P. v. Garcia

SEE CONCURRING OPINION
Filed 10/21/15 P. v. Garcia 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
STEVEN GARCIA,
Defendant and Appellant.
F068019
(Super. Ct. No. SC060951A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
Madeline McDowell, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald Engler, Chief
Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Carlos A.
Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-

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2.
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, Steven Garcia (defendant), an inmate serving a term
of 25 years to life 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. Following a hearing, the trial court found defendant to be an
unreasonable risk of danger to the public and denied the petition.2
We hold the People have the burden of proving, by a preponderance of the
evidence, facts on which a finding that resentencing a petitioner would pose an
unreasonable risk of danger to public safety reasonably can be based. Those facts are
reviewed for substantial evidence. We further hold, however, that the preponderance of
the evidence standard does not apply to the trial court’s determination regarding
dangerousness, nor does section 1170.126, subdivision (f), create a presumption of
resentencing. The ultimate decision — whether resentencing an inmate would pose an
unreasonable risk of danger to public safety — instead lies within the sound discretion of
1 Further statutory references are to the Penal Code unless otherwise stated.
2 Although we refer to the trial court, the judge who originally sentenced defendant
was no longer on the bench at the time the resentencing petition was filed. Accordingly,
another judge was assigned to rule on the petition. (See § 1170.126, subd. (j).)
Denial of the petition is an appealable order. (Teal v. Superior Court (2014) 60
Cal.4th 595, 598.)

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3.
the trial court, and is not affected by section 1170.18, subdivision (c). Finding no abuse
of discretion, we affirm.
FACTS AND PROCEDURAL HISTORY
On February 2, 1993, defendant was sentenced to an aggregate term of 11 years in
prison, following his 1991 conviction of three counts of first degree burglary, and his
1992 conviction of the same offense.3
On or about August 8, 1994, a correctional officer walking past defendant’s cell
saw defendant being tattooed by an inmate who did not belong in that cell. Both inmates
were subjected to clothed body searches. A cloth pouch was found in defendant’s front
pants pocket; inside the pouch was a butane lighter and three bindles of tar heroin, with a
total weight of 43 milligrams. As a result, defendant was convicted of possession of a
controlled substance in prison (§ 4573.6), and was sentenced, under the three strikes law,
to 25 years to life in prison consecutive to the 11 years he was already serving.
On December 7, 2012, defendant filed a petition to recall sentence under
section 1170.126. He represented he was statutorily eligible for such relief, and argued
he should be resentenced to a second strike term of six years and, as he had served over
14 years, his sentenced should be deemed served.
The People opposed the petition. They pointed, in part, to defendant’s juvenile
adjudication for first degree burglary, for which he was committed to what was then the
California Youth Authority; and his conviction on four counts of first degree burglary
and one count of second degree burglary as an adult, as well as his commitment offense.
They also pointed to the 34 prison rules violation reports (CDC 115’s) he incurred
between September 5, 1994, and August 14, 2011.4 Many were related to alcohol or drug
3 By separate order, we have taken judicial notice of the record on appeal and this
court’s nonpublished opinion in People v. Garcia (Feb. 4, 1999, F028251).
4 The People appended copies of rules violation reports and related documents to
their opposition, as evidence supporting their summary of the various CDC 115’s.

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4.
abuse, but a number involved conduct such as battery on an inmate, attempted battery on
staff, threatening a peace officer, threatening staff, and conduct resulting in the use of a
chemical agent. With respect to the two most recent, defendant was found guilty of
fighting on or about February 20, 2010, and of sexual activity with an adult in the visiting
room on or about August 14, 2011. The People represented they located no records for
drug, alcohol, or academic classes, or for vocational or job training, and found only one
or two records of defendant having done any work during his incarceration. They noted
defendant had violated probation and parole multiple times, and his postrelease plans
were unknown. The People argued there was no indication defendant’s criminal behavior
would change if he was released from prison, and that releasing him would result in an
unreasonable risk of danger to public safety.
Appended to the People’s opposition was a letter written by defendant to the
prosecutor handling the resentencing petition. Defendant related he had been in prison
for 20 years, having been 23 years old when he first was imprisoned, and “a young dumb
kid” who thought he knew it all and did not want to listen to his parents. He denied the
drugs that resulted in his three strikes commitment were his, but claimed he could not
have named the true owner without being stabbed to death. Defendant asserted he had
never been convicted or in trouble with the law for drugs, and had never been convicted
for violence. He said he was now 43 years old and, while he had made mistakes, he had
now grown up.5 He expressed remorse for his past mistakes and for hurting his family
and children. He related he was currently in school and “a programmer.” He also stated
his wife, who worked at a dental office, was going to put him in paid counseling upon
release so he could get help adjusting. Defendant said he had changed his life and just
needed a chance to prove himself.
5 The record shows defendant was born December 5, 1969.

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5.
Also appended to the People’s opposition were probation officers’ reports. In the
one prepared prior to defendant’s sentencing hearing on his 1991 offenses, defendant
related he began using crack cocaine about 10 months before his arrest, at one point using
between $400 and $500 worth of the drug per day. He recalled using this amount for four
and a half to five months. Defendant related he had completed nine years of formal
education and last attended middle school in 1985. The probation officer’s report related
defendant had reached an agreement with police that he would plead guilty to three
residential burglaries and show officers other homes he had burglarized, in exchange for
which he would not be charged with any further burglaries. Defendant told the probation
officer that as a result of his cooperation, law enforcement recovered $12,000 to $13,000
worth of property. In defendant’s written statement that was included with the probation
report, defendant stated he committed burglaries and other thefts because he had a major
drug problem.
In the probation officer’s report prepared prior to defendant’s 1993 sentencing,
defendant related he consumed more than a case of beer a day, and had done so since his
release from jail in 1992. He stated he had been consuming large amounts of alcohol
since age 14, and had never sought or received treatment for alcohol abuse. Defendant
also stated he first used cocaine at age 16. He snorted “‘a couple of eight balls a day,’”
and continued to use that substance until he started smoking crack cocaine the year
before. Defendant estimated he had been smoking $600 worth of the drug per day since
the year before, and said he smoked it in conjunction with snorting powder cocaine.
Defendant related he had been heavily involved in the use of crack and PCP and drinking
for some time. He also began using “crank” at age 16, and last used that substance
approximately three months earlier. As for the offense for which he was pending
sentencing, defendant admitted committing the residential burglary, and explained he was
on drugs, wanted money for drugs, and started doing burglaries.

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6.
Defendant filed a reply to the People’s opposition in which he asserted he had
spent over 14 years in prison for the simple possession of 43 milligrams of heroin. He
argued that all persons released under Proposition 36 would pose a risk to society, but the
question was whether such a person currently was an unreasonable danger. He argued
his record was nonviolent, and that his rules violations had decreased in number and
seriousness from year to year. He asserted he had come to appreciate the poor choices of
his youth, and was programming toward productive citizenship. He argued his strike
offenses were not violent and were committed over 20 years ago by a 23-year-old man;
he was now 43; he had had no new drug violations since 2005; he had had no new staff-
related violations since 2008; and he had had no general conduct violations since August
2011. Defendant also pointed to a laudatory chrono written by a correctional officer in
February 2013, which stated in part that defendant’s behavior had been “nothing but what
[was] expected of him,” and that he had made genuine changes in his thinking and
behavior, and was currently enrolled in adult basic education classes.6 He pointed to a
second laudatory chrono written by a different correctional officer during the same
month, in which the officer stated he had interacted with defendant on a daily basis for
almost two years, and that defendant had been conducting himself in a responsible and
respectful manner and was working hard to effect a positive change in his life.
Defendant also submitted a support letter from chaplains whose 12-step recovery
program defendant was working. The chaplains stated they were ready to be defendant’s
support and accountability upon release.7 In addition, defendant’s wife wrote that
6 Defendant attached copies of the various documents to his reply as exhibits.
7 The letter, which was dated December 20, 2012, related defendant was then
working on his “Step Four inventory” in the Love Lifted Me Recovery ministries’ 12-
step program, which was conducted via correspondence. The chaplains stated they had
been acquainted with defendant (although they had never met him in person) since
October 2012, and felt he was making excellent progress and was genuinely repentant for
his crimes.

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7.
defendant would be attending counseling sessions upon release with a licensed clinical
social worker who specialized in assisting longterm inmates in adapting to society.
Defendant’s wife would be providing defendant with a home and assistance in finding a
job. Defendant also provided other letters of support, including one from a registered
addiction specialist who related defendant’s wife and father-in-law stood ready, willing,
and able to offer support, guidance, accountability, and love in order to assist defendant.
Defendant subsequently submitted two additional laudatory chronos from correctional
officers, one of whom had interacted with defendant for two years, and the other of
whom had supervised defendant for six months.
The hearing on the petition was continued several times, over defendant’s
objection, to allow the prosecutor to obtain the confidential portion of defendant’s
records from the California Department of Corrections and Rehabilitation (CDCR).8 The
People subsequently filed an amended opposition to the resentencing petition. In
addition to the information and argument previously submitted, the People related that
defendant’s current custody classification was CLO-B Custody, which meant staff had to
watch him at all times, and that he was housed in a Level IV facility, the most secure type
of prison. The People also included information from and argument based on, and
appended as exhibits, numerous confidential CDCR reports.
Defendant submitted a supplemental reply to the People’s amended opposition, in
which he objected to the classification evidence as irrelevant, because defendant’s
classification was affected in large part by his lifer status, and there was no evidence
before the court concerning how classifications were determined. Defendant further
8 These records consisted of a confidential section, and psychological, medical, and
mental health records, from defendant’s inmate file. The court ordered, in part, that once
the records were received, it would review them in camera to determine whether any
information would be released to the parties. The parties were required to sign a separate
protective order, agreeing to the terms of the nondisclosure order, before the records
would be released to them.

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8.
requested a full evidentiary hearing with witnesses. Defendant submitted his most recent
classification review, which reduced his classification level to MED-A and found double
cell housing remained appropriate. He also submitted a certificate of completion, dated
April 27, 2013, of Creative Conflict Resolutions, a three-day training in anger
management and conflict resolution; and a copy of his CDCR inmate reclassification to
“Low Risk,” dated April 1, 2010.
The hearing on the petition was held June 4, 2013. After argument, in the course
of which defense counsel objected on hearsay and lack of foundation grounds to the
contents of the confidential files, the court took the matter under submission in order to
review all the documentary evidence and watch a CDCR video explaining the California
Static Risk Assessment test.
The court subsequently filed its written ruling, denying the petition for
resentencing. The ruling stated, in pertinent part:
“The Petitioner is entitled to resentencing unless the People prove by a
preponderance of the evidence that the Petitioner ‘would pose an
unreasonable risk of danger to the public safety.’
“When exercising its discretion as to whether or not to resentence a
Petitioner who is currently serving a sentence of 25 years to life based on
the Three Strikes law, the court may consider ‘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 the public
safety.’ [Citation.] Therefore, in addition to the various motions and
records filed by both sides, the court has considered the Petitioner’s
medical and mental health records along with his confidential file.
“The court finds that the Petitioner has put into issue his physical and
mental health by filing a petition to be resentenced and further finds that
physical and mental health records are relevant in deciding whether a new
sentence would result in an unreasonable risk of danger to the public safety.
Therefore, any objection by the Petitioner to the court reviewing and
considering his physical and mental health records is overruled. [¶] … [¶]
“The court finds that the People have met their burden that the Petitioner
would pose an unreasonable risk of danger to the public safety. In reaching

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9.
this decision, the court believes the People met this burden without
consideration of the information in the confidential file. However, the
court notes that the information in the confidential file reaffirms and
supports the denial of this petition.
“A portion of the information in the confidential file is also contained in the
non-confidential portion of the Petitioner’s CDCR file. However, there
may be more details of certain incidents and others may be named in the
confidential file. Although not relied upon to deny this petition, this
confidential information reemphasizes the appropriateness of the denial of
this petition, even when viewed in light most favorable to the Petitioner.
“In order to maintain the confidentiality of the records used in this Petition,
the court makes the following findings and orders. Confidential records
were received by the court and mistakenly released to the District Attorney.
The District Attorney relied on those records in submitting its AMENDED
OPPOSITION filed on May 16, 2013. Both parties were later notified of
the error and ordered to return any copies of these records, which they did.
“In order to maintain confidentiality of those records and to uphold the
objection by CDCR to their release, the court will prepare a redacted copy
of the AMENDED OPPOSTION [sic] for public view in the court’s file
and will place the original in a confidential envelope. In addition, all
records from the confidential file will be placed in a confidential envelope.
For confidentiality purposes, these records will be treated in the same way
that law enforcement personnel files are treated during Pitchess Motions.
Therefore, they are only to be seen by judicial officers for purposes of this
petition.…
“Because of the sensitive nature, and to comply with any privacy rights the
Petitioner may enjoy, his medical and mental health records will be treated
in the same manner except that they are not considered confidential as to
his attorney or the prosecution for purposes of this petition.”
DISCUSSION9
9 In supplemental briefs, the parties address the application of this court’s opinions
in People v. Payne (2014) 232 Cal.App.4th 579 and People v. Valencia (2014) 232
Cal.App.4th 514, and the Third Appellate District’s opinion in People v. Chaney (2014)
231 Cal.App.4th 1391, to various issues raised on this appeal. As the California Supreme
Court has since granted review in all three cases (People v. Payne, review granted
Mar. 25, 2015, S223856; People v. Valencia, review granted Feb. 18, 2015, S223825;
People v. Chaney, review granted Feb. 18, 2015, S223676), they are no longer citable

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10.
I
The Applicable Legal Principles
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 1170.126.10 (People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979,
989.) If the inmate satisfies all three 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).)
precedent (Cal. Rules of Court, rules 8.1105(e)(2), 8.1115(a), (b)), and we do not address
them further.
10 “An inmate is eligible for resentencing if: [¶] (1) The inmate is serving an
indeterminate term of life imprisonment imposed pursuant to paragraph (2) of
subdivision (e) of Section 667 or subdivision (c) of Section 1170.12 for a conviction of a
felony or felonies that are not defined as serious and/or violent felonies by subdivision (c)
of Section 667.5 or subdivision (c) of Section 1192.7. [¶] (2) The inmate’s current
sentence was not imposed for any of the offenses appearing in clauses (i) to (iii),
inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or
clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of
Section 1170.12. [¶] (3) The inmate has no prior convictions for any of the offenses
appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of
Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of
Section 1170.12.” (§ 1170.126, subd. (e).)

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11.
A. A TRIAL COURT’S ULTIMATE DETERMINATION REGARDING DANGEROUSNESS
LIES WITHIN ITS DISCRETION; ITS RULING, THEREFORE, IS REVIEWED FOR
ABUSE OF DISCRETION.
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].)
Under the clear language of section 1170.126, the ultimate determination that
resentencing would pose an unreasonable risk of danger is a discretionary one. We,
therefore, review that determination 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.)
B. THE BURDEN OF PROOF BY PREPONDERANCE OF THE EVIDENCE APPLIES TO
PROOF OF THE FACTS, NOT TO THE TRIAL COURT’S ULTIMATE DETERMINATION.
Defendant asserts a trial court cannot deny resentencing due to dangerousness
unless the People have proved dangerousness beyond a reasonable doubt. The People
claim the Act does not place any burden of proof on the prosecution.11
We agree with case law supporting the assumption that whatever burden exists is
on the People. (E.g., People v. Flores (2014) 227 Cal.App.4th 1070, 1075-1076; People
v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301, fn. 25 (Kaulick).)
11 We decline to find defendant’s burden-of-proof/standard-of-proof claims forfeited.

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12.
Section 1170.126, subdivision (d) merely obligates a petitioner to specify, in his or her
petition for resentencing, all of the “currently charged felonies” that resulted in his or her
indeterminate life sentence as a third strike offender, together with all prior strike
convictions. Yet subdivision (g)(3) of that statute refers to the court considering
“evidence.” Someone must produce such evidence. Although a petitioner may present
evidence on the dangerousness issue, in cases in which the People oppose a petition on
dangerousness grounds, it is reasonable and fair to place the burden on them to produce
evidence in support of their claim resentencing the petitioner would pose an unreasonable
risk of danger to public safety. The question then becomes what standard of proof
applies.
“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
factfinder] 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

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13.
from an erroneous determination of the issue involved.’ [Citations.]”
(People v. Arriaga (2014) 58 Cal.4th 950, 961-962.)
“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 (2014) 225 Cal.App.4th 1020, 1036.) Although voters
could have permitted automatic resentencing, under any and all circumstances, of those
eligible therefor, they did not do so. 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 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.
Division Three of the Second District Court of Appeal has held the People bear the
burden of proving “dangerousness,” for purposes of section 1170.126, subdivision (f), by
a preponderance of the evidence. (Kaulick, supra, 215 Cal.App.4th at pp. 1301-1305 &
fn. 25; 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

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14.
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.) 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.,
dangerousness), and such factor need not be established by proof beyond a
reasonable doubt to a jury.” (Ibid.)
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.) We also relied heavily on Kaulick.
In rejecting application of the beyond a reasonable doubt standard, Kaulick
discussed the United States Supreme Court’s conclusion in Dillon v. United States (2010)
560 U.S. 817, 828 (Dillon), 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 applicable. Since the retrospective part of the
Act is not constitutionally required, but an act of lenity on the part of the electorate and
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

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15.
Amendment issues. Thus, there is no constitutional requirement that the facts be
established beyond a reasonable doubt. (Kaulick, supra, at pp. 1304-1305.)12
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. A denial of an inmate’s petition does not
increase the penalty to which that inmate is already subject, but instead removes the
inmate from the scope of an act of lenity on the part of the electorate to which he or she is
not constitutionally entitled. (Id. at p. 1062.) That the denial is based on a determination
of dangerousness does not change that conclusion.
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.13 Nevertheless, we believe it supports our interpretation.
12 Pepper v. United States (2011) 562 U.S. 476 does not undermine Dillon or
Kaulick’s reliance thereon. Unlike Dillon, Pepper involved a plenary resentencing after
the defendant’s sentence had been set aside on appeal. (Pepper, supra, 562 U.S. at
p. 481.)
13 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
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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16.
Accordingly, we hold preponderance of the evidence is the applicable standard of
proof, regardless whether we analyze the issue as one of Sixth Amendment jurisprudence,
due process, or equal protection. (People v. Flores, supra, 227 Cal.App.4th at p. 1076.)14
This does not, however, mean 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.15 Nor does it mean evidence of dangerousness
must preponderate over evidence of rehabilitation for resentencing to be denied.
The language of section 1170.126, subdivision (f) expressly provides 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.
14 We recognize that in the case of people who are involuntarily committed as
narcotics addicts or for analogous reasons, the California Supreme 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.)
We reject defendant’s claim due process requires at least a clear and convincing
evidence standard. The cases cited by defendant do not address situations analogous to
the act of lenity contained in section 1170.126.
15 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.)

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17.
Considering the language of subdivisions (f) and (g) of section 1170.126, we
conclude 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. 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 determination that resentencing would pose an unreasonable risk
of danger is a discretionary one. While the determination must be supported by facts
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.16 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
16 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, disapproved on another ground in People v. Scott (2015) 61 Cal.4th
363, 391, fn. 3.)

-- 17 of 42 --

18.
(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 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.)17
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.)
The trial court’s ultimate determination when considering a petition for
resentencing under section 1170.126 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
17 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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19.
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’”].)
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
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.18 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].)
C. SECTION 1170.126 DOES NOT ESTABLISH OR CONTAIN A PRESUMPTION A
PETITIONER’S SENTENCE BE REDUCED.
Relying on People v. Guinn (1994) 28 Cal.App.4th 1130, 1141-1142 and its
progeny (e.g., People v. Murray (2012) 203 Cal.App.4th 277, 282; People v. Blackwell
18 “Substantial evidence,” not the significantly more deferential “some evidence”
standard applicable to review of executive branch decisions in parole cases (see In re
Rosenkrantz (2002) 29 Cal.4th 616, 658, 665), is the appropriate appellate standard.

-- 19 of 42 --

20.
(2011) 202 Cal.App.4th 144 (Blackwell); People v. Ybarra (2008) 166 Cal.App.4th 1069,
1089), all of which deal with section 190.5, subdivision (b),19 defendant contends the
“shall”/“unless” formulation employed in subdivision (f) of section 1170.126 has reduced
the presumptive sentence for a qualified petitioner to a “‘two-strike’ sentence.”
The California Supreme Court recently disapproved the cases relied on by
defendant. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1370, 1387.)20 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
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.)
19 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.”
20 In addition, the United States Supreme Court granted certiorari, and vacated the
judgment, in Blackwell. (Blackwell v. California (2013) 568 U.S. ___ [133 S.Ct. 837].)

-- 20 of 42 --

21.
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 the ‘presumptive’ disposition [and that] only ‘circumscribed’ discretion to adopt
the more severe third-strike sentence is conferred.” 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 rare or 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 the “shall”/“unless” construction of section 1170.126, subdivision (f)
establishes a “strong presumption” in favor of resentencing, 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,
supra, 225 Cal.App.4th at page 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
posing little or no risk to the public.” (Id. at p. 1038, second italics added.) Had voters
intended to permit retention of an indeterminate term only in extraordinary cases, they
would have said so in subdivision (f) of section 1170.126, rather than employing
language that affords courts broad discretion to find dangerousness. They also would not

-- 21 of 42 --

22.
have afforded the trial 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.21
D. THE FOCUS IN A SECTION 1170.126, SUBDIVISION (F) ANALYSIS IS ON WHETHER
PETITIONER CURRENTLY POSES AN UNREASONABLE RISK OF DANGER TO PUBLIC
SAFETY.
In discussing the “some evidence” standard applicable in parole cases, the
California Supreme Court has stated: “‘[D]ue consideration’ of the specified factors
requires more than rote recitation of the relevant factors with no reasoning establishing a
rational nexus between those factors and the necessary basis for the ultimate decision —
the determination of current dangerousness.” (In re Lawrence, supra, 44 Cal.4th at
p. 1210.) Citing parole cases, defendant contends a “rational nexus” must exist “between
the evidence and the trial court’s determination of current unreasonable dangerousness,”
before resentencing can be denied under the Act.
Although we decline to decide how and to what extent parole cases inform the
decision whether to resentence a petitioner under the Act or our review of such a
decision, we agree with defendant that the proper focus is on whether the petitioner
currently poses an unreasonable risk of danger to public safety. (Cf. In re Shaputis
(2008) 44 Cal.4th 1241, 1254; In re Lawrence, supra, 44 Cal.4th at p. 1214.) A trial
court may properly deny resentencing under the Act based solely on immutable facts
such as a petitioner’s criminal history “only if those facts support the ultimate conclusion
that an inmate continues to pose an unreasonable risk to public safety. [Citation.]” (In re
21 Although the “ARGUMENT IN FAVOR OF PROPOSITION 36” stated the
measure had been “carefully crafted … so that truly dangerous criminals” would receive
no benefits from the Act (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) argument
in favor of Prop. 36, p. 52), it did not suggest dangerousness would properly be found
only in rare cases. Rather, the statutory language and ballot materials suggest voters
intended resentencing would be denied in any case in which it would pose an
unreasonable risk of danger to public safety, and they entrusted to their local judges the
discretion to make that determination.

-- 22 of 42 --

23.
Lawrence, supra, at p. 1221.) “[T]he relevant inquiry is whether [a petitioner’s prior
criminal and/or disciplinary history], when considered in light of other facts in the record,
are such that they continue to be predictive of current dangerousness many years [later].
This inquiry is … an individualized one, and cannot be undertaken simply by examining
the circumstances of [the petitioner’s criminal history] in isolation, without consideration
of the passage of time or the attendant changes in the inmate’s psychological or mental
attitude. [Citation.]’ [Citation.]” (In re Shaputis, supra, 44 Cal.4th at pp. 1254-1255.)
E. 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).)22
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
22 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).)

-- 23 of 42 --

24.
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 so-called “super strike” offenses.23
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.24
“‘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
23 As set out in subdivision (e)(2)(C)(iv) of section 667, those felonies are: “(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.”
24 We permitted the parties to file supplemental briefing concerning Proposition 47.
Defendant concedes his conviction for violating section 4573.6 is not listed as eligible for
reduction to a misdemeanor.

-- 24 of 42 --

25.
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
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 on 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.

-- 25 of 42 --

26.
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
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, …, 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.)

-- 26 of 42 --

27.
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
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

-- 27 of 42 --

28.
third ‘strikers.’” (People v. Cooper (1996) 43 Cal.App.4th 815, 823-
824.)25
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
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), supra, text of proposed law, § 1,
p. 105.) As we previously observed, however, nowhere 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. Yet, that is precisely the result that would
ensue should the definition of “‘unreasonable risk of danger to public safety’” contained
in section 1170.18, subdivision (c) be 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
25 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 (2015 ed.) foll. § 1170.12, p. 376.)

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29.
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.
(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” stated: “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

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30.
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).)
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

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31.
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
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

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32.
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. 5,
2014) Los Angeles Times <http://www.latimes.com/local/politics/la-me-ff-pol-
proposition47-20141106-story.html> [as of Oct. 21, 2015].) Looking at the information
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

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33.
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
at pp. 1255-1256 [legislative history of enactment included information bill would add
definition of particular term to Public Contract Code].)26
Nor can we 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. 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 &
26 For the same reasons, we reject the notion 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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34.
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
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

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35.
“‘unreasonable risk of danger to public safety’” contained in section 1170.18,
subdivision (c).27
II
The Trial Court’s Ruling
Applying the foregoing principles, we conclude defendant has not borne his
burden on appeal of establishing the trial court’s ruling exceeded the bounds of reason.
The evidence before the court clearly showed defendant had a longstanding, significant
drug problem that showed no abatement, and for which he sought no help, during the
majority of his lengthy time in prison. Although he was participating in a 12-step
recovery program at the time his petition was filed, he had only completed the first three
steps, and did not even contact the chaplains running the program until October 2012,
approximately two months before he filed his petition for resentencing. His CDC 115
rules violations were voluminous and included instances of violence, and, it can
reasonably be inferred, continued until he began to hear about possible changes in the
three strikes law for inmates whose third strike was a nonviolent offense. Even when
seeking treatment for depression, he was — by his own admission — manipulative in
certain respects. It is not unreasonable to conclude defendant’s purported desire to
change his life was another form of manipulation, in the sense that he did not begin
taking any steps toward rehabilitation until the possibility of resentencing loomed.
27 Were we to conclude section 1170.18, subdivision (c) modifies section 1170.126,
subdivision (f), we would further conclude it does not do so retroactively. We believe a
finding of nonretroactivity inexorably leads to the possibility of prospective-only
application, and prospective-only application of Proposition 47’s definition to
resentencing petitions under the Act would raise serious equal protection 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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36.
Given the totality of the circumstances, the trial court acted reasonably in
concluding resentencing defendant would pose an unreasonable risk of danger to public
safety. Defendant reargues the information before the trial court, but the fact reasonable
people might disagree does not mean discretion was abused.28
DISPOSITION
The judgment is affirmed.
_____________________
DETJEN, Acting P.J.
I CONCUR:
_____________________
SMITH, J.
28 Defendant contends the trial court should not have considered unsubstantiated
information in the confidential file for any reason. In its ruling, the court stated it had not
relied on information in the confidential file, except for defendant’s physical and mental
health records. We take the court at its word and conclude defendant has failed to show
improper information entered into the court’s decision. (See Gonzales v. Nork (1978) 20
Cal.3d 500, 510.) It is apparent the court looked at the information in the confidential file
to ensure nothing therein warranted a different decision. While we suspect defendant
would claim the trial court acted correctly if the People were complaining about the trial
court’s consideration of confidential materials to grant the petition, the fact remains
defendant has failed to establish prejudice, assuming he has shown error. (We have not
reviewed or considered any of the confidential file on appeal, except for defendant’s
physical and mental health records.)

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PEÑA, J.,
I concur in the judgment and the majority opinion with the exception of part I.E. I
agree defendant Steven Garcia 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.)
Defendant argues 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.2 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. Since defendant has
failed to show an abuse of that discretion, I concur in the majority’s affirmance of the
judgment.
___________________________
PEÑA, J.
2For this reason, Holder v. Superior Court (1969) 269 Cal.App.2d 314, also relied upon
by defendant, does not apply because its analysis and conclusion were based on Estrada
prior to its clarification by subsequent California Supreme Court cases.

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