Filed 6/27/16 P. v. Montano CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B265307

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PA027859)
         v.

MARIO MONTANO,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, Scott M.
Gordon, Judge. Affirmed.
         A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson and
Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
                                                 _______________
       Following a suitability hearing under The Three Strikes Reform Act of 2012,
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enacted by the voters as Proposition 36 (Pen. Code § 1170.126), the trial court found
Mario Montano posed an unreasonable risk of danger to public safety and denied his
petition for recall of his prison sentence and request for resentencing. On appeal
Montano contends the trial court erred by failing to apply the narrow definition of
“unreasonable risk of danger to public safety” found in the more recently enacted
Proposition 47 (§ 1170.18), which reduced certain nonviolent felony crimes to
misdemeanors and authorized, when appropriate, resentencing of qualified offenders
under its provisions. We hold Proposition 47’s definition of “unreasonable risk of danger
to public safety” does not apply to Proposition 36 petitions. Accordingly, we affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       On March 17, 1998 a jury found Montano guilty of selling a controlled substance
(heroin) (Health & Saf. Code, § 11352, subd. (a)), and possessing a controlled substance
for sale (Health & Saf. Code, § 11351). The trial court found true specially pleaded
allegations that Montano had suffered two prior serious or violent felony convictions for
assault with a deadly weapon in 1979 and 1983 and sentenced him under the three strikes
law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) to an indeterminate state prison term
of 25 years to life.
       On December 7, 2012 Montano filed a petition for recall of his sentence and
resentencing under Proposition 36, which amended the three strikes sentencing scheme to
provide, in general, that a recidivist is not subject to an indeterminate life term for a third
strike felony that is neither serious nor violent, unless the offense satisfies other criteria
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identified in the statute. The amendments also allow inmates previously sentenced to


1      Statutory references are to the Penal Code unless otherwise indicated.
2       Prior to Proposition 36, the three strikes law provided that a defendant convicted
of two prior serious or violent felonies would be subject to an indeterminate life sentence
of at least 25 years to life upon conviction of a third felony, whether or not that felony
was serious or violent. (See People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th
1279, 1285-1286.)

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indeterminate terms under the three strikes law to petition for recall of their sentences and
resentencing to the term that would have been imposed for their crime had they been
sentenced under the new sentencing provisions. (§ 1170.126, subd. (a).) Montano
argued in his petition that his nonviolent third strike convictions for possession and sale
of a controlled substance made him eligible for recall of sentence and resentencing under
Proposition 36.
       In their opposition to the petition the People described Montano’s extensive
criminal background, including additional felony convictions suffered during his
incarceration and a lengthy disciplinary history while in prison, and argued Montano
currently posed an unreasonable risk of danger to public safety. (See § 1170.126,
subd. (f) [inmate eligible under Proposition 36 shall be resentenced under new law
“unless the court, in its discretion, determines that resentencing the petitioner would pose
an unreasonable risk of danger to public safety”].)
       Montano argued he had not engaged in any violent crime for more than five years,
had a clean disciplinary history during that time and had not been involved in prison gang
culture. He also emphasized his age (55 years old) and his deteriorating health as factors
making it unlikely he would pose a risk to public safety. Following a suitability hearing
conducted over a three-day period, the court found Montano posed an unreasonable risk
to public safety and denied his petition.
                                      DISCUSSION
       As discussed, Proposition 36 was intended to “[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” and to permit “repeat offenders



        Under the amended law, a defendant with two prior qualifying strike convictions
is not subject to an indeterminate life sentence as a third strike offender when the current
offense is neither serious nor violent (§ 1170.126, subd. (e)(1)) and does not meet one of
the criteria in section 667, subdivision (e)(2)(C)(i)-(iii) (§ 1170.126, subd. (e)(2)), and
none of the defendant’s prior strike convictions was for one of the offenses listed in
section 667, subdivision (e)(2)(C)(iv) (§ 1170.126, subd. (e)(3)).

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convicted of non-violent, non-serious crimes like shoplifting and simple drug possession
[to] receive twice the normal sentence instead of a life sentence.” (Voter Information
Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 6, p. 109.) As part of its goal of
limiting indeterminate life sentences to serious or violent felony offenders, Proposition 36
added section 1170.126, which permits inmates previously sentenced to life terms under
an earlier version of the three strikes law to petition to recall their sentences and, if
eligible for relief, to be resentenced to the term that would have been imposed for their
crime under the new sentencing provisions. (§ 1170.126, subd. (a).) Even if the
petitioner is otherwise entitled to be resentenced under the new three strikes law,
however, the petition may be denied if “the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public safety.”
(§ 1170.126, subd. (f).)
       Proposition 47, passed by the voters in November 2014 as part of the Safe
Neighborhoods and Schools Act (Voter Information Guide, Gen. Elec. (Nov. 4, 2014)
text of Prop. 47, § 14, p. 73), was designed to reduce the punishment for certain drug and
theft offenses by reclassifying them from felonies to misdemeanors. Like Proposition 36,
Proposition 47 creates a postconviction procedure by which a person currently serving a
sentence for a specifically identified drug or theft crime may petition for resentencing
under the new law. If a Proposition 47 petitioner meets certain eligibility requirements,
he or she must be resentenced to a misdemeanor “unless the court, in its discretion,
determines that resentencing the petitioner would pose an unreasonable risk of danger to
public safety.” (§ 1170.18, subd. (b).)
       Under Proposition 36 the court has broad discretion in determining whether an
inmate poses a current danger to public safety. In making this determination, the court
“may consider” the petitioner’s criminal conviction history, disciplinary record and
record of conviction and “any other evidence” the court determines to be relevant to the
question whether imposing a new sentence would result in an unreasonable risk of danger
to public safety. (§ 1170.126, subd. (g)(1)-(4).)



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       Under Proposition 47 the scope of the court’s discretion to determine whether an
inmate otherwise eligible for resentencing poses an unreasonable danger to public safety
is more limited: “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”
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within the meaning of section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (c).)
       Montano contends the court should have applied Proposition 47’s specific
definition of “unreasonable risk of danger to public safety” to his suitability review and
insists, had it done so, the court would have had no choice (based on his history) but to
resentence him. The question whether Proposition 47’s definition of unreasonable risk of
danger to public safety applies in Proposition 36 cases has divided the courts of appeal
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and is currently pending in the Supreme Court.
       Proponents of applying Proposition 47’s definition to Proposition 36 cases have
emphasized the identical language in Propositions 47 (section 1170.18, subd. (b)) and 36
(section 1170.126, subd. (f))—whether the defendant poses an “unreasonable risk of
danger to public safety”—and observe section 1170.18, subdivision (c), specifically
mandates that its definition of “unreasonable risk of danger to public safety” be used
“throughout this Code.”
       Most appellate courts have rejected this incorporation of the narrow definition of
section 1170.18, subdivision (c), however, emphasizing the vastly different purposes of
the two statutory schemes: Proposition 36 is directed to recidivists with a history of

3       The violent felony offenses identified in section 667, subdivision (e)(2)(C)(iv),
include sexually violent offenses; certain sexual offenses against children including oral
copulation, sodomy, sexual penetration, and lewd or lascivious conduct; homicide
offenses; solicitation to commit murder; assault with a machine gun on a peace officer or
firefighter; possession of a weapon of mass destruction; and “[a]ny serious and/or violent
felony offense punishable in California by life imprisonment or death.”
4     The cases currently pending in the Supreme Court on this issue include People v.
Guzman (Apr. 2, 2015, G049135) [nonpub. opn.], review granted, June 17, 2015,
S226410; People v. Davis (2015) 234 Cal.App.4th 1001, review granted, February 26,
2015, S225603; and People v. Valencia (2014) 232 Cal.App.4th 514, review granted,
February 18, 2015, S223825.

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qualifying serious or violent felony convictions, while Proposition 47 is concerned with
relatively minor offenders guilty of nonserious and nonviolent theft and drug possession
felonies. In addition, it has been observed that application of Proposition 47’s definition
to Proposition 36 petitions would result in absurd and unintended consequences. For
example, a court considering a Proposition 36 petition from a serial pyromaniac could not
consider if the inmate might commit further arson; or one hearing a petition from a sadist
could not consider whether she might again commit mayhem because neither crime is
identified in the narrow list of violent crimes to be considered in a Proposition 47 case.
       In our view, those courts that have held Proposition 47’s limited definition of
unreasonable risk of danger to the public inapplicable to petitions for resentencing under
Proposition 36 have the far better argument. Accordingly, we hold the trial court did not
apply an incorrect legal standard when denying Montano’s petition for resentencing
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under section 1170.126.
                                      DISPOSITION
       The June 16, 2015 order denying Montano’s petition for resentencing under
section 1170.126 is affirmed.



                                                  PERLUSS, P. J.

       We concur:


              SEGAL, J.


              BLUMENFELD, J.*

5      Montano’s appeal is limited to the legal issue of the applicability of
Proposition 47’s definition to Proposition 36 suitability determinations. He does not
otherwise challenge the trial court’s finding that he posed an unreasonable risk of danger
to public safety.
*     Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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