Filed 12/9/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

EDWARD STROTHER,

Defendant and Appellant.

B307522

(Los Angeles County

Super. Ct. No. YA055347)

APPEAL from orders of the Superior Court of Los Angeles 

County, William C. Ryan, Judge. Affirmed. 

Nancy L. Tetreault, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and David A. Wildman, Deputy 

Attorneys General, for Plaintiff and Respondent.

_________________________
2

In 2003 appellant Edward Strother was convicted of second 

degree burglary (Pen. Code, § 459)1 and theft of access card 

information (§ 484e, subd. (d)). Under the Three Strikes law, he

was sentenced to two consecutive terms of 25 years to life in 

prison. In 2013, appellant filed a petition to recall his entire 

sentence pursuant to Proposition 36 (§ 1170.126), and in 2014 he 

filed a petition to recall his sentence for theft of access card 

information pursuant to Proposition 47 (§ 1170.18). The trial 

court issued an order to show cause why relief should not be 

granted for both petitions and in February 2020, found appellant 

eligible for relief under both propositions. Following a July 2020 

hearing on both petitions, the trial court found appellant posed 

an unreasonable risk of danger to public safety and was not 

suitable for resentencing. The trial court denied both petitions.

 Appellant appeals, contending the trial court abused its 

discretion in finding he posed an unreasonable risk of committing 

one of the “super strikes” identified in Proposition 47 (§ 1170.18)

because the trial court 1) failed to consider that his two prior 

convictions involving violence and firearm use occurred almost 

30 years ago with no evidence he was the shooter; 2) failed to 

consider his prison fighting from 2016 through 2019 was the 

result of his gang renunciation in 2016; and 3) erroneously found 

that his conflict resolution and anger management programming 

and parole plans were inadequate. He makes essentially the 

same argument about the trial court’s denial of his Proposition 36 

petition. We affirm the trial court’s order.

1 Undesignated statutory references are to the Penal Code.
3

BACKGROUND

 Appellant’s juvenile record began in 1979, when he was 14 

years old, with a sustained petition for robbery with the use of a 

deadly weapon, a knife. In 1980, a petition was sustained 

against him for attempting to take a vehicle without the owner’s 

consent; a second petition was sustained against him for escaping 

from camp.2 He was committed to the California Youth Authority 

(CYA) and released on parole in 1981. In 1982, a petition was 

sustained against appellant for robbery and attempted robbery 

with the use of a firearm; he was still on parole at the time. 

Appellant was committed to the CYA and released on parole in 

January 1985.

In July 1985, appellant was convicted of assault with a 

firearm as an adult and sentenced to two years in prison; the 

victim was attempting to escort his sister away from a group of 

drug dealers when appellant and another man shot at but did not 

hit the victim. In 1986, appellant was convicted of possession of a 

controlled substance in prison.3 In 1988, appellant violated 

parole and was returned to prison. In 1989 appellant again 

violated parole and was returned to prison.

2 Appellant contends the 1979 robberies and the attempted 

vehicle taking are not shown on the CLETS printout. As 

respondent points out, both are shown in a subsequent Probation 

Officer’s Report filed in Alameda County in 1985.

3 Appellant complains the prosecutor’s summary of crimes 

listed the assault and drug possession multiple times. The trial 

court did not make the same mistake.
4

In 1990 and 1991, appellant was arrested five times (for

giving false information to a police officer; possession of a firearm 

silencer; use of a controlled substance; attempted murder; and 

driving a vehicle without the owner's consent), but, as the trial 

court noted, was not convicted of any of those offenses.4

In 1991, appellant was convicted of residential burglary 

with personal gun use and assault with a firearm on a police 

officer. In 1992, appellant was charged with murder but pled 

guilty or no contest to voluntary manslaughter.

Appellant was convicted of the commitment offenses of 

second degree burglary and theft of access card information in 

2003. He entered a Fry’s Electronics store and attempted to 

purchase a computer using a credit card. The cashier discovered 

a problem with the credit card, and appellant fled, leaving the 

computer and credit card at the store, along with his driver’s 

license.

From May 2004 through October 2019, appellant was found 

guilty of 34 serious rules violations documented on a California 

Department of Corrections and Rehabilitation (CDCR) Form 115 

(RVR). Twenty-seven of the RVRs were received after appellant 

filed his Proposition 36 petition. Seventeen came after appellant 

renounced his association with the KUMI 415 gang in November 

4 The trial court admitted this arrest evidence as part of the 

third factor identified by both propositions: any evidence the trial 

court deems relevant. There is no indication it played any

significant role in the trial court’s ultimate decision, which 

focused on appellant’s 1991 and 1992 convictions and his parole 

violations.
5

2016. The majority involved violence. None of the acts of 

violence were against a prison staff member and none involved 

the reported use of a weapon. No RVR includes a report that 

appellant caused an injury requiring medical attention.

Appellant’s CDCR classification score was 174 in April 

2020, up from 58 shortly after he was admitted to prison. The 

higher the score, the more security controls the prisoner needs. 

In contrast, his static risk score (CSRA) used to predict 

recidivism was 1-low.

Appellant’s post-release plans involved the Partnership for 

Re-Entry Program (PREP) which would provide transitional 

housing, vocational classes, an AA support group, assistance in 

securing employment, and other support. Appellant also had the 

opportunity to enter residential treatment for substance abuse, 

with follow-on sober living housing. Appellant’s brother, who 

resided in northern California, stated he would offer appellant a 

job which appellant could perform from home. Appellant’s wife, 

who also lived in northern California, supported his release.

Following a hearing, the trial court issued a Memorandum 

of Decision denying both petitions.

As to the Proposition 47 petition, the trial court found: 

“Petitioner has an extensive criminal record beginning in 1979,

when Petitioner was only 14 years old . . . . Petitioner’s history 

shows a tendency to revert back to crime as soon as he is released 

from custody. . . . Petitioner’s criminal history includes 

significant violence and weapons, including a conviction for 

assault with a firearm on a police officer in 1991, where 

Petitioner shot at a police officer and his vehicle, as well as a 
6

conviction for voluntary manslaughter in 1992, where Petitioner 

executed the victim by shooting him in the back of the head. 

While a history of recidivism alone is an insufficient basis for a 

court’s finding that a petitioner poses an unreasonable risk of 

danger to public safety, the multiplicity of prior convictions and 

the failure to comply with conditions of intervening periods of 

probation or parole give rise to a valid concern about a danger to 

public safety. [Citation.] In order for this concern to support a 

finding of unsuitability for resentencing, however, the concern 

must be presently relevant and cannot, absent some additional 

evidence, stand alone to support a finding that a petitioner 

currently poses an unreasonable risk to public safety. 

[Citations.]”

“Therefore, the multiplicity of Petitioner’s prior convictions 

and his inability to refrain from re-offending while in the 

community constitute present and relevant concerns only if other 

evidence in the record provides a nexus between Petitioner’s 

criminal past and current dangerousness. [Citation.] While 

Petitioner’s criminal history may be remote in time, there 

continues to be a nexus between his previous criminal history 

and his current risk of danger to public safety because of his 

significant disciplinary history, elevated classification score, and 

insufficient meaningful rehabilitative programming.”

As the trial court then explained: “The record indicates that 

Petitioner has engaged in significant institutional misconduct 

while incarcerated. . . . Most notably is the fact that 26 of [his 34] 

RVRs were incurred after the filing of his Proposition 36 petition 

for resentencing and 16 [of the 26] were incurred after the filing 
7

of his Proposition 47 petition for resentencing, a time when the 

court would expect Petitioner to be on his best behavior. The 

majority of these 26 RVRs involved serious misconduct, including 

12 RVRs for fighting, three RVRs for battery, five RVRs for

controlled substances including heroin and two RVRs for cell 

phones. Petitioner claims to have been the victim of batteries 

and that he had expressed safety concerns to prison staff, stating 

that he was ‘tired of prison politics.’ [Citation.] This explanation, 

however, hardly accounts for all of Petitioner’s RVRs involving

violence, many of which indicated that he was the aggressor, 

including one incident where he assaulted a wheelchair-bound 

inmate.” The trial court noted that appellant “has only taken a 

single conflict resolution course in 2014 and has failed to engage 

in any anger management programming despite the pattern of 

aggressive and violent conduct in his criminal and disciplinary 

history.”

The court summarized its finding: “In other words, 

Petitioner’s RVRs containing significant violence and lack of 

rehabilitative programming, couple with his extensive criminal 

history, show that Petitioner is likely to commit a ‘super strike’ if 

resentenced. (§ 1170.18, subds. (c) & (i).)” The court added that 

appellant’s current classification score was 174, which was high, 

and had increased from his initial score of 58, “which reflects that 

Petitioner has engaged in serious misconduct for a consistent 

amount of time.” The court also added that it recognized that 

appellant’s current “CSRA score of 1-low and his advanced age of 

55 would typically be factors indicating that he no longer poses

an unreasonable risk of danger to society . . . . [Citation.] 
8

Petitioner’s CSRA score and these statistics, however, are 

contradicted by Petitioner’s disciplinary record, which shows 

numerous incidents involving violence after the age of 50. This 

amplifies the court’s concern that resentencing Petitioner would 

pose an unreasonable risk of danger to public safety. [¶] Finally, 

the court finds Petitioner’s post-release plans . . . tenuous at 

best.”

Turning to appellant’s Proposition 36 petition, the court 

stated: “Considering relevant factors and [the] same evidence 

discussed above in connection with Petitioner’s Proposition 47 

petition for resentencing, the court finds that the evidence 

presented in this case shows a Petitioner who has continually 

committed crimes despite severe repercussions, whose aggressive 

behavior continued and escalated while he was in custody, and 

who has failed to make efforts toward meaningful rehabilitation 

while in prison. . . . Petitioner, at this time, poses an 

unreasonable risk of danger to public safety if resentenced under 

Proposition 36.”

DISCUSSION

Proposition 36 applies to any inmate serving a life sentence 

under the Three Strikes law for a non-serious, non-violent felony

commitment offense. Once a petitioner shows that his 

commitment offense was a non-serious, non-violent felony, “the 

petitioner shall be resentenced . . . unless the court, in its 

discretion, determines that resentencing the petitioner would 

pose an unreasonable risk of danger to public safety.” 

(§ 1170.126 subd. (f).) Section 1170.126 provides that the court 

may consider “(1) The petitioner’s criminal conviction history, 
9

including the type of crimes committed, the extent of injury to 

victims, the length of prior prison commitments, and the 

remoteness of the crimes; [¶] (2) The petitioner’s disciplinary 

record and record of rehabilitation while incarcerated; and [¶] 

(3) Any other evidence the court, within its discretion, determines 

to be relevant in deciding whether a new sentence would result in 

an unreasonable risk of danger to public safety.” (§ 1170.126, 

subd. (g)(1)–(3).)

Proposition 47 applies to any inmate serving a felony 

sentence for certain non-serious, non-violent offenses; the law 

provides that such offenses shall be reduced to misdemeanors 

“unless the court, in its discretion, determines that resentencing 

the petitioner would pose an unreasonable risk of danger to

public safety.” (§1170.18, subd. (b).) The law directs the court to 

consider the same categories of evidence as Proposition 36 does: 

“(1) The petitioner’s criminal conviction history, including the 

type of crimes committed, the extent of injury to victims, the 

length of prior prison commitments, and the remoteness of the 

crimes. [¶] (2) The petitioner’s disciplinary record and record of 

rehabilitation while incarcerated. [¶] (3) Any other evidence the 

court, within its discretion, determines to be relevant in deciding 

whether a new sentence would result in an unreasonable risk of 

danger to public safety.” (§1170.18, subd. (b)(1)–(3).) Proposition 

47, however, states that an “ ‘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,” often called super strikes. (§1170.18, subd. (c).)
10

We review a trial court’s decision under both sections

1170.126 and 1170.18 for abuse of discretion. “In reviewing for 

abuse of discretion, we are guided by two fundamental precepts. 

First, ‘ “[t]he burden is on the party attacking the sentence to 

clearly show that the sentencing decision was irrational or 

arbitrary. [Citation.] In the absence of such a showing, the trial 

court is presumed to have acted to achieve legitimate sentencing 

objectives, and its discretionary determination to impose a 

particular sentence will not be set aside on review.” ’ [Citations.]

Second, a ‘ “decision will not be reversed merely because 

reasonable people might disagree. ‘An appellate tribunal is 

neither authorized nor warranted in substituting its judgment for 

the judgment of the trial judge.’ ” ’ [Citation.] Taken together, 

these precepts establish that a trial court does not abuse its 

discretion unless its decision is so irrational or arbitrary that no 

reasonable person could agree with it.” (People v. Carmony

(2004) 33 Cal.4th 367, 376–377 (Carmony).)

“[A]ll discretionary authority is contextual.” (People v.

Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.) Thus, we 

cannot determine whether a trial court has acted irrationally or 

arbitrarily without considering the legal principles and policies 

that should have guided the court’s actions. (See Carmony, 

supra, 33 Cal.4th at p. 377.) Further, “ ‘[t]he facts upon which

the court’s finding of unreasonable risk is based must be proven

by the People by a preponderance of the evidence . . . and are

themselves subject to [appellate] review for substantial evidence.’

[Citations.]” (People v. Frierson (2017) 4 Cal.5th 225, 239.)
11

A. Proposition 47 Petition

Appellant contends the trial court failed to establish a 

nexus between his current circumstances and the court’s 

conclusion he poses an unreasonable risk of committing a super 

strike, and so abused its discretion in denying his petition for 

resentencing. More specifically, appellant contends the trial 

court abused its discretion in 1) finding that his prison rules 

violations alone showed he posed an unreasonable risk of 

committing a super strike; 2) finding that his 30-year-old 

criminal convictions for assaulting a police officer with a firearm 

and voluntary manslaughter were probative of his current 

dangerousness; 3) relying on his prison misconduct as a nexus to 

his past convictions without considering the details of and 

reasons for his prison misconduct; 4) finding that his lack of 

rehabilitative programming predicted he would commit a super 

strike; and 5) finding his rehabilitative plans inadequate.

1. Criminal convictions

Appellant contends that his criminal history does not prove 

he currently poses a risk of committing a super strike. He claims 

his 1991 conviction for assaulting a police officer with a firearm 

does not establish that he was an actual shooter, and so does not 

show he poses an unreasonable risk of committing the super 

strike of assaulting a police officer with a machine gun. He also 

claims that his plea bargain to the 1992 conviction for voluntary

manslaughter shows the District Attorney must not have had 

sufficient evidence to prove that he drove the victim around in 

the trunk of a car and then killed him in an execution style 

shooting. Thus, he concludes, this conviction does not show he 
12

poses an unreasonable risk of committing the super strikes of 

murder or attempted murder.5

Appellant’s conviction for assaulting a police officer was 

affirmed on appeal, and the facts on that appeal show that 

appellant was holding an “uzi-style” firearm when he got into the 

cab of a truck with two other men, one of whom was also armed. 

Immediately before the shooting began, the rear window of the 

truck cab was opened. The officer in the patrol car behind the 

truck saw two muzzle flashes. A nearby officer stated he saw 

muzzle flashes coming from two different points in the truck: one 

on the driver’s side and one on the passenger’s side. The truck 

sped away, crashing on the freeway. Of the four men arrested 

nearby who were connected to the truck, only appellant and one 

other man had gunshot residue on their hands. Thus, it is

reasonable to infer appellant was one of the shooters.

As for the voluntary manslaughter conviction, there was 

evidence at the preliminary hearing that the victim was put into 

the trunk of a car with a pillowcase over his head. It was 

5 In his reply brief, appellant contends for the first that the 

trial court failed to consider that his criminal offenses before

1990 were committed when he was under the age of 26, when he 

still had the hallmarks of youth. Although we do not consider 

arguments made for the first time in a reply brief, we note the 

trial court clearly focused on the more serious acts appellant 

committed after he turned 26: his 1991 conviction for assaulting a 

police officer, his 1992 conviction of voluntary manslaughter, and 

his multiple parole violations between those offenses and the 

current commitment offense. The trial court also clearly 

distinguished between appellant’s offenses as a juvenile and his 

convictions as an adult.
13

undisputed that the victim was later found on the grounds of a 

school with two close-contact gunshot wounds to the back of his 

head. A friend told police appellant admitted to taking the victim

to the school, and because the victim knew too much about 

appellant’s criminal activities, “executed him.” There was 

evidence from another friend that appellant believed the victim 

was a drug dealer, intended to rob him, accidentally shot him,

and was not sure if the victim died. While these inconsistent 

accounts of appellant’s incriminating statements may have 

prompted the prosecutor to offer a plea deal, both accounts show 

appellant was involved in a crime of great violence, whether he 

shot, or intended to shoot, the victim.6

 We cannot agree with appellant that these convictions do 

not support a finding (when considered with his intervening 

conduct) that he poses an unreasonable risk of committing a 

super strike. Appellant has twice gone right to the edge of 

committing a super strike. Shooting at a police officer with a 

semi-automatic firearm is as close as one can get to committing 

the super strike of assaulting a police officer with a machine gun 

without actually committing the super strike. Similarly, 

voluntary manslaughter where the victim presented a threat to 

one’s continued criminal activity is as close to committing the 

super strike of felony murder or the super strike of first degree 

6 Even without the shooting, kidnapping for robbery would 

be a super strike, as it is punishable by life in prison. (§ 209, 

subd. (a).) Killing the victim during the course of a robbery or 

kidnapping would be felony murder regardless of the shooter’s 

intent. (§ 189, subd. (a).)
14

premeditated murder as one can get without actually committing 

the super strike. Any farther and he would not be eligible for 

resentencing at all. (See People v. Hall (2016) 247 Cal.App.4th 

1255, 1266 [Proposition 47 expressly excludes offenders who have 

committed a super strike from resentencing and so trial court’s 

discretion to deny petition not limited to offenders who have 

already committed a super strike].)

The trial court explicitly recognized that these criminal 

convictions standing alone were not sufficient to show that 

appellant posed a current risk of committing a super strike, but

ultimately found that these convictions, considered with several 

other factors, did demonstrate such a risk. The trial court did not 

abuse its discretion.

2. RVRs alone

Appellant has misunderstood the trial court’s remark about 

the effect of his prison rules violations standing alone. The court 

stated, correctly: “Petitioner’s recent disciplinary history reflects 

a pattern of violent and aggressive conduct, evidencing his 

inability or unwillingness to comply with rules, respect authority, 

and refrain from fighting, 15 years into his current incarceration 

period. Regardless of the remoteness of petitioner’s commitment 

offense, serious rules violations in prison constitute powerful 

evidence of an inmate’s current willingness to engage in serious 

rule-breaking behavior and are probative of recidivist tendencies 

and the danger to public safety. (In re Rozzo (2009) 

172 Cal.App.4th 40, 60; In re Bettancourt (2007) 156 Cal.App.4th 

780, 805.)” Concluding that evidence is “probative of . . . danger 

to public safety” is not equivalent to concluding that the evidence 
15

alone demonstrated appellant poses a risk of committing a super 

strike, as the trial court makes clear in the following paragraph. 

There, the trial court sums up its finding: “In other words, 

Petitioner’s RVRs containing significant violence and lack of 

rehabilitative programming, coupled with his extensive criminal 

history, show that Petitioner is likely to commit a ‘super strike’ if 

resentenced. (§ 1170.18, subds. (c) & (i).)”

3. The Probative Value of the RVRs as a Nexus

Appellant next contends that his RVRs do not “transform” 

his prior convictions into evidence that he currently poses a risk 

of committing a super strike because the RVRs do not involve

assaults on prison staff or use of a weapon and did not result in 

reported injuries. He further contends that his RVRs for fighting 

showed that he was forced to fight in order to survive. He 

contends his environment became unsafe in 2016, after he 

renounced his membership in KUMI 415, and that it is 

reasonable to infer the fights were either the result of the gang 

withdrawing its protection of him, or of the gang targeting him

for retaliation. He contends the trial court failed to evaluate his 

RVRs through the “lens” of his gang renunciation and therefore 

failed to consider his overall circumstances.

We find it insignificant that the RVRs did not involve 

assaults on prison staff. There can be many motives for an 

individual to attack a police officer. Appellant’s prior conviction

suggests he fired at the patrol car because he was attempting to 

escape from the police; assaulting prison staff to escape from 

them would have been futile in that regard. Similarly, that 
16

appellant did not use weapons in prison has limited significance 

at best, since weapons are more difficult to acquire and retain 

inside prison than outside of it, particularly firearms. As far as 

lack of reported injuries is concerned, the RVRs all involved 

fights which were observed and stopped by prison staff fairly

quickly after they began, reducing the opportunity for appellant 

to inflict significant injuries.

Turning to appellant’s renunciation of KUMI 415

membership, appellant’s counsel argued in the trial court that he 

had not been involved with KUMI 415 during his most recent 

incarceration, and that even his most recent RVRs for fighting 

did not have a gang nexus. In appellant’s September 2018 

Proposition 47 reply brief, appellant’s counsel stated: “There is no 

evidence in petitioner’s record that he has been involved with the 

415 KUMI during his current prison term. Primarily, none of 

petitioner’s write-ups denote that petitioner’s behavior was in 

any way related to a Security Threat Group.”7 In appellant’s July 

2020 supplemental reply brief for both petitions, his counsel 

contended that “none” of the 2018 and 2019 RVRs for fighting 

“involved [a gang] nexus.” Counsel elaborated: “[T]hroughout 

petitioner’s 16-years of incarceration, there has never once been a 

report that he was actively involved with the KUMI 415. This 

was further confirmed by the fact that none of petitioner’s RVRs 

contained [a gang] nexus, including the most recent fights and 

7 Counsel pointed out that the most recent evidence of 

petitioner’s membership in KUMI 415 came from a prior 

incarceration dated in 2000, which in turn was based on 

information from 1994.
17

batteries.”8 At the July 2020 hearing, counsel noted that 

appellant “had signed a renunciation of his association with” 

KUMI 415, and was placed in the sensitive needs yard at the end 

of 2016. Counsel noted that most of his RVRs occurred in 2018 

and implied they occurred after appellant was removed from that 

yard.9 Counsel did not suggest that the 2018 fights were related 

to his gang renunciation. She also did not suggest that the fights 

were due to KUMI 415 withdrawing its protection of appellant 

after his renunciation. We cannot find the trial court abused its 

discretion by failing to consider a theory which appellant’s 

counsel effectively argued should be not considered.

Further, the record does not show that, on balance, 

appellant was the victim in the majority of the fights which 

prompted the RVRs, or that he was “forced” to fight in order to 

survive. Appellant has identified two instances where the 

fighting involved two inmates on his enemies list attacking him 

together: September 11 and 15, 2016. In another instance, two 

inmates were observed attacking appellant unprovoked in the 

dining hall on September 28, 2019. This accounts for a total of 

3 RVRs. (Appellant also reported he was attacked by his 

8 While the term “nexus” may have a specific definition in 

prison disciplinary matters which is not discussed in the briefing, 

it remains true that appellant’s counsel made no attempt to 

argue that appellant’s fights were the result of his gang 

renunciation.

9 We see no explanation in the briefing for appellant’s 

removal, or any indication of when precisely it occurred.
18

cellmate on April 1, 2018, although this does not appear to have 

resulted in a RVR for appellant.)

In contrast, the record does not show appellant as a victim 

in 10 other RVRs. In five instances, appellant was clearly the 

aggressor: 1) July 4, 2018 [appellant walked up to an inmate 

leaving the medical facility and began hitting him]; 2) July 6, 

2018 [appellant struck a seated inmate receiving care in medical 

facility]; 3) July 30, 2018 [appellant left shower and struck porter 

without provocation]; 4) August 16, 2018 [appellant initiated a 

battery on another inmate without provocation]; and 5) October 

4, 2018 [appellant walked up to wheelchair-bound inmate and 

began hitting him]. It also appears appellant was the aggressor 

in a March 13, 2018 fight [staff heard sound of stool being 

knocked over, looked up and saw appellant standing over and 

striking an inmate lying on the ground]. In four other instances, 

it was unclear who started the fighting, but appellant did not 

claim to be the victim: 1) April 1, 2018; 2) August 4, 2018; 3) 

October 3, 2018; and 4) May 9, 2019.

The trial court did not abuse its discretion in treating 

appellant’s RVRs from 2016 through 2019 as evidence that he 

currently posed an unreasonable risk of committing a super 

strike. As the trial court indicated, it is particularly troubling 

that these incidents occurred after the passage of Proposition 36 

and Proposition 47 “when one would expect eligible inmates to be 

on their best behavior.” It is reasonable to view appellant’s 

continued fighting at such a time as evidence that he was unable 

to control his violent tendencies or to resolve conflicts peacefully. 

Considered together with appellant’s pre-incarceration use of 
19

firearms and a knife, the RVRs are evidence indicating appellant 

would be equally unable to control his violent tendencies outside 

prison and would be likely to resort to the use of a firearm to 

resolve disputes or solve problems, as he has done in the past.

4. Rehabilitative Programming 

Appellant contends the trial court erred in faulting him for 

taking only one conflict resolution course and no anger 

management courses in prison. He points to the trial court’s 

statement that “If Petitioner is unable to refrain from such 

conduct and to abide by the rules and regulations of the CDCR, it 

is unlikely that he will be able to do so once released into the free 

community” as an indication the trial court misunderstood the 

high standard required for an unsuitability finding under 

Proposition 47. He suggests that the court found only that 

appellant posed an unreasonable risk of committing some other 

offense.

As we pointed out in section 2 above, later in the same 

paragraph, the trial court summed up its finding: “In other 

words, Petitioner’s RVRs containing significant violence and lack 

of rehabilitative programming, coupled with his extensive 

criminal history, show that Petitioner is likely to commit a ‘super 

strike’ if resentenced. (§ 1170.18, subds. (c) & (i).)” As we 

pointed out in section 3 above, firearms are not readily available 

in prison, but appellant had resorted to the use of firearms preincarceration to resolve problems. It would be reasonable to infer 

that appellant’s lack of conflict resolution and anger management 

programming makes it particularly likely he will resort to the use 
20

of firearms once back in the community where they are readily 

obtainable.

5. Post-Release Plans

Appellant contends that by finding his parole plans 

“tenuous at best,” the trial court neglected its duty to determine 

if the plans were realistic or if any perceived deficiencies could be 

addressed with parole conditions. The trial court accurately 

noted a disconnect between the goals of the PREP/Clear Skies 

program, which agreed to support appellant “until he secures a 

job and affirms him in his return to society in the community of 

Los Angeles” and the fact that appellant’s “entire support 

system” and best job prospect were in northern California. The 

court noted appellant had not indicated what support he had in 

southern California.

Appellant has not addressed this disconnect on appeal, but 

simply assumes he could relocate to northern California at some 

point after release. It is not clear this would be such a simple 

matter. In any event, however, appellant’s parole plan was the 

last factor discussed by the court in its memorandum of decision, 

and does not appear to have played a significant role in the 

court’s denial of the petition. Specifically, the trial court 

mentioned the tenuous nature of the parole plans after 

concluding that appellant posed an unreasonable risk of 

committing a super strike. Thus, even if appellant’s parole plans 

were adequate, we see no reasonable probability or possibility 

that the trial court would have granted appellant’s petition and 

resentenced him.
21

B. Proposition 36

In ruling on the Proposition 36 petition, the trial court 

considered the same evidence presented in connection with 

appellant’s Proposition 47 petition. The list of factors for the 

court to consider in deciding both petitions is the same.

(§§ 1170.126, subd. (g)(1)–(3); 1170.18 subd. (b) (1)–(3).) The 

primary difference between the two resentencing provisions is 

that Proposition 36 effectively sets a lower standard of 

dangerousness than does Proposition 47.

Appellant expressly relies on his arguments concerning the 

trial court’s Proposition 47 ruling to show that the trial court 

abused its discretion in denying his Proposition 36 petition. He 

states: “Those same arguments show the flaws in the trial court’s 

analysis under Proposition 36.” We see no abuse of discretion in 

the trial court’s ruling on the Proposition 36 ruling for the same 

reasons we found no abuse of discretion in the trial court’s 

Proposition 47 ruling.

C. Federal Due Process

Appellant contends, without elaboration, that the trial 

court’s “improper findings violated state statutory law, and 

appellant’s constitutional due process rights to a fair trial.” We 

have found that the trial court’s findings were proper under 

California law. Appellant has not explained how findings that 

are proper under state law would violate his federal 

constitutional right to due process. Accordingly, we reject his 

claim.
22

DISPOSITION

The orders are affirmed.

CERTIFIED FOR PUBLICATION

STRATTON, J.

We concur:

GRIMES, Acting P. J.

WILEY, J.