P. v. Estrada

Filed 4/24/17 P. v. Estrada CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
RICARDO ESTRADA,
Defendant and Appellant.
B272129
(Los Angeles County
Super. Ct. No. BA164435)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Rand S. Rubin, Judge. Affirmed.
Susan L. Jordan, under appointment by the Court of
Appeal, for Defendant and Appellant.

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Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Noah P. Hill and Paul S. Thies,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
In 1999, a jury convicted defendant and appellant
Ricardo Estrada of evading a peace officer with willful or
wanton disregard for persons or property (Veh. Code,
§ 2800.2, subd. (a)), unlawfully taking a vehicle (Veh. Code,
§ 10851, subd. (a)), and receiving stolen property (Pen. Code,
§ 496, subd. (a)).1 Defendant was also found to have served a
prior prison term (§ 667.5, subd. (b)), and suffered two prior
convictions as defined in the three strikes law (§§ 667, subds.
(b)–(i), 1170.12 subds. (a)–(d)). He was sentenced to an
indeterminate term of 26 years to life.2
1 All future statutory references are to the Penal Code
unless otherwise specified.
2 The trial court sentenced defendant to 25 years to life
in 1999. On appeal, this court affirmed defendant’s
convictions, but concluded that the trial court was required
to impose or strike the section 667.5, subdivision (b)
enhancement. At resentencing, the court imposed the
enhancement, increasing defendant’s sentence to 26 years to
life.

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After the 2012 passage of Proposition 36 (the “Three
Strikes Reform Act,” hereafter “the Act”), defendant filed a
petition under section 1170.126 to recall his indeterminate
sentence and to be resentenced as a second strike offender.
The trial court denied the petition, finding that defendant
posed an unreasonable risk of danger to public safety.
Defendant contends the trial court failed to apply the
correct standard when making its dangerousness
determination. He argues that the definition of
unreasonable risk of danger to public safety contained in
section 1170.18, which was added by initiative measure
Proposition 47 (“The Safe Neighborhoods and Schools Act”)
in 2014, applies to resentencing petitions under the Act,
such as his, which were pending at the time the initiative
became effective. He contends the trial court erred in failing
to consider his petition under this definition, and requests
that we reverse and remand the matter for a determination
of dangerousness as defined in Proposition 47.
We affirm the order denying the petition.

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DISCUSSION3
In November 2012, California voters passed
Proposition 36, which modified the three strikes law to
permit sentences of 25 years to life in most cases only when
the third or subsequent felony conviction is for a serious or
violent felony. The proposition allows defendants previously
sentenced to 25 years to life for a nonserious, nonviolent
third felony conviction to petition for recall of their
sentences. An eligible defendant is entitled to resentencing
“unless the court, in its discretion, determines that
resentencing the [defendant] would pose an unreasonable
risk of danger to public safety.” (§ 1170.126, subd. (f).)
Proposition 36 does not define “unreasonable risk of danger
to public safety,” but provides that the court, in exercising its
discretion, may consider “(1) [t]he petitioner’s criminal
conviction history, including the type of crimes committed,
the extent of injury to victims, the length of prior prison
3 Defendant does not challenge the sufficiency of the
evidence underlying the court’s dangerousness
determination. Absent such challenge, our resolution of the
case rests upon the purely legal question of whether the
proper standard was applied, and does not require a
recitation of the facts or procedural history of the case.

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commitments, and the remoteness of the crimes; [¶] (2) [t]he
petitioner’s disciplinary record and record of rehabilitation
while incarcerated; and [¶] (3) [a]ny 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).)
The electorate passed Proposition 47 in 2014 while
defendant’s petition was pending. Proposition 47 reduces
specified narcotics and theft-related crimes from felony
offenses to misdemeanors. It also provides that an eligible
defendant is entitled to resentencing “unless the court, in its
discretion, determines that resentencing the [defendant]
would pose an unreasonable risk of danger to public safety.”
(§ 1170.18, subd. (b).) Proposition 47 specifies that “[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 within the meaning of clause
(iv) of subparagraph (C) of paragraph (2) of subdivision (e) of
Section 667,” otherwise known as a “super strike.”
(§ 1170.18, subd. (c).) Soon after its passage, courts began
considering whether Proposition 47 repealed and replaced
the Act’s definition of unreasonable risk of danger to public
safety.

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Defendant argues that Proposition 47’s narrower
definition of “unreasonable risk of danger to public safety,”
which focuses on the danger that defendant would commit
specific “super strike” offenses rather than the danger he
poses generally, applies to the Act because Proposition 47
states that its definition applies “throughout this Code” and
Proposition 47 and the Act are both part of the Penal Code.
“[T]he basic principle of statutory and constitutional
construction . . . mandates that courts, in construing a
measure, not undertake to rewrite its unambiguous
language. (In re Waters of Long Valley Creek Stream System
(1979) 25 Cal.3d 339, 348.) That rule is not applied,
however, when it appears clear that a word has been
erroneously used, and a judicial correction will best carry out
the intent of the adopting body.” (People v. Skinner (1985)
39 Cal.3d 765, 775.) “Whether the use of [a particular word]
is, in fact, a drafting error can only be determined by
reference to the purpose of the section and the intent of the
electorate in adopting it.” (Id. at p. 776.)
Almost every court to consider this argument has
rejected it and concluded that Proposition 47’s use of the
word “Code” (rather than “Act”) was a drafting error. In
reaching this conclusion, these courts reasoned that applying

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Proposition 47’s narrower definition to the Act: (1) is
inconsistent with its mandate not to “diminish or abrogate
the finality of judgments in any case not falling within the
purview of this act” (§ 1170.18, subd. (n)); (2) goes far beyond
its stated intent to give lower-level criminals who have
committed a “nonserious and nonviolent property” offense a
reduced sentence (Voter Information Guide, Gen. Elec. (Nov.
4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 35)
because it allows for the reduction of sentences for hardened
criminals with at least two prior serious or violent felonies;
and (3) makes little sense because Proposition 47 was
enacted just two days before the Act’s two-year deadline for
seeking relief. 4 The issue is currently pending before the
4 Our Supreme Court has granted review on this issue,
resulting in the complete or partial depublication of almost
every published decision on the issue. (Compare People v.
Buford (2016) 4 Cal.App.5th 886, review granted Jan. 11,
2017, S238790 [declining to apply Proposition 47’s definition
to the Act]; 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. Sledge (2015) 235 Cal.App.4th 1191, review
granted July 8, 2015, S226449 [same]; People v. Guzman
(2015) 235 Cal.App.4th 847, review granted June 17, 2015,

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California Supreme Court. (See Chaney, supra, 231
Cal.App.4th 1391; Valencia, supra, 232 Cal.App.4th 514.)
While we recognize that this case will be governed by our
Supreme Court’s ultimate resolution of the issue, in the
absence of the high court’s guidance, we agree with the
majority of Courts of Appeal that the definition of
“unreasonable risk of danger to public safety” under the Act
was not affected by the passage of Proposition 47.
S226410 [same]; People v. Davis (2015) 234 Cal.App.4th
1001, review granted June 10, 2015, S225603 [same]; People
v. Rodriguez (2015) 233 Cal.App.4th 1403, review granted
Apr. 29, 2015, S225047 [same]; People v. Chaney (2014) 231
Cal.App.4th 1391, review granted Feb. 18, 2015, S223676
(Chaney) [same]; People v. Valencia (2014) 232 Cal.App.4th
514, review granted Feb. 18, 2015, S223825 (Valencia)
[same] with People v. Cordova (2016) 248 Cal.App.4th 543,
review granted Aug. 31, 2016, S236179 [applying Proposition
47’s definition to Proposition 36].)

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DISPOSITION
The order denying defendant’s petition for recall of
sentence is affirmed.
KRIEGLER, Acting P.J.
We concur:
BAKER J.
DUNNING, J.
 Judge of the Orange Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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