imposed not only when … a
defendant [who has previously been convicted of one or more serious or violent felonies]
is convicted of another serious or violent felony but also when he or she is convicted of
any offense that is categorized under California law as a felony. This is so even when the
current, so-called triggering, offense is nonviolent and may be widely perceived as
relatively minor. [Citations.]” (In re Coley, supra, 55 Cal.4th at pp. 528-529.)
       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
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)).


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.)



                                             22.
       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
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).)

                                              23.
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:

               “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

                                             24.
       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
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.




                                            25.
       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 Feb. 5, 2015].) 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; People v. Flores, supra, 227 Cal.App.4th at p. 1075.) Because nowhere in the
ballot materials for Proposition 47 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

                                             26.
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].)16
       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.
       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

16     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.)



                                            27.
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
“‘unreasonable risk of danger to public safety’” contained in section 1170.18,
subdivision (c).17

17      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 (2014) 231
Cal.App.4th 1391, 1395-1396, petn. for review pending, petn. filed Jan. 8, 2015.)
Chaney did not decide whether Proposition 47’s definition applies prospectively to such
petitions. (Chaney, supra, at p. 1397, 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


                                             28.
                                      DISPOSITION
       The judgment is affirmed.



                                                                  _____________________
                                                                             DETJEN, J.
I CONCUR:


 _____________________
 LEVY, Acting P.J.




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.



                                             29.
PEÑA, J.,
       I concur in the judgment and the majority opinion with the exception of part II. I
agree defendant Gilbert Lorta 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 cites In re Estrada (1965) 63 Cal.2d 740 to argue retroactive
application.
       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
       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


                                             5.
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
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.2 Since defendant has
failed to show an abuse of that discretion, I concur in the majority’s affirmance of the
judgment.
                                                          __________________________
                                                                             PEÑA, J.




2Recently  in People v. Chaney (2014) 231 Cal.App.4th 1391, 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.



                                             6.
