P. v. Banuelos

Filed 11/18/16 P. v. Banuelos CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
EUSEBIO BANUELOS,
Defendant and Appellant.
B266248
(Los Angeles County
Super. Ct. No. SA017369)
APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Affirmed.
Leonard J. Klaif, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Noah P. Hill and Timothy L.

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O’Hair, Deputy Attorneys General, for Plaintiff and
Respondent.
——————————
In 1994, the trial court, pursuant to the “Three Strikes”
law (Pen. Code, § 667, subd. (e)(2)(A)1) sentenced defendant
Eusebio Banuelos (Banuelos) to an indeterminate term of
25 years to life in prison. In 2013, Banuelos filed a petition
for recall of sentence pursuant to Proposition 36 (§ 1170.126)
(the petition). In 2015, the court denied the petition and
Banuelos’s subsequent motion for reconsideration (the
motion).
On appeal, Banuelos advances three arguments. First,
he contends that the orders denying the petition and the
motion should be reversed because the trial court used the
wrong definition of “unreasonable risk of danger to public
safety.” Specifically, Banuelos argues that the trial court
should have used the restrictive definition of “unreasonable
risk of danger to public safety” found in Proposition 47
(§ 1170.18). According to Banuelos, because Proposition 47
says, “[a]s used throughout this Code, ‘unreasonable risk of
danger to public safety’ means an unreasonable risk that the
petitioner will commit a new violent felony” (§ 1170.18,
subd. (c), italics added), Proposition 47 imports its definition
of “unreasonable risk of danger to public safety” into the
entire Penal Code, including, as relevant here, into
1 All further statutory references are to the Penal Code
unless otherwise indicated.

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Proposition 36 resentencing determinations. As a result,
Banuelos argues that the matter should be remanded to the
trial court with instructions to either grant the petition or
reconsider it under Proposition 47’s definition of
dangerousness. In the alternative, Banuelos argues that
under any definition of that term, he did not pose such a
risk. Finally, Banuelos maintains reversal is required
because his counsel was ineffective.
We disagree with all of Banuelos’s arguments and,
accordingly, affirm.
BACKGROUND
I. Banuelos’s “strike” convictions
On April 28, 1982, in two consolidated cases—one for
the robbery of a Lucky grocery store (§ 211); the other for an
attempted robbery of an Albertson’s grocery store
(§§ 664/211), with both crimes involving the use of a
firearm—the court sentenced Banuelos to prison terms of
five years and four years, respectively, with the terms
running concurrently. At the time, Banuelos was 19 years
old.
On September 14, 1994, after a jury convicted
Banuelos of driving a vehicle without consent (Veh. Code,
§ 10851, subd. (a)) and possession of stolen property (§ 496),
the court imposed an indeterminate term of 25 years to life,

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pursuant to the Three Strikes law.2 At the time, Banuelos
was 31 years old.
II. The petition
On or about March 1, 2013, Banuelos filed the petition.
At the time, Banuelos was 50 years old and had served 18
years of his 25 years to life sentence.
On March 7, 2013, in response to the petition, the trial
court ordered the People to show cause as to why relief
should not be granted pursuant to section 1170.126.
On April 28 and May 7, 2015, the trial court held a
hearing on Banuelos’s suitability for resentencing pursuant
to Proposition 36 (§ 1170.126, subd. (f), (g)). For its case in
chief, the People did not call any witnesses, but instead
introduced documentary evidence regarding Banuelos’s
criminal history and his prison disciplinary record. The
People’s evidence with regard to Banuelos’s conduct while in
prison showed 11 serious rules violations between 1994 and
2013. Six of those violations, which occurred between 1996
and 2004, concerned either the possession of drug
paraphernalia, controlled substances, or inmate-
manufactured alcohol. Two violations involved the threat or
risk of violence—in 2003, Banuelos was found guilty of
2 After being released on parole in 1986, Banuelos
suffered a number of other convictions before receiving his
third “strike” conviction in 1994. Those convictions either
involved taking a vehicle without consent (Veh. Code,
§ 10851, subd. (a)) or a drug-related crime (Health & Saf.
Code, §§ 11350, subd. (a), 11550, subd. (a)).

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conspiracy to commit battery on an inmate who owed him
money; and in 2010, he pleaded guilty to possession of a
deadly weapon (a razor blade). In 2007, Banuelos pleaded
guilty to refusing a direct order. Finally, on two separate
occasions—first in 2011 and again in 2013—Banuelos
pleaded guilty to participating in a hunger strike while
housed in Pelican Bay State Prison’s Special Housing Unit
(SHU).
In addition, the People introduced evidence showing
that prison officials had determined in 2007 and again in
2012 that Banuelos was an active associate of the Mexican
Mafia prison gang.
Finally, the People offered evidence regarding
Banuelos’s security risk scores as determined by the
California Department of Corrections and Rehabilitation
(CDCR). Under the CDCR’s scoring system, the lower an
inmate’s CDCR classification score, the lower the perceived
security risk and the more access an inmate has to programs
and work opportunities. Points are added to an inmate’s
score for serious rules violations. An inmate can lower his or
her score by not violating the rules for extended periods and
by performing well in work, school, or vocational training. A
score of 19 is the lowest an inmate can receive. As a life
inmate, Banuelos would have a mandatory minimum score
of 52. Between 1994 and 2014,Banuelos’s classification score
never fell below 60 and his June 2014 score was 104, which,
at the time, was his highest score to date.

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Banuelos attempted to rebut the People’s evidence
through the expert testimony of Richard Subia (Subia), a
public safety consultant, who previously worked for the
CDCR for 27 years, rising up from a correctional officer to
acting director of the department. Subia opined that
Banuelos would not “pose an unreasonable risk of danger to
public safety if he were resentenced as a second striker.”
Subia’s opinion was based on several facts. First, while
Banuelos may be affiliated with the Mexican Mafia prison
gang, he is not a “shot caller” in that gang, noting that
Banuelos had been stabbed several times in prison for drug
debts, something that would not happen to a gang leader or
“shot caller.” Indeed, Subia opined that, given his drug
habit, Banuelos had to be affiliated with the gang in order to
secure access to illegal drugs. Second, Banuelos had not
been accused of any violent behavior since 2003 and, with
the possible exception of the hunger strikes, Banuelos had
not participated in any gang behavior while in prison;
according to Subia, Banuelos’s participation in the state-
wide SHU hunger strikes should be seen as an act of self-
preservation, as he would have been in danger had he not
participated. Moreover, Banuelos had been approved for a
double cell, which indicated that prison officials did not
regard Banuelos as being “assaultive” or exhibiting
“predatory behavior.” Third, while Subia conceded that
Banuelos had “significant problems with substance abuse”
both before and after being sent to prison, there was
“nothing in his file to indicate that he ha[d] any current

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issues with substance abuse.” In fact, the last drug-related
incident in Banuelos’s file was from 2004, more than a
decade ago.3
On May 21, 2105, in a written memorandum, the court
denied the petition, finding that the preponderance of the
evidence demonstrated that Banuelos poses an unreasonable
risk of danger to public safety.
The trial court identified three principal reasons for
denying the petition. First, there was the Banuelos’s
criminal history and substance abuse problems. As the court
explained, all of Banuelos’s convictions were related to “his
need to buy and use illicit drugs.” The court noted that
Banuelos never completed probation or parole successfully
and his criminal history is that of the “classic drug addict[ ],
who commits property crimes to support his habit.”
“Because of the undeniable link between [Banuelos’s] history
of substance abuse and criminal behavior,” the trial court
noted that “it is not surprising that six of the eleven [serious
rules violations] involve drugs or alcohol or drug
paraphernalia.”
Second, the court found Banuelos’s continued
involvement in and/or affiliation with prison gangs “very
troubling.” Despite his long incarceration, Banuelos never
3 The People did present a rebuttal witness, a Los
Angeles County Sheriff’s deputy assigned to the prison gang
unit, however the trial court found the testimony of this
witness “unreliable” due to the lack of any personal
knowledge of Banuelos.

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“repudiated his gang involvement or affiliation. In fact, as
recently as 2012, prison staff discovered a birthday card sent
to [Banuelos] from a fellow Mexican Mafia gang member
with symbols showing allegiance to the gang. . . . [Banuelos]
also currently maintains his gang tattoo as well.”
Third, the court found it quite concerning that despite
his long history of substance abuse, there was “no
information in the record that [Banuelos] actually engaged
in substance abuse programming” while in prison and “no
indication at all that [Banuelos] will receive drug counseling,
accountability or has in effect any relapse prevention plan.”
III. The motion
On June 5, 2015, Banuelos filed his motion for
reconsideration. The motion focused most centrally on the
purported inadequacy of Banuelos’s re-entry plan.
Banuelos’s counsel argued that he believed it was irrelevant
to present evidence of a re-entry plan after the court
allegedly stated in a tentative ruling in May 2014—almost a
full year before the suitability hearing—that if Banuelos was
released from jail, he would have to spend a year in a live-in
drug treatment program. On June 23, 2015, Banuelos’s
counsel augmented the motion by submitting, inter alia, a
letter from Cri Help accepting Banuelos into its residential
drug treatment program.
On July 17, 2105, in a written decision the trial court
denied the motion. The decision emphasized that the
tentative ruling was not binding and that it “did not absolve
counsel from presenting evidence as to permanent housing,

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prevention of future drug addiction (which is often a lifelong
battle) and family support after leaving transitional
housing.” Finally, it found that “even if counsel had
presented testimony [regarding a post-release drug
program] . . . this issue was not determinative of the Court’s
decision as re-entry plans are only relevant if [Banuelos] was
first not found to pose an unreasonable risk of danger to
public safety.”
On August 6, 2015, Banuelos filed a timely notice of
appeal challenging the denial of the petition and the motion.
DISCUSSION
I. Proposition 47’s definition of “unreasonable risk
of danger to public safety” does not apply to
Proposition 36
A. Rules for the interpretation of voter initiatives
The first issue raised by Banuelos requires us to
interpret Proposition 36 and Proposition 47. “ ‘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 primary purpose is to ascertain and effectuate

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the intent of the voters who passed the initiative measure.’ ”
(People v. Briceno (2004) 34 Cal.4th 451, 459.) When the
language is not ambiguous, the plain meaning of the
statutory language controls, unless it would lead to absurd
results the electorate could not have intended. (People v.
Birkett (1992) 21 Cal.4th 226, 231.) Furthermore, although
courts may not generally rewrite a statute’s unambiguous
language, a word that has been erroneously used may be
subject to judicial correction in order to “best carry out the
intent of the adopting body.” (People v. Skinner (1985) 39
Cal.3d 765, 775.) In short, we must “ ‘ “ ‘select the
construction that comports most closely with the apparent
intent of the [voters], with a view toward promoting rather
than defeating the general purpose of the statute.’ ” ’ ”
(Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1146.)
B. Proposition 36
“Prior to its amendment by [Proposition 36], the Three
Strikes law required that a defendant who had two or more
prior convictions of violent or serious felonies receive a third
strike sentence of a minimum of 25 years to life for any
current felony conviction, even if the current offense was
neither serious nor violent. (Former §§ 667, subds. (d),
(e)(2)(A), 1170.12, subds. (b), (c)(2)(A).) [Proposition 36]
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

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felony, pursuant to the provisions that apply when a
defendant has one prior conviction for a serious or violent
felony.” (People v. Johnson (2015) 61 Cal.4th 674, 680–681,
fn. omitted.)
“[Proposition 36] also created a postconviction release
proceeding whereby a prisoner who is serving an
indeterminate life sentence imposed pursuant to the three
strikes law for a crime that is not a serious or violent felony
and who is not disqualified, may have his or her sentence
recalled and be sentenced as a second strike offender unless
the court determines that resentencing would pose an
unreasonable risk of danger to public safety. (§ 1170.126.)”
(People v. Yearwood (2013) 213 Cal.App.4th 161, 168.)
In determining whether the petitioner would pose an
unreasonable risk of danger to public safety, “the court may
consider: [¶] (1) The petitioner’s criminal conviction history,
including the type of crimes committed, the extent of injury
to victims, the length of prior prison commitments, and the
remoteness of the crimes; [¶] (2) The petitioner’s
disciplinary record and record of rehabilitation while
incarcerated; and [¶] (3) Any other evidence the court,
within its discretion, determines to be relevant in deciding
whether a new sentence would result in an unreasonable
risk of danger to public safety.” (§ 1170.126, subd. (g).)
Proposition 36 became effective on November 6, 2012.
(See People v. Brown (2014) 230 Cal.App.4th 1502, 1507.)
Under section 1170.126, a petition for resentencing must be
filed within two years of Proposition 36’s enactment “or at a

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later date upon a showing of good cause . . . .” (§ 1170.126,
subd. (b).)
C. Proposition 47
Two years and two days after enacting Proposition 36,
the voters enacted Proposition 47. (§ 1170.18, (effective
Nov. 5, 2014); see People v. Rivera (2015) 233 Cal.App.4th
1085, 1089.)
Proposition 47 redesignates as misdemeanors “certain
drug- and theft-related offenses” that were charged as
felonies or charged as “wobblers” (that is, offenses that are
punishable as a felony until a court reduces them to a
misdemeanor) and ultimately sentenced as felonies.4
(People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.)
Among other things, Proposition 47 empowers “[a] person
currently serving a sentence for a conviction” to “petition for
a recall of sentence.” (§ 1170.18, subd. (a).)
Similar to Proposition 36, a court evaluating whether
to recall a sentence under Proposition 47 must assess
(1) whether the petitioner is eligible for relief under
Proposition 47, and (2) whether “resentencing the petitioner
would pose an unreasonable risk of danger to public safety.”
(§ 1170.18, subd. (b).) Although Proposition 47 urges a court
to consider the same three types of evidence as Proposition
4 Proposition 47 redesignated as misdemeanors the
crimes defined in Health and Safety Code sections 11350,
11357, and 11377 and in Penal Code sections 459.5, 473,
476a, 490.2, 496, and 666. (§ 1170.18, subd. (b).)

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36 (ibid., 1170.126, subd. (g)), Proposition 47 substantially
narrows the scope of the court’s inquiry into suitability.
Specifically, Proposition 47 provides: “As used throughout
this Code, ‘unreasonable risk of danger to public safety’
means an unreasonable risk that the petitioner will commit
a new violent felony within the meaning of” subdivision
(e)(2)(C)(iv) of section 667. (Id., subd. (c).) In other words,
rather than focus on whether the petitioner poses an
“unreasonable risk of danger to public safety” generally, a
court evaluating a Proposition 47 petition is to assess only
whether there is an “unreasonable risk that the petitioner
will commit” one of a handful of particularly egregious
“violent” felonies that are often referred to super strikes.5
(Ibid.)
D. Analysis
As a preliminary matter, we note that other appellate
districts have considered whether Proposition 47’s narrower
5 Those offenses include (1) a “ ‘sexually violent
offense’ ” (Welf. & Inst. Code, § 6600), (2) oral copulation,
sodomy, or sexual penetration with a child under the age of
14 when the defendant is 24 or older (Pen. Code, §§ 288a,
286, 289), (3) a lewd or lascivious act involving a child under
the age of 14 (Pen. Code, § 288), (4) homicides and attempted
homicides (Pen. Code, §§ 187–191.5), (5) soliciting murder
(Pen. Code, § 653f), (6) assault with a machine gun on a
peace officer or firefighter (Pen. Code, § 245), (7) possessing
a weapon of mass destruction (Pen. Code, § 11418, subd. (a)),
and (8) any other serious or violent felony punishable by life
imprisonment or death. (§ 667, subd. (e)(2)(C)(iv).)

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definition of “unreasonable risk of danger to public safety”
applies to a Proposition 36 resentencing petition, have
reached different opinions on this matter, and that the issue
is currently pending before our Supreme Court.6
For the reasons that follow, we conclude that the voters
erroneously used the word “Code” in section 1170.18,
subdivision (c), rather than the word “Act,” and that this
error is properly subjected to judicial correction.
Specifically, as we now discuss, we believe the voters
intended in section 1170.18, subdivision (c) to refer to
Proposition 47, not to the entire Penal Code. We therefore
conclude that the passage of Proposition 47 did not alter
Proposition 36 or section 1170.126.
First, other portions of Proposition 47’s text strongly
suggest that its definition of “unreasonable risk of danger to
public safety” was not meant to extend beyond
Proposition 47 itself. For example, subdivision (n) states:
“Nothing in this and related sections is intended to diminish
6 See, e.g., People v. Valencia (2014) 232 Cal.App.4th
514, review granted February 18, 2015, S223825 [Prop. 47’s
definition does not apply to Prop. 36 petitions]; People v.
Florez (2016) 245 Cal.App.4th 1176, review granted June 8,
2016, S234168 [same]; People v. Myers (2016) 245
Cal.App.4th 794, review granted May 25, 2016, S233937
[same]; People v. Lopez (2015) 236 Cal.App.4th 518, review
granted July 15, 2015, S227028 [same]; People v. Cordova
(2016) 248 Cal.App.4th 543, review granted August 31, 2016,
S236179 [Prop. 47’s definition does apply to Prop. 36
petitions].)

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or abrogate the finality of judgments in any case not falling
within the purview of this act.” (§ 1170.18, subd. (n), italics
added.) However, if a court evaluating a Proposition 36
petition must grant that petition unless it finds a
unreasonable risk that a defendant will commit a super
strike (rather than a risk of danger to public safety more
generally), the finality of that judgment is “diminished” by
Proposition 47’s definition.
Similarly, the wording of section 1170.18,
subdivision (c) is also inconsistent with an intent to apply
that subdivision throughout the entire Penal Code.
Subdivision (c) refers to the “petitioner,” a term that is used
throughout Proposition 47 to refer to persons petitioning
under “this section” or “this act.” (See § 1170.18, subds. (a),
(b), (c), (j), (1), (m).) Accordingly, subdivision (c)’s use of the
term “petitioner” suggests that the term is limited to
individuals petitioning under that particular act. (§ 1170.18,
subd. (c).)
Second, the official title and summary, legal analysis,
and arguments for and against Proposition 47 nowhere
suggest that Proposition 47 will have an impact on
Proposition 36. (See Voter Information Guide, Gen. Elec.
(Nov. 4, 2014) Prop. 47 (Voter Information Guide),
<http://vigarchive.sos.ca.gov/2014/general/en/propositions/47/
> (as of October 28, 2016.) The ballot materials do not, for
example, say that Proposition 47 will severely restrict the
ability of courts to reject resentencing petitions under
Proposition 36. Neither the text of Proposition 47 nor its

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ballot materials say anything about Proposition 36 or about
exporting Proposition 47’s newly minted definition of
“unreasonable risk of danger to public safety” to other
resentencing schemes. (§ 1170.18; Voter Information Guide,
passim; see generally People v. Mosley (2015) 60 Cal.4th
1044, 1073 [looking to ballot summaries and arguments in
assessing voters’ intent].) Although Proposition 47 and
Proposition 36 “are similar in structure and contain similar
remedial resentencing provisions” (People v. Rouse (2016)
245 Cal.App.4th 292, 298; People v. Rivas–Colon (2015) 241
Cal.App.4th 444, 452, fn. 4), they have different goals and
purposes. Proposition 47 is designed to give lower-level
criminals who have committed “nonserious, nonviolent
crimes like petty theft and drug possession” a reduced
sentence. (Voter Information Guide, text of Prop. 47, § 3,
subd. (3), at p. 70.) Proposition 36, in contrast, is designed to
give hardened criminals with at least two prior serious or
violent convictions a reduced sentence on their third felony
(from 25 to life down to double the usual sentence).
(§ 1170.126, subd. (f).) Proposition 47 was to be “liberally
construed to effectuate its purpose.” (Voter Information
Guide, text of Prop. 47, § 18, at p. 74.)
Third, the timing of Proposition 47 is inconsistent with
an intent to affect Proposition 36 petitions. Proposition 36
required defendants to file petitions within two years from
its enactment absent a showing of good cause for a late
petition. (§ 1170.126, subd. (b).) Proposition 47 was enacted
with only two days remaining in the two-year period for

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filing Proposition 36 petitions. A rational voter would not
have understood Proposition 47 to change the rules for
Proposition 36 petitions when the period for filing such
petitions had almost expired unless there was some
explanatory reference to Proposition 36. The ballot
materials for Proposition 47 contain no such reference to
Proposition 36. (Voter Information Guide, passim.)
On these grounds, we conclude that section 1170.18,
subdivision (c) contains a drafting error—the use of the word
“Code”—that must be judicially corrected to read “Act.” As
corrected, Proposition 47’s definition of “unreasonable risk of
danger to public safety” does not apply to Proposition 36.
Accordingly, we hold that the trial court did not rely upon an
incorrect definition of that term.
II. The trial court did not abuse its discretion in
determining that Banuelos posed an “unreasonable
risk of danger to public safety”
A. Standard of review
Section 1170.126 provides that the trial court must
exercise its discretion to determine whether a petitioner
would pose an unreasonable risk of danger to public safety.
(§ 1170.126, subd. (f).) “Where . . . 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.’ ” (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1124–1125.) The “court

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does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree
with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
B. No abuse of discretion in denying the petition
In its detailed memorandum of decision, the trial court
considered each of the three categories of evidence outlined
in Proposition 36;7 weighed them; and ultimately concluded
that Banuelos’s criminal history, disciplinary history,
continued gang affiliation, and absence of a “solid and
reliable” re-entry plan meant that Banuelos posed an
unreasonable risk of danger to public safety. Accordingly,
we hold that the trial court did not abuse its discretion in
denying the petition.
III. The trial court did not abuse its discretion in
denying the motion
Motions for reconsideration must be based on “new or
different facts, circumstances, or law.” (Code Civ. Proc.,
§ 1008, subd. (a)–(b).) “An abuse of discretion standard
applies to a court’s denial of a motion for reconsideration.”
(Hudson v. County of Los Angeles (2014) 232 Cal.App.4th
392, 408.)
Banuelos argues that the trial court abused its
discretion by refusing “to re-open the matter to allow the
7 Those three categories are as follows: “criminal
conviction history”; prison “disciplinary record”; and other
evidence “relevant in deciding whether a new sentence
would result in an unreasonable risk of danger to public
safety.” (§ 1170.126, subd. (g).)

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introduction of evidence of a re-entry plan.” Banuelos’s
argument misses the point. There was no need to reconsider
the petition in light of Banuelos’s postpetition admission into
a resident treatment program, because there was sufficient
evidence based on Banuelos’s criminal history, prison
disciplinary history, CDCR risk scores, and continued gang
affiliation for the trial court to find that Banuelos’s
resentencing posed an unreasonable risk to public safety
without considering the existence of a treatment program.
As the trial court explained, “even if counsel had presented
testimony [regarding a post-release drug program] . . . this
issue was not determinative of the Court’s decision as
reentry plans are only relevant if [Banuelos] was first not
found to pose an unreasonable risk of danger to public
safety.” In his motion, Banuelos did not offer any new facts
or circumstances other than those related to his admission
into the Cri Help residential treatment program.
Because there were sufficient facts for the trial court to
find that Banuelos posed an unreasonable risk of danger to
public safety without considering the Cri Help admission,
and because Banuelos did not offer evidence regarding any
other new facts or circumstances on the risks posed to public
safety from his resentencing, the trial court did not abuse its
discretion in denying the motion.
Moreover, the party moving for reconsideration must
provide a satisfactory explanation for the failure to produce
the new or different facts at an earlier time. (Shiffer v. CBS
Corporation ( 2015) 240 Cal.App.4th 246, 255.) Here, as the

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trial court noted in its decision, there was no satisfactory
explanation offered for why evidence of admission into a
residential treatment program, such as that offered by Cri
Help, was not offered at the hearing on the petition: the
purported tentative ruling, which was made one year prior
to the hearing, was not binding and, more critically, it “did
not absolve counsel from presenting evidence [at the
suitability hearing] as to permanent housing, prevention of
future drug addiction (which is often a lifelong battle) and
family support after leaving transitional housing.”
Under these circumstances, we hold that the trial court
did not abuse its discretion in denying the motion.
IV. Banuelos’s ineffective assistance of counsel claim
is premature
A. Standard of review
To prevail on a claim of ineffective assistance of
counsel, defendant must establish her attorney’s
representation fell below professional standards of
reasonableness and must affirmatively establish prejudice.
(Strickland v. Washington (1984) 466 U.S. 668, 687; People v.
Hart (1999) 20 Cal.4th 546, 623–624.) If the defendant’s
showing is insufficient as to one component of this claim, we
need not address the other. (Strickland, at p. 697.)
However, “[a] claim on appeal of ineffective assistance
of counsel must be rejected ‘ “[if] the record on appeal sheds
no light on why counsel acted or failed to act in the manner
challenged[,] . . . unless counsel was asked for an
explanation and failed to provide one, or unless there simply

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could be no satisfactory explanation.” ’ [Citations.] Unless
the record affirmatively discloses that counsel had no
tactical purpose for his act or omission, ‘the conviction will
be affirmed and the defendant relegated to habeas corpus
proceedings at which evidence dehors the record may be
taken to determine the basis, if any, for counsel’s conduct or
omission.’” (People v. Hinds (2003) 108 Cal.App.4th 897,
901.)
As our Supreme Court observed in People v. Mendoza
Tello (1997) 15 Cal.4th 264 (Mendoza Tello), “[b]ecause
claims of ineffective assistance are often more appropriately
litigated in a habeas corpus proceeding, the rules generally
prohibiting raising an issue on habeas corpus that was, or
could have been, raised on appeal [citations] would not bar
an ineffective assistance claim on habeas corpus.” (Id. at
p. 267.) In Mendoza Tello, the Supreme Court unanimously
reversed the Court of Appeal’s reversal of the defendant’s
conviction on the grounds that counsel was ineffective for
failing to make a suppression motion; the court did so due to
gaps in the record: “On this record, we do not know what
[the deputy] would have said had he been asked at a
suppression hearing why he did what he did . . . . [P]erhaps
he did have a reason, of which defense counsel was aware,
and which justified counsel’s actions. Perhaps there was
some other reason not to suppress the evidence.” (Ibid.) “No
one gave [the deputy] the opportunity to point to any specific
and articulable facts justifying his actions. Nor did the

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prosecution have the opportunity to offer some other possible
reason not to suppress the evidence.” (Ibid.)
The lesson from Mendoza Tello, supra, 15 Cal.4th 264,
is that an appellate court should not reverse “unless it can
be truly confident all the relevant facts have been
developed.” (Id. at p. 267.) Or, as the court in People v.
Hinds, supra, 108 Cal.App.4th 897, put it, “[w]e are wary of
adjudicating claims casting aspersions on counsel when
counsel is not in a position to defend his conduct. A claim of
ineffective assistance of counsel instead is more
appropriately made in a habeas corpus proceeding.” (Id. at
p. 902.)
B. The record is too undeveloped to support direct
appellate review
Here, we decline to review Banuelos’s ineffectiveness of
counsel claim because the record does not contain a full
explanation for his counsel’s conduct, or necessarily rule out
a satisfactory one.
Banuelos argues that in reliance of the trial court’s
tentative ruling in May 2014, his counsel “abandoned any
efforts to provide a ‘re-entry’ program for appellant,
believing such planning to be irrelevant as appellant would
be spending a year in a drug program upon and/if
release[d].” However, it is unclear from the record before us
whether Banuelos’s counsel did in fact abandon his search
for a treatment program. On May 16, 2014, after the
tentative ruling, Banuelos’s counsel sent a letter to
Banuelos, stating, “[The court] wants to have you placed in a

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live in drug program for one year. There may be some good
out of that, since it is obvious that all of you [sic] felony
matters arose from a drug problem. I am going to find a
program for you, as close to Culver City as possible.”8 (Italics
added.) Based on this letter, it appears that Banuelos’s
counsel, far from abandoning the search for a treatment
program, was committing himself to carrying out such a
search, thus raising the possibility that no evidence of a
suitable program was introduced at the hearing on the
petition because, at that time, his counsel had not been able
to find and/or secure Banuelos’s admission into a suitable
program. As a result, what is missing from the record is
evidence about what Banuelos’s counsel did and did not do
following the May 2014 tentative ruling.
“Action taken or not taken by counsel at a trial is
typically motivated by considerations not reflected in the
record. It is for this reason that writ review of claims of
ineffective assistance of counsel is the preferred review
procedure. Evidence of the reasons for counsel’s tactics, and
evidence of the standard of legal practice in the community
as to a specific tactic, can be presented by declarations or
8 In the declaration that he submitted in support of the
motion for reconsideration, Banuelos’s counsel discussed two
other programs besides Cri Help, but it is unclear from the
declaration whether his counsel acquired his information
about these programs as a result of the search he promised
to undertake for his client in May 2014 or as a result of
something else.

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other evidence filed with the writ petition.” (In re Arturo A.
(1992) 8 Cal.App.4th 229, 243.)
Accordingly, we affirm “without prejudice to any rights
[Banuelos] may have to relief by way of a petition for writ of
habeas corpus.” (People v. Garrido (2005) 127 Cal.App.4th
359, 367.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
ROTHSCHILD, P. J.
LUI, J.

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