P. v. Roberts

Filed 11/30/16 P. v. Roberts CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying
on opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
MAURICE ANTHONY ROBERTS,
Defendant and Appellant.
2d Crim. No. B265487
(Super. Ct. No. TA056736)
(Los Angeles County)
Maurice Anthony Roberts petitioned to have his
“Three Strikes” life term reduced to a two strike term pursuant to
Penal Code section 1170.126.1 The trial court denied the petition
on the ground that he presents an unreasonable risk of danger to
public safety.
Here we hold that the definition of “unreasonable
risk of danger to public safety” contained in section 1170.18,
1 All statutory references are to the Penal Code unless
otherwise stated.

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subdivision (c) does not apply to section 1170.126.2 We affirm the
order denying Roberts’s petition.
FACTS
Roberts was found guilty by a jury in 2000 of one
felony count of selling a controlled substance, cocaine. (Health &
Saf. Code, § 11352, subd. (a).) In addition, the jury found he had
four prior violent or serious felony convictions. The trial court
sentenced him to 25 years to life under the Three Strikes law,
plus one year for each prior felony conviction, for a total of 29
years to life.
In December 2012 Roberts filed a petition to recall
his sentence and to be sentenced as a second strike offender
under section 1170.126. The People opposed the petition on the
ground that Roberts poses an unreasonable risk of danger to
public safety.
The People’s evidence showed Roberts had suffered
seven prior felony convictions including assault with a deadly
weapon, two robberies and a burglary between 1980 and 2000.
He had nine parole violations.
Roberts also has a history of 13 prison rule violations.
Prison rule violations are classified from A to F, with A being the
most serious. Seven of the violations were classified as F; five
were classified as D; and one, possession of a deadly weapon in
November 2007, was classified as A-1. A-1 is the most serious
classification. His most recent charge was in November 2011,
participating in a riot. That charge was classified as D.
2 This issue is pending before the California Supreme Court
in People v. Valencia (2014) 232 Cal.App.4th 514, review granted
February 18, 2015, S223825, and People v. Chaney (2014)
231 Cal.App.4th 1391, review granted February 18, 2015,
S223676.

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Defense Evidence
Melvin Macomber, Ph.D. is an expert in correctional
psychology. He interviewed Roberts for three hours and
administered a series of tests. Macomber produced a written
report and testified at the hearing. He said that over the course
of time, Roberts has gained insight into the wrong things he has
done in his life and feels remorseful. That bodes well for his
future decision making. Roberts’s test scores also show a low to
moderate tendency to be violent and reoffend. Roberts’s risk
would be lower if he is released to a program called Amity
Foundation. Roberts has been accepted to the program.
Roberts’s prison record shows he completed Adult
Basic Education I through III and obtained a certificate in
electronic construction and repair.
Roberts’s California Static Risk Assessment score is
2, indicating a moderate risk of incurring a felony arrest within
three years of release on parole.
The trial court found the prosecution proved that
Roberts currently presents an unreasonable risk of danger to
public safety. The court denied Roberts’s petition.
DISCUSSION
I
Roberts contends the definition of “unreasonable risk
of danger to public safety” contained in Proposition 47 (§ 1170.18,
subd. (c)) applies to his petition pursuant to Proposition 36
(§ 1170.126).
Under the original version of the Three Strikes law, a
defendant who had two prior serious or violent felony convictions
could be sentenced to a life term in prison if he suffered another
conviction for any felony. (In re Coley (2012) 55 Cal.4th 524, 528.)
That was true even if the so-called triggering felony was neither

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serious nor violent and may be widely perceived as relatively
minor. (Ibid.)
Proposition 36, passed by the California electorate in
November 2012, amended the Three Strikes law to require that
the offense resulting in a life term be a serious or violent felony or
the prosecution has plead and proved an enumerated
disqualifying factor. (People v. Osuna (2014) 225 Cal.App.4th
1020, 1026.) It also added section 1170.126. (Ibid.)
Section 1170.126 allows persons currently serving a
life term under the Three Strikes law for a felony not defined as
either serious or violent and who have no disqualifying factor to
petition the court to be resentenced as a “second strike” offender.
(§ 1170.126, subds. (b) & (c).)
Section 1170.126, subdivision (f) requires the court to
resentence a qualifying petitioner “unless the court, in its
discretion, determines that resentencing the petitioner would
pose an unreasonable risk of danger to public safety.”
Section 1170.126, subdivision (g) provides: “In
exercising its discretion in subdivision (f), the court may consider:
(1) The petitioner’s criminal conviction history, including the type
of crimes committed, the extent of injury to victims, the length of
prior prison commitments, and the remoteness of the crimes; (2)
The petitioner’s disciplinary record and record of rehabilitation
while incarcerated; and (3) Any other evidence the court, within
its discretion, determines to be relevant in deciding whether a
new sentence would result in an unreasonable risk of danger to
public safety.”
In November 2014 the California electorate passed
Proposition 47. Proposition 47 reduced possession of a controlled
substance for personal use and certain nonviolent, non-serious
property crimes involving $950 or less to misdemeanors. It also
added section 1170.18.

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Section 1170.18, subdivision (a) allows persons
currently serving a sentence for a felony conviction that is now a
misdemeanor to petition the court to be resentenced as a
misdemeanant. Subdivision (b) requires the trial court to grant
the petition “unless the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of
danger to public safety.”
The heart of Roberts’s argument lies in section
1170.18, subdivision (c). That subdivision states:
“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 felonies,
sometimes called “super strike” offenses. The list includes
certain sexual offenses against a child; homicide offenses;
solicitation to commit murder; assault with a machine gun on a
peace officer or firefighter; possession of a weapon of mass
destruction; and any serious or violent felony punishable by life
imprisonment or death.
Roberts argues that the phrase “[a]s used throughout
this Code” contained in section 1170.18, subdivision (c) means its
definition of “‘unreasonable risk of danger to public safety’”
applies to his petition pursuant to section 1170.126. Roberts
concludes that because there is no evidence he poses a risk of
committing a “super strike” offense, the trial court erred in
denying his petition on the ground that he poses an unreasonable
risk of danger to public safety.
The question is whether section 1170.18, subdivision
(c) modifies section 1170.126, subdivision (f). We hold it does not.

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We apply the same rules that govern statutory
construction to interpreting a voter initiative. (People v. Jones
(1993) 5 Cal.4th 1142, 1146.) The fundamental purpose is to
ascertain the intent of the voters so as to effectuate the purpose
of the law. (Ibid.) The literal language of a statute will not
prevail if it conflicts with the lawmaker’s intent. (People v.
Osuna, supra, 225 Cal.App.4th at p. 1034.) In determining the
voter’s intent, we may refer to such indicia as the analysis and
arguments contained in the official ballot pamphlet. (Ibid.)
The ballot pamphlet for Proposition 47 focuses on
reducing certain felonies viewed as relatively benign to
misdemeanors and the resentencing as misdemeanants of
persons serving prison terms for those offenses. Roberts points to
nothing in any of the ballot literature that indicates Proposition
47 is intended to modify the Three Strikes law. We are certain
that voters would be shocked to learn that a proposition focusing
on low-level offenders was intended to release from life terms
prisoners with at least two violent or serious felony convictions
and who, in fact, are an unreasonable danger to public safety.
Moreover, Roberts’s interpretation of section 1170.18,
subdivision (c) conflicts with subdivision (n) of the same section.
Subdivision (n) provides: “Nothing in this and related sections is
intended to diminish or abrogate the finality of judgments in any
case not falling within the purview of this act.”
The Three Strikes law cannot be reasonably
interpreted as falling within the purview of section 1170.18 or its
related sections. It is an entirely different sentencing scheme.
Roberts’s interpretation of section 1170.18, subdivision (c) would
certainly diminish or abrogate the final judgment of those
sentenced under the Three Strikes law.
The most reasonable interpretation of section 1170,
subdivision (c) that complies with the intent of the electorate is

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that the subdivision applies only to section 1170.18. It does not
apply to section 1170.126.
II
Roberts contends the trial court abused its discretion
by failing to conduct an independent assessment on the issue of
dangerousness.
But the court’s memorandum of decision shows it
carefully considered all of the evidence including Dr. Macomber’s
testimony and report. The record shows the trial court made a
careful and independent assessment of the evidence.
DISPOSITION
The judgment (order) is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
PERREN, J.
TANGEMAN, J.

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Scott M. Gordon, William C. Ryan, Judges
Superior Court County of Los Angeles
______________________________
Adrian K. Panton, under appointment by the Court
of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A.
Engler, Chief Assistant Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Noah A. Hill, J. Michael
Lehmann, Deputy Attorneys General, for Plaintiff and
Respondent.

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