P. v. Pinkston

Filed 11/22/16 P. v. Pinkston CA2/3
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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.
STEVEN TERROSE PINKSTON,
Defendant and Appellant.
B268633
(Los Angeles County
Super. Ct. No. TA062346)
APPEAL from an order of the Superior Court of
Los Angeles County, Rand S. Rubin, Judge. Affirmed.
Arielle Bases, 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 Hill and Paul S. Thies, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________________________

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INTRODUCTION
Petitioner Steven Pinkston was convicted of willful evasion
of a police officer and sentenced to 25 years to life under the
Three Strikes law. After California voters passed the Three
Strikes Reform Act (Proposition 36), Pinkston petitioned the trial
court for resentencing under Penal Code1 section 1170.126. The
court found Pinkston was eligible for resentencing based on his
current and prior convictions, but denied his petition, finding
that resentencing him would “pose an unreasonable risk of
danger to public safety.”
After Pinkston filed his petition, but before it was ruled on
by the court, California voters passed the Safe Neighborhoods
and Schools Act (Proposition 47), which reduces certain felony
theft and drug offenses to misdemeanors and permits past
offenders to petition for resentencing of their qualifying felony
offenses to misdemeanors. Like Proposition 36, Proposition 47
provides the trial court discretion to deny a petition for
resentencing if the court finds resentencing the petitioner would
pose an unreasonable risk of danger to public safety. However,
whereas Proposition 36 does not define the phrase “unreasonable
risk of danger to public safety,” Proposition 47 defines it as
follows: an “unreasonable risk that the petitioner will commit
a new violent felony within the meaning of [section 667,
subdivision (e)(2)(C)(iv)],” which is commonly known as a “super
strike.” Pinkston contends the voters intended to redefine the
phrase “unreasonable risk of danger to public safety” as used in
Proposition 36 when it enacted Proposition 47, and he argues the
court erred by failing to apply that definition when it denied his
petition. Pinkston also contends the court abused its discretion
by finding that resentencing him would pose an unreasonable
1 All undesignated statutory references are to the Penal Code.

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risk of danger to public safety. We disagree with both of
Pinkston’s contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Pinkston’s third strike
In September 2001, Pinkston drove his friend to a Target
store in Culver City. Pinkston waited inside his car in the
parking lot while his friend went inside the store, where she tried
to pass a counterfeit check. When police arrived, Pinkston drove
out of the parking lot. The police followed Pinkston, stopped him,
and ordered him to get out of his car. Pinkston refused and drove
off, leading the police on a high-speed chase through city streets.
At times, Pinkston drove at speeds of 100 miles per hour.
Pinkston was not apprehended and a warrant for his arrest was
issued.
In October 2001, Los Angeles Sheriff’s deputies stopped
Pinkston while he was driving his car. When the deputies
started to get out of their car, Pinkston drove off, leading them on
a high-speed chase through residential streets. After failing to
stop at numerous stop signs and lights, Pinkston crashed his car
into a wall and tried to evade the deputies on foot before he was
arrested.
In March 2002, Pinkston was convicted of misdemeanor
evading arrest (Veh. Code, § 2800.1, subd. (a)) and felony willful
evasion of a police officer (Veh. Code, § 2800.2, subd. (a)). The
trial court found Pinkston had suffered two prior felony
convictions for manslaughter (§ 192, subd. (a)) and making
criminal threats (§ 422), both serious or violent felonies within
the meaning of the Three Strikes Law (§§ 667 and 1170.12). The
court sentenced Pinkston to a term of 25 years to life in state
prison for the felony willful evasion count and a concurrent term
of 307 days in prison for the misdemeanor evading arrest count.
The court imposed, but stayed pursuant to section 654, three

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one-year prior prison term enhancements (§ 667.5, subd. (b)).
The court awarded Pinkston 307 days of custody conduct credit.
2. Proposition 36 proceedings
In November 2012, Pinkston filed a petition for
resentencing under Proposition 36. In July 2013, the People filed
an opposition to Pinkston’s petition. The People acknowledged
that Pinkston was eligible for resentencing based on his past and
current strike offenses, but asserted the court should deny
Pinkston’s petition. In March 2014, Pinkston filed a reply to the
People’s opposition. Later in March 2014, the People filed
a revised opposition, arguing the court should deny the petition
because resentencing Pinkston would pose an unreasonable risk
of danger to public safety based on his criminal history and
behavior in prison. In July 2014, Pinkston filed a supplemental
reply.
On July 23, 2015, the court conducted a hearing on
Pinkston’s petition. Both parties submitted evidence concerning
Pinkston’s prior convictions and his conduct in prison since he
was convicted of felony willful evasion of a police officer in 2002.
In addition, Pinkston submitted a written report drafted by
Richard Subia, the former director of the California Department
of Corrections and Rehabilitation’s (CDCR) Division of Adult
Institutions, who opined that, based on Pinkston’s criminal
history and behavior in custody, resentencing Pinkston as
a two-strike offender would not pose an unreasonable risk of
danger to public safety. Pinkston also presented two live
witnesses: Subia and Pinkston’s mother, who testified that
Pinkston would live with and help care for her if he were to be
released.
On September 24, 2015, the court denied Pinkston’s
petition, finding that resentencing him would pose an
unreasonable risk of danger to public safety. Pinkston filed
a timely appeal.

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DISCUSSION
1. Proposition 47 Did Not Change Proposition 36’s
Definition of Dangerousness
Pinkston’s claim that Proposition 47 redefined the meaning
of “unreasonable risk of danger to public safety” as that phrase is
used in Proposition 36 requires us to interpret both acts.
Accordingly, we independently review Pinkston’s claim, applying
principles of statutory interpretation. (See People v. Bankers Ins.
Co. (2016) 247 Cal.App.4th 1004, 1007.)
“ ‘In interpreting a voter initiative . . . we apply the same
principles that govern statutory construction. [Citation.] Thus,
“we first look 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 the intent of the voters who passed the initiative
measure.’ [Citation.]” (People v. Briceno (2004) 34 Cal.4th 451,
459.) If the act’s language is not ambiguous, the plain meaning of
that language controls, unless it would lead to absurd results the
electorate could not have intended. (People v. Birkett (1999)
21 Cal.4th 226, 231.) In addition, while courts generally are
prohibited from rewriting an act’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 (Skinner).)
1.1. Proposition 36
“Prior to its amendment by [Proposition 36], the Three
Strikes law required that a defendant who had two or more prior

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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 felony, pursuant to the provisions that apply when
a defendant has one prior conviction for a serious or violent
felony. [Citations.]” (People v. Johnson (2015) 61 Cal.4th 674,
680–681.)
“[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.)
A court may consider the following factors in determining
whether the petitioner would pose an unreasonable risk of danger
to public safety: “(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).)

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Proposition 36 went into effect on November 7, 2012. (See
People v. Brown (2014) 230 Cal.App.4th 1502, 1507.)
1.2. Proposition 47
California voters passed Proposition 47 on November 4,
2014, and the act went into effect on November 5, 2014. (See
People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) The stated
“[p]urpose and [i]ntent” of Proposition 47 include, among other
things, “[r]equir[ing] misdemeanors instead of felonies for
nonserious, nonviolent crimes like petty theft and drug
possession, unless the defendant has prior convictions for
specified violent or serious crimes”; “[a]uthoriz[ing] consideration
of resentencing for anyone who is currently serving a sentence for
any of the offenses listed herein that are now misdemeanors”;
and “[r]equir[ing] a thorough review of criminal history and risk
assessment of any individuals before resentencing to ensure that
they do not pose a risk to public safety.” (Voter Information
Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, subd. (3),
(4) & (5), p. 70.)
Proposition 47 created a new resentencing provision,
section 1170.18, under which “[a] person currently serving
a sentence for a conviction, whether by trial or plea, of a felony or
felonies who would have been guilty of a misdemeanor under the
act that added this section . . . had this act been in effect at the
time of the offense may petition for a recall of sentence” and
request resentencing. (§ 1170.18, subd. (a).)
“If the petitioner satisfies the criteria in subdivision (a), the
petitioner’s felony sentence shall be recalled and the petitioner
resentenced to a misdemeanor . . . unless the court, in its
discretion, determines that resentencing the petitioner would
pose an unreasonable risk of danger to public safety. In
exercising its discretion, the court may consider all of the
following: [¶] (1) The petitioner’s criminal conviction history,
including the type of crimes committed, the extent of injury to

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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. [¶]
(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.” (§ 1170.18,
subd. (b).)
In contrast to Proposition 36, which does not define the
phrase “unreasonable risk of danger to public safety,”
Proposition 47 provides 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 [section 667, subd. (e)(2)(C)(iv) ].”
(§ 1170.18, subd. (c).) Section 667, subdivision (e)(2)(C)(iv) lists
the following felonies, commonly known as “super strike”
offenses: “(I) A ‘sexually violent offense’. . . . [¶] (II) Oral
copulation . . . as defined by Section 288a, sodomy . . . as defined
by Section 286, or sexual penetration . . . as defined by
Section 289. [¶] (III) A lewd or lascivious act . . . in violation of
Section 288. [¶] (IV) Any homicide offense, including any
attempted homicide offense . . . . [¶] (V) Solicitation to commit
murder . . . . [¶] (VI) Assault with a machine gun on a peace
officer or firefighter . . . . [¶] (VII) Possession of a weapon of mass
destruction . . . . [¶] (VIII) Any serious and/or violent felony
offense punishable in California by life imprisonment or death.”
1.3. Proposition 47’s Definition of an
“Unreasonable Risk of Danger to Public
Safety” Does Not Apply to Proposition 36
Under Proposition 36’s resentencing provision, a petitioner
had two years from the date of the act’s enactment on
November 7, 2012, to file a petition for resentencing, unless he or
she made a showing of “good cause,” at which point a petition
could be filed beyond the two-year window. (§ 1170.126,

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subd. (b).) Proposition 47 went into effect two days before
Proposition 36’s two-year window for filing a petition for
resentencing closed. Nevertheless, Pinkston contends
Proposition 47’s more narrow definition of “unreasonable risk of
danger to public safety” controls the meaning of that phrase as
used in Proposition 36.
Pinkston points out that Proposition 47 states, “[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.)
He argues that by using the phrase “[a]s used throughout this
Code,” the voters intended to import Proposition 47’s definition of
“unreasonable risk of danger to public safety” into the entire
Penal Code, including into section 1170.126, subdivision (f).
This issue has been considered by several appellate courts,
and it currently is pending before the California Supreme Court.
(See, e.g., People v. Valencia (2014) 232 Cal.App.4th 514, review
granted February 18, 2015, S223825; People v. Chaney (2014)
231 Cal.App.4th 1391, review granted February 18, 2015,
S223676; People v. Lopez (2015) 236 Cal.App.4th 518, review
granted July 15, 2015, S227028; People v. Florez (2016)
245 Cal.App.4th 1176, review granted June 8, 2016, S234168;
People v. Myers (2016) 245 Cal.App.4th 794, review granted
May 25, 2016, S233937; People v. Garcia (2016) 244 Cal.App.4th
224, review granted April 13, 2016, S232679.) Consistent with
the majority of courts that have considered this issue, we
conclude Proposition 47’s definition of “unreasonable risk of
danger to public safety” does not apply to Proposition 36.
“We recognize the basic principle of statutory and
constitutional construction which mandates that courts, in
construing a measure, not undertake to rewrite its unambiguous
language. [Citation.] 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

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body. [Citation.]” (Skinner, supra, 39 Cal.3d at p. 775.) We look
to the purpose of the section and the electorate’s intent in
adopting that section to determine whether the use of
a particular word is drafting error. (Id. at p. 776.)
As we shall explain, we conclude the voters erroneously
used the word “Code” in section 1170.18, subdivision (c), instead
of the word “Act,” and that this error may be corrected by the
courts. Specifically, we find nothing in the text of Proposition 47
or that act’s legislative materials to suggest the voters intended
to modify or otherwise affect Proposition 36, and we believe
applying Proposition 47’s dangerousness definition to
Proposition 36 would lead to illogical and unintended
consequences. Thus, we hold Proposition 47’s definition of
“unreasonable risk of danger to public safety” does not alter the
definition of that phrase as used in Proposition 36.
Nothing in Proposition 47’s statutory language indicates
the definition of “unreasonable risk of danger to public safety”
would extend to provisions of the Penal Code outside
Proposition 47. To the contrary, section 1170.18 expressly limits
Proposition 47’s application, stating, “Nothing in this and related
sections is intended to diminish or abrogate the finality of
judgments in any case not falling within the purview of this act.”
(§ 1170.18, subd. (n), italics added.) By applying Proposition 47’s
more narrow definition of dangerousness to a petition filed under
Proposition 36, a court may diminish the finality of a judgment in
a case falling outside the purview of Proposition 47. For example,
by applying Proposition 47’s more narrow definition of
dangerousness to a resentencing petition filed under
Proposition 36, a court could not deny the petition unless it finds
there is an unreasonable risk the petitioner will commit a “super
strike,” even if the court believes the petitioner would otherwise
pose an unreasonable risk of danger to public safety.
Likewise, Proposition 47’s ballot materials do not state, let
alone indicate, that the act would have an effect on

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Proposition 36. (Voter Information Guide, supra, pp. 34–39.)
The ballot materials do not state Proposition 47 would have any
effect on the procedure a court must follow when reviewing
a resentencing petition filed under Proposition 36. To the
contrary, those materials emphasize that Proposition 47’s
resentencing provisions would affect only those persons serving
sentences for specified nonserious, nonviolent property or drug
crimes, a class of crimes distinct from, and less serious than,
those targeted by Proposition 36. Nowhere do those materials
suggest that Proposition 47’s provisions would also apply to the
more serious and violent offenses that are the focus of
Proposition 36.
In addition, Propositions 36 and 47 serve different
purposes. Proposition 36 is designed to reduce penalties for
individuals with two or more prior serious or violent felony
convictions, whose current convictions are also felonies. By
contrast, Proposition 47 is intended to reduce penalties for low-
level, nonserious and nonviolent offenses. (Voter Information
Guide, supra, p. 35.)
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), (c), (e), (f), (i), (j), (m), (n), & (o).) Accordingly,
subdivision (c)’s use of the term “petitioner” suggests that the
term is limited to individuals petitioning under that particular
act—i.e., Proposition 47. (§ 1170.18, sub. (c).)
Finally, the timing of Proposition 47’s enactment is
inconsistent with an intent to affect the terms of Proposition 36.
Proposition 36 required defendants to file petitions within two
years from the date of its enactment absent a showing of good
cause for a late petition. (§ 1170.126, subd. (b).) As noted,
Proposition 47 went into effect only two days before the two-year

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period for filing Proposition 36 petitions expired. A rational voter
would not have understood Proposition 47 to change the rules for
reviewing Proposition 36 petitions when the period for filing such
petitions had nearly expired and most of the filed petitions had
already been adjudicated.
For these reasons, we conclude the electorate’s use of the
word “Code” in section 1170.18, subdivision (c), is a drafting error
that must be judicially corrected to read “Act.” When read using
the word “Act,” Proposition 47's definition of “unreasonable risk
of danger to public safety” does not apply to Proposition 36.
2. The Trial Court Properly Found Resentencing
Pinkston Would Pose an Unreasonable Risk of
Danger to Public Safety
Pinkston contends the court erred in finding that
resentencing him as a two-strike offender would pose an
unreasonable risk of danger to public safety because that finding
is not supported by the record. We disagree and conclude the
court did not abuse its discretion in denying Pinkston’s
resentencing petition.
2.1. Relevant facts
2.1.1. Criminal history
Pinkston has an extensive criminal history. In 1981, when
he was a teenager, Pinkston committed a robbery, and the
following year he committed an attempted robbery. In 1984, the
juvenile court sustained a petition alleging Pinkston received
stolen property. In 1986, Pinkston was convicted of possessing
rock cocaine, and in 1987, he was convicted of possessing
narcotics with the intent to sell. In 1989, Pinkston was convicted
of being a felon in possession of a firearm. In 1992, Pinkston pled
guilty to voluntary manslaughter, his first strike offense, and he
was sentenced to six years in prison. In 1992, Pinkston was also
convicted of assault with a deadly weapon, and in 1998, he pled

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guilty to making criminal threats, his second strike offense.
Finally, in 2002, Pinkston was convicted of the underlying offense
of willfully evading a police officer, his third strike.
During the incident that led to Pinkston’s 1992 conviction
for voluntary manslaughter, Pinkston and his co-participant
went to the home of the 65 year-old victim. When the victim’s
housekeeper let Pinkston’s co-participant into the house, the
co-participant took the victim upstairs and shot him in the back
of the head, killing him. A pager registered in Pinkston’s name
was found inside the house. The police also recovered from
Pinkston’s house the gun that was used in the murder. Pinkston
claimed that someone had stolen the gun from his car before the
homicide, and that it was not returned to him until after the
crime was committed.
During the incident that led to his 1998 criminal threats
conviction, Pinkston and another co-participant, both of whom
were armed, approached the victim and the victim’s friend to
demand the victim return money Pinkston had given him in
exchange for a car part. Pinkston’s co-participant struck the
victim’s friend on the head with a gun, and Pinkston threatened
to kill the victim if he did not return Pinkston’s money. The
victim then jumped off his balcony, breaking bones in both of his
heels.
2.1.2. Misconduct in prison
Since being incarcerated in 2002, Pinkston has received
nine CDCR Rules Violation Reports. Five of the reports cited
Pinkston for fighting with other inmates in July 2004, April 2008,
April 2010, March 2012, and June 2012. Pinkston claimed that
he did not initiate many of these fights and that he frequently
was targeted by gang members because he refused to participate
in gang activity while in prison. However, the reports for several
of the fights found that Pinkston had engaged in mutual combat,
meaning the inmates were committing battery on each other and

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prison officials were unable to determine who instigated the
fights.
After an incident in September 2005, Pinkston was found
guilty of committing battery on a peace officer. Pinkston had
refused to remove his hands from a food port. When the officer
serving Pinkston’s food tried to shut the port, the port struck the
officer’s hand, cutting the hand and causing the officer pain.
In December 2012, Pinkston was placed in solitary
confinement after he was cited for threatening the safety of
a correctional officer assigned to inspect his cell. Pinkston had
filed an appeal using the prison’s internal appeal process. In his
appeal, Pinkston stated, “ ‘Remove me from the block, put a copy
of the [appeal] in C/O Gutierrez personal file. It will save his
life.’ ” In July 2014, Pinkston was cited for willfully resisting,
delaying, or obstructing a peace officer after he refused to accept
a cell mate.
2.1.3. Participation in prison programs
In June 2010, Pinkston completed a 13-week group therapy
program focused on issues of childhood trauma, anger, grief, loss,
forgiveness, family dynamics, and the impact of a prisoner’s
crimes on others. In October 2011, he completed a 10-week group
therapy program focused on anger management and was
commended for his hard work, active participation, and insight.
Pinkston also received training as an assistance giver for other
inmates, and he sometimes worked as a barber and building
porter in the prison. Pinkston claimed that he did not participate
in more rehabilitative programs because he has had “very little
opportunity” to do so.

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2.1.4. Gang evidence
Pinkston has never been validated as a member of a gang
while in prison.2 However, when he was first incarcerated in
1992, Pinkston told prison officials that he was a member of the
Black P. Stones, or Black Peace Stones, criminal street gang,
a subset of the Bloods gang. In 2003, the prison placed
a “Clarification of Affiliation” on Pinkston’s prison record, stating
that Pinkston appeared to be affiliated with the Bloods based on
the prison yard staff’s observation of Pinkston’s behavior. In
2004, Pinkston was interviewed by a correctional officer about his
gang affiliation. When asked, which set of the Bloods he
belonged to, Pinkston responded, “Black Peace Stones.” On the
list of Pinkston’s “Non-Confidential Enemies” maintained by the
prison, Pinkston is identified as a suspected member of the
“Black Stone” gang.
2.1.5. Prison classification scores
The CDCR utilizes a “Reclassification” system that scores
inmates based on the nature of the crimes leading to their
institutionalization and their behavior in prison. A score of 19 is
the lowest score an inmate can achieve. Between 2002 and 2013,
Pinkston’s score has ranged between 52 and 68. At the time he
filed his petition, Pinkston’s score was 60.
The CDCR also utilizes the California Static Risk
Assessment scoring system, which assigns inmates one of five
scores based on their level of risk to recidivate, with 1 being the
lowest and 5 being the highest. The system weighs 22 factors,
including age at the time of release, gender, and the nature of the
inmate’s crimes. As of 2014, Pinkston was assigned a score of 1.
2 According to Pinkston’s expert, the CDCR “validates” an inmate
once he is identified as a member of a gang. It is the CDCR’s policy
that once an inmate is validated, he is removed from the general
population and placed in solitary confinement.

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2.1.6. Post-release plan
If released, Pinkston plans to live with and care for his
mother, who needs support after undergoing hip and knee
replacement surgery. Pinkston also has an offer for a fulltime job
with his uncle’s home remodeling company.
2.2. Analysis
Whether a petitioner poses an unreasonable risk of danger
to public safety is a discretionary decision made by the trial court
after reviewing the evidence presented in the case. (See
§ 1170.126, subd. (f).) The People must prove by a preponderance
of the evidence any facts the court relies on in making such
a determination. (People v. Jefferson (2016) 1 Cal.App.5th 235,
241 (Jefferson).)
“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.]’ [Citation]” (People v. Rodrigues (1994) 8 Cal.4th
1060, 1124–1125.) Accordingly, we review Pinkston’s claim that
the court erred in finding that resentencing him would pose an
unreasonable risk of danger to public safety for an abuse of
discretion. (See Jefferson, supra, 1 Cal.App.5th at pp. 242–243.)
“The appropriate test for abuse of discretion is whether the
trial court exceeded the bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for
that of the trial court.” (Shamblin v. Brattain (1988) 44 Cal.3d
474, 478–479.) “A merely debatable ruling cannot be deemed an
abuse of discretion.” (People v. Bryant, Smith and Wheeler (2014)
60 Cal.4th 335, 390.) Applying these principles in our review of
the trial court’s ruling, we conclude the court was well within its
discretion when it denied Pinkston’s resentencing petition.

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In making its determination that Pinkston would pose an
unreasonable risk of danger to public safety if resentenced, the
court focused on the following factors: Pinkston’s extensive
criminal history; his involvement in numerous incidents of
violence while in prison; his elevated reclassification score; his
minimal participation in rehabilitative and self-help programs
while in prison; evidence of his gang affiliation; and his lack of
a structured post-release plan. Each of these factors is supported
by the record and was properly considered by the court in making
its dangerousness determination. (See § 1170.126, subd. (g) [in
exercising its discretion, the court may consider the petitioner’s
criminal history and circumstances of his crimes, his behavior in
prison and efforts to rehabilitate, and “any other evidence the
court . . . determines to be relevant in deciding whether a new
sentence would result in an unreasonable risk of danger to public
safety”].)
The court was concerned that these factors, when
considered together, demonstrated that Pinkston has a tendency
to engage in violence and make poor decisions, issues that could
be amplified if he were released into the community. We share
the court’s concern. Since he was a teenager, Pinkston regularly
engaged in criminal activity, much of which involved violence.
From when he was first adjudicated as a juvenile in the early
1980s until he was convicted of his third strike in 2002, Pinkston
failed to go a significant length of time without committing
a crime, and his violent behavior continued after he was
incarcerated in 2002. Between 2004 and 2012, Pinkston was
involved in at least five fights with other inmates, and he acted
aggressively toward prison officials on several occasions, which,
as the court recognized, contributed to Pinkston’s reclassification
score remaining elevated throughout his incarceration.
Pinkston contends the court erred by failing to discuss his
California Static Risk Assessment score of 1 in its statement of
decision outlining its dangerousness finding. We disagree. “The

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court is presumed to have considered all of the relevant factors in
the absence of an affirmative record to the contrary.” (People v.
Myers (1999) 69 Cal.App.4th 305, 310.) Therefore, it is not error
for a court to focus its discussion of its findings on only some of
the relevant factors, and doing so does not mean the court
considered only those factors that are expressly referenced.
(Ibid.) We therefore must presume the court considered
Pinkston’s Static Risk Assessment score and exercised its
discretion to give more weight to his elevated reclassification
score. (See ibid.)
In addition to the evidence demonstrating Pinkston has
a tendency to engage in violent behavior, there was evidence that
Pinkston is affiliated with a criminal street gang. Although the
prison never validated Pinkston as a gang member, he admitted
to prison officials on at least two occasions that he was a member
of the Black P. Stones gang, and the prison yard staff’s
observations of Pinkston led prison officials to believe Pinkston
had gang connections. As the trial court observed, Pinkston has
never made any effort to disavow the prison staff’s perception
that he is affiliated with the Black P. Stones gang.
Pinkston contends the court erred in relying on evidence of
gang affiliation because Pinkston is not a validated gang
member. However, Pinkston cites no authority limiting the
court’s discretion to consider gang evidence to instances in which
the petitioner has been validated as a member of a gang.
Because there was evidence that Pinkston was affiliated with
a criminal street gang—e.g., Pinkston’s two admissions to prison
staff that he was a member of the Black P. Stones gang—the
court properly considered this evidence when determining
whether Pinkston would pose a danger to public safety if
resentenced. (See § 1170.126, subd. (g)(3).)
With respect to Pinkston’s participation in two programs
that focused on violence and anger management, the trial court
believed Pinkston could have made a greater effort to rehabilitate

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and that his participation in those programs did not outweigh the
factors demonstrating he would pose an unreasonable risk of
danger to public safety if resentenced—i.e., his tendency to
engage in violent behavior and his connection to a criminal street
gang. The court also found Pinkston did not have an adequate
plan to reenter the community should he be released. The court
believed Pinkston’s plan lacked sufficient structure that would
help him remain crime free while out of custody, something he
has been unable to do since he was a teenager. In light of
Pinkston’s sustained pattern of violent behavior both outside and
inside of prison, and his failure to adequately address his violent
behavior while in custody, the trial court did not abuse its
discretion in finding Pinkston would pose an unreasonable risk of
danger to public safety if resentenced as a two-strike offender.
DISPOSITION
The trial court’s order denying Pinkston’s petition for
resentencing under Proposition 36 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
ALDRICH, J.

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