P. v. Wilson

Filed 2/16/17 P. v. Wilson CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
GERALD JAY WILSON,
Defendant and Appellant.
B266967
(Los Angeles County
Super. Ct. No. BA119207)
APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Affirmed.
Law Offices of Susan L. Jordan and Susan L. Jordan, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Noah P. Hill and Analee J. Brodie, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________

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Petitioner Gerald Jay Wilson is currently serving a “Three
Strikes” sentence of 25 years to life for possession of
paraphernalia in jail (Pen. Code, § 4573.6).1 Following the
passage of the Three Strikes Reform Act (Proposition 36), he
petitioned for resentencing under section 1170.126. The trial
court found that Wilson was eligible for resentencing based on
current and past offenses, but denied the petition on the ground
that resentencing him would “pose[] an unreasonable risk of
danger to public safety.”
While the petition was pending, the voters adopted the Safe
Neighborhoods and Schools Act (Proposition 47 or section
1170.18). Wilson now argues on appeal that Proposition 47’s
definition of “unreasonable risk of danger to public safety” applies
to dangerousness determinations under Proposition 36. We
disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In December 1995, a jury convicted Wilson of possession of
paraphernalia in jail (§ 4573.6). The jury also found that Wilson
had previously suffered three prior convictions for first degree
burglary, two prior convictions for robbery with great bodily
injury, and a prior conviction for robbery. Wilson was sentenced
to 25 years to life pursuant to the Three Strikes law (§§ 667 &
1170.12). We affirmed the judgment. (See People v. Wilson
(B102159; filed on April 25, 1997 [nonpub. opn.].)
In December 2012, Wilson filed a petition for resentencing
under Proposition 36. He argued that he was eligible and
resentencing would not pose an unreasonable risk of danger to
1 All further statutory references are to the Penal Code
unless otherwise stated.

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public safety. The People opposed the motion, arguing that
resentencing Wilson would pose an unreasonable risk of danger
to public safety based on his violent criminal history, prison
misconduct, and lack of rehabilitative programming. Wilson filed
a reply arguing that based on his age (55 years old), the
remoteness of his criminal offenses, his substantially compliant
behavior in prison over the past 20 years, and his post-release
plans, he did not pose an unreasonable risk of danger to public
safety.
On June 2, 2015, the court held a hearing and heard
evidence and argument regarding the petition. The People
submitted evidence of Wilson’s criminal history and disciplinary
record while incarcerated. The trial court denied the petition
after finding that resentencing petitioner would pose an
unreasonable risk of danger to public safety. In support of this
finding, the court cited to Wilson’s “history of recidivism, serious
misconduct in prison, and lack of meaningful self-help
programming.” Wilson timely appealed.
CONTENTIONS
Wilson contends that Proposition 47’s definition of an
“unreasonable risk of danger to public safety” applies to
dangerousness determinations under Proposition 36, and the
trial court erred in not considering his petition under this
definition.2
2 In the reply, for the first time, Wilson raises the argument
that “[w]ithout the limitations imposed by Proposition 47, the
phrase ‘unreasonable risk of danger to public safety’ is void for
vagueness.” It is well-settled law that “ ‘[p]oints raised for the
first time in a reply brief will ordinarily not be considered,
because such consideration would deprive the respondent of an
opportunity to counter the argument.’ [Citation.]” (Reichardt v.

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DISCUSSION
1. Statutory Interpretation
The issues raised by Wilson require us to interpret
Proposition 36 and Proposition 47. “ ‘In interpreting a voter
initiative . . . we apply the same principles that govern statutory
construction. [Citation.] Thus, “we turn first to the language of
the statute, giving the words their ordinary meaning.” [Citation.]
The statutory language must also be construed in the context of
the statute as a whole and the overall statutory scheme [in light
of the electorate’s intent]. [Citation.] When the language is
ambiguous, “we refer to other indicia of the voters’ intent,
particularly the analyses and arguments contained in the official
ballot pamphlet.” [Citation.]’ [Citation.] In other words, ‘our
primary purpose is to ascertain and effectuate the intent of the
voters who passed the initiative measure.’ [Citation.]” (People v.
Briceno (2004) 34 Cal.4th 451, 459.) When the language is not
ambiguous, the plain meaning of the statutory language controls,
unless it would lead to absurd results the electorate could not
have intended. (People v. Birkett (1999) 21 Cal.4th 226, 231.)
Furthermore, although courts may not generally rewrite a
statute’s unambiguous language, a word that has been
erroneously used may be subject to judicial correction in order to
best carry out the intent of the adopting body. (People v. Skinner
(1985) 39 Cal.3d 765, 775.)
Hoffman (1997) 52 Cal.App.4th 754, 764.) However, we note that
People v. Garcia (2014) 230 Cal.App.4th 763 has persuasively
addressed and rejected this argument.

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2. Proposition 36
“Prior to its amendment by [Proposition 36], the Three
Strikes law required that a defendant who had two or more prior
convictions of violent or serious felonies receive a third strike
sentence of a minimum of 25 years to life for any current felony
conviction, even if the current offense was neither serious nor
violent. (Former §§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b),
(c)(2)(A).) [Proposition 36] amended the Three Strikes law with
respect to defendants whose current conviction is for a felony that
is neither serious nor violent. In that circumstance, unless an
exception applies, the defendant is to receive a second strike
sentence of twice the term otherwise provided for the current
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,
fn. omitted.)
“[Proposition 36] also created a postconviction release
proceeding whereby a prisoner who is serving an indeterminate
life sentence imposed pursuant to the three strikes law for a
crime that is not a serious or violent felony and who is not
disqualified, may have his or her sentence recalled and be
sentenced as a second strike offender unless the court determines
that resentencing would pose an unreasonable risk of danger to
public safety. (§ 1170.126.)” (People v. Yearwood (2013)
213 Cal.App.4th 161, 168.)
In determining whether the petitioner would pose an
unreasonable risk of danger to public safety, “the court may
consider: [¶] (1) The petitioner’s criminal conviction history,
including the type of crimes committed, the extent of injury to
victims, the length of prior prison commitments, and the

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remoteness of the crimes; [¶] (2) The petitioner’s disciplinary
record and record of rehabilitation while incarcerated; and [¶]
(3) Any other evidence the court, within its discretion, determines
to be relevant in deciding whether a new sentence would result in
an unreasonable risk of danger to public safety.” (§ 1170.126,
subd. (g).)
Proposition 36 became effective on November 7, 2012. (See
People v. Brown (2014) 230 Cal.App.4th 1502, 1507; Cal. Const.,
art. II, § 10, subd. (a).) Under section 1170.126, a petition for
resentencing must be filed within two years of Proposition 36’s
enactment “or at a later date upon a showing of good cause . . . .”
(§ 1170.126, subd. (b).)
3. Proposition 47
Proposition 47 was passed by California voters on
November 4, 2014, effective 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

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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
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
term “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, sometimes called “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

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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.”
4. Proposition 47’s Definition of an “Unreasonable Risk of
Danger to Public Safety” Does Not Apply to Proposition 36
Wilson contends that Proposition 47’s narrow definition of
“unreasonable risk of danger to public safety” controls the
meaning of that term as used in Proposition 36. Specifically,
Wilson notes that Proposition 47 says, “[a]s used throughout this
Code, ‘unreasonable risk of danger to public safety’ means an
unreasonable risk that the petitioner will commit a new violent
felony.” (§ 1170.18, subd. (c), italics added.) He argues that by
using the phrase “[a]s used throughout this Code,” Proposition 47
imports its definition of “unreasonable risk of danger to public
safety” into the entire Penal Code, including, as relevant here,
into section 1170.126, subdivision (f).
Many appellate courts have considered whether Proposition
47’s definition of “unreasonable risk of danger to public safety”
applies to resentencing under Proposition 36, and the issue
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. 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;

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People v. Garcia (2016) 244 Cal.App.4th 224, review granted
April 13, 2016, S232679; People v. Lopez (2015) 236 Cal.App.4th
518, review granted July 15, 2015, S227028.) We conclude,
consistent with the majority of courts to have considered this
issue, that 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
body. [Citation.] . . . . Whether the use of [a particular word] is,
in fact, a drafting error can only be determined by reference to
the purpose of the section and the intent of the electorate in
adopting it.” (People v. Skinner, supra, 39 Cal.3d at pp. 775776.)
For the reasons that follow, we conclude that the voters
erroneously used the word “Code” in section 1170.18, subdivision
(c), rather than the word “Act,” and that this error is properly
subjected to judicial correction. Specifically, as we now discuss,
we believe the voters intended in section 1170.18, subdivision (c)
to refer to Proposition 47, not to the entire Penal Code. We
therefore conclude that the passage of Proposition 47 did not
alter Proposition 36 or section 1170.126.
First, Proposition 47’s ballot materials and statutory
language do not indicate that the definition of “unreasonable risk
of danger to public safety” would extend beyond Proposition 47
itself. To the contrary, subdivision (n) states, “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

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this act.” (§ 1170.18, subd. (n), italics added.) If a court ruling on
a Proposition 36 petition must grant the petition unless it finds
an unreasonable risk the petitioner will commit a “super strike”
under the restrictive definition provided by section 1170.18,
subdivision (c), the finality of the underlying judgment may be
“diminish[ed]” even though the case does not “fall[] within the
purview of [Proposition 47].” (Id., § 1170.18, subd. (n).)
Likewise, the official title and summary, legal analysis, and
arguments for and against Proposition 47 nowhere suggest that
Proposition 47 will have an impact on Proposition 36. (Voter
Information Guide, supra, pp. 34–39.) The ballot materials do
not, for example, say that Proposition 47 will severely restrict the
ability of courts to reject resentencing petitions under Proposition
36. Rather, the ballot materials emphasize that the resentencing
provisions of Proposition 47 will affect only those persons serving
sentences for specified nonserious, nonviolent property or drug
crimes. Accordingly, nothing in Proposition 47’s ballot materials
suggests that the initiative will affect resentencing under
Proposition 36.
Furthermore, Propositions 36 and 47 have different
purposes. Proposition 36 is designed to reduce penalties for
individuals with two or more prior serious or violent felony
convictions, whose current conviction is also a felony. By
contrast, Proposition 47 is intended to reduce penalties for low-
level offenders who have committed “certain nonserious and
nonviolent property and drug 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

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term that is used throughout Proposition 47 to refer to persons
petitioning under “this section” or “this act.” (See § 1170.18,
subds. (a), (b), (c), (j), (l), & (m).) Accordingly, subdivision (c)’s
use of the term “petitioner” suggests that the term is limited to
individuals petitioning under that particular act. (Id., § 1170.18,
sub. (c).)
Lastly, the timing of Proposition 47 is inconsistent with an
intent to affect Proposition 36 petitions. Proposition 36 required
defendants to file petitions within two years from its enactment
absent a showing of good cause for a late petition. (§ 1170.126,
subd. (b).) Proposition 47 was enacted with only two days
remaining in the two-year period for filing Proposition 36
petitions. A rational voter would not have understood
Proposition 47 to change the rules for Proposition 36 petitions
when the period for filing such petitions had almost expired.
On these grounds, we conclude that section 1170.18,
subdivision (c) contains a drafting error—the use of the word
“Code”—that must be judicially corrected to read “Act.” As so
read, Proposition 47’s definition of “unreasonable risk of danger
to public safety” does not apply to Proposition 36.

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

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