1 Filed 4/23/15 P. v. Aguirre CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte)

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THE PEOPLE, Plaintiff and Respondent,

v. CURTIS EUGENE AGUIRRE, Defendant and Appellant. C077310 (Super. Ct. No. CM009631)

In November 2013, defendant Curtis Euge ne Aguirre filed in pro se what he titled a petition for a writ of habeas corpus (t hough invoking Pen. Code, § 1170.126) 1 to recall his 1998 indeterminate prison term for rese ntencing, the supporting materials for which were essentially irrelevant. The statute, enacted as part of a November 2012 initiative measure, provides retrospective relief under na rrow criteria from indeterminate life terms

1 Undesignated statutory references are to the Penal Code.2 imposed for recidivism. 2 The original trial judge presid ed over the matter (§ 1170.126, subd. (b)), appoin ting counsel for defendant. The prosecutor filed opposition, which co nceded that defendant was eligible for relief (§ 1170.126, subd. (e)), but incorporated his criminal history and prison records in support of the argument that defendant co nstituted an ongoing unreasonable risk of danger to the public and thus was not en titled to relief (§1170.1 26, subds. (f), (g)). Appointed counsel conced ed that defendant’s criminal hi story and prison record were of some concern, but argued that defendant’s age (and the many years he had already served of his prison term) indicated that he woul d not pose an unreasonabl e risk of danger. Counsel asserted the trial c ourt as a result should resentence defendant to a determinate sentence of double the term otherwise app licable to his convic tions, i.e., the same sentence defendant would receive under the pr ospective amendments to section 667 in the initiative. (§ 1170.126, subd. (f); se e § 667, subd. (e)(1).) Defendant waived an updated probation report. After a hearing, the trial court agreed that defendant was eligible for resentencing. However, it found that his prison record demo nstrated an absence of rehabilitation, and therefore he continued to represent “a serious threat to society.” Defendant filed a timely notice of appeal. ( Teal v. Superior Court (2014) 60 Cal.4th 595 [denial of recall petition appealable].)

2 As defendant has pursued relief from a fi nal conviction pursuant to section 1170.126, we do not need to address the contretemps regarding whether a defendant whose sentence is not yet final on appeal is entitled to app lication of related pros pective amendments to the recidivist provisions of section 667 wi thout filing a petition for recall pursuant to section 1170.126. ( People v. Yearwood (2013) 213 Cal.App.4th 161, 168 [not retroactive].) The issue is presently pend ing in the Supreme C ourt. (See, e.g., People v. Conley (2013) 215 Cal.App.4th 1482 , review granted Aug. 14, 2013, S211275 [case fully briefed as of May 2014].)3 Defendant does not contest the trial cour t’s exercise of discretion under section 1170.126 in July 2014. He instead argues only that se ction 1170.18, enacted as part of an initiative in the November 2014 General Election, should appl y retroactively on appeal to his case. This new provision states that it de fines “unreasonable risk of danger to public safety” as “used throughout this Code ” as being the commission of a new felony “within the meaning of [section 667, subdivision (e)(2 )(C)(iv)].” (§ 1170.1 8, subd. (c), italics added.) The initiative is silent about its a pplication to cases that are not yet final on appeal, such as defendant’s. 3 Defendant contends that as a result of this enactment we should either reverse the orde r denying relief with directions to grant the petition because he is not a danger to society as a matter of law under the new standard, or remand to the trial court to exercise its discretion under the new definition. We disagree and shall affirm the order de nying the petition. Given the narrow legal issue presented, we do not need to add any further facts to those set out in our introduction. We instead proceed to the Discussion.

DISCUSSION The Penal Code presumes the prospectiv e effect of any provision added to it unless a manifest intent to the contrary appe ars in extrinsic indicia. ( People v. Brown (2012) 54 Cal.4th 314, 319 ( Brown ).) However, In re Estrada (1965) 63 Cal.2d 740 established the principle that a reduction in p unishment yields an “inevitable” intrinsic inference of retroactive application to all cas es not yet final on appeal absent some form

3 We will assume in this context that we must accept the plain language of the statute as applying to section 1170.126. We reserve the issue of whether we must do this for the few cases remaining in which section 1170.18 could have been give n prospective effect before the limitations period for section 11 70.126 petitions expired. (§ 1170.126, subd. (b) [Nov. 7, 2014, excep t for good cause].)4 of “saving clause” from which a court can find an intent for prospective application. ( Id . at pp. 744-745, 747-748.)
Nonetheless, the Estrada principle applies only where there is the reduction of a particular punishment for a particular crime. ( Brown , supra , 54 Cal.4th at pp. 324-325.) As a result, the increase in conduct credits at issue in Brown , which was of general application to all presentence custody (resulting in a generally applicable reduction in punishment), did not satisfy these re stated criteria for applying the Estrada principle. ( Brown , at pp. 317-318, 325.) By a parity of reasoning, even if we find that section 1170.18 results in a constriction on a trial court’s discretion to deny a resentencing petition under section 1170.126 that would benefit a defendant (because it would make resentencing to a reduced term more easily av ailable as a result of narrower criteria for denying relief), this is a statute that generally applies across a class of defendants, and accordingly does not satisfy the restated Estrada criteria for applying an inevitable intrinsic inference of retroactive application to cases not final on appeal. 4

We reached the same conclusion in People v. Crockett (2015) 234 Cal.App.4th 642, 660-661, petition for review filed March 25, 2015, S225198, 5 and while the case is not yet final, we adhere to the identical reasoning expressed in it. 6

4 As a result, we do not need to determine if there is a sa ving clause that prevents the application of this Estrada inference, and thus defendant’s discussion of “saving clause” cases is beside the point. 5 The issue is pending in the Supreme Court. ( People v. Chaney (2014) 231 Cal.App.4th 1391, petition for review granted February 18, 2015, S223676.) 6 The parties focus their arguments on People v. Valencia (2014) 232 Cal.App.4th 514, review granted February 18, 2015, S223825. However, the gr ant of review renders these arguments moot, and in any event the analysis in these arguments is not persuasive either way.5 Defendant’s discussion of Estrada does not consider the limitation Brown put on any expansive reading of Estrada . His citation of Holder v. Superior Court (1969) 269 Cal.App.2d 314, which well antedates Brown , is accordingly inapposite.

Defendant contends we s hould accord intrinsic significance to the enactment of this definition of “unreasonabl e risk of danger to public safety” (§ 1170.18, subd. (c)) at the very end of the period for filing a re call petition, because section 1170.126 is the only other Penal Code provision to which it could apply and it woul d not otherwise have any benefit for the vast majority of secti on 1170.126 petitioners un less given retroactive effect. We do not ag ree this bespeaks an unambiguous intent to apply this new definition retroactively. While it is true that the phras e otherwise appears only in section 1170.126 (we note that it has its genesis in a regulati on that governs parole determinations (Cal. Code Regs., tit. 15, § 2281, subd. (a)), and is regularly employed in case law governing those determinations), a more reasonable inte nt for wanting to apply section 1170.18 “throughout” the Penal Code is having the de finition in place for the enactment of any future ameliorative sentencing procedures, rather than infer a retroactive intent on an issue otherwise not addressed in election mate rials that could have been easily stated expressly. As nothing in the materials connected w ith the enactment of the statute otherwise presents any unambiguous extrinsic indicia of retroactive intent, we apply the Penal Code’s default rule of prospective applica tion and disregard section 1170.18 in cases pending on appeal. We do not find anything in the argument defendant otherwise presents that calls our analysis into question in the civil ca ses he cites, which are not apposite. Beckman v. Thompson (1992) 4 Cal.App.4th 481, 489, expressly notes that it does not involve an issue of retroactive application of a new statute, but a repeal. Re-Open Rambla, Inc. v. Board of Supervisors (1995) 39 Cal.App.4th 1499, 1510-1511, and Negrette v. California6 State Lottery Com. (1994) 21 Cal.App.4th 17 39, 1743-1744, both expressly note that they involve a new enactment th at declares itself a clarification of existing law, which does

not present any question of retroactive application. Finally, Kuykendall v. State Bd. of Equalization (1994) 22 Cal.App.4th 1194, 1199, involved a preliminary injunction , in which a reviewing court must apply the law in effect at the time it renders its decision ( Collateral Loan & Secondh and Dealers Assn. v. County of Sacramento (2014) 223 Cal.App.4th 1032, 1038 ( Collateral Loan )), given that it is a provisional remedy. Since we do not agree that section 1170 .18 applies retroactively, we do not agree that its definition results in an abuse of discretion in the de nial of defendant’s petition. We also reject the alternative argument that we must remand for the trial court to exercise its discretion in light of the statute’s criteria. ( Collateral Loan , supra , 223 Cal.App.4th at p. 1041, fn. 7 [ordinarily, appellate court revi ews discretion and does not exercise it in the first instance on appeal]).

DISPOSITION

The order is affirmed.

BUTZ , J.

We concur:

HULL , Acting P. J.

HOCH , J.