Filed 4/2/15




                            CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FOURTH APPELLATE DISTRICT

                                     DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                        G049135

        v.                                           (Super. Ct. No. 04SF0872)

MARCELO VIRGEN GUZMAN,                               OPINION

    Defendant and Appellant.



                 Appeal from a postjudgment order of the Superior Court of Orange County,
Richard M. King, Judge. Affirmed.
                 Frank Opsino, Public Defender, Sharon Petrosino, Chief Deputy Public
Defender, Mark S. Brown, Assistant Public Defender, and Jacob DeGrave, Deputy Public
Defender, for Defendant and Appellant.
                 Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A.
Engler, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General,
Barry Carlton, Charles C. Ragland and Warren J. Williams, Deputy Attorneys General,
for Plaintiff and Respondent.
                                 *            *            *
                                    INTRODUCTION
              Defendant Marcelo Virgen Guzman appeals from the trial court’s denial of
his petition to recall his prison sentence under the Three Strikes Reform Act of 2012,
added by Proposition 36. The principal question in this case is whether the definition of
the phrase “‘unreasonable risk of danger to public safety,’” set forth in Penal Code
section 1170.18, subdivision (c), contained in the recently passed Safe Neighborhoods
and Schools Act, added by Proposition 47, applies to petitions brought under
               1
Proposition 36. We hold the definition of “‘unreasonable risk of danger to public
safety’” contained in section 1170.18, subdivision (c) of Proposition 47 does not apply to
a petition under Proposition 36. Our holding is consistent with the Court of Appeal, First
Appellate District, Division Two’s opinion in People v. Davis (2015) 234 Cal.App.4th
1001, 1006 (Davis), in which the appellate court similarly held, “the Proposition 47
definition was not intended by the voters to displace the broader definition of the Three
Strikes Reform Act already in use.”
              We also hold the trial court did not abuse its discretion by denying the
petition brought under Proposition 36. Based upon its review of the record and in the
exercise of its discretion, the court found Guzman’s release would present an
unreasonable risk of danger to public safety within the meaning of section 1170.126.
                                      BACKGROUND
              In 2006, a jury found Guzman guilty of one count each of felony receipt of
stolen property in violation of section 496, subdivision (a), and misdemeanor possession


       1
         The California Supreme Court has granted review of this and related issues in
People v. Valencia, review granted February 18, 2015, S223825, People v. Chaney,
review granted February 18, 2015, S223676, and People v. Aparicio, review granted
March 25, 2015, S224317.
         All statutory references are to the Penal Code. References to sections of
Proposition 36 or Proposition 47 are to Penal Code sections enacted by the respective
proposition.

                                             2
of burglary tools with intent to break and enter in violation of section 466. The evidence
at trial showed that in July 2004, deputies from the Orange County Sheriff’s Department
were dispatched to a residential neighborhood where they encountered Guzman walking
toward a parked blue Toyota 4Runner. The deputies conducted a patdown search of
Guzman and found items commonly used as burglary tools in his pockets, including a
flathead screwdriver, a long flashlight, two AA batteries, and work gloves. The deputies
also searched the Toyota 4Runner that Guzman had been driving, and found, inter alia,
27 pieces of jewelry that had been stolen two or three days earlier from a residence about
a mile away from their encounter with Guzman. The Toyota 4Runner also contained a
flashlight, several screwdrivers, a cell phone, a knife with a four- or five-inch blade, a
two-way radio charger, and a pair of binoculars.
              In a bifurcated proceeding, the jury found true enhancement allegations that
Guzman had suffered five prior strike convictions within the meanings of sections 667,
subdivisions (d) and (e)(2)(A), and 1170.12, subdivisions (b) and (c)(2)(A), and had
served a prior prison term within the meaning of section 667.5, subdivision (b). The five
prior strike convictions were for residential burglaries. The trial court denied Guzman’s
motion to strike his prior strike convictions. The court sentenced Guzman to state prison
for a term of 25 years to life on the receipt of stolen property count and stayed execution
of sentence on the possession of burglary tools count.
              Guzman appealed from the judgment of conviction. He argued the trial
court erred by denying his pretrial motion to suppress evidence and abused its discretion
by deciding not to strike Guzman’s prior strikes under section 1385. A panel of this court
affirmed the judgment of conviction in People v. Guzman (Oct. 31, 2006, G036692)
(nonpub. opn.).
              In December 2012, Guzman filed a petition for recall of sentence under
section 1170.126 of Proposition 36 (the petition). In the petition, Guzman asserted he
was eligible for resentencing because he was convicted of offenses that were not

                                              3
enumerated in section 667, subdivision (e)(2)(C)(i)-(iv). He requested that the trial court
resentence him to a prison term of 44 months and order his immediate release, given he
had already served 101 months in actual custody. The district attorney opposed the
petition on the ground Guzman posed an unreasonable risk of danger to public safety.
              The trial judge who imposed Guzman’s prison sentence also conducted the
hearing on the petition. The court denied the petition on the ground Guzman posed an
unreasonable risk of danger to public safety.
              Guzman filed an appeal from the order denying the petition.


                                       DISCUSSION
              Guzman contends the trial court abused its discretion by denying the
petition under Proposition 36 because the court found that Guzman posed an
unreasonable risk of danger to public safety under section 1170.126, subdivision (f). In
supplemental briefing invited by this court as to the applicability of Proposition 47 to this
appeal, Guzman contends the definition of the phrase “‘unreasonable risk of danger to
public safety,’” set forth in Proposition 47 at section 1170.18, subdivision (c), applies to
the petition. Guzman’s contentions on both points are without merit.
                                              I.
                STANDARDS FOR INTERPRETATION OF VOTER INITIATIVES
              “‘In interpreting a voter initiative . . . we apply the same principles that
govern statutory construction. [Citation.] Thus, “we turn first to the language of the
statute, giving the words their ordinary meaning.” [Citation.] The statutory language
must also be construed in the context of the statute as a whole and the overall statutory
scheme [in light of the electorate’s intent]. [Citation.] When the language is ambiguous,
“we refer to other indicia of the voters’ intent, particularly the analyses and arguments
contained in the official ballot pamphlet.” [Citation.]’ [Citation.] In other words, ‘our



                                                4
primary purpose is to ascertain and effectuate the intent of the voters who passed the
initiative measure.’” (People v. Briceno (2004) 34 Cal.4th 451, 459.)
                                               II.

                PROPOSITION 47 DOES NOT APPLY TO PETITIONS BROUGHT
                               UNDER PROPOSITION 36.
              On November 6, 2012, California voters approved Proposition 36. (People
v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1285.) “Under the three
strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) as it existed prior to
Proposition 36, a defendant convicted of two prior serious or violent felonies would be
subject to a sentence of 25 years to life upon conviction of a third felony. Under
[Proposition 36], however, a defendant convicted of two prior serious or violent felonies
is subject to the 25-year-to-life sentence only if the third felony is itself a serious or
violent felony. If the third felony is not a serious or violent felony, the defendant will
receive a sentence as though the defendant had only one prior serious or violent felony
conviction, and is therefore a second strike, rather than a third strike, offender.
[Proposition 36] also 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.
According to the specific language of [Proposition 36], however, a current inmate is not
entitled to resentencing if it would pose an unreasonable risk of danger to public safety.”
(Id. at. pp. 1285-1286, fn. omitted.)
              Section 1170.126, subdivision (f) (of Proposition 36) provides: “Upon
receiving a petition for recall of sentence under this section, the court shall determine
whether the petitioner satisfies the criteria in subdivision (e). If the petitioner satisfies the
criteria in subdivision (e), the petitioner shall be resentenced pursuant to paragraph (1) of
subdivision (e) of Section 667 and paragraph (1) of subdivision (c) of Section 1170.12


                                               5
unless the court, in its discretion, determines that resentencing the petitioner would pose
an unreasonable risk of danger to public safety.” (Italics added.)
              Proposition 36 does not define the phrase “an unreasonable risk of danger
to public safety.” By its terms, Proposition 36 provides the trial court with “discretion”
to determine whether the test is satisfied. While this appeal has been pending, in
November 2014, California voters approved Proposition 47, which included a new
resentencing provision under which a person serving a prison term for one or more
statutorily specified crimes may petition the court for a recall of sentence and a reduction
of certain felony convictions to misdemeanors unless such a reduction would “result in an
                                                                         2
unreasonable risk of danger to public safety” (§ 1170.18, subd. (b)(3)). Section 1170.18,
subdivision (c) provides that “‘unreasonable risk of danger to public safety’ means an
unreasonable risk that the petitioner will commit a new violent felony within the meaning
                                                                                          3
of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.”
              Guzman argues Proposition 47’s definition of “unreasonable risk of danger
to public safety” applies to petitions filed under Proposition 36. Based on our review of
Proposition 36 and Proposition 47, read together, in light of the standards of
interpretation of voter initiatives set forth by the California Supreme Court discussed
ante, we conclude Proposition 47’s definition does not apply to the petition.


       2
          Proposition 47 was passed by California voters on November 4, 2014, effective
November 5, 2014. (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.”].)
        3
          The violent felony offenses identified in section 667, subdivision (e)(2)(C)(iv)
include sexually violent offenses as defined in section 6600 of the Welfare and
Institutions Code; 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” (§ 667,
subd. (e)(2)(C)(iv)(VIII)).

                                             6
              Under Proposition 47, an “‘unreasonable risk of danger to public safety’” in
section 1170.18, subdivision (c) is an unreasonable risk that the petitioner will commit a
statutorily specified new violent felony. Subdivision (a) of section 1170.18 sets forth the
eligibility requirements for filing a petition under Proposition 47. The only petition
referred to in section 1170.18 is one filed under section 1170.18, subdivision (a); there is
no reference to any other kind of petition, much less a petition filed under Proposition 36.
Thus, the plain words of section 1170.18 show the definition of “‘unreasonable risk of
danger to public safety,’” as set forth in section 1170.18, subdivision (c), applies only to
petitions filed under section 1170.18, subdivision (a).
              Such an interpretation is supported by reading Proposition 36 and
Proposition 47, each as a whole and in context. Each proposition creates a resentencing
scheme, but each scheme addresses very different concerns impacting distinct categories
of crimes, perpetrators, and victims. Proposition 36 focuses on providing an opportunity
for the resentencing of certain convicted felons who are serving indeterminate prison
terms under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12; see People v.
Carmony (2004) 33 Cal.4th 367, 371). Thus, those felons have necessarily committed
serious and/or violent crimes, but their third strike conviction was for neither a serious
nor a violent felony and who may not now pose an unreasonable risk of danger to public
safety. (§ 1170.126, subds. (a)-(f).) Proposition 36 vests the trial court with discretion to
determine the eligibility for such relief. (§ 1170.126, subds. (f), (g).)
              In contrast, Proposition 47 provides for resentencing in the much less
serious context of certain drug- and theft-related offenses that previously were felonies or
“‘wobblers”’ but are now misdemeanors, unless the defendant is ineligible for such
resentencing because he or she had been previously convicted of a statutorily enumerated
crime, such as murder, rape, or child abuse. (§ 1170.18, subds. (a), (i).)
              In comparing the population of felons eligible for resentencing
consideration under the different propositions, there is a distinct difference between the

                                              7
Proposition 36 group and the Proposition 47 group. For Proposition 36 to come into
play, the felon necessarily is a third striker. Third strikers are a riskier and more volatile
group of felons than the group of felons to which Proposition 47 applies.
              With the exception of one clause in section 1170.18, subdivision (c),
nothing in Proposition 47 suggests even an indirect application of any of its provisions to
Proposition 36. Guzman argues the clause preceding the definition of the phrase
“‘unreasonable risk of danger to public safety’” in Proposition 47’s section 1170.18,
subdivision (c), supports its application to Proposition 36 because it states that definition
applies as the phrase is “used throughout this Code.”
              Although the phrase, “[a]s used throughout this Code,” in section 1170.18,
subdivision (c) unambiguously refers to the Penal Code, and not merely section 1170.18
or the other provisions contained in Proposition 47, it does not necessarily follow that the
definition contained in section 1170.18, subdivision (c) must be read into
section 1170.126, subdivision (f). Under the governing principles of statutory
interpretation, we cannot read this phrase in isolation; instead, we must consider
Proposition 47 and Proposition 36 as a whole and in context. And, as discussed ante, the
definition is expressly limited to whether a petitioner (a person filing a petition under
Proposition 47) posed an unreasonable risk of danger to public safety.
              The statutes must be read as a whole and in context with the statutory
schemes. Therefore, even if section 1170.18, subdivision (c)’s definition of
“‘unreasonable risk of danger to public safety’” could arguably apply to petitions brought
under Proposition 36, any argument favoring such an application would be far
outbalanced by the significant disparity between Proposition 36 and Proposition 47.
They are disparate in terms of the crimes to which they pertain and their respective
purposes, and the serious consequences at stake, namely, a significant reduction of the
trial court’s discretion to deny third strikers’ petitions brought under Proposition 36.



                                               8
              In addition, even if Proposition 47’s reference to the definition’s use
throughout the code creates an ambiguity in the propositions when read as a whole, we
would rely on extrinsic aids to ascertain the voters’ intent. (See People v. Rizo (2000) 22
Cal.4th 681, 685.) Our analysis of these extrinsic aids confirms our holding that
Proposition 47 does not apply to petitions under Proposition 36.
              The Proposition 47 ballot materials do not refer to Proposition 36, much
less analyze any effect Proposition 47 might have on serious and/or violent recidivist
felons who have been convicted and sentenced under the Three Strikes law and seek
resentencing. Consequently, the voters had no notice (or even a hint) that Proposition 47
would be applied in any way that would affect petitioners under Proposition 36, and
nothing otherwise suggests the voters so intended such an application. Furthermore, it is
notable that the phrase “‘unreasonable risk of danger to public safety’” appears in only
one other place in the Penal Code—in Proposition 36 itself—and yet the Proposition 47
ballot materials conspicuously omit any reference to Proposition 36. It is unreasonable
for us to assume the voters in passing the initiative—despite complete silence on the
issue—meant to lump both groups of felons together and subject the third strikers
covered by Proposition 36 to a lower standard of dangerousness than already exists under
Proposition 36. Nor was there any notice to the voters that the judicial discretion
permitted by Proposition 36 would be drastically reduced by Proposition 47.
              We therefore hold that section 1170.18, subdivision (c)’s definition does
not apply to petitions for resentencing under Proposition 36. Our conclusion “is more
faithful to the overarching purpose[s]” of Proposition 36 and Proposition 47. (People v.
Rizo, supra, 22 Cal.4th at p. 687.) Consequently, we do not reach Guzman’s argument
that section 1170.18, subdivision (c) of Proposition 47 retroactively applies to
Proposition 36.
              Our holding is consistent with the holding of the appellate court in Davis,
supra, 234 Cal.App.4th 1001. Rejecting the conclusion “the drafters of Proposition 47,

                                             9
or the electorate that approved it, intended it to rework the procedures established only
two years before to deal with resentencing Three Strikes offenders” (id. at p. 1022), the
Davis court held, “the five words ‘As used throughout this Code’ [citation] were not
intended by the voters to hamstring the Three Strikes Reform Act [(Proposition 36)]”
(id. at p. 1026). The court stated the “literal application of Proposition 47’s definition of
‘unreasonable risk of danger to public safety’ would no longer allow a court to consider
the galaxy of factors, including, for example, the ‘suitability’ and ‘unsuitability’ factors
used by the Board of Parole Hearings” in ruling on Proposition 36 petitions. (Id. at
p. 1023.) The Davis court added: “And, one must wonder, what would be left of that
provision in section 1170.126 [of Proposition 36] expressly granting the court the power
to rely on ‘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. at pp. 1023-1024.) The Davis court explained that the importation
of Proposition 47’s definition into Proposition 36 “would eviscerate [section 1170.126,
subdivision (g)(3)], as a court would be restricted to weighing only the likelihood that the
petitioner if released would commit one of the offenses specified in clause (iv) of
section 667, subdivision (e)(2)(C) [(Proposition 47)].” (Davis, supra, at p. 1024.)
              Nothing in this opinion precludes Guzman from filing the appropriate
petition under Proposition 47, if applicable, in which case the trial court must decide, in
the first instance, the threshold question whether he is eligible for resentencing under
Proposition 47.
                                             III.

          THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING THE
                        PETITION UNDER PROPOSITION 36.
              As Guzman was sentenced to a 25-year-to-life prison term under the Three
Strikes law after his conviction of felony receipt of stolen goods in violation of
section 496, subdivision (a), it is undisputed that Guzman’s conviction met the eligibility


                                              10
requirements for consideration of a recall of sentence under section 1170.126,
                                   4
subdivision (e) of Proposition 36. Guzman contends the trial court abused its discretion
by denying the petition under section 1170.126, subdivision (f).
              “‘The abuse of discretion standard is used in many other contexts and
reflects the trial court’s superior ability to consider and weigh the myriad factors that are
relevant to the decision at hand. A trial court will not be found to have abused its
discretion unless it “exercised its discretion in an arbitrary, capricious, or patently absurd
manner that results in a manifest miscarriage of justice.” [Citation.]’ [Citation.]”
(People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1180.)
              Subdivision (g) of section 1170.126 (of Proposition 36) provides: “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.” The prosecution bears the burden of demonstrating that an




       4
          Section 1170.126, subdivision (e) provides: “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 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.”

                                              11
otherwise eligible petitioner poses an unreasonable risk of danger to public safety. (See
People v. Superior Court (Kaulick), supra, 215 Cal.App.4th at p. 1305.)
               The trial court denied the petition in a minute order, explaining its ruling as
follows:
               “ . . . The single issue before the Court, as agreed to by both the Petitioner
and Respondent is whether the Respondent has met its burden by a preponderance of the
evidence that the Petitioner poses an unreasonable risk to public safety.
               “The Petitioner has engaged in substantially disciplinary free conduct since
being incarcerated in 2004 for the commitment crimes. Furthermore, no information was
presented to the Court that the Petitioner has committed any direct acts of violence upon
any victims.
               “However, public safety includes being free from the commission of
property crimes. See People v. Nasa[l]ga (1996) 12 C[al.]4th 784, 790 (‘the Legislature
believes that it is in the best interest for Public Safety to enhance the penalties for the
crimes of vehicle theft and receiving stolen property.’). The Petitioner’s disposition to
commit such crimes when he is not incarcerated is so apparent from the record before the
Court. After being deported no less than three times from 1977 through 1980, the
Petitioner reentered the United States and committed five separate residential burglaries
in 1985. He was discharged from parole for those crimes in 1990. In 1995 Petitioner
was convicted of conspiracy to transport a substantial amount (20 pounds) of
methamphetamine. While on supervised release for that conviction, he committed the
crimes of receiving stolen property and possession of burglary tools in 2004, which are
the commitment crimes.
               “This Court is convinced by a preponderance of the evidence that the
Petitioner [poses] an unreasonable risk to public safety. If he is released he will find his
way into the community and continue to commit property crimes. Thus, the Petition is
DENIED.” (Italics added.)

                                              12
               Guzman does not argue that any of the trial court’s stated findings was
unsupported by the record. Instead, he argues that by denying the petition, the court
“contradicted the spirit and purpose of the law.” Guzman further argues: “The reasoning
would essentially make any eligible petitioner an unreasonable risk of danger to society.
The law presupposes that the people to whom it applies, will all have multiple serious
and/or violent offenses in their background. At a minimum, every petitioner would have
two such crimes to even qualify for the law. The court denied resentencing because the
appellant suffered the prior convictions that the law recognizes as necessary for the
statute’s application. Denials of this sort would hinder the reduction of overcrowding,
would not save money and would not ‘make the punishment fit the crime.’ Rather, very
few people would be released and the law would serve little to no purpose.”
               As demonstrated by the trial court’s minute order, quoted ante, the court’s
ruling was based on Guzman’s lengthy history of committing multiple crimes when free
from custody, including five counts of residential burglary and one count of conspiracy to
transport a substantial amount of methamphetamine; Guzman was on supervised release
for the latter offense when he committed the instant offenses, which involved, inter alia,
being found in possession of 27 pieces of jewelry that had been stolen from a nearby
residence and items commonly used as burglary tools, including a flashlight, several
screwdrivers, a pair of binoculars, and a knife with a four- or five-inch blade. The trial
court expressly stated it had reviewed all the court records in the matter, including a
forensic psychological evaluation of Guzman, showing he posed a low to medium risk of
recidivism.
               We acknowledge the record does not show Guzman engaged in violent
conduct or that any of the prior residential burglary offenses were committed at a time
when the residence was occupied. Section 1170.126, however, does not require the recall
of a sentence unless the petitioner had engaged in violent conduct. Instead, it provides
that a petition to recall a sentence must be granted to an eligible petitioner if, in the trial

                                               13
court’s discretion, the petitioner does not pose an unreasonable risk of danger to public
safety. (§ 1170.126, subd. (f).) The trial judge, who denied the petition, had also
presided at Guzman’s jury trial and imposed Guzman’s sentence. The trial court,
therefore, had “‘superior ability to consider and weigh the myriad factors that [we]re
relevant’” in determining whether Guzman posed an unreasonable risk of danger to
public safety. (People v. Hajek and Vo, supra, 58 Cal.4th at p. 1180.) Given Guzman’s
long and undisputed record of criminality, the trial court did not abuse its discretion by
concluding that Guzman posed an unreasonable risk of danger to public safety within the
meaning of Proposition 36, and denying the petition.


                                      DISPOSITION
              The postjudgment order is affirmed without prejudice to Guzman
petitioning for relief from the trial court under section 1170.18.



                                                  FYBEL, J.

I CONCUR:



O’LEARY, P. J.




                                             14
ARONSON, J., Concurring:
              In Proposition 47, the “Safe Neighborhoods and Schools Act,” the voters
defined the phrase “unreasonable risk of danger to public safety,” as it is “used
throughout this Code,” to mean an unreasonable risk of committing certain enumerated
felonies designated as the most violent and serious offenses. This is a straightforward
command. Proposition 47’s definition applies wherever the phrase “unreasonable risk of
danger to public safety” appears in the Penal Code. The identical phrase is found in
Proposition 36, the “Three Strikes Reform Act of 2012.” It therefore logically follows
Proposition 47’s definition applies to Proposition 36. Indeed, it is beyond coincidence
that the only other Penal Code section to contain the phrase “unreasonable risk of danger
to public safety” is found in Proposition 36.
              The majority concedes Proposition 47’s command is unambiguous, but
nevertheless surmises Proposition 47’s definition of a particular phrase as it is “used
throughout this Code” does not mean it should be used throughout the Code. According
to the majority, Proposition 47’s enactors could not have intended to apply
Proposition 47’s definition of risk to Proposition 36 because the general purposes of the
two propositions are incompatible. But the majority does not discuss either proposition’s
enumerated purposes or explain how applying Proposition 47’s definition of risk to
Proposition 36 conflicts with or frustrates its purpose. Indeed, although examining the
purpose of a statute or initiative may be necessary to resolve an ambiguity, avoid an
absurd consequence, or avoid a result that would patently frustrate the intent of the law,
none of these criteria are present here and the majority offers no convincing reason not to
follow Proposition 47’s unambiguous directive.
              In adding section 1170.18, subdivision (c), to the Penal Code,
Proposition 47 meant exactly what it says—its definition of the phrase “unreasonable risk
of danger to public safety” applies “throughout” the Penal Code, including the provisions

                                                1
Proposition 36 earlier added to that code. There is no alternative meaning to this
mandate, and the majority offers none. The majority simply reads this directive out of
the initiative, rendering it a useless appendage without meaning. I write separately to
voice my disagreement with this analysis.
              I concur in the result, however, because nothing in Proposition 47, or any
extrinsic evidence regarding its purpose and intent, overcomes the statutory presumption
that amendments to the Penal Code only operate prospectively. The trial court decided
Guzman’s Proposition 36 resentencing petition before Proposition 47 passed and went
into effect, and therefore Proposition 47’s definition of the phrase “unreasonable risk of
danger to public safety” does not apply retroactively to Guzman’s petition. I also agree
with the majority’s conclusion the trial court did not abuse its discretion in denying
Guzman’s petition based on the court’s finding he poses an “unreasonable risk of danger
to public safety,” as that phrase was defined when the court decided Guzman’s petition.


I.     Background on Proposition 36 and Proposition 47
              As originally adopted, the “Three Strikes” law (Penal Code, §§ 667,
subds. (b)-(i), 1170.12; all statutory references are to the Penal Code unless otherwise
stated) required a defendant with two prior serious or violent felony convictions to be
sentenced to 25 years to life for any third felony conviction. When the voters passed
Proposition 36 in November 2012, they changed the Three Strikes law so that “a
defendant convicted of two prior serious or violent felonies is subject to the 25-year-to-
life sentence only if the third felony is itself a serious or violent felony. If the third felony
is not a serious or violent felony, the defendant will receive a sentence as though the
defendant had only one prior serious or violent felony conviction, and is therefore a
second strike, rather than a third strike, offender.” (People v. Superior Court (Kaulick)
(2013) 215 Cal.App.4th 1279, 1285-1286, original italics, footnote omitted (Kaulick).)

                                               2
The defendant receives an enhanced sentence, but not an automatic 25-year-to-life
sentence. (§ 1170.126, subd. (f).)
              Proposition 36 also created a postconviction procedure that allows an
inmate to petition for resentencing if he or she was sentenced to 25 years to life based on
a third strike that was neither a serious nor violent felony. (Kaulick, supra,
215 Cal.App.4th at p. 1292.) An inmate is not eligible for resentencing under
Proposition 36 if (1) the current sentence is for a serious drug offense, a felony sex
offense requiring registration as a sex offender, or a felony involving a firearm, a deadly
weapon, or the intent to cause great bodily injury; or (2) the inmate has been convicted of
one of the felonies Proposition 36 designates as the most serious and violent offenses
(hereinafter, Super Strike felonies).1 (§ 1170.126, subd. (e)(2) & (3).) The trial court
must grant an eligible inmate’s resentencing petition “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 that discretion, the trial court may
consider the following factors: “(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).)

       1        The Super Strike felonies are (a) a “‘sexually violent offense’”; (b) oral
copulation, sodomy, sexual penetration, or a lewd or lascivious act involving a child
under 14 years of age; (c) any homicide offense, including any attempted homicide;
(d) solicitation to commit murder; (e) assault with a machine gun on a peace officer or
firefighter; (f) possession of a weapon of mass destruction; and (g) any serious or violent
felony offense punishable in California by life imprisonment or death. (§§ 667,
subd. (e)(2)(C)(iv), 1170.12, subd. (c)(2)(C)(iv).)

                                              3
              In November 2014, the voters passed Proposition 47 to reduce the
punishment for certain drug- and theft-related offenses by designating them as
misdemeanors. Before Proposition 47, the same offenses were designated as felonies or
“wobblers,” which are crimes punishable as either felonies or misdemeanors depending
on the underlying facts. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Similar
to Proposition 36, Proposition 47 creates a postconviction procedure that allows an
inmate to petition for resentencing if he or she is “currently serving” a felony sentence for
a crime Proposition 47 now designates as a misdemeanor. (§ 1170.18, subd. (a); Rivera,
at p. 1092.) If the petitioner satisfies Proposition 47’s criteria, the petitioner’s “felony
sentence shall be recalled and the petitioner 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); Rivera, at p. 1092.)
Proposition 47 uses the same standard as Proposition 36 for determining whether a
person should be resentenced. Moreover, Proposition 47 identifies the identical three
factors as Proposition 36 for the trial court to consider in making that determination.
(Compare § 1170.18, subd. (b) and § 1170.126, subd. (g).)
              Unlike Proposition 36, however, Proposition 47 defines the phrase
“unreasonable risk of danger to public safety.” Specifically, section 1170.18,
subdivision (c), states, “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.) The “new violent
felon[ies]” identified in section 1170.18, subdivision (c) are the identical Super Strike
felonies that disqualify an inmate from resentencing under Proposition 36. (Compare
§ 1170.18, subd. (c) and § 1170.126, subd. (e)(3).)



                                               4
II.    Proposition 47’s Definition of the Phrase “Unreasonable Risk of Danger to
       Public Safety” Applies “Throughout” the Penal Code
              Guzman contends Proposition 47’s definition of the phrase “unreasonable
risk of danger to public safety” applies to his Proposition 36 petition because
Proposition 47’s plain language declares the definition must be used “throughout this
Code.”2 I agree it applies, but not retroactively to Guzman’s petition.
              When interpreting voter initiatives like Proposition 47 and Proposition 36,
we apply the same principles that govern statutory interpretation. (People v. Rizo (2000)
22 Cal.4th 681, 685 (Rizo).) Our task “‘is to ascertain and effectuate legislative intent.
[Citations.]’ [Citation.] In order to do so, ‘[w]e turn first to the words of the statute
themselves, recognizing that “they generally provide the most reliable indicator of
legislative intent.” [Citations.]’ [Citation.]” (People v. Leal (2004) 33 Cal.4th 999, 1007
(Leal).) We give the words their ordinary meaning, and construe them in the context of
the statute as a whole and the overall statutory scheme. (Rizo, at p. 685.)
              “When the language is ambiguous, ‘we refer to other indicia of the voters’
intent, particularly the analyses and arguments contained in the official ballot pamphlet.’
[Citation.]” (Rizo, supra, 22 Cal.4th at p. 685.) But “‘[w]hen “‘statutory language is . . .
clear and unambiguous there is no need for construction, and courts should not indulge in
it.’” [Citations.]’ [Citation.]” (Leal, supra, 33 Cal.4th at p. 1008.) Indeed, “‘[a]bsent
ambiguity, we presume that the voters intend the meaning apparent on the face of an
initiative measure [citation] and the court may not add to the statute or rewrite it to
conform to an assumed intent that is not apparent in its language.’ [Citation.]” (People
ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 301.)



       2     As the majority notes, this issue currently is pending in the Supreme Court.
(People v. Valencia (2014) 232 Cal.App.4th 514, review granted Feb. 18, 2015,
S223825.)

                                               5
              “‘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.]” (Leal, supra, 33 Cal.4th at p. 1008.)
              Here, Proposition 47’s definition of the phrase “unreasonable risk of danger
to public safety” is set forth in section 1170.18, subdivision (c), and that subdivision
unambiguously declares the definition applies “throughout this Code.” Accordingly,
section 1170.18, subdivision (c)’s plain language makes the definition applicable to the
entire Penal Code, including those provisions previously added by Proposition 36.
Similar language has been construed to unambiguously refer to the entire code of which it
is a part. For example, in Marshall v. Pasadena Unified School Dist. (2004)
119 Cal.App.4th 1241, the court considered a provision in the Public Contract Code
defining the term “emergency” “as used in this code.” (Marshall, at p. 1255, italics
omitted.) The Marshall court concluded, “There is nothing ambiguous about the phrase
‘as used in this code.’ In enacting [this] section . . . , the Legislature did not merely
define the term ‘emergency’ for a particular chapter, article or division of the Public
Contract Code—rather, it defined the term ‘emergency’ for the entire Public Contract
Code. It logically follows the definition . . . must be read into [all other sections using
that term].” (Marshall, at p. 1255.) Similarly, in People v. Bucchierre (1943)
57 Cal.App.2d 153, the Court of Appeal concluded, “The words ‘as in this code
provided’ (Penal Code, § 182) refer to the Penal Code.” (Bucchierre, at p. 166.)
              Based on Proposition 47’s plain language, the majority concedes “the
phrase, ‘[a]s used throughout this Code,’ in section 1170.18, subdivision (c),
unambiguously refers to the Penal Code, and not merely section 1170.18 or the other

                                               6
provisions contained in Proposition 47.” (Maj. opn. ante, at p. 8.) The majority
nonetheless refuses to apply Proposition 47’s definition of the phrase “unreasonable risk
of danger to public safety” to Proposition 36’s use of that identical phrase. In doing so,
the majority fails to offer an alternative interpretation of Proposition 47’s command that
its definition shall apply as the phrase is “used throughout this Code.” Instead, the
majority simply declines to follow the command, concluding Proposition 47’s drafters
and the voters who approved it could not have intended to apply the definition to
Proposition 36 because Proposition 47’s ballot pamphlet analysis and argument neither
stated that intent nor referred to Proposition 36.3 This approach fails for two reasons.
              First, it does not give meaning to every word of Proposition 47. (People v.
Briceno (2004) 34 Cal.4th 451, 465 [“courts are to give meaning to every word of an
initiative if possible, and should avoid a construction making any word surplusage”].)
The majority assigns no meaning to the phrase “as used throughout this Code,” striking
its application to the only other instance of the “unreasonable risk of danger to public
safety” phase in the Penal Code. The majority’s conclusion renders the phrase “as used
throughout this Code” meaningless. But the enactors must have intended it to have the
meaning it plainly carries if there is no other possible meaning. I can think of no
alternative meaning, and the majority offers none.


       3       The majority also concludes Proposition 47’s definition of the phrase
“unreasonable risk of danger to public safety” only applies to petitions filed under
Proposition 47 because the definition refers to “the petitioner,” and the only petitions
referenced in Proposition 47 are those seeking relief under that same proposition. (Maj.
opn. ante, at p. 7.) But it does not logically follow that Proposition 47’s general
definition of the risk to public safety, expressly applied “throughout this Code,” does not
apply “throughout this Code” because of Proposition 47’s specific remedies. I fail to see
how this circular argument allows the majority to disregard Proposition 47’s plain
language. Section 1170.18, subdivision (c) unambiguously states its definition of the
phase applies “throughout this Code,” not merely to petitions filed under Proposition 47.

                                             7
               Second, the majority’s approach ignores that the ballot pamphlet analysis
and arguments were not required to explain or expressly set forth the voters’ intent to
make the definition applicable to Proposition 36 because Proposition 47’s plain language
unambiguously declared the voters’ intent to apply the definition to the entire Penal
Code. (See Leal, supra, 33 Cal.4th at p. 1008.) When an initiative’s plain language is
clear and unambiguous, “[w]e presume that the voters intended the meaning apparent on
the face of the measure and our inquiry ends.” (Woo v. Superior Court (2000)
83 Cal.App.4th 967, 975 (Woo); see Leal, at p. 1008; Jahr v. Casebeer (1999)
70 Cal.App.4th 1250, 1254 [“‘“If the language is clear and unambiguous there is no need
for construction, nor is it necessary to resort to indicia of the intent . . . of the voters . . . .”
. . .’”].)
               The majority also refuses to apply the plain meaning of Proposition 47’s
language because it concludes there is a “significant disparity between Proposition 36 and
Proposition 47 . . . in terms of the crimes to which they pertain and their respective
purposes.” (Maj. opn. ante, at p. 8.) Although there may be a difference in the nature of
the principal crimes each proposition addresses—serious and violent felonies for
Proposition 36 and drug- and theft-related crimes for Proposition 47—that difference in
subject matter does not equate to a difference in purpose nor does it allow the court to
disregard Proposition 47’s plain meaning. We may disregard a statute’s plain meaning
only when that meaning is “‘“‘repugnant to the general purview of the act’”’” (Leal,
supra, 33 Cal.4th at p. 1008), or would lead to “absurd consequences” inconsistent with
the legislation’s intent (In re Michele D. (2002) 29 Cal.4th 600, 606; Woo, supra,
83 Cal.App.4th at p. 975). The majority, however, fails to identify either proposition’s
purpose or explain how applying Proposition 47’s definition of the phrase “unreasonable
risk of danger to public safety” to Proposition 36 is repugnant to Proposition 36’s
objective or would lead to an absurd consequence inconsistent with its underlying goals.

                                                 8
              Proposition 36’s declared purpose includes (1) “Restor[ing] 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”; (2) “Sav[ing] hundreds
of millions of taxpayer dollars every year . . . [by] no longer pay[ing] for housing or
long-term health care for elderly, low-risk, non-violent inmates serving life sentences for
minor crimes”; and (3) “Prevent[ing] the early release of dangerous criminals who are
currently being released early because jails and prisons are overcrowded with low-risk,
non-violent inmates serving life sentences for petty crimes.”4 (Prop. 36, § 1, approved
Nov. 6, 2012, eff. Nov. 7, 2012.)
              Proposition 47’s declared purpose includes (1) “ensur[ing] that prison
spending is focused on violent and serious offenses”; (2) “maximiz[ing] alternatives for
nonserious, nonviolent crime”; and (3) “invest[ing] the savings generated from this act
into prevention and support programs for K-12 schools, victim services, and mental
health and drug treatment.” (Prop. 47, § 2, approved Nov. 4, 2014, eff. Nov. 5, 2014; see
id. at § 3.) The ballot argument in favor of Proposition 47 also explains the proposition
(1) “Stops wasting prison space on petty crimes and focuses law enforcement resources
on violent and serious crime by changing low-level nonviolent crimes such as simple
drug possession and petty theft from felonies to misdemeanors”; (2) “Authorizes felonies
for registered sex offenders and anyone with a prior conviction for rape, murder or child
molestation”; and (3) “Stops wasting money on warehousing people in prisons for
nonviolent petty crimes, saving hundreds of millions of taxpayer funds every year.”

       4       Additional declared purposes of Proposition 36 include (1) “Requir[ing]
that murderers, rapists, and child molesters serve their full sentences—they will receive
life sentences, even if they are convicted of a new minor third strike crime”; and
(2) “Maintain[ing] that repeat offenders convicted of non-violent, non-serious crimes like
shoplifting and simple drug possession will receive twice the normal sentence instead of
a life sentence.” (Prop. 36, § 1, approved Nov. 6, 2012, eff. Nov. 7, 2012.)

                                              9
(Voter Information Guide, Gen. Elec. (Nov. 4, 2014) argument in favor of Prop. 47,
p. 38.)
              Proposition 36 and Proposition 47 therefore share the common purpose of
reworking significant portions of California’s statutory sentencing scheme to ensure
prison resources are devoted to violent and serious offenders, and to ensure those who
commit violent and serious offenses are not released early because of overcrowding.
Both propositions accomplish this purpose by reducing the sentences for a wide variety
of nonviolent and nonserious felonies. Both propositions also allow inmates serving a
sentence they would not have received after the passage of Proposition 36 and
Proposition 47 to petition for resentencing.
              Applying Proposition 47’s definition of the phrase “unreasonable risk of
danger to public safety” to Proposition 36 furthers this common purpose by providing
trial courts with the discretion to deny a Proposition 36 resentencing petition only for
those inmates who pose an unreasonable risk of committing certain violent and serious
offenses. Without the definition, the phrase has no fixed meaning in Proposition 36 and
trial courts may deny a resentencing petition by a nonviolent offender without evaluating
whether the petitioner poses a risk of committing a specific violent or serious felony.
(People v. Garcia (2014) 230 Cal.App.4th 763, 769-770; People v. Flores (2014)
227 Cal.App.4th 1070, 1075.) But applying the definition to Proposition 36 requires the
trial court to find an inmate poses an unreasonable risk of committing one of the most
serious and violent felonies that both Proposition 36 and Proposition 47 identify, namely,
the Super Strike felonies. The trial court still retains significant discretion to consider a
wide variety of factors and evidence; the court merely is required to evaluate those
factors and evidence in the context of determining whether the petitioner poses an
unreasonable risk of committing one of these aggravated felonies.



                                               10
              In considering the impact Proposition 47’s definition has on Proposition 36,
it warrants emphasizing who is eligible to apply for resentencing under Proposition 36.
To be eligible, (1) an inmate must be serving an indeterminate life sentence for
committing a nonviolent, nonserious felony; (2) the felony for which the inmate was
sentenced must not be a serious drug crime, a sex offense requiring registration as a sex
offender, or any felony involving a firearm, a deadly weapon, or the intent to cause great
bodily injury; and (3) the inmate must not have a prior conviction for any of the Super
Strike felonies. (§ 1170.126, subd. (e).) These eligibility restrictions make the most
serious and violent felons categorically ineligible for resentencing. Consequently, the
trial court is never faced with considering whether resentencing such felons would pose
an unreasonable risk of danger to public safety. I therefore fail to see how applying
Proposition 47’s definition to Proposition 36 is repugnant to the general purpose of
Proposition 36 or Proposition 47, leads to absurd consequences, or frustrates the purpose
behind either proposition. Without reaching at least one of those conclusions, I cannot
join the majority in disregarding Proposition 47’s plain language.
              The requirement courts must follow express unambiguous provisions unless
it would lead to absurd consequences or clearly frustrate the legislative purpose exists to
prevent courts from unintentionally interpreting a statute to say what the court believes it
ought to say, rather than what it actually says. (California School Employees Assn. v.
Governing Bd. of South Orange County Community College Dist. (2004)
124 Cal.App.4th 574, 588.) That risk is especially pertinent when voters have acted
through the initiative process to adopt legislation. Here, the voters passed
Propositions 36 and 47 to recalibrate the balance between punishment and public safety.
These issues touch on controversial and difficult policy decisions involving various
penalogical theories, such as deterrence, proportionality, and incapacitation. It is not for
the courts to wade into that debate, however. “Our role as a reviewing court is simply to

                                             11
ascertain and give effect to the electorate’s intent guided by the same well-settled
principles we employ to give effect to the Legislature’s intent when we review
enactments by that body. [Citation.] We do not, of course, pass upon the ‘“‘“wisdom,
expediency, or policy”’”’ of enactments by the voters any more than we would
enactments by the Legislature. [Citation.]” (Professional Engineers in California
Government v. Kempton (2007) 40 Cal.4th 1016, 1043.) “Where the [voters] ha[ve]
made a policy choice, using as here particularly clear and unambiguous language, we
may not second-guess [their] determination.” (Joshua D. v. Superior Court (2007)
157 Cal.App.4th 549, 565.)
              The majority concludes Proposition 47’s drafters could not have meant
what they said when they declared the definition of the phrase “unreasonable risk of
danger to public safety” applied “throughout” the Penal Code because “[t]hird strikers are
a riskier and more volatile group of felons than the group of felons to which
Proposition 47 applies.” (Maj. opn. ante, p.8.) The majority apparently believes this
distinction demonstrates why Proposition 47’s drafters could not have intended to apply
the definition of risk to Proposition 36 petitioners. This would be true for inmates who
committed a Super Strike felony, but those offenders are ineligible for resentencing.
Otherwise, the accuracy of the majority’s vague, generalized pronouncement varies
greatly from case to case. Guzman’s profile illustrates the point. His criminal record
shows numerous drug and property offenses, but as the trial court expressly found,
Guzman had no record of violence. Guzman may be eligible for a sentence reduction
under Proposition 47 because his third strike was receiving stolen property, an offense
reduced to a misdemeanor under certain circumstances. Under the majority’s analysis,
Guzman is a “riskier and more volatile” felon when petitioning for relief under
Proposition 36, but not when he petitions for relief under Proposition 47. That result is
not consistent with the common purpose the two propositions share.

                                             12
              Finally, the majority notes its conclusion is consistent with the First
Appellate District, Division Two’s recent decision in People v. Davis (2015)
234 Cal.App.4th 1001, which concluded “the five words ‘As used throughout this Code’
(§ 1170.18, subd. (c)) were not intended by the voters to hamstring [Proposition 36]”
(Davis, at p. 1026), and applying Proposition 47’s definition to Proposition 36 would
“eviscerate” the “provision in [Proposition 36] expressly granting the court the power to
rely on ‘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)(3).)’” (Davis, at p. 1024, italics omitted.) I disagree with
both of these conclusions.
              Applying the definition would not “hamstring” Proposition 36 because
doing so is consistent with Proposition 36’s purpose. As explained above, Proposition 36
seeks to free up prison space for the most serious and violent felons by reducing the
sentences for other felons. By focusing the trial court’s discretion on only those inmates
who pose an unreasonable risk of committing a Super Strike felony, the definition
furthers Proposition 36’s purposes. Likewise, applying Proposition 47’s definition to
Proposition 36 would not “eviscerate” the cited provision in Proposition 36, which allows
the trial court to consider any evidence it deems relevant when determining whether
resentencing an inmate would result in an unreasonable risk of danger to public safety.
Applying Proposition 47’s precise definition of what amounts to an unreasonable risk of
danger to public safety to Proposition 36 does not limit what evidence the trial court may
consider in making that determination. Indeed, despite including its definition of the
phrase “unreasonable risk of danger to public safety,” Proposition 47 also includes the
exact same provision as Proposition 36 in allowing the trial court to consider any
evidence it deems relevant in determining whether an offender poses an unreasonable risk



                                             13
of danger to public safety. (Compare, § 1170.126, subd. (g)(3) and § 1170.18,
subd. (b)(3).)

III.   Proposition 47’s Definition Does Not Apply Retroactively to Guzman’s
       Resentencing Petition
                 Although I conclude Proposition 47’s definition of the phrase
“unreasonable risk of danger to public safety” applies to Proposition 36, it does not apply
to Guzman’s Proposition 36 resentencing petition because the trial court decided the
petition before the voters passed Proposition 47. Guzman contends Proposition 47’s
definition applies retroactively to his petition based on In re Estrada (1965) 63 Cal.2d
740 (Estrada), and cases applying Estrada. But the well-established rule is that statutes
only apply prospectively, and Estrada merely recognized a limited exception for statutes
that reduce the punishment for a particular crime. Proposition 47’s definition does not
reduce the punishment for a particular crime, and therefore Estrada does not support
retroactively applying the definition to Guzman’s petition.5
                 “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 with respect to a particular statute, the Legislature’s generally
applicable declaration in section 3 provides the default rule: ‘No part of [the Penal Code]
is retroactive, unless expressly so declared.’ We have described section 3, and its
identical counterparts in 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.’ [Citation.]


       5    This issue currently is pending in the Supreme Court. (People v. Chaney
(2014) 231 Cal.App.4th 1391, review granted Feb. 18, 2015, S223676.)

                                                14
In applying this principle, we have been cautious not to infer retroactive intent from
vague phrases and broad, general language in statutes. [Citations.] Consequently, ‘“a
statute that is ambiguous with respect to retroactive application is construed . . . to be
unambiguously prospective.”’ [Citations.]” (People v. Brown (2012) 54 Cal.4th 314,
319-320 (Brown).)
              Estrada creates a “contextually specific qualification” to this ordinary rule
of prospective application: “When the Legislature has amended a statute to reduce the
punishment for a particular criminal offense, we will assume, absent evidence to the
contrary, that the Legislature intended the amended statute to apply to all defendants
whose judgments are not yet final on the statute’s operative date.” (Brown, supra,
54 Cal.4th at p. 323, fn. omitted.) Estrada explained the rationale for its rule as follows:
“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.”
(Estrada, supra, 63 Cal.2d at p. 745.)
              Estrada involved a statute that had been amended to reduce the minimum
term for the crime of escape without force or violence. (Estrada, supra, 63 Cal.2d at
pp. 743-744.) Based on the foregoing rationale, the Supreme Court concluded the



                                              15
amended statute’s reduced sentence applied to the defendant because the judgment
against him was not yet final. (Id. at p. 751.)
              In Brown, the Supreme Court recently revisited its Estrada decision,
explaining Estrada “‘should not be interpreted as modifying [section 3’s] well-
established, legislatively-mandated principle [that no statute applies retroactively unless
expressly so declared].’ [Citation.] Accordingly, Estrada is today 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. [¶] . . .
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”’
[citation] and the corollary inference that the Legislature intended the lesser penalty to
apply to crimes already committed.” (Brown, supra, 54 Cal.4th at pp. 324-325, original
italics, fn. omitted; see Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209.)
              Brown involved an amendment to the Penal Code that increased the rate at
which a prisoner in local custody received credit against his or her sentence for good
behavior. The Supreme Court concluded the amendment did not apply retroactively
because it did not alter the penalty for a particular crime, but rather addressed “future
conduct in a custodial setting by providing increased incentives for good behavior.”
(Brown, supra, 54 Cal.4th at p. 325, italics omitted.) In Brown, the defendant argued “the
rule of Estrada [citation] should be understood to apply more broadly to any statute that
reduces punishment in any manner,” but the Supreme Court rejected that contention
because “the argument does not in any event represent a logical extension of Estrada’s
reasoning. . . . [T]he rule and logic of Estrada is specifically directed to a statute that

                                              16
represents ‘“legislative mitigation of the penalty for a particular crime”’ [citation]
because such a law supports the inference that the Legislature would prefer to impose the
new, shorter penalty rather than to ‘“satisfy a desire for vengeance”’ [Citation.] The
same logic does not inform our understanding of a law that rewards good behavior in
prison.” (Ibid., original italics.)
               Here, Guzman does not contend Proposition 47 or its ballot pamphlet refers
to or even suggests an intent to retroactively apply the definition of the phrase
“unreasonable risk of danger to public safety” to Proposition 36 resentencing petitions
that a trial court has rejected. The presumption of prospective operation therefore
governs unless Proposition 47’s definition reduces the penalty for a particular crime and
thereby gives rise to an inference the voters intended the reduced penalty to apply to
crimes already committed. (Brown, supra, 54 Cal.4th at pp. 324-325.) True,
Proposition 47 reduced the penalties for various drug and theft crimes. But the issue is
not whether those reduced penalties apply retroactively. Proposition 47’s definition of
the phrase “unreasonable risk of danger to public safety” must itself reduce the penalty
for a particular crime because that is the provision Guzman seeks to apply retroactively.
               Proposition 47’s definition, however, does not reduce the sentence for any
particular crime. Instead, the definition merely narrows the broad discretion
Proposition 36 confers on the trial court in deciding whether to resentence an inmate who
already has received an indeterminate life sentence for a nonviolent, nonserious, third
strike offense. When the definition is applied to Proposition 36, the trial court still has
considerable discretion to determine whether an inmate should be resentenced based on a
number of factors related to the particular inmate, such as the inmate’s criminal
conviction history, the inmate’s disciplinary and rehabilitation record, and any other
evidence bearing on whether the inmate poses an unreasonable risk of committing a



                                              17
Super Strike felony if he or she is resentenced. Not all inmates eligible for resentencing
under Proposition 36 will be resentenced.
              Without a reduction in the penalty for a particular crime, Estrada simply
does not apply because there is nothing to support an inference the voters intended
Proposition 47’s definition of the phrase “unreasonable risk of danger to public safety” to
apply retroactively. Applying the definition retroactively would require an extension of
Estrada well beyond its rationale and limitations the Supreme Court explained in Brown.
(People v. Crockett (2015) 234 Cal.App.4th 642, 660-661 [Estrada does not make
Proposition 47’s definition apply retroactively because the definition does not reduce a
particular punishment for a particular crime].)
              To support his contention to the contrary, Guzman relies on three cases that
applied Estrada’s rationale to conclude an amendment to the Penal Code applied
retroactively. (See People v. Nasalga (1996) 12 Cal.4th 784; People v. Vinson (2011)
193 Cal.App.4th 1190; People v. Figueroa (1993) 20 Cal.App.4th 65.) Each of these
cases, however, involved an amendment that directly reduced the penalty for the
particular crime the defendant had committed, and therefore gave rise to Estrada’s
inference of retroactive application. In Nasalga, the amendment increased the property
loss threshold for a two-year sentence enhancement on a grand theft conviction from
$100,000 to $150,000, and therefore the defendant’s conviction for stealing property
valued at $124,000 no longer supported the two-year enhancement. (Nasalga, at p. 787.)
In Vinson, the amendment increased the number of prior theft convictions for a sentence
enhancement from one to three convictions, and therefore the defendant was no longer
eligible for the enhancement because he did not have three prior convictions. (Vinson, at
pp. 1193-1194, 1197.) In Figueroa, the amendment modified a sentence enhancement
for selling drugs within 1,000 feet of a school to require a showing the school was in
session or children were present, and therefore the defendant could not receive the

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enhancement without evidence establishing this new element. (Figueroa, at pp. 69-70.)
As explained above, Proposition 47’s definition of the phrase “unreasonable risk of
danger to public safety” does not reduce the punishment for a particular crime, and
therefore these cases are inapposite.




                                         ARONSON, J.




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