Filed 7/27/15 P. v. Alexander CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C073170

         v.                                                                     (Super. Ct. No. SF082949A)

LARRY D. ALEXANDER,

                   Defendant and Appellant.


         Defendant Larry Alexander, an inmate serving an indeterminate life sentence
imposed pursuant to the three strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d) & 667,
subds. (b)-(i)),1 appeals from the trial court’s denial of his petition to recall his sentence
and for resentencing under section 1170.126, which became effective November 7,
2012, after the voters approved Proposition 36, the Three Strikes Reform Act of 2012
(§§ 667, 1170.12, 1170.126; Prop. 36, as approved by voters, Gen. Elec. (Nov. 6,



1        Undesignated statutory references are to the Penal Code.


                                                             1
2012)) (the Act). Section 1170.126 “created a postconviction release proceeding
whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the
three strikes law for a crime that is not a serious or violent felony and who is not
disqualified, may have his or her sentence recalled and be sentenced as a second strike
offender unless the court determines that resentencing would pose an unreasonable risk
of danger to public safety.” (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168
(Yearwood).) The trial court concluded resentencing would pose an unreasonable risk
of danger to public safety.
       On appeal, defendant asserts: (1) where a three strike inmate, such as defendant,
satisfies the eligibility requirements for resentencing under the Act, the presumptive
maximum sentence is effectively reduced to a two strike term, requiring the prosecution
to prove resentencing would pose an unreasonable risk of danger to public safety; (2) the
Sixth Amendment to the federal Constitution requires the fact of unreasonable
dangerousness be proven to a jury beyond a reasonable doubt; (3) the due process and
equal protection clauses of the Fourteenth Amendment also require the prosecution to
prove unreasonable dangerousness beyond a reasonable doubt, or at the very least, by
clear and convincing evidence; (4) even if the appropriate standard is preponderance of
the evidence, the prosecution conceded defendant should be resentenced under the Act,
and therefore did not carry its burden of proving resentencing would pose an
unreasonable risk of danger to public safety; (5) the trial court erroneously placed the
burden of proof on defendant to prove resentencing would not pose an unreasonable risk
of danger; (6) the trial court erred by denying defendant’s petition based on improper
considerations; (7) defendant was denied a meaningful hearing on his petition, in
violation of his due process rights under the Fourteenth Amendment; and (8) cumulative
prejudice requires reversal.




                                              2
       After the briefing was submitted in the instant appeal, the voters approved
Proposition 47, effective November 5, 2014, which, among other things, “[r]equire[s]
misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and
drug possession, unless the defendant has prior convictions for specified violent or
serious crimes.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47,
§ 3, subd. (3), p. 70.) Proposition 47 also added section 1170.18 to the Penal Code, under
which “[a] person currently serving a sentence for a conviction, whether by trial or plea,
of a felony or felonies who would have been guilty of a misdemeanor under the act that
added this section . . . had this act been in effect at the time of the offense may petition
for a recall of sentence before the trial court that entered the judgment of conviction in his
or her case [and] request resentencing . . . .” (§ 1170.18, subd. (a).) If subdivision (a) of
this provision is satisfied, subdivision (b) requires recall and resentencing “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).) Subdivision (c)
then 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.” (§ 1170.18, subd. (c), italics added.) We requested supplemental
briefing addressing the question of whether this definition applies retroactively to this
case, in which defendant seeks recall and resentencing under Proposition 36 rather than
Proposition 47, and if so, whether we are required to remand the matter to the trial court
for reconsideration in light of the new definition. Having reviewed the supplemental
briefs submitted by the parties, we conclude in part I of the discussion that Proposition
47’s definition of “unreasonable risk of danger to public safety” does not apply
retroactively to this case.




                                               3
        Turning to the multitude of assertions raised in defendant’s appeal, we conclude
the dispositive issue is whether the trial court’s finding that resentencing would pose an
unreasonable risk of danger to public safety is supported by substantial evidence. In
order to answer that question, we must first determine the appropriate standard of proof.
Thus, in part II of the discussion, we conclude the prosecution bears the burden of
proving dangerousness by a preponderance of the evidence, following People v. Superior
Court (Kaulick) (2013) 215 Cal.App.4th 1279 (Kaulick), and rejecting defendant’s
arguments that eligibility for resentencing under the Act effectively reduces a defendant’s
sentence to a statutorily-presumed second strike sentence, making the finding of
dangerousness a factor that enhances the sentence, and therefore the federal Constitution
requires dangerousness to be proven to a jury beyond a reasonable doubt, or at the very
least, to the trial court by clear and convincing evidence. In part III, we conclude
substantial evidence supports the trial court’s finding, by a preponderance of the
evidence, that resentencing defendant would pose an unreasonable risk of danger to
public safety. In part IV, we reject defendant’s remaining contentions. The trial court
did not place the burden of proof on defendant or deny the petition based on improper
considerations. Nor was defendant denied a meaningful hearing. Finally, there being no
error, prejudicial or otherwise, defendant’s assertion of cumulative prejudice must also
fail.
                                     BACKGROUND
        In 2002, defendant was convicted by jury of transportation of cocaine
and possession of cocaine base for sale. He admitted two prior serious felony
convictions within the meaning of the three strikes law and was sentenced to state
prison to serve an indeterminate term of 25 years to life. Defendant’s prior strike




                                             4
convictions were for robbery. (People v. Alexander (Nov. 28, 2005, C041257) [nonpub.
opn.].)2
       In 2010, while in prison, defendant was convicted of possession of a sharp
instrument while confined in a penal institution and sentenced to serve a consecutive
determinate term of six years. Defendant’s prison disciplinary record includes 35
violations, including 15 violations for assaultive or threatening conduct.
       In November 2012, California voters approved Proposition 36. “The Act changes
the requirements for sentencing a third strike offender to an indeterminate term of 25
years to life imprisonment” (§§ 667, 1170.12) and “also created a postconviction release
proceeding whereby a prisoner who is serving an indeterminate life sentence imposed
pursuant to the three strikes law for a crime that is not a serious or violent felony and who
is not disqualified, may have his or her sentence recalled and be sentenced as a second
strike offender unless the court determines that resentencing would pose an unreasonable
risk of danger to public safety. (§ 1170.126.)” (Yearwood, supra, 213 Cal.App.4th at
pp. 167-168.)
       The same month, defendant filed a petition to recall his sentence and for
resentencing under section 1170.126. The memorandum of points and authorities
attached to the petition simply argued defendant was eligible for recall and resentencing
under the Act, without commenting on whether resentencing would pose an unreasonable
risk of danger to public safety. The prosecution also filed a memorandum of points and
authorities, in which it agreed there was “no statutory bar to resentencing,” but expressed
some concern as to whether resentencing would pose such a risk. Specifically, the




2     We take judicial notice of our unpublished opinion in defendant’s prior appeal
(People v. Alexander, supra, C041257). (Evid. Code, § 452, subd. (d)(1); Mendoza v.
Wichmann (2011) 194 Cal.App.4th 1430, 1433, fn. 2.)


                                             5
prosecution noted “his combative conduct in prison and his [possession of a weapon by
an inmate] conviction.” Nevertheless, the prosecution stated it was “aware of no
indication that [defendant] would pose an unreasonable risk of danger to public safety if
resentenced” and recommended he be resentenced to serve the upper term of five years
for each of his commitment offenses, doubled to 10 years (with execution of sentence
stayed as to one of these terms under section 654). Thereafter, defendant filed a
supplemental memorandum, arguing for the middle term of four years, doubled to eight
years.
         At the hearing on the petition, after allowing defendant to make a statement, the
trial court found resentencing would pose an unreasonable risk of danger to public safety
and denied the petition. The trial court first pointed out defendant had two prior
convictions for robbery, one of which “involved a gun.” The trial court then explained it
had a “grave concern” regarding defendant’s testimony in the underlying trial,
specifically, that he was “comfortable” with the fact he tried to force an “older lady” to
pay him twice the amount of money he had loaned to her, “which is loan sharking,” and
he “would have split” at a high rate of speed had he known he was being pulled over for
“something other than a traffic violation.” Turning to defendant’s conviction for
possession of a weapon while incarcerated, the trial court stated: “That’s a problem.
And the issue is this: You can’t -- and I hear a lot of doctors testify about this -- many
psychologists and psychiatrists will say the best predictor of future performance is
performance in the past, okay. And in your situation, you have been in prison a long
time, and you pick up a whole new case with a shank, okay. That’s -- that’s of grave
concern.”
         The trial court then went through defendant’s disciplinary record while in prison,
noting 35 violations, including 15 violations for assaultive or threatening conduct
(described variously as “fight resulting in use of chemical agents” (October 17, 2012),



                                              6
“fighting in the yard” (November 20, 2005), “battery on an inmate” (September 20, 2001,
June 4, 2002, December 29, 2006, February 27, 2007, and December 8, 2007), “battery”
(November 23, 1997), “mutual combat” (September 7, 1998, July 20, 2002, March 27,
2003, and November 4, 2003), “participation in a riot” (December 29, 2006), “threats to a
peace officer” (February 21, 2006), and “threatening staff” (April 2, 2000)). The trial
court also noted a segregated housing unit (SHU) assessment describing defendant as “ ‘a
disruptive inmate who endangers the safety of others,’ ” and commented: “In an
institution, okay. Which concerns me, because why would it change out on the street if
in an institution you’re so hard to control?”
       The trial court concluded: “[G]iven that lengthy history, and really nothing to
counterbalance it, I do believe you are an unreasonable risk of danger . . . to the public.
And in good conscience, I can’t grant your petition. I think there’s ample evidence here
that you just haven’t learned that much and just haven’t learned to calm down and be a
reasonable person. Your record is replete with incidents of battery and assault, and they
have grave concerns about the security of the institution and other people because of your
misbehavior.” Defendant’s attorney pointed out he had “made progress toward his
GED,” to which the trial court responded: “That’s okay. But that won’t counterbalance
35 incidents. And a lot of them are assaultive behavior and just gross misconduct.”
                                       DISCUSSION
                                                I
                    Retroactivity of Subdivision (c) of Section 1170.18
       We conclude 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 Act was decided before the effective date of Proposition 47.
       “No part of [the Penal Code] is retroactive, unless expressly so declared.” (§ 3.)
The California Supreme Court “ha[s] described section 3, and its identical counterparts in



                                                7
other codes (e.g., Civ. Code, § 3; Code Civ. Proc., § 3), as codifying ‘the time-honored
principle . . . that in the absence of an express retroactivity provision, a statute will not be
applied retroactively unless it is very clear from extrinsic sources that the Legislature . . .
must have intended a retroactive application.’” (People v. Brown (2012) 54 Cal.4th 314,
319 (Brown).)
       “In interpreting a voter initiative, we apply the same principles that govern our
construction of a statute.” (People v. Lopez (2005) 34 Cal.4th 1002, 1006.) Proposition
47 is silent as to its retroactive application to proceedings under the Act. Similarly, the
analysis of Proposition 47 by the legislative analyst, the arguments in favor of
Proposition 47, and the arguments against Proposition 47 are silent as to the retroactive
application of Proposition 47 to proceedings under the Act. (Voter Information Guide,
Gen. Elec. (Nov. 4, 2014), pp. 34-39.) Thus, there is “no clear and unavoidable
implication” of retroactivity that “arises from the relevant extrinsic sources.” (Brown,
supra, 54 Cal.4th at p. 320.)
       Nevertheless, defendant contends the principle enunciated in In re Estrada (1965)
63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 (Estrada) compels a finding of
retroactivity here. Not so. In Estrada, our Supreme 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.” (Estrada, supra, 63 Cal.2d at p. 745.) This includes “acts committed before its
passage provided the judgment convicting the defendant of the act is not final.” (Ibid.)
Accordingly, a statute lessening punishment is presumed to apply to all cases not yet
reduced to final judgment on the statute’s effective date, unless there is a “saving clause”



                                               8
providing for prospective application. (Id. at pp. 744–745, 747–748.) Estrada does not
apply here because applying the definition of “unreasonable risk of danger to public
safety” in Proposition 47 to petitions for resentencing under the Act does not reduce
punishment for a particular crime. Rather, it arguably changes the lens through which the
dangerousness determinations under the Act are made. Using the words of Brown, that
“does not represent a judgment about the needs of the criminal law with respect to a
particular criminal offense, and thus does not support an analogous inference of
retroactive intent.” (Brown, supra, 54 Cal.4th at p. 325, 142 Cal.Rptr.3d 824, 278 P.3d
1182.) As our Supreme Court explained in Brown, “Estrada is . . . properly understood,
not as weakening or modifying the default rule of prospective operation codified in
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.” (Brown,
supra, 54 Cal.4th at p. 324.)
       Expanding the Estrada rule’s scope of operation here to the definition of
“unreasonable risk of danger to public safety” in Proposition 47 in a petition for
resentencing under the Act would conflict with section 3’s default rule of prospective
operation where there is no evidence in Proposition 47 that this definition was to apply
retrospectively to petitions for resentencing under the Act and would be improper given
that the definition of “unreasonable risk of danger to public safety” in Proposition 47
does not reduce punishment for a particular crime. For these reasons, we conclude the
definition of “unreasonable risk of danger to public safety” in Proposition 47 does not
apply retroactively to a defendant such as the one here whose petition for resentencing
under the Act was decided before the effective date of Proposition 47.




                                              9
                                              II
                  Standard of Proof for Dangerousness Determination
       Defendant contends the Sixth Amendment to the federal Constitution requires the
fact of unreasonable dangerousness be proven to a jury beyond a reasonable doubt. This
contention is premised on the argument, made earlier in the opening brief, that because
defendant satisfies the eligibility requirements for resentencing under the Act, the
presumptive maximum sentence is effectively reduced to a second strike term. He is
mistaken.
       In Kaulick, supra, 215 Cal.App.4th 1279, our colleagues at the Second Appellate
District rejected an identical argument and held the dangerousness determination does not
implicate a defendant’s Sixth Amendment rights. (Id. at p. 1305.) After discussing the
relevant decisions from the United States Supreme Court, which preclude a trial court
from imposing a sentence above the statutory maximum based on a fact, other than a
prior conviction, not found true by a jury beyond a reasonable doubt (see Apprendi v.
New Jersey (2000) 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435; Blakely v.
Washington (2004) 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403; Cunningham v.
California (2007) 549 U.S. 270, 274-275, 127 S.Ct. 856, 166 L.Ed.2d 856), the court
rejected the defendant’s argument that “once the trial court concluded that he was eligible
for resentencing under the Act, he was subject only to a second-strike sentence, unless the
prosecution established dangerousness.” (Kaulick, supra, 215 Cal.App.4th at p. 1302.)
The court explained that “section 1170.126, subdivision (f) does not state that a petitioner
eligible for resentencing has his [or her] sentence immediately recalled and is resentenced
to either a second strike term (if not dangerous) or a third strike indeterminate term (if
dangerousness is established). Instead, the statute provides that he [or she] ‘shall be
resentenced’ to a second-strike sentence ‘unless the court . . . determines that
resentencing the petitioner would pose an unreasonable risk of danger to public safety.’



                                             10
In other words, 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. If the court finds that
resentencing a prisoner would pose an unreasonable risk of danger, the court does not
resentence the prisoner, and the petitioner simply finishes out the term to which he or she
was originally sentenced.” (Id. at pp. 1302-1303.)
       The Kaulick court continued: “The maximum sentence to which [the defendant],
and those similarly situated to him, is subject was, and shall always be, the indeterminate
life term to which he was originally sentenced. While Proposition 36 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.” (Kaulick, supra, 215 Cal.App.4th at p. 1303.) Accordingly, like the
situation in Dillon v. United States (2010) 560 U.S. 817 (Dillon), where the Supreme
Court held sentence-reduction proceedings authorized by title 18 of the United States
Code, section 3582(c)(2), “do not implicate the Sixth Amendment right to have essential
facts found by a jury beyond a reasonable doubt” (Dillon, supra, at pp. 828-829), section
1170.126 “provides for a proceeding where the original sentence may be modified
downward. Any facts found at such a proceeding, . . . do not implicate Sixth Amendment
issues.” (Kaulick, supra, 215 Cal.App.4th at pp. 1304-1305.)
       The Kaulick court then concluded, “the proper standard of proof is preponderance
of the evidence,” explaining: “Evidence Code section 115 provides that, ‘[e]xcept as
otherwise provided by law, the burden of proof requires proof by a preponderance of the
evidence.’ There is no statute or case authority providing for a greater burden, and [the



                                              11
defendant] has not persuaded us that any greater burden is necessary. In contrast, it 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.] As dangerousness is such a
factor, preponderance of the evidence is the appropriate standard.” (Kaulick, supra, 215
Cal.App.4th at p. 1305.)
       We agree with the foregoing analysis and reject defendant’s argument that the
Kaulick court’s reliance on Dillon, supra, 560 U.S. 817 was misplaced. Nor are we
persuaded by his assertion that Alleyne v. United States (2013) ___ U.S. ___, 133 S.Ct.
2151, 186 L.Ed.2d 314 (Alleyne), “clearly controls the situation.” There, the United
States Supreme Court held any fact that increases the mandatory minimum sentence for a
crime must be submitted to the jury and proven beyond a reasonable doubt. (Id. at p.
2155.) It is defendant’s reliance on Alleyne that is misplaced. A finding that
resentencing would pose an unreasonable risk of danger to public safety does not increase
the mandatory minimum sentence for a third strike defendant’s crime. Like the situation
in Dillon, it merely precludes a downward modification of the already-imposed third
strike sentence.
       We also reject defendant’s additional argument that the Fourteenth Amendment to
the federal constitution requires proof beyond a reasonable doubt. He argues the hearing
on dangerousness places “his freedom for the rest of his life potentially at stake,” and
therefore, “his interests in the outcome are every bit as great” as those of an individual
facing involuntarily commitment as a narcotics addict (see People v. Thomas (1977) 19
Cal.3d 630, 637) or as “gravely disabled” under the Lanterman-Petris-Short Act (see




                                              12
Conservatorship of Roulet (1979) 23 Cal.3d 219, 225-226).3 “In each of those
situations,” defendant continues, “the California Supreme Court found that the requisite
finding justifying incarceration should be found under a beyond a reasonable doubt
standard of proof.” Again, we disagree with defendant’s premise that section 1170.126
makes a second strike term the presumptive maximum. Defendant is subject to the third
strike term based on (1) the jury’s finding, beyond a reasonable doubt, that he transported
cocaine and possessed cocaine base for sale, and (2) his admission that he had two prior
robbery convictions, subjecting him to sentencing under the three strikes law. Thus,
unlike the involuntary commitment situations, the dangerousness hearing contemplated
by section 1170.126 does not place a defendant’s liberty at stake. That liberty has
already been lost.
       Nor does defendant possess “a liberty interest in a new sentence,” i.e., the second
strike sentence. Under section 1170.126, he is entitled to such a sentence only if he




3      Defendant also cites Conservatorship of Hofferber (1980) 28 Cal.3d 161
(Hofferber) for the proposition that an individual may be committed under the
Lanterman-Petris-Short Act for being “dangerous,” which must be proved beyond a
reasonable doubt. However, in that case, our Supreme Court held “that every judgment
creating or renewing a conservatorship for an incompetent criminal defendant under
[Welfare and Institutions Code] section 5008, [former] subdivision (h)(2) must reflect
written findings that, by reason of a mental disease, defect, or disorder, the person
represents a substantial danger of physical harm to others.” (Id. at pp. 176-177, italics
added.) This subdivision, now subdivision (h)(1)(B), defines “gravely disabled” to
include a defendant who is found to be mentally incompetent under section 1370 and
other facts are also found to exist. (See Welf. & Inst. Code, § 5008, subd. (h)(1)(B).) In
Hofferber, our Supreme Court read a dangerousness requirement into this definition of
“gravely disabled” in order to comport with Jackson v. Indiana (1972) 406 U.S. 715, and
In re Davis (1973) 8 Cal.3d 798. (Hofferber, supra, 28 Cal.3d at pp. 174-175.)
Nevertheless, we do agree an incompetent criminal defendant’s “dangerous mental
condition must be found beyond a reasonable doubt.” (Id. at p. 178.)


                                            13
clears the dangerousness hurdle (see Kaulick, supra, 215 Cal.App.4th at pp. 1302-1303),
which he did not do.
       Finally, we also reject defendant’s argument that the dangerousness finding
“should at least be made upon a showing of clear and convincing evidence.” This
argument is based on Ninth Circuit precedent holding that “when a sentencing factor has
an extremely disproportionate impact on the sentence relative to the offense of
conviction, due process requires that the government prove the facts underlying the
enhancement by clear and convincing evidence.” (United States v. Jordan (9th Cir.
2001) 256 F.3d 922, 930; see also United States v. Pineda-Doval (9th Cir. 2010) 614 F.3d
1019, 1041.) Aside from being non-binding authority, these cases are inapposite since
they deal with proving a factor that enhances a sentence. Again, in the context of
section 1170.126, a finding that resentencing a defendant to a second strike term would
pose an unreasonable risk of danger to public safety does not enhance that defendant’s
sentence because he or she is already subject to the third strike term. Instead, assuming
eligibility, a finding that resentencing would not pose such a risk, leads to a lowering of
the third strike term to a second strike term.
       In sum, we conclude the prosecution had the burden of proving that resentencing
defendant would pose an unreasonable risk of danger to public safety by a preponderance
of the evidence, following Kaulick, supra, 215 Cal.App.4th 1279, and reject defendant’s
arguments that eligibility for resentencing under the Act effectively reduced his sentence
to a statutorily-presumed second strike sentence, making the finding of dangerousness a
factor that enhances the sentence, and therefore the federal Constitution required
dangerousness to be proven to a jury beyond a reasonable doubt, or at the very least, by
clear and convincing evidence.




                                                 14
                                            III
            Sufficiency of the Evidence to Support Dangerousness Finding
       Defendant asserts the prosecution “conceded . . . that [he] was eligible for
resentencing and should be resentenced,” and “thus did not meet the burden of proof,
under any standard,” that resentencing him would pose an unreasonable risk of danger to
public safety. We disagree.
       Section 1170.126, subdivision (g), provides that, in exercising its discretion in
determining whether resentencing would pose such a risk, the trial 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.”
       Here, while the memorandum of points and authorities filed by the prosecution in
response to defendant’s petition stated that “the People are aware of no indication that
[defendant] would pose an unreasonable risk of danger to public safety if resentenced,”
immediately before this proclamation of ignorance, the prosecution pointed out two
indications that resentencing defendant would pose such a risk, i.e., “his combative
conduct in prison and his [possession of a weapon by an inmate] conviction.” Based on
these concerns, and others, the trial court found resentencing defendant would pose an
unreasonable risk of danger to public safety. Specifically, as previously noted, the trial
court pointed out one of defendant’s prior strikes “involved a gun.” The trial court also
explained it had “grave concern” regarding defendant’s testimony in the underlying trial
and the fact that he “pick[ed] up a whole new case with a shank” while in prison. The
trial court then went through defendant’s prison disciplinary record, noting 35 violations,



                                             15
including 15 violations for assaultive or threatening conduct, and also noting an SHU
assessment describing defendant as “ ‘a disruptive inmate who endangers the safety of
others.’ ”
       We conclude defendant’s prison disciplinary record, and the fact he was convicted
in 2010 of possession of a sharp instrument by an inmate, is more than sufficient to
establish, by a preponderance of the evidence, that resentencing would pose an
unreasonable risk of danger to public safety. However, while defendant’s prison
records were subpoenaed, received from the institution, and admitted into evidence,
they did not make their way into the record on appeal. “‘A judgment or order of the
lower court is presumed correct. All intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error must be affirmatively
shown. This is not only a general principle of appellate practice but an ingredient of
the constitutional doctrine of reversible error.’ [Citation.]” (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564; People v. Carter (2010) 182 Cal.App.4th 522, 531,
fn. 6 [“appellant’s burden on appeal to present an adequate record for review and
affirmatively to demonstrate error”].) We therefore presume these records support the
trial court’s detailed summary of defendant’s assaultive and threatening conduct while
incarcerated, including the 2010 conviction. Nor does defendant directly challenge the
trial court’s summary on appeal. Based thereon, we conclude sufficient evidence
supports the trial court’s determination that resentencing defendant would pose an
unreasonable risk of danger to public safety.
                                             IV
                                 Remaining Contentions
       Defendant’s remaining contentions also fail. Certain statements made by the trial
court in denying defendant’s petition―i.e., there was “really nothing to counterbalance”
defendant’s lengthy record of assaultive and threatening behavior, despite the fact the



                                             16
court “really looked for positive things [to] balance it out”―does not indicate the trial
court placed the burden on defendant to prove resentencing would not pose an
unreasonable risk of danger to public safety.
       Nor did the trial court deny the petition based on improper considerations.
Defendant compares the trial court’s statements during the hearing on his petition to
those made at the hearing on his earlier Romero motion. (People v. Superior Court
(Romero) (1996) 13 Cal.4th 497.) He argues this comparison “demonstrates that the trial
court utilized almost identical language in evaluating whether [he] should originally be
sentenced to a life sentence and then whether he should remain under a life sentence after
Proposition 36.” This is neither surprising nor troubling. In deciding whether to dismiss
a prior strike under Romero, the trial court considers whether the defendant may be
deemed outside the spirit of the three strikes law “in light of the nature and circumstances
of his [or her] present felonies and prior serious and/or violent felony convictions, and the
particulars of his [or her] background, character, and prospects.” (People v. Williams
(1998) 17 Cal.4th 148, 161 (Williams).) Similarly, in deciding whether resentencing a
defendant would pose an unreasonable risk of danger to public safety under the Act, the
trial court considers the defendant’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.” (§ 1170.126, subd. (g)(1).) Because the present
felonies for Romero purposes are part of the defendant’s “criminal conviction history” at
the time of the subsequent recall petition, section 1170.126, subdivision (g)(1), is nearly
identical to the first two Williams factors, i.e., the nature and circumstances of the present
felonies and the nature and circumstances of the prior strikes. Criminal history is also
part of a defendant’s background under Williams. (See People v. McGlothin (1998) 67
Cal.App.4th 468, 475.)




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       Of course, the focus is different under the two analyses. Under Williams, the
focus is on whether the defendant should be deemed outside the spirit of the three strikes
law. (Williams, supra, 17 Cal.4th at p. 161.) Under section 1170.126, the focus is on
whether resentencing the defendant would pose an unreasonable risk of danger to public
safety. (Yearwood, supra, 213 Cal.App.4th at pp. 167-168.) However, because the
considerations relevant to each determination overlap, we are not troubled by the
similarities in the transcripts of the two hearings.
       Defendant also complains the trial court relied on his trial testimony, specifically,
that he was “comfortable” with the fact he tried to force an “older lady” to pay him twice
the amount of money he had loaned to her, “which is loan sharking,” and he “would have
split” at a high rate of speed had he known he was being pulled over for “something other
than a traffic violation.” Defendant argues neither loan sharking nor evading an officer is
a dangerous or serious offense and “cannot prove that he is an unreasonably dangerous
individual.” Even if we were to accept this argument, our review of the hearing on
defendant’s recall petition convinces us the trial court’s biggest concern was defendant’s
“disciplinary record and record of rehabilitation while incarcerated.” (§ 1170.126, subd.
(g)(2).) Defendant’s attempt to mitigate his disciplinary record notwithstanding, this
factor alone is enough to support the trial court’s decision to deny the recall petition.
       We also reject defendant’s assertion that he was denied a meaningful hearing
simply because the prosecution “conceded” in its memorandum in response to his petition
that he “was eligible for resentencing and should be resentenced.” Defendant argues he
“was not on notice that the court would ignore the stated intention of the People to
concede the right to resentencing under Proposition 36.”4 This argument has no merit



4     Defendant also asserts the trial court “cut off defense counsel” when counsel
attempted to present evidence. The reporter’s transcript does not support defendant’s


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whatsoever. Defendant was present at the hearing, with counsel, and was given an
opportunity to address the court. Section 1170.126, subdivision (f), provides “the
court”―not the prosecution―with discretion to determine whether resentencing would
pose an unreasonable risk of danger to public safety. While the prosecution did not
oppose resentencing, the plain and unambiguous language of the statute, coupled with
defendant’s disciplinary record while incarcerated, should have placed him on notice that
the trial court had discretion, and might use this discretion to find resentencing would
pose such a risk of danger to public safety.5


version of the hearing. Defense counsel did not attempt to introduce evidence but instead
pointed out the positive information in the prison disciplinary record, including
defendant’s progress toward a GED. Defendant also states defense counsel requested
that the trial court review the matter at a later time and the trial court stated defendant
“had a ‘terrible record’ and did not believe additional positive things would ‘balance it
out.’” Defendant misstates the record by selectively quoting from the trial court’s
statements. In response to defense counsel asking if the trial court would agree to review
this matter in a year or so, the trial court responded: “Well, we’ll see. I mean, but I’ve
got to see -- the kind of progress you’re giving -- you’re not jammed up like this.
Because this is a terrible record, and I don’t think a year or two is enough. I mean,
you’ve got to get -- put all these things behind you.”
5       During oral argument, defendant’s appellate counsel argued trial counsel was
unprepared for the hearing and claimed to have raised ineffective assistance of counsel in
her briefing on appeal. However, while ineffective assistance of trial counsel was raised
in the opening brief, the specific argument made was that we should review each
contention on the merits even if we concluded the contention was forfeited by trial
counsel’s failure to adequately object because such failure would amount to ineffective
assistance of counsel. We have not concluded any of defendant’s claims are forfeited,
and therefore have no need to address this specific ineffective assistance argument. This
argument is improperly expanded upon in defendant’s reply brief, in which it is argued:
“[R]espondent fails to analyze appellant’s ineffective assistance of counsel claim in any
manner. Obviously, a fair hearing requires counsel who is prepared to present evidence
and witnesses to support appellant’s analysis he should be entitled to resentencing under
Proposition 36. Respondent’s assertion that counsel had the opportunity to present
evidence, where counsel specifically asked for more time to do that very thing and was
denied that opportunity, cannot demonstrate that appellant was adequately represented or
that the hearing was fair and within the constitutional requirements of due process under


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       Finally, there being no error, prejudicial or otherwise, defendant’s assertion of
cumulative prejudice must also fail.
                                       DISPOSITION
       The judgment (order denying defendant’s recall petition under Penal Code
section 1170.126) is affirmed.



                                                        HOCH          , J.



We concur:



   NICHOLSON         , Acting P. J.



      ROBIE         , J.




the Fifth, Sixth, and 14th Amendments.” As we have explained, the ineffective
assistance of counsel argument raised at pages 42-47 of the opening brief did not relate to
the due process claim at all, except to the extent we deemed that claim forfeited.


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