P. v. Doolittle

SEE CONCURRING OPINION
Filed 2/2/15 P. v. Doolittle CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
TIMOTHY DANIEL DOOLITTLE,
Defendant and Appellant.
F067402
(Super. Ct. No. SC072410A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda
Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

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The Three Strikes Reform Act of 2012 (hereafter Proposition 36 or the Act)
created a postconviction release proceeding for third strike offenders serving
indeterminate life sentences for crimes that are not serious or violent felonies. If such an
inmate meets the criteria enumerated in Penal Code section 1170.126, subdivision (e), he
or she will be resentenced as a second strike offender unless the court determines such
resentencing would pose an unreasonable risk of danger to public safety.1 (§ 1170.126,
subd. (f); People v. Yearwood (2013) 213 Cal.App.4th 161, 168.)
After the Act went into effect, Timothy Daniel Doolittle (defendant), an inmate
serving a term of three years plus 25 years to life in prison following conviction of a
felony that was not violent (as defined by § 667.5, subd. (c)) or serious (as defined by
§ 1192.7, subd. (c)), filed a petition for resentencing under the Act. The trial court found
defendant’s release would pose an unreasonable risk of danger to public safety and
denied the petition.
We hold: (1) Preponderance of the evidence, not beyond a reasonable doubt or
clear and convincing evidence, is the appropriate standard of proof; (2) Since the
prosecution met its burden of proving facts upon which a finding of unreasonable risk can
be made, the trial court’s ruling was not an abuse of discretion; and (3) Recently enacted
section 1170.18, subdivision (c) does not modify section 1170.126, subdivision (f). We
affirm.
FACTS AND PROCEDURAL HISTORY
On November 19, 1997, defendant was arrested for violating the terms of his
parole. A search of his person revealed a plastic bag containing .321 grams of heroin
inside his pocket. On February 24, 1998, a jury convicted him of possession of heroin
(Health & Saf. Code, § 11350), and found he had suffered four prior strike convictions
(§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) and served four prior prison terms
1 Further statutory references are to the Penal Code unless otherwise stated.

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(§ 667.5, subd. (b)). On March 24, 1998, he was sentenced to three years plus 25 years to
life in prison.
On December 7, 2012, defendant filed a petition to recall his sentence and be
resentenced pursuant to the Act. He represented that his strike record consisted of a 1984
conviction for first degree burglary, 1985 convictions for robbery and first degree
burglary, and a 1989 conviction for robbery. He further represented he was statutorily
eligible for relief under the Act, and was “exactly the type of defendant that [the Act]
intended to assist” — a nonviolent third strike offender whose nonviolent, nonserious
drug-related crime resulted in a life sentence. Defendant submitted a letter from his
parents, who resided in Cayucos and wanted to bring defendant home with them and help
him adjust to life in freedom with decent people.
The People opposed the petition. They implicitly conceded defendant was not
disqualified from resentencing under the Act, but argued he should not be resentenced
because he would pose an unreasonable risk of danger to public safety. The People
pointed to defendant’s numerous convictions as an adult; the facts of his strike offenses;2
the “continuous life of crime” defendant led before and after his strike convictions; and
defendant’s eight in-prison rule violation reports dated from 2002 to 2009, five of which
(occurring in 2005 and 2006) were either for possession of heroin or having a positive
urinalysis for morphine, and two of which (2006 and 2009) were for engaging in
2 The People listed five such offenses: a 1969 conviction for first degree burglary,
in which defendant stole, among other items, 10 handguns; a 1978 conviction for
involuntary manslaughter, in which the victim attacked defendant, who stabbed the
victim three times in the chest, killing him; a 1984 conviction for first degree burglary,
during which defendant entered an occupied home with an 18-inch billy club; 1985
convictions for robbery and first degree burglary, which involved defendant grabbing a
woman who was sitting in her car and taking her purse, and breaking into a home and
stealing firearms and other items; and a 1989 conviction for robbery, in which defendant
entered a woman’s car, pushed her over to the passenger side, drove her to another
location, and took her purse.

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behavior that could lead to violence. The People asserted releasing defendant would
result in an unreasonable risk of danger to public safety, because he had a lengthy
criminal record, had been in and out of prison or jail “a lot” since 1968, was addicted to
heroin and continued to use it while in prison; the People were unable to find any prison
records showing he had participated in Narcotics Anonymous or any type of drug
treatment program; he had gone from committing nonviolent burglaries to committing
violent robberies to obtain money for heroin; and his behavior of picking random people
to victimize endangered all of society.
Defendant responded that his strike offenses, while serious, occurred more than 20
years ago, when defendant was in his 30’s, whereas defendant was 63 at the time the
response to the People’s opposition was filed. Defendant argued none of his conduct
over the past 14 years provided any indication he was a danger to society; his rule
violations were all drug related, with those finding he engaged in behavior that could lead
to violence being based on the fact he incurred a drug debt in prison that he could not
repay; and he had been an active member in good standing of Narcotics Anonymous
(NA) since May 11, 2005. Defendant argued that all inmates released under the Act
would carry some risk to society, but there was nothing in his history that could be
viewed as evidence of an unreasonable risk to public safety.
The petition was heard on February 27, 2013.3 Defense counsel noted the People
did not present any rule violations from 1998 until about 2004. In 2005, defendant began
experiencing physical ailments and depression and he returned to using drugs. Counsel
represented defendant, who was presently “mostly crippled,” had always maintained a
decent rapport with the prison guards, and had always worked in prison when able to do
so. Counsel further represented defendant returned to sobriety in 2008. Counsel pointed
3 The sentencing judge having retired, the matter was heard by a different judge.
(See § 1170.126, subd. (j).)

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out he had submitted a letter to the court from a drug and alcohol counselor who had
known defendant for about 30 years, attested to defendant’s commitment to sobriety, and
was willing to help defendant maintain that sobriety if defendant were released. Counsel
also noted he had submitted NA and Alcoholics Anonymous (AA) certificates showing
defendant’s participation therein over the last four or five years. Although defendant was
currently housed in a prison that was on lockdown, so that there had been no NA or AA
meetings for the last couple of years, defendant had continued to maintain his sobriety.
Counsel represented that the 2009 disciplinary report for engaging in behavior that could
lead to violence arose when defendant attempted to help another inmate who owed a
debt. This involved prison politics that could have caused violence to defendant.
Counsel further observed defendant had submitted his plans, if released, and he had a
place to go and volunteer work at a church lined up. He also had plans to go to Social
Security. Counsel conceded defendant might not be “perfectly reformed,” but noted he
had taken proactive steps to get sober over the last five or six years, and argued that given
his age and family support, he was not currently an unreasonable danger to public safety.
The People responded that defendant’s “record speaks for itself.” They noted that
one of defendant’s prior convictions was for killing someone. They also pointed out that
in 2005, defendant approached a correctional officer and said he owed $340 for heroin
and was an addict. The People argued this showed he was still using drugs in prison, as
did a number of his other rule violation reports. The People argued: “He was a drug
addict. He was stealing from other people by force to support a drug habit. He’s
continued a drug habit while in prison.… [¶] … We have no evidence that this behavior
has actually gone away.” The prosecutor asserted defendant’s ability to follow through
with plans was “highly questionable, limited by his criminal record and prior inability to
follow plans.” The prosecutor argued defendant had had time in prison to better himself,
but had kept using narcotics, and would reoffend if released.

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On May 24, 2013, the court issued a written ruling denying defendant’s petition.
In part, the ruling stated:
“The defendant is entitled to resentencing unless the People prove by a
preponderance of the evidence that the defendant ‘would pose an
unreasonable risk of danger to the public safety.’
“Defendant’s history is one of drug addiction and a series of theft related
felonies that one may reasonabl[y] infer funded his drug use. He has been
using illegal narcotics, mainly heroin, for over 40 years, including while he
has been in custody. He has spent most of these past 40 plus years in some
form of custody. In 2009, he requested that [the prison] place him in
administrative segregation to protect him from other inmates. This
protection was necessary because of his drug debts.
“Defendant did produce evidence he participated in drug counseling,
including NA meetings, while in custody. The most recent proof was dated
April 2008. Despite this counseling, he still used illegal narcotics while in
custody.
“One of the defendant’s prior convictions resulted in the death of another
…, in another he was armed with a billy club …, and in two … he used
actual physical force (as opposed to using fear) against the victims in
perpetrating the robberies in which he was convicted.
“The court has considered the above along with all other documentation
submitted by both the prosecution and defense.
“The People are persuasive in their argument, by a preponderance of the
evidence, that given this history the defendant is simply unable to break his
narcotic use. It is unfortunate and sad but undoubtedly the defendant will
continue to use narcotics and, if released, will return to his criminal lifestyle
to support this addiction. His release, therefore, would pose an
unreasonable risk of danger to the public safety.”
DISCUSSION
I
The trial court did not err by denying defendant’s petition for resentencing.
Defendant contends denial of his petition should be reversed and, given that he has
already served more than the maximum second strike sentence for possession of heroin,

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we should order his release. He argues the trial court applied an incorrect burden of
proof, and there was no substantial evidence to support the finding defendant posed an
unreasonable risk of danger to public safety. We disagree with both claims.
In order to be eligible for resentencing as a second strike offender under the Act,
the inmate petitioner must satisfy the three criteria set out in subdivision (e) of
section 1170.126. (People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979,
989.) If the inmate satisfies all these criteria, as did defendant, he or she “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.” (§ 1170.126, subd. (f).) In exercising this discretion, “the court may consider:
[¶] (1) The [inmate’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 [inmate’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.” (Id., subd. (g).)
The plain language of subdivisions (f) and (g) of section 1170.126 calls for an
exercise of the sentencing court’s discretion. “‘Discretion is the power to make the
decision, one way or the other.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367,
375.) “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; see People v. Williams (1998) 17 Cal.4th
148, 162 [abuse-of-discretion review asks whether ruling in question falls outside bounds
of reason under applicable law and relevant facts].) “‘“[T]he burden is on the party
attacking the sentence to clearly show that the sentencing decision was irrational or

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arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to
have acted to achieve legitimate sentencing objectives, and its discretionary
determination … will not be set aside on review.”’ [Citation.]” (People v. Carmony,
supra, 33 Cal.4th at pp. 376-377.)
“Because ‘all discretionary authority is contextual’ [citation], we cannot determine
whether a trial court has acted irrationally or arbitrarily … without considering the legal
principles and policies that should have guided the court’s actions.” (People v. Carmony,
supra, 33 Cal.4th at p. 377.) “An abuse of discretion is shown when the trial court
applies the wrong legal standard. [Citation.]” (Costco Wholesale Corp. v. Superior
Court (2009) 47 Cal.4th 725, 733.)
In the present case, defendant and the Attorney General agree defendant was
eligible to petition for resentencing under the Act. They further agree the prosecution
bore the burden of establishing resentencing defendant would pose an unreasonable risk
of danger to public safety. They part company over whether the trial court erred by
applying the preponderance of the evidence standard. The Attorney General says this
was the proper standard; defendant argues the fact of unreasonable dangerousness must
be proven beyond a reasonable doubt, or, at the very least, by clear and convincing
evidence.
Under the clear language of section 1170.126, we review the trial court’s ultimate
determination whether to resentence a petitioner for abuse of discretion. Of course, if
there is no evidence in the record to support the decision, the decision constitutes an
abuse of discretion. (See In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.) Thus, the
questions arise which party has the burden of producing such evidence, and to what
degree of certainty, and what level of support — what standard of proof — is required for
a trial court to rely on such evidence? (See People v. Mower (2002) 28 Cal.4th 457,
476.)

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Division Three of the Second District Court of Appeal has stated that, where a
court’s discretion under section 1170.126, subdivision (f) is concerned, the People bear
the burden of proving “dangerousness” by a preponderance of the evidence. (People v.
Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301-1305 & fn. 25 (Kaulick);
see Evid. Code, § 115.) That court determined this is so because “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.” (Kaulick, supra, at p. 1303.)
We agree with Kaulick that the applicable standard is preponderance of the
evidence.
In People v. Blakely (2014) 225 Cal.App.4th 1042, 1059-1062 (Blakely), we
rejected the claim an inmate seeking resentencing pursuant to section 1170.126 has a
Sixth Amendment right to a jury determination, beyond a reasonable doubt, on the
question of conduct constituting a disqualifying factor. We concluded that Apprendi v.
New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny (e.g., Alleyne v. United
States (2013) 570 U.S. ___ [133 S.Ct. 2151]; Cunningham v. California (2007) 549 U.S.
270 (Cunningham); Blakely v. Washington (2004) 542 U.S. 296) “do not apply to a
determination of eligibility for resentencing under the Act.” (Blakely, supra, 225
Cal.App.4th at p. 1060.)
In Blakely, we relied heavily on Kaulick. In rejecting application of the beyond a
reasonable doubt standard, Kaulick explained:
“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. While [the Act] presents him
with an opportunity to be resentenced to a lesser term, unless certain facts
are established, he is nonetheless still subject to the third strike sentence
based on the facts established at the time he was originally sentenced. As
such, a court’s discretionary decision to decline to modify the sentence in
his favor can be based on any otherwise appropriate factor (i.e.,

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dangerousness), and such factor need not be established by proof beyond a
reasonable doubt to a jury. Kaulick would interpret the retrospective part
of the Act to 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.”
(Kaulick, supra, 215 Cal.App.4th at p. 1303.)
Kaulick went on to discuss the United States Supreme Court’s conclusion, in
Dillon v. United States (2010) 560 U.S. 817, 828, that “a defendant’s Sixth Amendment
right to have essential facts found by a jury beyond a reasonable doubt do not apply to
limits on downward sentence modifications due to intervening laws.” (Kaulick, supra,
215 Cal.App.4th at p. 1304.) Kaulick found Dillon’s language “equally applicable here.
The retrospective part of the Act is not constitutionally required, but an act of lenity on
the part of the electorate. It does not provide for wholesale resentencing of eligible
petitioners. Instead, it provides for a proceeding where the original sentence may be
modified downward. Any facts found at such a proceeding, such as dangerousness, do
not implicate Sixth Amendment issues. Thus, there is no constitutional requirement that
the facts be established beyond a reasonable doubt.” (Kaulick, supra, at pp. 1304-1305.)
Although in Blakely, we applied Kaulick’s analysis to the initial determination of
eligibility for resentencing under the Act (Blakely, supra, 225 Cal.App.4th at p. 1061), it
applies equally to the issue whether resentencing the petitioner would pose an
unreasonable risk of danger to public safety. Denial of an inmate’s petition for
resentencing under the Act does not increase the penalty to which that inmate is already
subject, but instead removes him or her from the scope of an act of lenity on the part of
the electorate to which he or she is not constitutionally entitled. (Blakely, supra, at
p. 1062.)
Defendant argues, however, that the presumptive sentence for an eligible inmate
has effectively been reduced to a “‘two-strike’” sentence. Relying on People v. Guinn

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(1994) 28 Cal.App.4th 1130, 1141-1142, 1145 and its progeny (People v. Murray (2012)
203 Cal.App.4th 277, 282; People v. Blackwell (2011) 202 Cal.App.4th 144, 159-160;
People v. Ybarra (2008) 166 Cal.App.4th 1069, 1089), all of which deal with
section 190.5, subdivision (b), defendant contends the “shall”/“unless” formulation
employed in subdivision (f) of section 1170.126 means a two strike sentence is now the
presumptive punishment, and the court retains only “‘circumscribed discretion’” to select
the indeterminate term.4 Accordingly, defendant argues, there is now a “strong
presumption” the inmate will be resentenced as a second strike offender, and “[o]nly
upon a finding of extraordinary dangerousness can the defendant be subject to the 25
years to life initially imposed.”
The California Supreme Court recently disapproved the cases relied on by
defendant. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1370, 1387.) Leaving aside
constitutional questions raised by establishing a presumption in favor of life without
parole for juveniles after the United States Supreme Court’s opinion in Miller v. Alabama
(2012) 567 U.S. ___ [132 S.Ct. 2455], the state high court’s review of the text of
section 190.5, subdivision (b) led it to conclude the syntax is ambiguous concerning any
presumption. The court stated: “It is not unreasonable to read this text … to mean that a
court ‘shall’ impose life without parole unless ‘at the discretion of the court’ a sentence
of 25 years to life appears more appropriate. [Citation.] But it is equally reasonable to
read the text to mean that a court may select one of the two penalties in the exercise of its
discretion, with no presumption in favor of one or the other. The latter reading accords
4 Section 190.5, subdivision (b) provides, in pertinent part: “The penalty for a
defendant found guilty of murder in the first degree, in any case in which one or more
special circumstances … has been found to be true …, who was 16 years of age or older
and under the age of 18 years at the time of the commission of the crime, shall be
confinement in the state prison for life without the possibility of parole or, at the
discretion of the court, 25 years to life.”

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with common usage. For example, if a teacher informed her students that ‘you must take
a final exam or, at your discretion, write a term paper,’ it would be reasonable for the
students to believe they were equally free to pursue either option. The text of section
190.5[, subdivision ](b) does not clearly indicate whether the statute was intended to
make life without parole the presumptive sentence.” (People v. Gutierrez, supra, 58
Cal.4th at p. 1371.)
The same example can be applied to the syntax of section 1170.126,
subdivision (f). Thus, we do not agree with defendant that resentencing to a second strike
term is now the presumptive punishment, subject only to “‘circumscribed discretion’” to
retain the indeterminate third strike term. A court considering whether to resentence an
eligible petitioner under section 1170.126, subdivision (f) has circumscribed discretion in
the sense it can only refuse to resentence if it finds that to do so would pose an
unreasonable risk of danger to public safety on the facts of the particular case before it.
This does not mean, however, its discretion is circumscribed in the sense it can only find
dangerousness in extraordinary cases. To the contrary, it can do so in any case in which
such a finding is rational under the totality of the circumstances.
Such a conclusion comports with the plain language of the statute. Moreover, a
conclusion there is a “strong presumption” in favor of resentencing that can only be
overcome “upon a finding of extraordinary dangerousness,” as defendant asserts, would
run directly contrary to the intent of the voters in passing the Act. (See People v.
Gutierrez, supra, 58 Cal.4th at pp. 1371-1372 [examining legislative history and voter
intent in attempt to resolve statutory ambiguity].) As we stated in People v. Osuna
(2014) 225 Cal.App.4th 1020, 1036, “‘[e]nhancing public safety was a key purpose of the
Act’ [citation].” Thus, although one purpose of the Act was to save taxpayer dollars
(People v. Osuna, supra, at p. 1037), “[i]t is clear the electorate’s intent was not to throw
open the prison doors to all third strike offenders whose current convictions were not for
serious or violent felonies, but only to those who were perceived as nondangerous or

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posing little or no risk to the public.” (Id. at p. 1038, second italics added.) Had voters
intended to require a finding of “extraordinary dangerousness,” they would have said so
in subdivision (f) of section 1170.126. They also would not have afforded the court the
power to consider any evidence it determined to be relevant to the issue as they did in
subdivision (g)(3) of the statute.
“The standard of proof, the United States Supreme Court has said,
‘serves to allocate the risk of error between the litigants and to indicate the
relative importance attached to the ultimate decision.’ [Citation.] At one
end of the spectrum is the ‘preponderance of the evidence’ standard, which
apportions the risk of error among litigants in roughly equal fashion.
[Citation.] At the other end of the spectrum is the ‘beyond a reasonable
doubt’ standard applied in criminal cases, in which ‘our society imposes
almost the entire risk of error upon itself.’ [Citation.] Between those two
standards is the intermediate standard of clear and convincing evidence.
[Citation.] These three standards are codified in California’s Evidence
Code. Section 115 of that code states: ‘The burden of proof may require a
party to … establish the existence or nonexistence of a fact by a
preponderance of the evidence, by clear and convincing proof, or by proof
beyond a reasonable doubt. [¶] Except as otherwise provided by law, the
burden of proof requires proof by a preponderance of the evidence.’
(Italics added.)
“If the Legislature has not established a standard of proof, a court
must determine the appropriate standard by considering all aspects of the
law. [Citation.] No standard of proof is specified in section [1170.126] .…
“‘The standard of proof that is required in a given instance has been
said to reflect “… the degree of confidence our society thinks [the fact
finder] should have in the correctness of factual conclusions for a particular
type of adjudication.” … The standard of proof may therefore vary,
depending upon the gravity of the consequences that would result from an
erroneous determination of the issue involved.’ [Citations.]” (People v.
Arriaga (2014) 58 Cal.4th 950, 961-962.)
Defendant understandably argues his freedom for the rest of his life potentially is
at stake in a proceeding under section 1170.126. Thus, he says, his interest in the
outcome is just as great as that of people who, for instance, are involuntarily committed
as narcotics addicts. In such instances (and in similar situations), the California Supreme

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Court has found the appropriate standard of proof to be beyond a reasonable doubt. (See,
e.g., People v. Thomas (1977) 19 Cal.3d 630, 637-638.) Defendant received the
protections of that standard of proof (and the right to a jury trial) at the time he was found
to have suffered his prior strike convictions, however. (People v. Nguyen (2009) 46
Cal.4th 1007, 1015; People v. Towers (2007) 150 Cal.App.4th 1273, 1277.)
“In enacting section 1170.126 as part of Proposition 36, the issue before the voters
was not whether a defendant could or should be punished more harshly for a particular
aspect of his or her offense, but whether, having already been found to warrant an
indeterminate life sentence as a third strike offender, he or she should now be eligible for
a lesser term.” (People v. Osuna, supra, 225 Cal.App.4th at p. 1036.) Voters could have,
but did not, permit automatic resentencing, under any and all circumstances, of those
eligible therefor. This demonstrates a recognition of two highly plausible scenarios:
(1) Some inmates sentenced to indeterminate terms under the original version of the three
strikes law for crimes not defined as serious or violent felonies may have started out not
posing any greater risk of danger than recidivists who will now be sentenced to
determinate terms as second strike offenders under the prospective provisions of the Act,
but have become violent or otherwise dangerous while imprisoned, or (2) Enough time
might have passed since some inmates committed their criminal offenses so that those
offenses no longer make such inmates dangerous, but other factors do. Because of the
severe consequences to society that may result if a dangerous inmate is resentenced as a
second strike offender and automatically released to the community upon completion of
his or her term with little or no supervision (see, e.g., § 3451) and without undergoing
any suitability assessment (see, e.g., In re Lawrence (2008) 44 Cal.4th 1181, 1204), we
believe it appropriate to apportion the risk of error in roughly equal fashion.
Accordingly, we hold preponderance of the evidence is the applicable standard of proof,

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regardless whether we analyze the issue as one of Sixth Amendment jurisprudence or due
process. (See People v. Flores (2014) 227 Cal.App.4th 1070, 1076.)5
This does not mean, however, that the trial court must apply that standard in
making its ultimate determination whether to resentence a petitioner, or we must review
that determination for substantial evidence.6 Nor does it mean evidence of
dangerousness must preponderate over evidence of rehabilitation in order for
resentencing to be denied. Instead, taking into account the language of subdivisions (f)
and (g) of section 1170.126, we conclude it means the People have the burden of
establishing, by a preponderance of the evidence, facts from which a determination
resentencing the petitioner would pose an unreasonable risk of danger to public safety
can reasonably be made.7 The reasons a trial court finds resentencing would pose an
unreasonable risk of danger, or its weighing of evidence showing dangerousness versus
evidence showing rehabilitation, lie within the court’s discretion. The ultimate
5 We expressly reject defendant’s claim due process requires at least a clear and
convincing evidence standard of proof. The cases cited by defendant (U.S. v. Pineda-
Doval (9th Cir. 2010) 614 F.3d 1019, 1041; U.S. v. Jordan (9th Cir. 2001) 256 F.3d 922,
930) do not address situations analogous to the act of lenity contained in
section 1170.126.
6 The substantial evidence test applies to an appellate court’s review of findings
made under the preponderance of the evidence standard. (People v. Wong (2010) 186
Cal.App.4th 1433, 1444.) Under that test, the appellate court reviews the record in the
light most favorable to the challenged finding, to determine whether it discloses evidence
that is reasonable, credible, and of solid value such that a reasonable trier of fact could
make the finding by a preponderance of the evidence. The appellate court “resolve[s] all
conflicts in the evidence and questions of credibility in favor of the [finding], and …
indulge[s] every reasonable inference the [trier of fact] could draw from the evidence.
[Citation.]” (Ibid.)
7 Courts and parties have assumed whatever burden exists is on the People. (E.g.,
People v. Flores, supra, 227 Cal.App.4th at pp. 1075-1076; Kaulick, supra, 215
Cal.App.4th at p. 1301, fn. 25.) Such allocation is in harmony with the language of
section 1170.126, subdivision (f) that an eligible petitioner “shall be resentenced …
unless” the court makes the required determination.

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determination that resentencing would pose an unreasonable risk of danger is a
discretionary one. While the determination must be supported by record evidence
established by a preponderance, the trial court need not itself find an unreasonable risk of
danger by a preponderance of the evidence. (See In re Robert L., supra, 21 Cal.App.4th
at pp. 1065-1067 [discussing abuse of discretion and preponderance of the evidence
standards].)
Such an interpretation is consistent with California’s noncapital sentencing
scheme.8 Under the determinate sentencing law (DSL) as it existed prior to Cunningham,
“three terms of imprisonment [were] specified by statute for most offenses. The trial
court’s discretion in selecting among [those] options [was] limited by section 1170,
subdivision (b), which direct[ed] that ‘the court shall order imposition of the middle term,
unless there are circumstances in aggravation or mitigation of the crime.’” (People v.
Black (2007) 41 Cal.4th 799, 808, fn. omitted.) Trial courts had “broad discretion” to
impose the lower or upper term instead of the middle term of imprisonment (People v.
Scott (1994) 9 Cal.4th 331, 349), and generally were required by the statutes and
sentencing rules to state reasons for their discretionary sentencing choices (ibid.). Such
reasons had to be “supported by a preponderance of the evidence in the record” and
reasonably related to the particular sentencing determination. (Ibid.; see former Cal.
Rules of Court, rule 4.420(b).) Even after the DSL was reformed and amended in
response to Cunningham, so as to eliminate judicial factfinding in selection of the
appropriate term when three possible prison terms are specified by statute, establishment
8 The determination of the appropriate penalty in a capital case “‘is “essentially
moral and normative …, and therefore … there is no burden of proof or burden of
persuasion. [Citation.]” [Citation.]’ [Citations.]” (People v. McKinzie (2012) 54
Cal.4th 1302, 1362.)

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of facts by a preponderance of the evidence remains necessary with respect to certain
discretionary sentencing decisions. (See In re Coley (2012) 55 Cal.4th 524, 557-558.)9
In People v. Sandoval (2007) 41 Cal.4th 825, 850-851, the California Supreme
Court stated that, in making its discretionary sentencing choices post-Cunningham, “the
trial court need only ‘state [its] reasons’ [citation]; it is not required to identify
aggravating and mitigating factors, apply a preponderance of the evidence standard, or
specify the ‘ultimate facts’ that ‘justify[] the term selected.’ [Citations.] Rather, the
court must ‘state in simple language the primary factor or factors that support the exercise
of discretion.’ [Citation.]” (Italics added.)
We do not read the foregoing statement as suggesting the People bear no burden in
a proceeding to determine whether a petitioner should be resentenced under the Act.
Subdivision (g) of section 1170.126 contemplates the trial court’s consideration of
evidence. It stands to reason someone must produce that evidence. However, the trial
court’s ultimate determination when considering a petition for resentencing under
section 1170.126 — whether resentencing the petitioner would pose an unreasonable risk
of danger to public safety — is analogous to an evaluation of the relative weight of
mitigating and aggravating circumstances. Such an evaluation “is not equivalent to a
factual finding.” (People v. Black, supra, 41 Cal.4th at p. 814, fn. 4.) It follows, then,
that the trial court need not apply a preponderance of the evidence standard, in that it
need not find resentencing the petitioner would, more likely than not, pose an
9 After Cunningham concluded the DSL violated a defendant’s Sixth Amendment
right to a jury trial (Cunningham, supra, 549 U.S. at p. 281), the Legislature amended
section 1170 so that now “(1) the middle term is no longer the presumptive term absent
aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the
discretion to impose an upper, middle or lower term based on reasons he or she states.”
(People v. Wilson (2008) 164 Cal.App.4th 988, 992.) Subdivision (b) of section 1170
states the court “shall select the term which, in the court’s discretion, best serves the
interests of justice.”

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unreasonable risk of danger to public safety. (See Kaulick, supra, 215 Cal.App.4th at
p. 1305, fn. 28 [preponderance standard means “‘more likely than not’”].)
Kaulick found the prosecution bears the burden of establishing “dangerousness”
by a preponderance of the evidence against a claim the Apprendi line of cases requires
proof beyond a reasonable doubt. (Kaulick, supra, 215 Cal.App.4th at pp. 1301-1302.)
As a result, it had no real occasion to address the interplay between the burden of proof
and the trial court’s exercise of discretion as that issue is presented here, or to clarify
whether the prosecution is required to establish “dangerousness” in the sense of facts
upon which the trial court can base the ultimate determination resentencing a petitioner
would pose an unreasonable risk of danger to public safety, or in the sense of establishing
that determination itself.10 Nevertheless, we believe it supports our interpretation. As
previously set out, Kaulick stated, in part: “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. While [the Act] presents him with an
opportunity to be resentenced to a lesser term, unless certain facts are established, he is
nonetheless still subject to the third strike sentence based on the facts established at the
time he was originally sentenced. As such, a court’s discretionary decision to decline to
modify the sentence in his favor can be based on any otherwise appropriate factor (i.e.,
dangerousness), and such factor need not be established by proof beyond a reasonable
doubt to a jury.” (Id. at p. 1303, italics added.) The court further stated: “[I]t is the
general rule in California that once a defendant is eligible for an increased penalty, the
10 As noted, ante, we have previously discussed Kaulick in the context of the initial
determination whether an inmate is eligible for resentencing under the Act. (Blakely,
supra, 225 Cal.App.4th at pp. 1058, 1060-1061; People v. Osuna, supra, 225 Cal.App.4th
at pp. 1033, 1039-1040.) Nothing we say here should be taken as disagreement with or
modification of those opinions. We deal here with a different aspect of the retrospective
portion of the Act and a subject not before us in our prior cases.

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trial court, in exercising its discretion to impose that penalty, may rely on factors
established by a preponderance of the evidence. [Citation.]” (Id. at p. 1305, italics
added.)
Finally, Kaulick rejected the suggestion a trial court could determine resentencing
a petitioner would pose an unreasonable risk of danger to public safety, yet still have the
discretion to resentence that petitioner to a second strike term. (Kaulick, supra, 215
Cal.App.4th at pp. 1293-1294, fn. 12.) The court explained: “The language of …
section 1170.126, subdivision (f), states that the petitioner shall be resentenced unless the
court finds an unreasonable risk of danger. It does not state that if the court finds an
unreasonable risk of danger, it can nonetheless resentence the petitioner. In any event,
the ballot arguments in support of Proposition 36 emphasized that the Act would not
benefit ‘“truly dangerous criminals.”’ [Citation.] It is impossible to believe that the
voters intended to allow a court the discretion to resentence defendants whose
resentencing that court had already found would present an unreasonable risk of danger.”
(Ibid.)
We concur with Kaulick’s rejection of the argument. Nevertheless, it seems to us
that if the prosecution had the burden of proving the ultimate issue in a resentencing
proceeding, a trial court necessarily would be divested of its discretion to resentence in
any case in which that burden of proof was met. Yet the language of section 1170.126,
subdivision (f) expressly states the petitioner shall be resentenced unless the court, in its
discretion, makes a determination that resentencing would pose an unreasonable risk of
danger. The statute does not say the petitioner shall be resentenced unless the People
prove resentencing would pose such a risk.
To summarize, a trial court need not determine, by a preponderance of the
evidence, that resentencing a petitioner would pose an unreasonable risk of danger to
public safety before it can properly deny a petition for resentencing under the Act. Nor is
the court’s ultimate determination subject to substantial evidence review. Rather, its

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finding will be upheld if it does not constitute an abuse of discretion, i.e., if it falls within
“the bounds of reason, all of the circumstances being considered. [Citations.]” (People
v. Giminez (1975) 14 Cal.3d 68, 72.) The facts or evidence upon which the court’s
finding of unreasonable risk is based must be proven by the People by a preponderance of
the evidence, however, and are themselves subject to our review for substantial evidence.
If a factor (for example, that the petitioner recently committed a battery, is violent due to
repeated instances of mutual combat, etc.) is not established by a preponderance of the
evidence, it cannot form the basis for a finding of unreasonable risk. (See People v. Cluff
(2001) 87 Cal.App.4th 991, 998 [trial court abuses its discretion when factual findings
critical to decision find no support in record]; cf. People v. Read (1990) 221 Cal.App.3d
685, 689-691 [where trial court erroneously determined defendant was statutorily
ineligible for probation, reviewing court was required to determine whether trial court
gave sufficient other reasons, supported by facts of case, for probation denial].)
In the present case, the trial court placed the burden on the People to prove, by a
preponderance of the evidence, that resentencing defendant would pose an unreasonable
risk of danger to public safety. This was error, but error that favored, rather than harmed,
defendant.
The evidence presented to the court is set out at length, ante, and we need not
repeat it here. The factors relied on by the court in denying the petition were supported
by substantial evidence. The evidence was sufficient to permit the court to conclude not
merely that resentencing defendant might present potential threat to the community, but
that resentencing him would pose an unreasonable risk of danger to public safety,
particularly in light of his extensive criminal record and longstanding heroin addiction.
This is so despite the steps defendant commendably took to overcome this addiction.

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II
Section 1170.18, subdivision (c), enacted pursuant to Proposition 47,
does not modify section 1170.126, subdivision (f).
On November 4, 2014, voters enacted Proposition 47, “the Safe Neighborhoods
and Schools Act” (hereafter Proposition 47). It went into effect the next day. (Cal.
Const., art. II, § 10, subd. (a).) Insofar as is pertinent here, Proposition 47 renders
misdemeanors certain drug- and theft-related offenses that previously were felonies or
“wobblers,” unless they were committed by certain ineligible defendants. Proposition 47
also created a new resentencing provision — section 1170.18 — by which a person
currently serving a felony sentence for an offense that is now a misdemeanor, may
petition for a recall of that sentence and request resentencing in accordance with the
offense statutes as added or amended by Proposition 47. (§ 1170.18, subd. (a).) A
person who satisfies the criteria in subdivision (a) of section 1170.18 shall have his or her
sentence recalled and be “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.” (Id., subd. (b).)11
Hidden in the lengthy, fairly abstruse text of the proposed law, as presented in the
official ballot pamphlet — and nowhere called to voters’ attention — is the provision at
issue in the present appeal. Subdivision (c) of section 1170.18 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 clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.”
Section 667, subdivision (e)(2)(C)(iv) lists the following felonies, sometimes called
“super strike” offenses:
11 Proposition 47 also created a process whereby eligible persons who have already
completed their sentences may have the particular conviction or convictions designated
as misdemeanors. (§ 1170.18, subds. (f), (g).)

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“(I) A ‘sexually violent offense’ as defined in subdivision (b) of
Section 6600 of the Welfare and Institutions Code.
“(II) Oral copulation with a child who is under 14 years of age, and
who is more than 10 years younger than he or she as defined by Section
288a, sodomy with another person who is under 14 years of age and more
than 10 years younger than he or she as defined by Section 286, or sexual
penetration with another person who is under 14 years of age, and who is
more than 10 years younger than he or she, as defined by Section 289.
“(III) A lewd or lascivious act involving a child under 14 years of
age, in violation of Section 288.
“(IV) Any homicide offense, including any attempted homicide
offense, defined in Sections 187 to 191.5, inclusive.
“(V) Solicitation to commit murder as defined in Section 653f.
“(VI) Assault with a machine gun on a peace officer or firefighter, as
defined in paragraph (3) of subdivision (d) of Section 245.
“(VII) Possession of a weapon of mass destruction, as defined in
paragraph (1) of subdivision (a) of Section 11418.
“(VIII) Any serious and/or violent felony offense punishable in
California by life imprisonment or death.”
The question is whether section 1170.18, subdivision (c) now limits a trial court’s
discretion to deny resentencing under the Act to those cases in which resentencing the
defendant would pose an unreasonable risk he or she will commit a new “super strike”
offense. Defendant says it does. The People disagree. We agree with the People.12
12 We solicited supplemental briefing concerning Proposition 47. Among the
questions we asked counsel to answer were whether defendant met the criteria for
resentencing under section 1170.18 and, if so, whether we needed to determine the
applicability, if any, of section 1170.18, subdivision (c) to resentencing proceedings
under section 1170.126. We are satisfied it is appropriate for us to reach the issue of
applicability regardless of whether defendant might obtain resentencing under
Proposition 47.
It appears that a number of inmates will be eligible to seek resentencing under
both the Act and Proposition 47. Such an inmate need not wait to file a petition under
Proposition 47 until the trial court’s ruling on the inmate’s petition under the Act is

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“‘In interpreting a voter initiative …, we apply the same principles that govern
statutory construction. [Citation.]’ [Citation.] ‘“The fundamental purpose of statutory
construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of
the law. [Citations.]”’ [Citation.]” (People v. Superior Court (Cervantes) (2014) 225
Cal.App.4th 1007, 1014.) Thus, in the case of a provision adopted by the voters, “their
intent governs. [Citations.]” (People v. Jones (1993) 5 Cal.4th 1142, 1146.)
To determine intent, “‘we look first to the words themselves. [Citations.]’”
(People v. Superior Court (Cervantes), supra, 225 Cal.App.4th at p. 1014.) We give the
statute’s words “‘a plain and commonsense meaning. [Citation.] We do not, however,
consider the statutory language “in isolation.” [Citation.] Rather, we look to “the entire
substance of the statute … in order to determine the scope and purpose of the
provision .… [Citation.]” [Citation.] That is, we construe the words in question “‘in
final. A trial court is not divested of jurisdiction over a Proposition 47 petition by the fact
a petition under the Act is pending, whether in a trial court or a Court of Appeal, with
respect to the same inmate. (Cf. People v. Mayfield (1993) 5 Cal.4th 220, 222-227;
People v. Johnson (1992) 3 Cal.4th 1183, 1256-1257; People v. Alanis (2008) 158
Cal.App.4th 1467, 1472-1473.) While the general rule is that “an appeal from an order in
a criminal case removes the subject matter of that order from the jurisdiction of the trial
court [citations]” (Anderson v. Superior Court (1967) 66 Cal.2d 863, 865), the subject
matter of a ruling on a petition under the Act is legally independent from a petition under
Proposition 47 (see People v. Superior Court (Gregory) (2005) 129 Cal.App.4th 324,
332).
In light of the differences between the two proceedings — for instance, an inmate
resentenced under Proposition 47 is generally subject to one year of parole (§§ 1170.18,
subd. (d), 3000.08), while an inmate resentenced under the Act is subject to up to three
years of postrelease community supervision (§ 3451; People v. Tubbs (2014) 230
Cal.App.4th 578, 585-586; People v. Espinoza (2014) 226 Cal.App.4th 635, 637-638) —
we express no opinion concerning whether the granting of a Proposition 47 petition
would render moot resentencing proceedings, whether in a trial court or on appeal, under
the Act. Nothing we say should be read as expressing any opinion concerning
defendant’s eligibility to seek, or the appropriate result should he seek, resentencing
under Proposition 47.

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context, keeping in mind the nature and obvious purpose of the statute .…’ [Citation.]”
[Citation.] We must harmonize “the various parts of a statutory enactment … by
considering the particular clause or section in the context of the statutory framework as a
whole.” [Citations.]’ [Citation.]” (People v. Acosta (2002) 29 Cal.4th 105, 112.) We
“accord[] significance, if possible, to every word, phrase and sentence in pursuance of the
legislative purpose. A construction making some words surplusage is to be avoided.…
[S]tatutes or statutory sections relating to the same subject must be harmonized, both
internally and with each other, to the extent possible. [Citations.]” (Dyna-Med, Inc. v.
Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.)
“‘“When statutory language is clear and unambiguous, there is no need for
construction and courts should not indulge in it.” [Citation.]’ [Citation.]” (People v.
Hendrix (1997) 16 Cal.4th 508, 512.) On its face, “[a]s used throughout this Code,” as
employed in section 1170.18, subdivision (c), clearly and unambiguously refers to the
Penal Code, not merely section 1170.18 or the other provisions contained in
Proposition 47. (See People v. Bucchierre (1943) 57 Cal.App.2d 153, 164-165, 166; see
also Marshall v. Pasadena Unified School Dist. (2004) 119 Cal.App.4th 1241, 1254-
1255; People v. Vasquez (1992) 7 Cal.App.4th 763, 766.)
This does not mean, however, that the definition contained in section 1170.18,
subdivision (c) must inexorably be read into section 1170.126, subdivision (f). (Cf.
Marshall v. Pasadena Unified School Dist., supra, 119 Cal.App.4th at p. 1255.) “The
literal language of a statute does not prevail if it conflicts with the lawmakers’ intent .…
[Citations.]” (People v. Osuna, supra, 225 Cal.App.4th at pp. 1033-1034.) “‘The
apparent purpose of a statute will not be sacrificed to a literal construction.’ [Citation.]”
(Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 733.) Rather, “the literal meaning
of a statute must be in accord with its purpose.” (People v. Mohammed (2008) 162
Cal.App.4th 920, 927.) “[I]t is settled that the language of a statute should not be given a
literal meaning if doing so would result in absurd consequences that the [voters] did not

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intend” (In re Michele D. (2002) 29 Cal.4th 600, 606), or would “frustrate[] the manifest
purposes of the legislation as a whole .…” (People v. Williams (1992) 10 Cal.App.4th
1389, 1393.) “To this extent, therefore, intent prevails over the letter of the law and the
letter will be read in accordance with the spirit of the enactment. [Citation.]” (In re
Michele D., supra, 29 Cal.4th at p. 606; accord, People v. Ledesma (1997) 16 Cal.4th 90,
95.)
Thus, “‘we look to a variety of extrinsic aids, including the ostensible objects to be
achieved, the evils to be remedied, the legislative history, public policy,
contemporaneous administrative construction, and the statutory scheme of which the
statute is a part. [Citations.]’ [Citation.] We also ‘“refer to other indicia of the voters’
intent, particularly the analyses and arguments contained in the official ballot pamphlet.”
[Citation.]’ [Citation.]” (People v. Osuna, supra, 225 Cal.App.4th at p. 1034.) We
consider “the consequences that will flow from a particular interpretation” (Dyna-Med,
Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at p. 1387), as well as “the
wider historical circumstances” of the statute’s or statutes’ enactment (ibid.). “‘Using
these extrinsic aids, we “select the construction that comports most closely with the
apparent intent of the [electorate], with a view to promoting rather than defeating the
general purpose of the statute, and avoid an interpretation that would lead to absurd
consequences.” [Citation.]’ [Citation.]” (People v. Osuna, supra, 225 Cal.App.4th at
pp. 1034-1035.)
Proposition 47 and the Act address related, but not identical, subjects. As we
explain, reading them together, and considering section 1170.18, subdivision (c) in the
context of the statutory framework as a whole (see People v. Acosta, supra, 29 Cal.4th at
p. 112; Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 658-659; In re
Cindy B. (1987) 192 Cal.App.3d 771, 781), we conclude its literal meaning does not
comport with the purpose of the Act, and applying it to resentencing proceedings under
the Act would frustrate, rather than promote, that purpose and the intent of the electorate

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in enacting both initiative measures (see People v. Disibio (1992) 7 Cal.App.4th Supp. 1,
5).
As is evidenced by its title, the Act was aimed solely at revising the three strikes
law. That law, as originally enacted by the Legislature, was described by us as follows:
“Under the three strikes law, defendants are punished not just for
their current offense but for their recidivism. Recidivism in the
commission of multiple felonies poses a danger to society justifying the
imposition of longer sentences for subsequent offenses. [Citation.] The
primary goals of recidivist statutes are: ‘… to deter repeat offenders and, at
some point in the life of one who repeatedly commits criminal offenses
serious enough to be punished as felonies, to segregate that person from the
rest of society for an extended period of time. This segregation and its
duration are based not merely on that person’s most recent offense but also
on the propensities he has demonstrated over a period of time during which
he has been convicted of and sentenced for other crimes. Like the line
dividing felony theft from petty larceny, the point at which a recidivist will
be deemed to have demonstrated the necessary propensities and the amount
of time that the recidivist will be isolated from society are matters largely
within the discretion of the punishing jurisdiction.’ [Citation.]
“By enacting the three strikes law, the Legislature acknowledged the
will of Californians that the goals of retribution, deterrence, and
incapacitation be given precedence in determining the appropriate
punishment for crimes. Further, those goals were best achieved by
ensuring ‘longer prison sentences and greater punishment’ for second and
third ‘strikers.’” (People v. Cooper (1996) 43 Cal.App.4th 815, 823-
824.)13
A few months before the November 6, 2012, election, the California Supreme
Court observed: “One aspect of the [three strikes] law that has proven controversial is
13 The foregoing applies equally to the three strikes initiative measure that added
section 1170.12 to the Penal Code. The following statement of intent preceded the text of
the statute in Proposition 184, which was approved by voters on November 8, 1994: “‘It
is the intent of the People of the State of California in enacting this measure to ensure
longer prison sentences and greater punishment for those who commit a felony and have
been previously convicted of serious and/or violent felony offenses.’” (See Historical
and Statutory Notes, 50C West’s Ann. Pen. Code (2004 ed.) foll. § 1170.12, p. 239.)

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that the lengthy punishment prescribed by the law may be imposed not only when … a
defendant [who has previously been convicted of one or more serious or violent felonies]
is convicted of another serious or violent felony but also when he or she is convicted of
any offense that is categorized under California law as a felony. This is so even when the
current, so-called triggering, offense is nonviolent and may be widely perceived as
relatively minor. [Citations.]” (In re Coley, supra, 55 Cal.4th at pp. 528-529.)
Clearly, by approving the Act, voters resolved this controversy in favor of strike
offenders. Thus, one of the “Findings and Declarations” of the Act stated the Act would
“[r]estore the Three Strikes law to the public’s original understanding by requiring life
sentences only when a defendant’s current conviction is for a violent or serious crime.”
(Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of proposed law, § 1, p. 105.)
Nowhere, however, do the ballot materials for the Act suggest voters intended essentially
to open the prison doors to existing third strike offenders in all but the most egregious
cases, as would be the result if the definition of “‘unreasonable risk of danger to public
safety’” contained in section 1170.18, subdivision (c) were engrafted onto resentencing
proceedings under section 1170.126, subdivision (f). That voters did not intend such a
result is amply demonstrated by the fact an indeterminate life term remains mandatory
under the Act for a wide range of current offenses even if the offender does not have a
prior conviction for a “super strike” offense (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)),
and that an inmate is rendered ineligible for resentencing under section 1170.126 for an
array of reasons beyond his or her having suffered such a prior conviction (§ 1170.126,
subd. (e)(2)).
The Act clearly placed public safety above the cost savings likely to accrue as a
result of its enactment. Thus, uncodified section 7 of the Act provides: “This act is an
exercise of the public power of the people of the State of California for the protection of
the health, safety, and welfare of the people of the State of California, and shall be
liberally construed to effectuate those purposes.” (Voter Information Guide, Gen. Elec.

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(Nov. 6, 2012), supra, text of proposed law, p. 110, original italics omitted, italics
added.) As we explained in People v. Osuna, supra, 225 Cal.App.4th at page 1036,
“Although the Act ‘diluted’ the three strikes law somewhat [citation], ‘[e]nhancing public
safety was a key purpose of the Act’ [citation].”
In contrast, Proposition 47 — while titled “the Safe Neighborhoods and Schools
Act” — emphasized monetary savings. The “Findings and Declarations” state: “The
people of the State of California find and declare as follows: [¶] The people enact the
Safe Neighborhoods and Schools Act to ensure that prison spending is focused on violent
and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to
invest the savings generated from this act into prevention and support programs in K-12
schools, victim services, and mental health and drug treatment. This act ensures that
sentences for people convicted of dangerous crimes like rape, murder, and child
molestation are not changed.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text
of proposed law, § 2, p. 70.) Uncodified section 15 of the measure provides: “This act
shall be broadly construed to accomplish its purposes,” while uncodified section 18
states: “This act shall be liberally construed to effectuate its purposes.” (Voter
Information Guide, Gen. Elec. (Nov. 4, 2014), supra, text of proposed law, p. 74.)
Proposition 47 requires misdemeanor sentences for various drug possession and property
offenses, unless the perpetrator has a prior conviction for a “super strike” offense or for
an offense requiring sex offender registration pursuant to section 290, subdivision (c).
(Health & Saf. Code, §§ 11350, subd. (a), 11357, subd. (a), 11377, subd. (a); §§ 459.5,
subd. (a), 473, subd. (b), 476a, subd. (b), 490.2, subd. (a), 496, subd. (a), 666, subd. (b).)
Section 1170.18 renders ineligible for resentencing only those inmates whose current
offense would now be a misdemeanor, but who have a prior conviction for a “super
strike” offense or for an offense requiring sex offender registration pursuant to
section 290, subdivision (c). (§ 1170.18, subds. (a), (i).)

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Nowhere in the ballot materials for Proposition 47 were voters given any
indication that initiative, which dealt with offenders whose current convictions would
now be misdemeanors rather than felonies, had any impact on the Act, which dealt with
offenders whose current convictions would still be felonies, albeit not third strikes. For
instance, the Official Title and Summary stated, in pertinent part, that Proposition 47
would “[r]equire[] resentencing for persons serving felony sentences for these offenses[,
i.e., offenses that require misdemeanor sentences under the measure] unless court finds
unreasonable public safety risk.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014),
supra, official title and summary, p. 34.) In explaining what Proposition 47 would do,
the Legislative Analyst stated: “This measure reduces penalties for certain offenders
convicted of nonserious and nonviolent property and drug crimes. This measure also
allows certain offenders who have been previously convicted of such crimes to apply for
reduced sentences.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra,
analysis of Prop. 47 by Legis. Analyst, p. 35, italics added.) With respect to the
resentencing provision, the Legislative Analyst explained:
“This measure allows offenders currently serving felony sentences
for the above crimes[, i.e., 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. In
addition, certain offenders who have already completed a sentence for a
felony that the measure changes could apply to the court to have their
felony conviction changed to a misdemeanor. However, no offender who
has committed a specified severe crime could be resentenced or have their
conviction changed. In addition, the measure states that a court is not
required to resentence an offender currently serving a felony sentence if the
court finds it likely that the offender will commit a specified severe crime.
Offenders who are resentenced would be required to be on state parole for
one year, unless the judge chooses to remove that requirement.” (Id. at
p. 36, italics added.)
Similarly, the arguments in favor of and against Proposition 47 spoke in terms
solely of Proposition 47, and never mentioned the Act. The Argument in Favor of

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30.
Proposition 47 spoke in terms of prioritizing serious and violent crime so as to stop
wasting prison space “on petty crimes,” stop “wasting money on warehousing people in
prisons for nonviolent petty crimes,” and stop California’s overcrowded prisons from
“incarcerating too many people convicted of low-level, nonviolent offenses.” (Voter
Information Guide, Gen. Elec. (Nov. 4, 2014), supra, argument in favor of Prop. 47,
p. 38.) The Rebuttal to Argument Against Proposition 47 reiterated these themes, and
never suggested Proposition 47 would have any effect on resentencing under the Act.
(See Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, rebuttal to argument
against Prop. 47, p. 39.) Although the Rebuttal to Argument in Favor of Proposition 47
asserted 10,000 inmates would be eligible for early release under the measure, and that
many of them had prior convictions “for serious crimes, such as assault, robbery and
home burglary” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, rebuttal to
argument in favor of Prop. 47, p. 38), there is no suggestion the early release provisions
would extend to inmates whose current offenses remained felonies under the Act. The
same is true of the discussion of resentencing contained in the Argument Against
Proposition 47. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, argument
against Prop. 47, p. 39.)
In light of the foregoing, we cannot reasonably conclude voters intended the
definition of “‘unreasonable risk of danger to public safety’” contained in
section 1170.18, subdivision (c) to apply to that phrase as it appears in section 1170.126,
subdivision (f), despite the former section’s preamble, “As used throughout this
Code .…” Voters cannot intend something of which they are unaware.
We are cognizant one of the Act’s authors has taken the position Proposition 47’s
definition of “unreasonable risk of danger” applies to resentencing proceedings under the
Act. (St. John & Gerber, Prop. 47 Jolts Landscape of California Justice System (Nov. 6,
2014) Los Angeles Times <http://www.latimes.com/local/politics/la-me-ff-pol-
proposition47-20141106-story.html> [as of Feb. 2, 2015].) Looking at the information

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31.
conveyed to voters, however, this clearly was not their intent and so an author’s desire is
of no import. (Cf. People v. Garcia (2002) 28 Cal.4th 1166, 1175-1176, fn. 5; People v.
Bradley (2012) 208 Cal.App.4th 64, 83; Kaufman & Broad Communities, Inc. v.
Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 30.)
We are also mindful “it has long been settled that ‘[t]he enacting body is deemed
to be aware of existing laws and judicial constructions in effect at the time legislation is
enacted’ [citation], ‘and to have enacted or amended a statute in light thereof’ [citation].
‘This principle applies to legislation enacted by initiative. [Citation.]’ [Citation.]”
(People v. Superior Court (Cervantes), supra, 225 Cal.App.4th at p. 1015; accord, In re
Lance W. (1985) 37 Cal.3d 873, 890, fn. 11.) Thus, we presume voters were aware
“unreasonable risk of danger to public safety,” as used in section 1170.126,
subdivision (f), had been judicially construed as not being impermissibly vague, but as
nevertheless having no fixed definition. (People v. Garcia (2014) 230 Cal.App.4th 763,
769-770; People v. Flores, supra, 227 Cal.App.4th at p. 1075.) Because nowhere in the
ballot materials for Proposition 47 was it called to voters’ attention the definition of the
phrase contained in section 1170.18, subdivision (c) would apply to resentencing
proceedings under the Act, we simply cannot conclude voters intended Proposition 47 to
alter the Act in that respect. Voters are not asked or presumed to be able to discern all
potential effects of a proposed initiative measure; this is why they are provided with voter
information guides containing not only the actual text of such a measure, but also a
neutral explanation and analysis by the Legislative Analyst and arguments in support of
and in opposition to the measure. As we have already observed, none of those materials
so much as hinted that Proposition 47 could have the slightest effect on resentencing
under the Act. (Cf. Marshall v. Pasadena Unified School Dist., supra, 119 Cal.App.4th

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32.
at pp. 1255-1256 [legislative history of enactment included information bill would add
definition of particular term to Public Contract Code].)14
We are asked to infer an intent to extend section 1170.18, subdivision (c)’s
definition to proceedings under section 1170.126 because the phrase in question only
appears in those sections of the Penal Code. We cannot do so. The only resentencing
mentioned in the Proposition 47 ballot materials was resentencing for inmates whose
current offenses would be reduced to misdemeanors, not those who would still warrant
second strike felony terms. There is a huge difference, both legally and in public safety
risked, between someone with multiple prior serious and/or violent felony convictions
whose current offense is (or would be, if committed today) a misdemeanor, and someone
whose current offense is a felony. Accordingly, treating the two groups differently for
resentencing purposes does not lead to absurd results, but rather is eminently logical.
We recognize “[i]t is an established rule of statutory construction … that when
statutes are in pari materia similar phrases appearing in each should be given like
meanings. [Citations.]” (People v. Caudillo (1978) 21 Cal.3d 562, 585, overruled on
another ground in People v. Martinez (1999) 20 Cal.4th 225, 229, 237, fn. 6 &
disapproved on another ground in People v. Escobar (1992) 3 Cal.4th 740, 749-751 &
fn. 5; see Robbins v. Omnibus R. Co. (1867) 32 Cal. 472, 474.) We question whether
Proposition 47 and the Act are truly in pari materia: That phrase means “[o]n the same
subject; relating to the same matter” (Black’s Law Dict. (9th ed. 2009) p. 862), and the
two measures (albeit with some overlap) address different levels of offenses and
offenders. In any event, “canons of statutory construction are merely aids to ascertaining
14 For the same reasons, we reject any suggestion the definition contained in
section 1170.18, subdivision (c) was intended to clarify the true meaning of
“unreasonable risk of danger to public safety” as used in section 1170.126,
subdivision (f). (Cf. Re-Open Rambla, Inc. v. Board of Supervisors (1995) 39
Cal.App.4th 1499, 1511; In re Connie M. (1986) 176 Cal.App.3d 1225, 1238.)

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33.
probable legislative intent” (Stone v. Superior Court (1982) 31 Cal.3d 503, 521, fn. 10);
they are “mere guides and will not be applied so as to defeat the underlying legislative
intent otherwise determined [citation]” (Dyna-Med, Inc. v. Fair Employment & Housing
Com., supra, 43 Cal.3d at p. 1391).
The Act was intended to reform the three strikes law while keeping intact that
scheme’s core commitment to public safety. Allowing trial courts broad discretion to
determine whether resentencing an eligible petitioner under the Act “would pose an
unreasonable risk of danger to public safety” (§ 1170.126, subd. (f)) clearly furthers the
Act’s purpose. Whatever the wisdom of Proposition 47’s policy of near-universal
resentencing where misdemeanants are concerned — and “[i]t is not for us to gainsay the
wisdom of this legislative choice” (Bernard v. Foley (2006) 39 Cal.4th 794, 813) —
constraining that discretion so that all but the worst felony offenders are released
manifestly does not, nor does it comport with voters’ intent in enacting either measure.
Accordingly, Proposition 47 has no effect on defendant’s petition for resentencing
under the Act. Defendant is not entitled to a remand so the trial court can redetermine
defendant’s entitlement to resentencing under the Act utilizing the definition of
“‘unreasonable risk of danger to public safety’” contained in section 1170.18,
subdivision (c).15
15 Recently, the Third District Court of Appeal held section 1170.18,
subdivision (c)’s definition of “‘unreasonable risk of danger to public safety’” does not
apply retroactively to defendants whose petitions for resentencing under the Act were
decided before the effective date of Proposition 47. (People v. Chaney (2014) 231
Cal.App.4th 1391, 1395-1396, petn. for review pending, petn. filed Jan. 8, 2015.)
Chaney did not decide whether Proposition 47’s definition applies prospectively to such
petitions. (Chaney, supra, at p. 1397, fn. 3.) Were we to conclude section 1170.18,
subdivision (c) modifies section 1170.126, subdivision (f), we would agree with Chaney
that it does not do so retroactively. We believe, however, that a finding of
nonretroactivity inexorably leads to the possibility of prospective-only application, and
that prospective-only application of Proposition 47’s definition to resentencing
petitions under the Act would raise serious, perhaps insurmountable, equal protection

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34.
DISPOSITION
The judgment is affirmed.
_____________________
DETJEN, J.
I CONCUR:
_____________________
LEVY, Acting P.J.
issues. “Mindful of the serious constitutional questions that might arise were we to
accept a literal construction of the statutory language, and of our obligation wherever
possible both to carry out the intent of the electorate and to construe statutes so as to
preserve their constitutionality [citations]” (People v. Skinner (1985) 39 Cal.3d 765, 769),
we rest our holding on the reasoning set out in our opinion, ante.

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PEÑA, J.,
I concur in the judgment and the majority opinion with the exception of part II. I
agree defendant Timothy Daniel Doolittle may not take advantage of Proposition 47’s1
newly enacted definition of “unreasonable risk of danger to public safety,” as provided in
Penal Code section 1170.18, subdivision (c) (1170.18(c)). I do so not because there is
any ambiguity in the language used in section 1170.18(c) or the notion that the statute
does not mean what it says, i.e., that the new definition applies “throughout this Code.”
Rather, in my view, there is no indication the electorate, in enacting section 1170.18(c),
intended it to apply retroactively to resentencing determinations under Proposition 36, the
Three Strikes Reform Act of 2012 (the Act).
I. After November 4, 2014, the definition of “unreasonable risk of danger” in
Section 1170.18(c) applies throughout the Penal Code
Section 1170.18(c) 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 clause (iv) of subparagraph (C) of paragraph
(2) of subdivision (e) of Section 667.”
This section and subdivision were enacted on November 4, 2014, when California
voters passed Proposition 47, long past the time of defendant’s resentencing hearing.
Unless the legislation was designed or intended to apply retroactively, the definition in
section 1170.18(c) cannot apply to defendant. This is the only inquiry we must make to
resolve the issue of whether the definition in section 1170.18(c) applies to defendant.
However, the majority has opted to determine whether the new definition applies to any
resentencing provisions under the Act, past, present, or future. I respectfully disagree
with the majority’s analysis and conclusion on this broader issue.
1The Safe Neighborhood and Schools Act (Prop. 47, as approved by voters, Gen. Elec.
(Nov. 4, 2014)).

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2.
“‘When construing a statute, we must “ascertain the intent of the
Legislature so as to effectuate the purpose of the law.”’ [Citations.] ‘[W]e
begin with the words of a statute and give these words their ordinary
meaning.’ [Citation.] ‘If the statutory language is clear and unambiguous,
then we need go no further.’ [Citation.] If, however, the language supports
more than one reasonable construction, we may consider ‘a variety of
extrinsic aids, including the ostensible objects to be achieved, the evils to
be remedied, the legislative history, public policy, contemporaneous
administrative construction, and the statutory scheme of which the statute is
a part.’ [Citation.] Using these extrinsic aids, we ‘select the construction
that comports most closely with the apparent intent of the Legislature, with
a view to promoting rather than defeating the general purpose of the statute,
and avoid an interpretation that would lead to absurd consequences.’
[Citation.]” (People v. Sinohui (2002) 28 Cal.4th 205, 211-212.)
Where the statutory language is so clear and unambiguous, there is no need for
statutory construction or to resort to legislative materials or other outside sources.
(Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366, 1371.) Absent ambiguity, it is
presumed the voters intend the meaning apparent on the face of an initiative measure, and
the courts may not add to the statute or rewrite it to conform to a presumed intent not
apparent in its language. (People v. ex rel. Lungren v. Superior Court (1996) 14 Cal.4th
294, 301.)
In determining whether the words enacted here are unambiguous, we do not write
on a blank slate. For example, in Marshall v. Pasadena Unified School Dist. (2004) 119
Cal.App.4th 1241, 1255, the court stated there “is nothing ambiguous about the phrase
‘as used in this code.’” It held the definition of “Emergency, as used in this code”
applied to the entire Public Contract Code, and it was not limited to a particular chapter,
article, or division of that code. Also, in People v. Bucchierre (1943) 57 Cal.App.2d 153,
166, the court held: “The words ‘as in this code provided’ (Penal Code, § 182) refer to
the Penal Code.”
In a similar vein, the court in People v. Leal (2004) 33 Cal.4th 999, 1007-1008,
applied the plain meaning rule as follows:

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3.
“The statutory language of the provision defining ‘duress’ in each of
the rape statutes is clear and unambiguous. The definition of ‘duress’ in
both the rape and spousal rape statutes begins with the phrase, ‘As used in
this section, “duress” means ….’ (§§ 261, subd. (b), 262, subd. (c).) This
clear language belies any legislative intent to apply the definitions of
‘duress’ in the rape and spousal rape statutes to any other sexual offenses.
“Starting from the premise that in 1990 the Legislature incorporated
into the rape statute a definition of ‘duress’ that already was in use for other
sexual offenses, defendant argues that the Legislature must have intended
its 1993 amendment of the definition of ‘duress’ in the rape statute, and the
incorporation of this new definition into the spousal rape statute, to apply as
well to other sexual offenses that use the term ‘duress.’ Defendant
observes: ‘The legislative history does not suggest any rationale for why
the Legislature would want its 1993 amendment of the definition of
“duress” to apply only to rape so that it would have one meaning when the
rape statutes use the phrase “force, violence, duress, menace, or fear of
immediate and unlawful bodily injury” but another, much more expansive
meaning when the identical phrase is used in the statutes defining sodomy,
lewd acts on a child, oral copulation and foreign object rape.’
“But the Legislature was not required to set forth its reasons for
providing a different definition of ‘duress’ for rape and spousal rape than
has been used in other sexual offenses; it is clear that it did so. ‘When
“‘statutory language is … clear and unambiguous there is no need for
construction, and courts should not indulge in it.’” [Citations.] The plain
meaning of words in a statute may be disregarded only when that meaning
is “‘repugnant to the general purview of the act,’ or for some other
compelling reason ….” [Citations.]’ [Citation.] As we said in an
analogous situation: ‘It is our task to construe, not to amend, the statute.
“In the construction of a statute … the office of the judge is simply to
ascertain and declare what is in terms or in substance contained therein, not
to insert what has been omitted or omit what has been inserted ….”
[Citation.] We may not, under the guise of construction, rewrite the law or
give the words an effect different from the plain and direct import of the
terms used.’ [Citation.]”
The majority pays lip service to the plain meaning rule and then ignores it. While
acknowledging the language used is unambiguous, it nonetheless engages in statutory
construction to determine whether the electorate really intended to say what it actually
enacted. The end result is a rewriting of the statute so that it comports with the majority’s

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4.
view of what the voters really intended. The majority has rewritten section 1170.18(c) so
that it now states: “As used in this section only, ‘unreasonable risk of danger to public
safety’ means ….” The majority does so without providing a compelling reason to do so
and without showing the plain language used has a “‘meaning [that] is “‘repugnant to the
general purview of the act.’”’” (People v. Leal, supra, 33 Cal.4th at p. 1008.) Because
the Act had not previously defined the phrase “unreasonable risk of danger to public
safety,” the definition in section 1170.18(c) cannot be repugnant or contradictory to the
Act, nor does the majority claim the definition is repugnant to the general purview of
Proposition 47. For these reasons, I respectfully disagree with the majority on this part of
the opinion.
II. Section 1170.18(c) has no application to defendant’s resentencing under the
Act
I do concur in the result because there is nothing in Proposition 47 to indicate the
definition enacted under section 1170.18(c) is to be applied retroactively to defendant
under the Act.
I begin my analysis with section 3 of the Penal Code, which provides that “[n]o
part of it is retroactive, unless expressly so declared.” “Whether a statute operates
prospectively or retroactively is, at least in the first instance, a matter of legislative intent.
When the Legislature has not made its intent on the matter clear,” section 3 provides the
default rule. (People v. Brown (2012) 54 Cal.4th 314, 319.) Proposition 47 is silent on
the question of whether it applies retroactively to proceedings under the Act. The
analysis of Proposition 47 by the legislative analyst and the arguments for and against
Proposition 47 are also silent on this question. (Voter Information Guide, Gen. Elec.
(Nov. 4, 2014) pp. 34-39.) Because the statute contains no express declaration that
section 1170.18(c) applies retroactively to proceedings under the Act, and there is no
clearly implied intent of retroactivity in the legislative history, the default rule applies.

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5.
Defendant cites In re Estrada (1965) 63 Cal.2d 740 to argue retroactive
application.
In Estrada, the court stated:
“When the Legislature amends a statute so as to lessen the punishment it
has obviously expressly determined that its former penalty was too severe
and that a lighter punishment is proper as punishment for the commission
of the prohibited act. It is an inevitable inference that the Legislature must
have intended that the new statute imposing the new lighter penalty now
deemed to be sufficient should apply to every case to which it
constitutionally could apply. The amendatory act imposing the lighter
punishment can be applied constitutionally to acts committed before its
passage provided the judgment convicting the defendant of the act is not
final. This intent seems obvious, because to hold otherwise would be to
conclude that the Legislature was motivated by a desire for vengeance, a
conclusion not permitted in view of modern theories of penology.” (In re
Estrada, supra, 63 Cal.2d at p. 745.)
One may argue that under the Estrada case, unless there is a “savings clause”
providing for prospective application, a statute lessening punishment is presumed to
apply to all cases not yet reduced to a final judgment on the statute’s effective date. (In
re Estrada, supra, 63 Cal.2d at pp. 744-745, 747-748.) However, the Estrada case has
been revisited by our Supreme Court on several occasions. In People v. Brown, supra, 54
Cal.4th at page 324 the court stated: “Estrada is today properly understood, not as
weakening or modifying the default rule of prospective operation codified in [Penal
Code] section 3, but rather as informing the rule’s application in a specific context by
articulating the reasonable presumption that a legislative act mitigating the punishment
for a particular criminal offense is intended to apply to all nonfinal judgments.” “The
holding in Estrada was founded on the premise that ‘“[a] legislative mitigation of the
penalty for a particular crime represents a legislative judgment that the lesser penalty or
the different treatment is sufficient to meet the legitimate ends of the criminal law.”’”
(Id. at p. 325.) In Brown, the court did not apply the Estrada rule because “a statute
increasing the rate at which prisoners may earn credits for good behavior does not

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6.
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, at p. 325.)
Similarly here, Estrada does not control because applying the definition of
“unreasonable risk to public safety” in Proposition 47 to petitions for resentencing under
the Act does not reduce punishment for a particular crime. Instead, the downward
modification of a sentence authorized by the Act is dependent not just on the current
offense but on any number of unlimited factors related to the individual offender,
including criminal conviction history, disciplinary and rehabilitation records, and “[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.”
(Pen. Code, § 1170.126, subd. (g)(3).)
Because section 1170.18(c)’s definition of “unreasonable risk of danger to public
safety” does not apply retroactively to the Act, the sentencing court applied the correct
standard in exercising its discretion to not resentence defendant.2 Since defendant has
failed to show an abuse of that discretion, I concur in the majority’s affirmance of the
judgment.
___________________________
PEÑA, J.
2Recently in People v. Chaney (2014) 231 Cal.App.4th 1391, the Third District Court of
Appeal held the definition of “unreasonable risk of danger to public safety” as provided
in section 1170.18(c) does not apply retroactively. I agree.

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