P. v. Velasquez

Filed 12/1/16 P. v. Velasquez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID VELASQUEZ,
Defendant and Appellant.
B262495
(Los Angeles County
Super. Ct. No. KA024463)
APPEAL from an order of the Superior Court of
Los Angeles County, William C. Ryan, Judge. Affirmed.
Nancy L. Tetreault, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________

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Petitioner David Velasquez is currently serving a
“Three Strikes” sentence of 27 years to life in prison. After
passage of Proposition 36, the Three Strikes Reform Act of 2012
(Proposition 36 or the Reform Act), Velasquez petitioned for
recall of sentence and resentencing pursuant to Penal Code
section 1170.126.1 The trial court denied the petition on the
ground resentencing would pose an unreasonable risk of danger
to public safety. Velasquez contends the trial court should have
retroactively applied the definition of unreasonable risk of danger
to public safety contained in section 1170.18, and abused its
discretion in denying the petition. Discerning no error or abuse
of discretion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Velasquez’s commitment offense
In 1995, a jury convicted Velasquez of second degree
burglary (§ 459) and petty theft with priors (§ 666) based on the
following incidents. In September 1994, Velasquez attempted to
steal a bicycle from a Pomona home after using a crowbar to
break into the garage’s side door. One of the homeowner’s
neighbors saw Velasquez exiting with the bike and “ ‘tussled’ ”
with him. Velasquez let go and began to walk away. The
neighbor followed. Noticing the crowbar in Velasquez’s hand, the
neighbor grabbed for it and again tussled with Velasquez. After
the neighbor and Velasquez exchanged words, Velasquez left.
Later that morning, Velasquez was caught shoplifting cold
medication from a drugstore. The trial court found Velasquez
had suffered five prior “strike” convictions (§ 667, subds. (b)-(i)),
1 All further undesignated statutory references are to the
Penal Code.

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and had served a prior prison term within the meaning of section
667.5, subdivision (b). It imposed a sentence of 25 years to life
pursuant to the Three Strikes law, and two section 667.5,
subdivision (b) enhancements. We modified Velasquez’s sentence
by ordering one of the section 667.5, subdivision (b)
enhancements stricken, and otherwise affirmed the judgment in
an unpublished opinion.2 (People v. Velasquez (May 30, 1997,
B099855 [nonpub. opn.].)
2. Velasquez’s section 1170.126 petition and hearing
On March 12, 2013, after passage of the Reform Act,
Velasquez filed a petition for recall of sentence in the trial court
pursuant to section 1170.126. The People opposed the petition,
contending Velasquez was unsuitable for resentencing because
his release would pose an unreasonable risk of danger to public
safety.3 On September 17, 2014, the trial court held a hearing on
the petition. (§ 1170.126, subd. (f).) Velasquez was present and
represented by counsel. The following evidence was adduced at
the hearing.
2 We take judicial notice of our unpublished opinion, and
derive the factual summary of the commitment offense
therefrom. (Evid. Code, §§ 459, subd. (a), 452, subd. (d).)
3 The People initially argued Velasquez was ineligible
because he had been armed with the crowbar during the
burglary. They subsequently withdrew their opposition on this
ground and opposed resentencing on the ground of unsuitability
only.

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a. Criminal history
Velasquez’s juvenile history began when he was 15 years
old. As a juvenile, he had sustained petitions for robbery and
receiving stolen property, and numerous arrests, including
battery, assault with a deadly weapon, and grand theft. As an
adult, Velasquez was convicted of multiple offenses including
second degree burglary in 1985 and five residential burglaries in
1989; being under the influence of a controlled substance in 1986,
1987, 1989, and 1994; the sale, transport, or offer to sell a
controlled substance in 1986 (Health & Saf. Code, § 11352); and
assault on a peace officer or emergency personnel.
Before being incarcerated, Velasquez was addicted to
heroin. He dropped out of school after the 11th grade. He joined
a Pomona street gang at the age of 17 and remained a member of
that gang throughout the 1990’s.
In 2001, while incarcerated, Velasquez was convicted of the
possession or manufacture of a weapon, a five and one-half inch
long piece of metal, sharpened at one end, with a cloth handle.
(§ 4502, subd. (a).)

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b. Prison disciplinary history
During his current term of imprisonment, Velasquez has
been found guilty of 12 serious rule violations (CDC 115s) and
has amassed 10 counseling chronos (CDC 128As).4 In addition to
the possession of a weapon charge discussed ante, Velasquez was
found guilty of willfully delaying a peace officer by engaging in a
hunger strike in 2011; possession or manufacture of a weapon in
2008; misuse of state property in 2005; being out of bounds,
mutual combat, engaging in behavior that could jeopardize
institutional security, disobeying a direct order, and possession of
contraband (balloons), all in 2004; possession of a tattoo gun in
2003; violation of cell standards in 2002; and disruptive behavior
in 2000. In the 2008 incident, Velasquez was found with four
cone-shaped objects made from wrapped paper, with sharpened
metal tips, with string attached. Velasquez claimed he was
making needles to repair his clothing. The prison hearing officer
found the items could be used as blow darts or stabbing
instruments.
Velasquez’s 10 custodial counseling chronos included
counseling for disobeying direct orders and delaying lock up.
The majority of the counseling chronos occurred between
2000 and 2005.
4 A “CDC 115” refers to a California Department of
Corrections (CDC) rules violation report that documents
misconduct that is believed to be a violation of law or is not minor
in nature. (In re Roderick (2007) 154 Cal.App.4th 242, 249, fn. 3;
Cal. Code Regs., tit. 15, § 3312, subd. (a)(3).) A “Custodial
Counseling Chrono” (CDC Form 128-A) documents minor
misconduct and counseling provided for it. (In re Roderick, supra,
at p. 269, fn. 23; Cal. Code Regs., tit. 15, § 3312, subd. (a)(2).)

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In 2006, Velasquez was validated by the California
Department of Corrections and Rehabilitation (CDCR) as an
associate of the Mexican Mafia and was placed in the secure
housing unit (SHU) at Pelican Bay State Prison. Velasquez
denied being a Mexican Mafia associate. In 2013, the CDCR
validated him as inactive in the gang.
c. Prison programming
While incarcerated, Velasquez participated in a long
distance learning program offered by Cornell University, the
“Prisoner Express program”; a “Way to Happiness” course offered
by Criminon; the “Pelican Bay Speaks” project; and a Christian
pen pal program.
d. Opinion of Dr. Hy Malinek
Dr. Hy Malinek, a clinical psychologist, was appointed as
an expert and conducted a comprehensive evaluation and risk
assessment of Velasquez. Velasquez’s IQ placed him in the upper
segment of the low average intelligence range. He did not suffer
from any recognized psychiatric disturbance or personality
disorder. Velasquez admitted responsibility for his past criminal
conduct, emphasized that he was no longer a gang member or
drug addict, and appeared motivated to abstain from similar
conduct in the future. Velasquez’s opioid abuse was in remission
in the controlled environment of prison.
Malinek’s evaluation indicated Velasquez scored 11 of a
maximum 28 in the Violence Risk Assessment Guide, indicating
a moderate recidivism risk, or a 58 percent recidivism risk in
10 years. On the Static-99R, an actuarial measure of relative
risk, Velasquez scored a four, placing him in the moderate-high
risk category for being charged with or convicted of a violent
offense. He scored a 24 on the Level of Service/Case Management

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Inventory survey (LS/CMI), placing him at a high risk for general
criminal recidivism. The LS/CMI score indicated a 45 percent
likelihood Velasquez would be incarcerated for a new offense
within one year of release. His risk for future violence was
between 30 and 60 percent, depending on the number of years
into the future assessed. Based on administration of another
test, the HCR-20, Malinek opined: “many of the risk factors
which have been associated with violence were most prevalent in
Mr. Velasquez’s past. While he had a history of violent behavior
and a significant drug addiction in the past, his performance and
adjustment in custody has been ‘better’ than that of many
individuals at CDCR after nearly two decades of incarceration. It
appears he has taken time to improve his skills and, importantly,
he has not been violent in custody. He shows some insight into
the historical origins and contributors of his conduct. His release
plans seem reasonable and he apparently has a small support
system that, if consistently available, can help further in
diminishing the risk of violent recidivism. However, it is
uncertain at this time how he will function in the community
when faced with the stressors of being under supervision.”
Malinek concluded Velazquez’s current risk of violence was
moderate. He summarized: “Mr. Velasquez’s scores on a variety
of actuarial measures designate the violence risk in a range of
recidivism rates between moderate and high. . . . However, his
recent conduct and future plans suggest no more than a moderate
risk.” Velasquez’s “number one risk factor” “remain[ed] his
history of drug use. Unfortunately, he has never completed a
substance abuse treatment program and has yet to participate in
one during the past 18 years of prison. Should he be able to

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continue to refrain from substance use, the likelihood of
successful reintegration into the community is much improved.”
e. Opinion of Richard Subia
Richard Subia, a retired Director of Corrections who
had been employed by the CDCR in various capacities for
over 26 years, was appointed as an expert in corrections,
rehabilitation and gang culture. He testified at the hearing and
prepared a written report. Because Velasquez was a member of a
Southern Hispanic street gang before his incarceration, upon
arrival in prison, unofficial prison politics would have required
him to follow the Mexican Mafia’s rules. Velasquez likely had no
choice but to associate with the prison gang for his own safety,
and there was no record showing he engaged in criminal activity
on the gang’s behalf. As noted, a routine review conducted in
2013 determined Velasquez was no longer an active Mexican
Mafia associate.5 Given Velasquez’s age (49), he was unlikely to
return to a gang if released. According to Subia, most of
Velasquez’s prison disciplinary incidents were unremarkable and
insignificant. There was no showing Velasquez had ever
attempted to use a weapon against anyone while incarcerated.
Subia provided explanations for the 2001, 2004, and 2008
incidents.6
5 Debriefing, a process by which an inmate can disassociate
from the Mexican Mafia, places the inmate and his family in
danger. Velasquez did not “debrief” but spent six years in the
SHU before his gang affiliation was reevaluated as a matter of
course.
6 The sharp objects Velasquez was convicted of making in
2008 were inconsistent with inmate-made weapons used as blow
darts or spears. Subia credited Velasquez’s story that the items

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After Velasquez was sent to the SHU, there were no
educational or rehabilitative programs other than correspondence
courses available to him. After he was transferred to another
facility, and at the time of the resentencing hearing, Velasquez
was involved in a GED (General Education Development)
preparation program and was on the waiting list for Alcoholics
Anonymous (AA) and Narcotics Anonymous (NA). The CDCR
had “provided very little opportunity in the form of substance
abuse treatment” for Velasquez during his incarceration.
Velasquez “underst[ood] the need for continued support through
a 12-step program.”
Subia opined that Velasquez currently posed a risk of
danger if released, but that risk was not unreasonable.
Velasquez’s criminal and gang history meant that he might have
difficulty finding a job and housing. Subia explained: “That in
itself means that he would be a risk. But is that risk
unreasonable? In my opinion, it’s not.”
were used as sewing needles because Velasquez’s pants were
hemmed with crude string stitches. In the 2004 incident in
which Velasquez was disciplined for jeopardizing security, he had
refused to follow a guard’s order and, when handcuffed, yelled to
other inmates, “ ‘You saw what happened. You know what time
it is.’ ” In Subia’s view, Velasquez’s comment was not necessarily
a suggestion to other inmates that they assault staff. Subia
explained that the 2001 weapon possession was likely related to
conditions at Calipatria State Prison. At the time there was gang
violence between different inmate groups and Velasquez
explained he had the weapon for his own protection.

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f. Parole plans
Velasquez presented a letter from Behavioral Systems
Southwest, Hollywood Parolee Service Center (BSS). The letter
stated BSS would be able to provide Velasquez with post-release
transitional services, including room, board, and life skills
training.
Malinek’s report stated that Velasquez’s sister would
initially provide food and shelter upon his release. Velasquez
eventually wished to move to Indiana to pursue a relationship
with a woman with whom he had been corresponding.
g. The trial court’s ruling
On October 21, 2014, the trial court denied the petition in a
13-page written ruling. The court recognized that immutable
factors such as Velasquez’s criminal history and prison
disciplinary record could not forever support an unsuitability
finding; over time and in the face of rehabilitative programming
immutable factors were decreasingly predictive of current
dangerousness. “Standing alone,” Velasquez’s disciplinary
history did not convince the court he was unsuitable. However,
Velasquez’s serious misconduct while in prison, considered along
with his significant criminal history, psychological testing
results, lack of rehabilitative programming, and weak post-
release plans demonstrated he currently posed an unreasonable
risk of danger to public safety.
3. Appeal
Velasquez filed an untimely notice of appeal. On
April 2, 2015, we granted his application for relief from default
and request for constructive filing of a notice of appeal.

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DISCUSSION
1. Proposition 36 and Proposition 47
a. Proposition 36
“Under the ‘Three Strikes’ law as originally enacted in
1994, an individual convicted of any felony offense following two
prior convictions for serious or violent felonies was subject to an
indeterminate term of life imprisonment with a minimum term of
no less than 25 years.” (People v. Conley (2016) 63 Cal.4th 646,
651; People v. Johnson (2015) 61 Cal.4th 674, 680.) On
November 6, 2012, the electorate passed Proposition 36. It
“amended the Three Strikes law with respect to defendants
whose current conviction is for a felony that is neither serious nor
violent. In that circumstance, unless an exception applies, the
defendant is to receive a second strike sentence of twice the term
otherwise provided for the current felony, pursuant to the
provisions that apply when a defendant has one prior conviction
for a serious or violent felony. [Citations.]” (People v. Johnson,
supra, at p. 681; People v. Conley supra, at p. 651.)
Proposition 36 also enacted section 1170.126, which created
a discretionary resentencing procedure by which eligible
prisoners already serving third strike sentences may seek
resentencing in accordance with the new sentencing rules.
(People v. Johnson, supra, 61 Cal.4th at p. 682; People v. Conley,
supra, 63 Cal.4th at p. 653; People v. Blakely (2014)
225 Cal.App.4th 1042, 1048.) Such an inmate is eligible for
resentencing unless an enumerated disqualifying factor applies.
An inmate shall be resentenced “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); People v. Johnson, supra, at p. 682;

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People v. Conley, supra, at p. 653.) Section 1170.126 specifies
that in exercising its discretion on the dangerousness inquiry, the
court may consider the defendant’s criminal conviction history,
including the type of crimes committed, the extent of injury to the
victims, the length of prior prison commitments, and the
remoteness of the crimes; the defendant’s disciplinary record and
record of rehabilitation while incarcerated; and any other
evidence the court, in its discretion, determines to be relevant.
(§ 1170.126, subd. (g); People v. Conley, supra, at p. 653.)
Section 1170.126 does not expressly define “unreasonable risk of
danger to public safety.”
b. Proposition 47
On November 4, 2014, after Velasquez filed his
Proposition 36 resentencing petition, the voters enacted
Proposition 47, the Safe Neighborhoods and Schools Act, which
went into effect the following day (Proposition 47). (People v.
Morales (2016) 63 Cal.4th 399, 404; People v. Lynall (2015)
233 Cal.App.4th 1102, 1108.) Proposition 47 amended and
enacted various provisions of the Penal and Health and
Safety Codes that reduced certain drug and theft offenses to
misdemeanors, unless committed by ineligible offenders.
(People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) These
offenses had previously been either felonies or wobblers. (People
v. Rivera, supra, at p. 1091; People v. Lynall, supra, at p. 1108.)
Proposition 47 also enacted section 1170.18, which, like
section 1170.126, created a procedure whereby an eligible
defendant who has suffered a felony conviction of one of the
enumerated crimes can petition to have it redesignated as a
misdemeanor.

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The factors for the court’s consideration in making the
dangerousness determination enumerated in section 1170.18
are identical to those listed in section 1170.126. Unlike
section 1170.126, however, Proposition 47 provides a definition
of unreasonable risk of danger to public safety. Subdivision (c) of
section 1170.18 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.” Section 667,
subdivision (e)(2)(C)(iv) lists serious offenses sometimes referred
to as “super strikes”: specified sex offenses, any homicide offense
or attempted homicide offense defined in sections 187 through
191.5, solicitation to commit murder, assault with a machine gun
on a peace officer or firefighter, possession of a weapon of mass
destruction, or any serious or violent felony punishable in
California by life imprisonment or death. (See People v. Johnson,
supra, 61 Cal.4th at pp. 681-682.) Thus, under the Proposition 47
definition, a court can find an inmate unsuitable only if
resentencing poses an unreasonable risk the inmate will commit
a new “super strike” offense, whereas under Proposition 36, no
such limitation exists.
2. The definition of unreasonable risk of danger in section
1170.18 does not retroactively apply to Velasquez’s Proposition 36
resentencing petition
Velasquez contends that because section 1170.18 states
that Proposition 47’s definition of unreasonable risk of danger to
public safety applies “[a]s used throughout this Code,” it applies
retroactively to Proposition 36 resentencing proceedings. He
insists that the Proposition 47 definition governs here because

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his appeal of the court’s denial of his resentencing petition was
pending when Proposition 47 was passed. Since the trial court
“did not have the benefit of the clarified definition of an
unreasonable risk of danger” when it denied the petition –
because Proposition 47 had not yet been enacted – he avers that
the matter must be remanded for “reconsideration under the
proper standard.”
Our Supreme Court is currently considering whether
Proposition 47’s definition of unreasonable risk of danger to
public safety applies on retroactivity or other grounds to
resentencing under Proposition 36. (People v. Chaney (2014)
231 Cal.App.4th 1391, review granted Feb. 18, 2015, S223676;
People v. Valencia (2014) 232 Cal.App.4th 514, review granted
Feb. 18, 2015, S223825.)
Even were we to assume that Proposition 47’s definition of
“unreasonable risk of danger to public safety” applies
prospectively to Proposition 36 petitions filed after Proposition 47
was enacted, we nonetheless would conclude it does not apply in
this case because petitioner’s Proposition 36 petition for
resentencing was filed and decided before Proposition 47 went
into effect.7 Whether a statute is retroactive turns on the intent
of the enacting body, here, the electorate. (People v. Brown
(2012) 54 Cal.4th 314, 319.) The “default rule” is provided in
section 3: “ ‘No part of [the Penal Code] is retroactive, unless
expressly so declared.’ ” Section 3 “erects a strong presumption of
prospective operation” and codifies “ ‘the time-honored
principle . . . that in the absence of an express retroactivity
7 In light of our conclusion, we need not and do not reach the
question of whether Proposition 47’s definition of unreasonable
risk of danger to public safety applies here.

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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,
supra, at pp. 319, 324.) A statute that is ambiguous with respect
to retroactive application is construed to be unambiguously
prospective. (Id. at p. 324.) The text of Proposition 47 is silent on
the question of retroactivity. The ballot materials, Legislative
Analyst’s analysis, and the arguments in favor of and
against Proposition 47 are likewise silent. (See Voter
Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47 &
analysis by Legis. Analyst, pp. 34-39.) There is therefore “no
clear and unavoidable implication” of retroactivity arising from
the statutory text or the relevant extrinsic sources. (See
generally People v. Brown, supra, at p. 320.)
Velasquez contends In re Estrada (1965) 63 Cal.2d 740,
supports his argument. Estrada established an exception to the
general rule of prospective application. Estrada held: “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.” (Id. at p. 745.) Thus, under the
Estrada rule a statute that lessens punishment is presumed to
apply to all cases not yet final, unless a “saving clause” provides

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for prospective application. (Id. at pp. 747-748.) 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.” (People v. Brown,
supra, 54 Cal.4th at p. 324 [amendment to section 4019,
regarding conduct credits, applied prospectively].)
But Estrada does not apply here because applying the
Proposition 47 definition of “unreasonable risk of danger to public
safety” to petitions for resentencing under Proposition 36 does
not reduce the punishment for a particular crime. Instead,
retroactive application to Proposition 36 proceedings would
change the standard by which dangerousness determinations are
made under Proposition 36. Application of a different
dangerousness standard 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.” (People v. Brown, supra,
54 Cal.4th at p. 325.)8
8 Holder v. Superior Court (1969) 269 Cal.App.2d 314, also
cited by Velasquez, does not compel a different result. In Holder,
several years after the defendant was sentenced to prison the
Legislature amended a statute to provide that when a defendant
had been sentenced and committed to state prison, the trial court
could recall the sentence if deemed warranted by a diagnostic
study. (Id. at p. 316.) Holder concluded the statutory language
unambiguously applied to the inmate and “no question of
‘retroactivity’ in a jurisdictional context” was before the trial
court. (Id. at p. 318.) In contrast, Proposition 47 contains no

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Velasquez makes several arguments in support of his
position, none persuasive. He contends that an appellate court
must apply the law as it exists when it renders its decision
(Kuykendall v. State Bd. of Equalization (1994) 22 Cal.App.4th
1194, 1207), and the law as it now exists is that “unreasonable
risk of danger to public safety” is defined as in section 1170.18,
subdivision (c). But as we have explained, Proposition 47’s
definition does not apply retroactively. The authorities
Velasquez cites do not compel a different conclusion. Beckman v.
Thompson (1992) 4 Cal.App.4th 481 dealt with “a repeal, not a
‘retroactive’ application of a new statute.” (Id. at p. 489.) In
Kuykendall, which involved a tax refund consumer class action,
the court concluded the statutory language and legislative history
“clearly indicate[d] the statute was intended to apply to pending
cases.” (Kuykendall v. State Bd. of Equalization, supra, at
p. 1211.)
Velasquez further argues that Proposition 47’s
dangerousness definition constituted a “clarification” of the law,
and “[a]n amendment which merely clarifies existing law may be
given retroactive effect even without an expression of legislative
intent for retroactivity.” (Negrette v. California State Lottery
Com. (1994) 21 Cal.App.4th 1739, 1744; Re-Open Rambla, Inc. v.
Board of Supervisors (1995) 39 Cal.App.4th 1499, 1510-1511.)
But nothing suggests that the electorate intended section
1170.18, subdivision (c) to operate as a clarification of
Proposition 36. The Proposition 47 ballot materials told voters
language indicating the dangerousness definition was intended to
apply retroactively. Moreover, Holder was decided before our
Supreme Court’s decision in People v. Brown, supra, 54 Cal.4th
314, and to that extent is inapposite.

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the initiative applied only to certain offenses. The Legislative
Analyst explained: “This measure allows offenders currently
serving felony sentences for the above crimes [grand theft,
shoplifting, receiving stolen property, writing bad checks, check
forgery, and drug possession] to apply to have their felony
sentences reduced to misdemeanor sentences.” (Voter
Information Guide, supra, analysis of Prop. 47 by Legis. Analyst,
p. 36; People v. Esparza (2015) 242 Cal.App.4th 726, 736.) The
Voter Information Guide did not mention Proposition 36.
(People v. Esparza, supra, at p. 737.) The Proposition 47 ballot
materials gave no hint that the measure would modify or clarify
Proposition 36 or impact felons convicted of offenses other than
those expressly listed in Proposition 47. (Id. at p. 736.) Under
these circumstances, Proposition 47 cannot readily be construed
as a “clarification” of Proposition 36. (Cf. Re-Open Rambla,
supra, at pp. 1504, 1510-1511 [Legislature expressly stated its
intent to clarify existing law]; Negrette, supra, at p. 1744
[appellate court concluded statutory amendment was a
clarification of existing law].)
Velasquez next argues that the timing of Proposition 47’s
enactment indicates the electorate intended the dangerousness
definition to have retroactive application. He points out that,
absent a showing of good cause, petitions under Proposition 36
were required to be brought within two years after its effective
date, November 7, 2012. Proposition 47 became effective on
November 5, 2014, leaving only two days during which a
Proposition 36 petitioner could have filed a petition while
Proposition 47 was effective. (People v. Esparza, supra,
242 Cal.App.4th at p. 737.) Since the statutory language
“unreasonable risk of danger to public safety” appears only in

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sections 1170.126 and 1170.18, Velasquez argues that prospective
application of the definition would render Proposition 47’s
mandate that the definition applies “throughout this Code”
a nullity. People v. Esparza came to a different conclusion,
reasoning that Proposition 47’s use of the word “petitioner” was
anomalous if the electorate intended the new definition to apply
to resentencing under Proposition 36, presumably because
there would be few Proposition 36 petitions at issue after
Proposition 47’s effective date. (People v. Esparza, supra, at
p. 737.) We agree that in light of the two-year deadline, it is
unreasonable to assume Proposition 47’s dangerousness
definition was intended to apply to Proposition 36 petitions. As
the People argue, it is unlikely the voters intended to change the
standard for section 1170.126 petitions “at the very last moment,
when nearly all petitions would have been filed and most of them
adjudicated.”
In a related argument, Velasquez contends that unless
Proposition 47’s dangerousness definition applies, section
1170.126 is unconstitutionally vague. We disagree. As People v.
Flores (2014) 227 Cal.App.4th 1070 suggested, “it is debatable
whether the vagueness doctrine has application to a superior
court judge making a discretionary sentencing decision.” (Id. at
p. 1074.) But assuming it does, Velasquez’s contention fails.
“ ‘The constitutional interest implicated in questions of statutory
vagueness is that no person be deprived of “life, liberty, or
property without due process of law” ’ ” as assured by the federal
and California Constitutions. A statute must be upheld against a
vagueness challenge unless its unconstitutionality “ ‘clearly,
positively and unmistakably appears.’ ” (People v. Garcia (2014)
230 Cal.App.4th 763, 768.) Here, the “ ‘ “statute clearly and

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precisely delineates its reach in words of common
understanding.” ’ ” (People v. Flores, supra, at p. 1075.) The term
“ ‘unreasonable risk of danger to public safety’ is clear because it
can be objectively ascertained by reference to the examples of
evidence the trial court may consider in making this
determination” set forth in subdivision (g) of section 1170.126.
(People v. Garcia, supra, at pp. 765-766.) The word
“unreasonable” is not impermissibly vague. (People v. Flores,
supra, at p. 1074; People v. Garcia, supra, at p. 769.) “ ‘ “The law
is replete with instances in which a person must, at his peril,
govern his conduct by such nonmathematical standards as
‘reasonable,’ ‘prudent,’ ‘necessary and proper,’ ‘substantial,’ and
the like. . . . ‘There is no formula for the determination of
reasonableness.’ Yet standards of this kind are not
impermissibly vague, provided their meaning can be objectively
ascertained by reference to common experiences of mankind.” ’ ”
(People v. Garcia, supra, at pp. 769-770.) “Surely a superior court
judge is capable of exercising discretion, justly applying the
public safety exception, and determining whether a lesser
sentence would pose an unreasonable risk of harm to the public
safety.” (People v. Flores, supra, at p. 1075.)
Johnson v. United States (2015) 576 U.S. __ [135 S.Ct.
2551], cited by Velasquez, does not compel a different result.
Johnson concluded a clause in the Armed Career Criminal Act of
1984 (ACCA) was unconstitutionally vague. (Id. at p. 2557.)
Under that statute, a defendant convicted of being a felon in
possession of a firearm faced more severe punishment if he had
three or more previous convictions for a violent felony, defined to
include “any felony that ‘involves conduct that presents a serious
potential risk of physical injury to another.’ ” (Id. at p. 2555,

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italics added.) The italicized phrase, denominated the “residual
clause,” had been interpreted to require a court to employ a
framework known as the “categorical approach” to determine
whether the offense qualified. (Id. at pp. 2556-2557.) A court
was required to “picture the kind of conduct that the crime
involves in ‘the ordinary case,’ and to judge whether that
abstraction presents a serious potential risk of physical injury.”
(Ibid.) The inquiry was cast, not in terms of how an individual
offender might have committed a crime on a particular occasion,
but on how the defense was defined. (Ibid.) However, the
required inquiry went “beyond deciding whether creation of risk
[was] an element of the crime” and also went “beyond evaluating
the chances that the physical acts that make up the crime
[would] injure someone.” (Ibid.) Johnson concluded two features
of the residual clause “conspire[d] to make it unconstitutionally
vague. In the first place, the residual clause leaves grave
uncertainty about how to estimate the risk posed by a crime. It
ties the judicial assessment of risk to a judicially imagined
‘ordinary case’ of a crime, not to real-world facts or statutory
elements.” (Ibid.) Second, the residual clause left “uncertainty
about how much risk it takes for a crime to qualify as a violent
felony. It is one thing to apply an imprecise ‘serious potential
risk’ standard to real-world facts; it is quite another to apply it to
a judge-imagined abstraction.” (Id. at p. 2558.) The court
concluded: “[i]ncreasing a defendant’s sentence under the
[residual] clause denies due process of law.” (Id. at p. 2557.)
Unlike the ACCA, section 1170.126, subdivision (g)
requires that the trial court decide whether a defendant is
dangerous based on real-world facts, illustrative examples of
which are provided in subdivisions (g)(1), (2), and (3). The trial

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court here assessed Velasquez’s risk of dangerousness by
reference to facts in the record. Johnson explained that “[a]s a
general matter, we do not doubt the constitutionality of laws that
call for the application of a qualitative standard such as
‘substantial risk’ to real-world conduct; ‘the law is full of
instances where a man’s fate depends on his estimating
rightly . . . some matter of degree. . . .’ ” (Johnson v. United
States, supra, 135 S.Ct. at p. 2561.) Moreover, unlike the ACCA,
Proposition 36 cannot increase a defendant’s sentence. As we
explained in People v. Superior Court (Kaulick) (2013)
215 Cal.App.4th 1279: “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. [¶] The maximum sentence
to which Kaulick, and those similarly situated to him, is subject
was, and shall always be, the indeterminate life term to which he
was originally sentenced.” (Id. at p. 1303, internal fn. omitted.)
3. The trial court did not abuse its discretion by denying
the petition
a. Standard of review
As noted, under the Reform Act, if the petitioner is
statutorily eligible for relief he “shall be resentenced . . . 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).) The People have the burden of
proving a petitioner’s dangerousness by a preponderance of the

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evidence. (People v. Superior Court (Kaulick), supra,
215 Cal.App.4th at p. 1301; People v. Flores, supra,
227 Cal.App.4th at p. 1075-1076; People v. Esparza, supra,
242 Cal.App.4th at pp. 740-741.) To meet that burden, the
People must present substantial evidence that the petitioner’s
release currently poses an unreasonable risk of danger to public
safety. (People v. Esparza, supra, at p. 745.) A trial court may
deny resentencing solely on the basis of immutable facts, such as
a petitioner’s criminal history, only if those facts support the
ultimate conclusion that an inmate continues to pose an
unreasonable risk. (Id. at p. 746.)
We review the trial court’s ruling for abuse of discretion.
“ ‘Where, as here, a discretionary power is statutorily vested in
the trial court, its exercise of that discretion “must not be
disturbed on appeal except on a showing that the court exercised
its discretion in an arbitrary, capricious or patently absurd
manner that resulted in a manifest miscarriage of justice.
[Citations.]” ’ ” (People v. Williams (2013) 58 Cal.4th 197,
270-271; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
A trial court abuses its discretion when the factual findings
underlying its decision are unsupported by substantial evidence,
or when its decision is based on an incorrect legal standard.
(People v. Knoller (2007) 41 Cal.4th 139, 156; People v. Cluff
(2001) 87 Cal.App.4th 991, 998; People v. Iraheta (2014)
227 Cal.App.4th 611, 619.) It is the defendant’s burden to
demonstrate an abuse of discretion. (See People v. Superior
Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)

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b. Proposition 36 did not create a presumption in favor of
resentencing
Before turning to the merits, we consider Velasquez’s
contention that under section 1170.126, a second strike sentence
is the presumptive sentence, and resentencing may be denied
only in extraordinary cases. He points out, correctly, that our
Supreme Court has held that the Three Strikes law established a
sentencing norm and created a strong presumption that any
conforming sentence is both rational and proper. (People v.
Carmony (2004) 33 Cal.4th 367, 378.) Thus, only in
extraordinary circumstances can a career criminal be deemed to
fall outside the spirit of the Three Strikes law. (Ibid.) Velasquez
contends that Proposition 36 “changed the ‘spirit’ of the Three
Strikes law” and created the opposite presumption, i.e., that a
petitioner whose third strike is neither violent nor serious, and
who does not fall within one of the statutory exemptions, should
be sentenced as a second strike offender except in extraordinary
cases. In support he points to the electorate’s stated intent to
“restore the original intent of California’s Three Strikes law –
imposing life sentences for dangerous criminals like rapists,
murderers, and child molesters.” (Voter Information Guide,
Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 1, p. 105.)9
We do not agree that Proposition 36 created a presumption
that eligible defendants must be resentenced except in
extraordinary cases. People v. Esparza is instructive. The court
9 As Velasquez requests, we take judicial notice of the Voter
Information Guide, General Election (Nov. 6, 2012) regarding
Proposition 36. (Evid. Code, § 452.) We also take judicial notice
of the Proposition 47 ballot materials discussed ante.

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there reasoned: “We do not agree with defendant that a second
strike sentence is the presumptive sentence. [¶] . . . [T]he
language of subdivision (f) of section 1170.126 reads that a
petitioner who meets the eligibility criteria ‘shall be resentenced
[as a second strike offender] unless the court, in its discretion,
determines that resentencing the [inmate] would pose an
unreasonable risk of danger to public safety.’ It is not
unreasonable to read this text to mean that a court ‘shall’ impose
a second strike sentence unless ‘at the discretion of the court’ the
petitioner’s original sentence of 25 years to life appears more
appropriate because of an unreasonable risk of danger to the
public. However, it is equally reasonable to read the text to mean
that a court may select one of the two penalties (a second strike
sentence or the original life sentence) in the exercise of its
discretion, with no presumption in favor of one or the other.”
(People v. Esparza, supra, 242 Cal.App.4th at p. 738.) Esparza
reasoned that its conclusion “comports with the plain language of
the statute. Had voters intended to permit retention of an
indeterminate term only in extraordinary cases, they would have
said so in subdivision (f) of section 1170.126, rather than
employing language that affords courts broad discretion to find
dangerousness. In addition, they would not have afforded the
trial court the power to consider any evidence it determined to
be relevant to the issue as they did in subdivision (g)(3) of
section 1170.126.” (Id. at p. 739.)
We came to a similar conclusion in People v. Superior Court
(Kaulick), supra, 215 Cal.App.4th 1279. There, in rejecting an
inmate’s contention that the prosecution had to prove
dangerousness beyond a reasonable doubt, we explained:
“Kaulick would interpret the retrospective part of the Act to

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mean that every petitioner who meets the eligibility
requirements for resentencing is immediately entitled to the
recall of his or her sentence, with resentencing to a second strike
term the presumptive sentence, and resentencing to the current
third strike term available only on proof beyond a reasonable
doubt of the additional factor of dangerousness. There is nothing
in the statutory language to support this interpretation.” (Id. at
p. 1303.) For the foregoing reasons, we reject Velasquez’s
contention that resentencing is mandated except in extraordinary
cases.
c. The trial court’s denial of the petition was supported by
substantial evidence and was not an abuse of discretion
Turning finally to consideration of the trial court’s ruling,
we discern no abuse of discretion. The trial court’s written ruling
makes clear that it carefully considered the evidence presented
and applied the proper standards. Psychological testing
indicated Velasquez fell within the moderate to high range for
risk of reoffense. Dr. Malinek concluded Velasquez presented a
moderate risk of violence. It is not an abuse of discretion to
conclude the release of a prisoner who poses a moderate to high
risk of reoffense poses an unreasonable risk of danger to public
safety. Malinek also opined that it was uncertain how Velasquez
would function in the community. It was undisputed that
Velasquez’s prior criminality was directly related to his heroin
addiction, but he had never participated in substance abuse
treatment while incarcerated. Although such programs were
apparently largely unavailable to Velasquez due to his validation
as a Mexican Mafia associate and his own prison misconduct, the
fact remains that his substance abuse had never been treated.
Further, his post-release plans made no concrete provision for

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substance abuse treatment or relapse avoidance. Velasquez’s
prison disciplinary history was documented by the evidence. The
trial court’s conclusion that, viewed in totality, the evidence
indicated an unreasonable risk of danger to public safety was
neither arbitrary nor capricious, and its decision was supported
by substantial evidence.10
The record does not suggest the trial court placed undue
importance on Velasquez’s prior criminality and prison
disciplinary history, as Velasquez asserts. The court expressly
10 Relying on Board of Pardons v. Allen (1987) 482 U.S. 369
and Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1,
Velasquez argues that he has a “due process liberty interest” in
resentencing under both the federal and California Constitutions.
He contends that section 1170.126 contains “mandatory
language” giving rise to such an interest, and the denial of a
petition deprives an inmate of an earlier release date. Therefore,
he argues, he was entitled to notice of the resentencing
proceedings, an opportunity to be heard, and a statement of the
reasons for the denial. Further, he insists that due process
requires that before a resentencing petition may be denied, there
must be a “rational nexus between the inmate’s record and the
court’s conclusion of dangerousness” based on the court’s
balancing all the factors in the record. But, assuming for the
sake of argument that section 1170.126’s language gives rise to
such a liberty interest – a conclusion with which we do not
necessarily agree – Velasquez fails to demonstrate that he has
been deprived of due process here. The trial court conducted a
noticed hearing at which it took evidence. Velasquez was present
and represented by counsel. He had the opportunity to, and did,
present evidence. The trial court provided a 13-page written
ruling detailing its conclusions, which made clear that the court
did, in fact, consider and balance the totality of the evidence and
find a “nexus” between Velasquez’s record and dangerousness.

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acknowledged that such immutable factors cannot, standing
alone, support a dangerousness finding. Its decision was based
on the conclusion that the totality of the circumstances, including
the psychological testing results, lack of substance abuse
treatment, and Velasquez’s weak post-release plans,
demonstrated dangerousness. Contrary to Velasquez’s argument,
the trial court did not improperly shift to him the burden of
proving the adequacy of his parole plans and the “sincerity of his
sobriety.” The People presented ample evidence that Velasquez’s
criminality was due to his drug addiction. Based on this, the trial
court properly could conclude the absence of substance abuse
treatment was problematic. Velasquez’s other arguments – e.g.,
that he does not suffer from psychological problems, has no
record of violence in prison, has overcome his drug addiction, has
joined AA and NA, and will continue participation in these
programs upon release – are merely requests that we reweigh the
evidence and improperly substitute our judgment for that of the
trial court. (See, e.g., People v. Jackson (2014) 58 Cal.4th 724,
749.)

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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
EDMON, P. J.
STRATTON, J.
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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