Filed 1/5/15 opn. on rehearing



                                 CERTIFIED FOR PUBLICATION


                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                       DIVISION ONE

                                   STATE OF CALIFORNIA



THE PEOPLE,                                     D064995

        Plaintiff and Respondent,

        v.                                      (Super. Ct. No. SF113576)

LUIS RAMON APARICIO,

        Defendant and Appellant.


        APPEAL from an order of the Superior Court of San Diego County,

David J. Danielsen, Judge. Affirmed.

        Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant

and Appellant.

        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Warren J.

Williams, Deputy Attorneys General, for Plaintiff and Respondent.



        In this case, we hold that the abuse of discretion standard applies when reviewing

an appeal from a trial court's denial of a petition for resentencing under Penal Code section
1170.126 based on the trial court's finding that release of the petitioner would present an

unreasonable risk of danger to public safety. (Undesignated statutory references are to the

Penal Code.) We found no abuse of discretion and affirmed the order.

       Appellant subsequently sought rehearing arguing section 1170.18, effective

November 5, 2014, as part of Proposition 47 (the Safe Neighborhoods and Schools Act)

changed the definition of "unreasonable risk of danger to public safety" as it applies to

inmates petitioning for recall of their third-strike life sentence under section 1170.126.

(See Cal. Const., art. II, § 10, subd. (a) ["An initiative statute or referendum approved by a

majority of votes thereon takes effect the day after the election unless the measure

provides otherwise."].) We decline to address this new issue and affirm the order without

prejudice to appellant petitioning for relief from the superior court under section 1170.18.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In March 1985, a juvenile court found true the allegation that Luis Ramon Aparicio

committed battery with serious bodily injury after he dislocated the victim's nose by

pushing the victim's head onto concrete. Aparicio was 15 years old at the time. In August

1986, Aparicio attacked a victim with a knife. In October 1988, Aparicio suffered his first

strike conviction for robbery when he and three cohorts robbed two victims of their

stereos. During the struggle, one of the assailants stabbed one of the victims. Aparicio

was sentenced to 365 days in jail and three years of formal probation, but probation was

ultimately revoked and he was sentenced to three years in prison.

       In June 1989, Aparicio suffered his second strike conviction after he pleaded guilty to

attempted robbery after trying to rob three victims with an ice pick. While fleeing the scene,

                                              2
Aparicio's vehicle struck another vehicle and he was later found to be under the influence of a

controlled substance. He received a two-year prison sentence. In 1992, Aparicio received a

three-year prison term for possessing PCP and marijuana. In 1996, Aparicio was convicted of

battery and resisting a police officer. He received probation, but probation was later revoked.

In 1997, Aparicio was convicted of his commitment offense after burglarizing a car. During

the reading of his guilty verdict, Aparicio attacked a marshal and attempted to remove his

gun. He received a 27-years-to-life prison sentence under the Three Strikes Law.

       Aparicio received nine write-ups while incarcerated. In February 1998, he received

administrative punishment after pinching a female prison employee on the buttocks and

grabbing her thigh. In June 1998, he headbutted another inmate. In October 1998, he flooded

his cell. In February 1999, he flooded his cell and threw urine at an officer. In December

2000, he obstructed a peace officer by refusing to accept a new cellmate. In 2001, 2005 and

2007, he engaged in mutual combat with other inmates. In November 2012, he stole desserts

from the dining hall.

       A psychologist examined Aparicio. She found that he suffered from antisocial

personality disorder and posed a low-moderate risk of committing a future violent offense.

Nonetheless, she concluded that Aparicio did not pose an unreasonable risk to public safety if

released. In November 2013, the trial court denied Aparicio's petition for recall of sentence

after reviewing the petition, Aparicio's criminal history, prison history and mental health

evaluation. Aparicio timely appealed.




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                                            DISCUSSION

                                   I. General Legal Principles

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

Act of 2012 (the Act)." (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th

1279, 1285 (Kaulick).) The Act provides a means whereby prisoners currently serving

sentences of 25 years to life for a third felony conviction, which was not a serious or

violent felony, may seek court review of their indeterminate sentences and, under certain

circumstances, obtain resentencing as if they had only one prior serious or violent felony

conviction and was thus a second-strike, rather than a third-strike, offender. (Id. at p.

1286.)

         If the inmate satisfies the statutory criteria and is eligible for resentencing

(§ 1170.126, subds. (e), (f)), the trial court "shall" resentence the inmate "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).) "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; [¶] (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).)

         The Supreme Court is considering whether the denial of a section 1170.126 petition

is an appealable order. (Teal v. Superior Court (2013) 217 Cal.App.4th 308, review

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granted July 31, 2013, S211708 [not appealable]; People v. Hurtado (2013) 216

Cal.App.4th 941, review granted July 31, 2013, S212017 [appealable].) The People did

not raise this issue, impliedly conceding the denial of a resentencing petition is appealable.

Given this implied concession, we will assume without deciding that the denial of a

resentencing petition is appealable.

                                   II. Standard of Review

       The parties dispute what standard of review we apply when reviewing a trial court's

dangerousness finding under section 1170.126. Aparicio asserts we should review the

matter de novo because the issue presents a mixed question of law and fact. The People

assert the statutory language compels an abuse of discretion standard, and even assuming

the statutory language does not control and the issue is a mixed question of law and fact,

de novo review is not necessary because the determination of dangerousness does not

affect fundamental constitutional rights. We agree with the People.

       Subdivision (f) of section 1170.126 provides that if the statutory criteria are

satisfied, the petitioner shall be resentenced "unless the court, in its discretion, determines

that resentencing the petitioner would pose an unreasonable risk of danger to public

safety." Subdivision (g) of section 1170.126 sets forth a number of factors the court "may

consider" in "exercising its discretion" and gives the court additional discretion to consider

any other evidence it determines to be relevant. When interpreting a voter initiative, our

primary purpose is to ascertain and effectuate the voters' intent. (People v. Park (2013) 56

Cal.4th 782, 796.)



                                               5
       Here, section 1170.126 expressly gives a trial court discretion in making a

dangerousness finding and broad discretion in what factors to consider in making this

finding. Aparicio even concedes the statutory language "suggest[s] a deferential abuse of

discretion standard of review [is] appropriate." Notably, subdivision (f) could have been

drafted to eliminate a court's use of discretion, for example, "the petitioner shall be

resentenced . . . unless [] resentencing the petitioner would pose an unreasonable risk of

danger to public safety." Because the statute expressly states that a court exercises

discretion in making a dangerousness finding, we review this finding for abuse of

discretion.

       To avoid this common sense result, Aparicio argues a dangerousness finding under

section 1170.126 presents a mixed question of law and fact reviewed de novo because it is

primarily a legal determination regarding whether the undisputed facts meet the

requirements of the statute rather than a credibility determination regarding those facts.

While we agree the dangerousness finding under section 1170.126 can be classified as a

mixed question of law and fact, we conclude that application of fact to law in this instance

requires an inquiry that is essentially factual which we review for an abuse of discretion.

       "Mixed questions of law and fact concern the application of the rule [of law] to the

facts and the consequent determination whether the rule is satisfied. If the pertinent

inquiry requires application of experience with human affairs, the question is

predominantly factual and its determination is reviewed under the substantial-evidence

test. If, by contrast, the inquiry requires a critical consideration, in a factual context, of

legal principles and their underlying values, the question is predominantly legal and its

                                                6
determination is reviewed independently." (Crocker National Bank v. City and County of

San Francisco (1989) 49 Cal.3d 881, 888.) Classification of the dangerousness finding as

a mixed question of law and fact, however, does not determine our standard of review.

Rather, to determine the standard of review, we must focus "on the nature of the inquiry

required when we apply the relevant rule of law to the facts as established." (United States

v. McConney (9th Cir.1984) 728 F.2d 1195, 1204 (McConney).)

       In McConney, the Ninth Circuit developed a functional analysis as a guide to

selecting the proper standard of review for mixed questions. (McConney, supra, 728 F.2d

at p. 1204.) Our high court has found the McConney analysis helpful in deciding the

proper standard of review for mixed questions. (People v. Cromer (2001) 24 Cal.4th 889,

899.) The McConney court noted three steps exist in deciding mixed fact-law questions,

establishing the facts, selecting the applicable rule of law and applying the law to the facts.

(McConney, at p. 1200.) The standards of review for the first two steps are well settled,

questions of fact are reviewed for substantial evidence and questions of law are reviewed

de novo. (Id. at pp. 1200-1201; People v. Mickey (1991) 54 Cal.3d 612, 649 [questions of

fact subject to review for substantial evidence is equivalent to federal "clearly erroneous"

scrutiny].)

       What standard of review operates when reviewing a trial court's application of the

law to the facts is more troublesome. The McConney court noted the issue may be

determined by reference to the sound principles underlying settled rules of appellate

review. (McConney, supra, 728 F.2d at p. 1202.) "If the concerns of judicial

administration—efficiency, accuracy, and precedential weight—make it more appropriate

                                              7
for a [trial] judge to determine whether the established facts fall within the relevant legal

definition, we should subject his determination to deferential, [substantial evidence]

review. If, on the other hand, the concerns of judicial administration favor the appellate

court, we should subject the [trial] judge's finding to de novo review. Thus, in each case,

the pivotal question is do the concerns of judicial administration favor the [trial] court or

do they favor the appellate court." (Ibid.)

       Here, there is no dispute as to the facts or the law. Aparicio appears to argue that

application of the facts to the law presents a mixed fact-law question and thus the default

standard of review is de novo. Our high court, however, has rejected this approach. In

People v. Ault (2004) 33 Ca1.4th 1250, our high court addressed the mixed fact-law

question whether juror misconduct was so prejudicial as to warrant a new trial under the

abuse of discretion standard, concluding that de novo review need not apply even if the

prejudice issue was a mixed question of law and fact. (Id. at p. 1255.) In rendering its

decision, our high court noted several considerations influenced the standard of review,

including the importance of the legal rights at stake and the consequences of an erroneous

determination in the particular case. (Id. at pp. 1265-1266.)

       Applying these considerations, we note that the resentencing permitted by section

1170.126, is not constitutionally required, "but an act of lenity on the part of the

electorate." (Kaulick, supra, 215 Cal.App.4th at p. 1304.) A trial court is confronted with

the task of deciding a recall of sentence petition only after the petitioner has been

convicted and sentenced for the commitment offense. If a trial court makes an erroneous



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determination on the recall petition, the consequences are not dire as the petitioner must

serve his or her existing sentence.

       A dangerousness determination is not rooted in constitutional principles and

policies, does not require that a trial court consider abstract legal doctrines, weigh

underlying policy considerations or balance competing legal interests. (McConney, supra,

728 F.2d at p. 1205.) Rather, a dangerousness determination is essentially a factual

inquiry guided by a trial court's review of the petitioner's criminal conviction history,

disciplinary record and record of rehabilitation while incarcerated, and any other evidence

the court in its discretion determines relevant. (§ 1170.126, subd. (g).) Because the trial

court is vested with broad discretion in making the determination and in what evidence it

considers, the question whether a petitioner poses an unreasonable risk of danger to public

safety is likely to be highly fact dependent, rendering such decisions of little precedential

value in other cases with different fact patterns. The limited precedential value of such

decisions, each of which stands upon its own facts, reduces the need for de novo review.

(McConney, at p. 1201.) For these reasons, we hold that a trial court's determination of

whether a section 1170.126 petitioner poses an unreasonable risk of danger to public

safety is examined for an abuse of discretion.

       Aparicio's comparison of a dangerousness finding under section 1170.126 with a

determination of factual innocence under section 851.8 is inapposite. If a person is

arrested and charged with a crime, but the case is later dismissed, the arrestee may petition

for a finding that he or she is factually innocent of the charges. (§ 851.8, subd. (c).) The

arrestee may be found factually innocent if "no reasonable cause exist[ed] to believe that

                                               9
the arrestee committed the offense for which the arrest was made." (§ 851.5, subd. (b),

italics added.)

       In People v. Adair (2003) 29 Cal.4th 895 (Adair), our high court addressed a split

of authority whether a finding under section 851.5 is reviewed de novo or for substantial

evidence. (Id. at p. 902.) The Adair court noted that despite the fact-intensive nature of

the inquiry, the statutory language required de novo review because "reasonable cause" is

a well-established legal standard " ' "defined as that state of facts as would lead a man of

ordinary care and prudence to believe and conscientiously entertain an honest and strong

suspicion that the person is guilty of a crime." ' " (Id. at p. 904.) Accordingly, it concluded

that the statutory scheme established an objective legal standard for assaying factual

innocence on both trial and appellate courts that "d[id] not accommodate any exercise of

discretion to which the appellate court should defer." (Id. at p. 909.) In contrast, the

standard presented under section 1170.126, whether a petitioner poses an "unreasonable

risk of danger to public safety," is not a well-established legal standard and the statute

expressly provides the trial court with discretion in making the determination and

discretion in what evidence it may consider in making the determination. (§ 1170.126,

subds. (f), (g).)

       Finally, citing a footnote in Kaulick, the People argue the highly deferential "some

evidence" standard of review applies and we should uphold a denial order if some

evidence supported the trial court's determination that an inmate petitioning under section

1170.126 posed an unreasonable risk of danger to the public. (Kaulick, supra, 215

Cal.App.4th at p. 1306, fn. 29.) We disagree.

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       First, the People misread the footnote in Kaulick. The footnote at issue preceded

the court's conclusion that a petitioner is not denied equal protection if the dangerousness

finding under section 1170.126 is made under less than the beyond a reasonable doubt

standard of proof. (Kaulick, supra, 215 Cal.App.4th at pp. 1305-1306.) In support of its

finding that no equal protection violation existed, the footnote noted that a decision

denying an inmate parole need only be supported by some evidence. (Id. at p. 1306, fn.

29.) The footnote states that the denial of parole and the denial of a petition for recall of

sentence are similar because a denial under both "simply means that the inmate remains

subject to his initial sentence unless certain findings are made; these findings need not be

established beyond a reasonable doubt." (Ibid.) The footnote does not suggest that

dangerousness determinations under section 1170.126 should be reviewed under the "some

evidence" standard of review.

       Second, the "some evidence" standard of review applies to the review of a Board of

Parole Hearings or Governor's decision to grant parole to an inmate serving an

indeterminate sentence, "a decision vested in the executive branch, under our state

Constitution and statutes." (In re Shaputis (2011) 53 Cal.4th 192, 198-199.) As part of

the judicial branch of government, courts may be called upon to review an executive

branch parole suitability determination to ensure that the determination is not arbitrary or

capricious (id. at p. 199), the court's review, however, is limited and highly deferential.

(Ibid.) As our high court has cautioned, "[i]ntrusions by the judiciary into the executive

branch's realm of parole matters may violate the separation of powers." (In re Prather

(2010) 50 Cal.4th 238, 254-255; cf. In re Dikes (2004) 121 Cal.App.4th 825, 829 [because

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the Legislature granted the Department of Corrections broad authority for the discipline of

inmates in state prisons, we uphold any Department disciplinary decision that is supported

by some evidence].) Our review of a trial court's dangerousness finding under section

1170.126 does not implicate separation of powers issues and does not require the highly

deferential some evidence standard of review.

                                        III. Analysis

       Aparicio does not dispute his nine in-custody violations during his 16 years in

prison. He contends the trial court erred in denying his petition because other factors

"weigh[ed]" in his favor including, completing his GED, perfecting office skills,

remaining gang free while in prison, and participating in Narcotics and Alcoholics

Anonymous meetings and classes on alternatives to violence. We review the trial court's

determination for abuse of discretion with the burden on the party attacking the sentence to

show the decision was "so irrational or arbitrary that no reasonable person could agree

with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.)

       Aparicio is a career criminal whose life of crime started in 1985 when he committed a

battery resulting in serious bodily injury when he was 15 years old. The following year, he

attacked a person with a knife. In 1988, at age 19, he suffered his first strike conviction for

robbery. He suffered his second strike conviction for robbery the following year. Thereafter,

he was in and out of jail until he suffered his third strike conviction in 1997. The

psychological evaluator commented that Aparicio "reported limited use of alcohol and drugs,"

but noted that substance abuse "was a factor in at least two arrests, suggesting a more

extensive substance abuse history."

                                              12
       While incarcerated, Aparicio was not a model prisoner. He suffered nine write-ups

from 1998 to 2012, including three for mutual combat with other inmates. The evaluator

expressed concern about Aparicio's failure to take full responsibility for his actions and

tendency to minimize either the seriousness of his past actions or the harm caused to his

victims. She noted that Aparicio frequently attributed responsibility to circumstances or other

people, and this pattern applied to his most recent offense while incarcerated when Aparicio

stated he believed he was allowed to take food.

       Aparicio can be commended for obtaining his GED, participation in vocational

programs and membership in the Buddhist Meditative Program. We note, however, it was

only within the last four years that Aparicio started to regularly attend Alcoholics and

Narcotics Anonymous meetings and that he did not complete an alternatives to violence

program until 2011. Aparicio's efforts to address his substance abuse and violent tendencies

are relatively recent when viewed in terms of his extensive and continuous criminal history

and length of incarceration. Accordingly, we conclude the trial court did not abuse its

discretion when it denied Aparicio's petition.

       In any event, even if we were to apply a de novo standard of review, we would find

that Aparicio is still a work in progress and resentencing was properly denied because he

remains an unreasonable risk of danger to public safety. As the trial court noted, Aparicio's

efforts will "bear fruit when he's considered for release on parole."

                                  IV. Issue on Rehearing

       Proposition 47 created a new resentencing provision, section 1170.18, under which

certain individuals may petition the superior court for a recall of sentence and request

                                             13
resentencing. (§ 1170.18, subd. (a).) Aparicio argues that he qualifies for resentencing under

section 1170.18 and the definition of "unreasonable risk of danger to public safety" contained

in Proposition 47 governs the identical section 1170.126 standard. (§ 1170.18, subd. (c).) He

also argues section 1170.18 is retroactive and the new definition necessarily governs any

pending appeal of a section 1170.126 denial. He asks that we remand the matter to the

superior court to either grant his resentencing petition or conduct a new hearing to determine

whether he constitutes an unreasonable risk to public safety under the new standard.

       We requested supplemental briefing addressing whether (1) the superior court has the

authority to grant relief under Proposition 47 without further action by this court, and (2) the

issues raised in the petition for rehearing are more appropriately presented to the superior

court in the first instance. Both parties submitted supplemental briefing, which we have

considered.

       We acknowledge the two issues argued by Aparicio present questions of law which we

have discretion to consider. (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34

Cal.3d 412, 417 [a reviewing court has discretion to decide such an issue if it presents a pure

question of law arising on undisputed facts, particularly when the issue is a matter of

important public policy]; see e.g., People v. Chaney (2014) 231 Cal.App.4th 1391 [ruling that

the definition of "unreasonable risk of danger to public safety" in Proposition 47 does not

apply retroactively to a defendant whose petition for resentencing under the Three Strikes

Reform Act of 2012 was decided before the effective date of Proposition 47]; People v.

Valencia (Dec. 16, 2014, F067946) ___ Cal.App.4th ___ [2014 Cal.App. Lexis 1149] [ruling

that section 1170.18, subdivision (c), enacted under Proposition 47, does not modify section

                                              14
1170.126, subdivision (f)].) Nonetheless, we decline to decide these legal issues. Proposition

47 requires the filing of a petition for recall under section 1170.18, subdivision (a). Aparicio

may file the appropriate petition and the superior court must decide the threshold question

whether he is eligible for resentencing.

                                           DISPOSITION

       The order is affirmed without prejudice to appellant petitioning for relief from the

superior court under section 1170.18.



                                                                           MCINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.




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