1

Filed 2/19/16 P.v. Santos 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Shasta)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

TIMOTHY MARVIN SANTOS,

Defendant and Appellant.

C075131

(Super. Ct. No. 03F6857)

Voters approved Proposition 36, the Three Strikes Reform Act of 2012 (the Act),

in November 2012. Soon after the Act went into effect, defendant Timothy Marvin 

Santos, an inmate serving an indeterminate life sentence imposed under the three strikes 

law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12)1 for a crime that is not a serious or 

 

1 Undesignated statutory references are to the Penal Code.
2

violent felony, petitioned the trial court to recall his sentence and for resentencing under 

the Act. Section 1170.126, which the Act added to the Penal Code, authorizes such a 

petition for an inmate who is eligible for resentencing under subdivision (e) of section 

1170.126, unless the trial court determines that resentencing would pose an unreasonable 

risk of danger to public safety. (§ 1170.126, subd. (f).) The trial court denied 

defendant’s petition because it concluded that resentencing defendant would pose an 

unreasonable risk of danger to public safety. 

Defendant now contends the trial court abused its discretion in denying his petition 

because (1) the complete facts of his pre-2003 crimes were not before the trial court;

(2) the trial court did not order a psychological assessment to aid it in evaluating 

defendant’s insight into his prior crimes and defendant’s risk to public safety; and (3) the 

trial court failed to articulate a rational nexus between the factors it considered and 

defendant’s then-current public safety risk. 

We conclude the trial court had the discretion to consider any evidence it 

determined was relevant in deciding whether resentencing defendant would pose an 

unreasonable risk of danger to public safety. Section 1170.126 does not require the trial 

court to hear all of the mitigating and aggravating facts related to defendant’s prior 

convictions. In addition, section 1170.126 did not require the trial court to order a 

psychological assessment of defendant, and the trial court’s stated reasons for denying 

defendant’s petition are rationally related to defendant’s then-current public safety risk. 

We will affirm the trial court’s order.

BACKGROUND

Law enforcement officers found marijuana and chemicals associated with the 

manufacture of methamphetamine in the truck defendant was driving. Defendant boasted 

to an officer about making methamphetamine. He said he had been manufacturing 

methamphetamine at his house. Officers found chemicals, 13.3 grams of marijuana bud, 
3

and drug paraphernalia during a search of defendant’s house. Defendant lived with his 

girlfriend and her three minor children. 

A jury convicted defendant of possession of a substance with the intent to 

manufacture methamphetamine (Health & Saf. Code, § 11383, subd. (c)(1)), conspiracy 

to manufacture methamphetamine (§ 182, subd. (a)(1); Health & Saf. Code, § 11379.6), 

possession of an injecting or smoking device (Health & Saf. Code, § 11364), possession 

of a hypodermic needle without a permit (Bus. & Prof. Code, § 4140), possession of 

marijuana while driving (Veh. Code, § 23222, subd. (b)), and child endangerment 

(§ 273a, subd. (b)). The trial court found true the enhancement allegations regarding 

prior convictions and prior prison terms, and sentenced defendant to state prison for an 

aggregate term of 36 years to life. This court affirmed the judgment and the California 

Supreme Court denied review. A remittitur issued on November 21, 2008. 

Defendant filed a petition to recall his sentence pursuant to section 1170.126 on 

January 7, 2013, shortly after the voters approved Proposition 36. The judge who 

presided over defendant’s trial heard defendant’s section 1170.126 petition. It was 

undisputed that defendant was eligible for resentencing under the Act. The issue before 

the trial court was whether resentencing defendant would pose an unreasonable risk of 

danger to public safety. (§ 1170.126, subds. (f) and (g).) The trial court reviewed the 

documents subpoenaed by the People from the California Department of Corrections and 

Rehabilitation (the prison packet) and a supplemental probation report. Defendant 

testified at the hearing on his petition. 

The records before the trial court showed defendant had a juvenile record dating 

back to 1980. Defendant was adjudicated of committing the following offenses as a 

juvenile: receiving stolen property (§ 496) in 1980; petty theft (§ 488) in 1981; 

possession of concentrated cannabis (Health and Saf. Code, § 11357, subd. (a)) in 1981; 

grand theft (§ 487) in 1982; driving a motorcycle, motor-driven cycle, or motorized 

bicycle upon a highway without a license (Veh. Code, § 12500, subd. (b)) and lack of 
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vehicle registration (id. at § 4454, subd. (a)) in 1982; possession of concentrated cannabis 

(Health and Saf. Code, § 11357, subd. (a)) in 1982; violating a court order in 1983; 

possession of an alcoholic beverage by a minor in a public place or place open to the 

public (Bus. & Prof. Code, § 25662, subd. (a)) in 1983; being under the influence in a 

public place (§ 647, subd. (f)) in 1983; one count of burglary (§ 459) in 1984; and two 

counts of burglary (§ 459) in 1985.

Defendant was convicted of assault with a firearm (§ 245, subd. (a)(2)), his first

strike offense, in 1985. He received three years’ probation and 270 days in jail. He was 

convicted of a second strike offense in 1988, for willful infliction of corporal injury to a 

spouse (§ 273.5) and personally using a deadly weapon in the commission of a felony 

(§ 12022, subd. (b)). He received a three-year prison term for the 1988 conviction. And 

in 1994, he was convicted of the following offenses: manufacture of a controlled 

substance (Health and Saf. Code, § 11379.6, subd. (a)); violation of or conspiracy to 

violate Health and Safety Code section 11379.6 in relation to specified quantities of

methamphetamine or phencyclidine (id. at § 11379.8); sale of a controlled substance 

(id. at § 11379, subd. (a)); possession for sale of a controlled substance (id. at § 11378);

and opening or maintaining a place for the purpose of unlawfully selling a controlled 

substance (id. at § 11366). Defendant was sentenced to 10 years eight months in state 

prison for the 1994 convictions. (Defendant claimed his sentence was 11 years, not 

10 years eight months.) 

The records before the trial court also showed that defendant received numerous 

write ups or disciplinary actions while in custody. Shasta County Detention Facility 

records show the following dates and rules violations by defendant: (1) April 1, 2004 --

failure to follow orders to lock down and attempt to start a riot; (2) April 18, 2005 --

failure to follow orders to lock down; (3) August 26, 2005 -- possession of contraband

(ball point pen); (4) December 20, 2005 -- possession of contraband (bottle containing 

suspected pruno, an alcoholic beverage made in jail or prison using prunes, sugar and 
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juice; (5) January 12, 2006 -- possession of pruno; (6) February 28, 2006 -- failure to lock 

down; (7) March 6, 2006 -- engaging in a physical altercation with another inmate; 

(8) May 19 & 20, 2006 -- possession of pruno; (9) December 25, 2006 -- manufacture of 

pruno; (10) January 14, 2007 -- being under the influence of alcohol; (11) February 10, 

2007 -- possession of extra clothing; (12) May 6, 2007 -- being disrespectful to jail staff; 

(13) May 12, 2007 -- being intoxicated and possession of pruno. 

There were three disciplinary actions against defendant in state prison. 

Approximately three gallons of pruno and two cell phones concealed in a book were

found in defendant’s cell on January 13, 2011. Defendant admitted the pruno and cell 

phones belonged to him. He was found guilty of possessing cellular phones and inmate 

manufactured alcohol. Defendant admitted at the section 1170.126 hearing that although 

he was only caught with pruno in prison one time, he continued to make pruno in prison. 

Defendant was found in possession of another cell phone and an altered cell phone 

charger on February 18, 2011. He was found guilty of possession of a cell phone. 

Defendant testified he was a drug addict. The probation report stated that 

defendant began smoking marijuana in 1978 when he was 12 years old, and he smoked 

and sold marijuana until 1988. But methamphetamine was defendant’s drug of choice, 

and defendant used and sold methamphetamine prior to 1989 and after he was released on 

parole in 1990. The probation report also stated that defendant was a self-reported 

alcoholic. Defendant admitted he never received any treatment for his drug addiction. 

He said he was in a program called “A Life Without a Crutch” when he was in prison 

but did not complete the program, and he participated in a program called “Empire” for 

30 days when he was out of custody. 

Defendant testified at the section 1170.126 hearing about his 1985 conviction for 

assault with a firearm. He said he was a “kid” at the time of the crime. He and others 

“stole some pot from some Indians and there was an ongoing war between . . . [his group]

and the Indian.” Defendant claimed five people followed defendant to beat him up. 
6

Defendant said he shot in the air at a car to scare them away, and he was not trying to 

hurt anyone. 

With regard to his 1988 conviction for corporal injury to a spouse and personal use 

of a deadly weapon, defendant testified that he used an axe handle to “beat up the house 

and . . . vandalize . . . [his] own personal property.” Defendant denied that he hit his wife 

with the ax handle. He said he entered a plea agreement admitting he committed corporal 

injury upon his wife and he was “stuck” with that plea agreement. 

Defendant admitted possessing and transporting methamphetamine in 1994, but he 

denied manufacturing or intending to sell methamphetamine. Defendant also denied that 

he manufactured methamphetamine in relation to the current convictions. He said he 

possessed materials for the manufacture of methamphetamine but “[i]t was miniscule 

amounts.” 

Defense counsel argued that defendant did not have “any significant record” of 

disciplinary action in prison even though he was in the highest security level “with the 

worst of the bad guys.” Defense counsel also argued that some of defendant’s serious 

crimes were remote in that they were committed in 1985 or 1988. 

The prosecutor argued defendant’s criminal history was not remote because 

defendant committed the 1994 crimes and received an 11-year prison sentence when he 

had just served a prison sentence for the 1988 domestic violence incident, and he 

committed new crimes when he was on parole or had just completed parole for the 1994 

crimes. The prosecutor said defendant had endangered the safety of his wife and children 

and the public by manufacturing methamphetamine in his home, and his attitude about 

his dangerous conduct at his trial was disrespectful and nonchalant. The prosecutor 

further argued that defendant lacked insight into his criminal behavior as he still did not 

believe he was guilty of the crimes for which he was convicted. The prosecutor also 

pointed to defendant’s juvenile delinquency history, efforts to minimize his misconduct 
7

in jail, failure to conform his conduct to institutional requirements, and failure to 

complete or seek participation in an Alcoholics or Narcotics Anonymous program. 

The trial court denied defendant’s petition. The trial judge said, “Given the 

totality of the circumstances -- First of all, let me state: I’m not reluctant to -- to wipe out 

a third strike and resentence. Not at all. And we’ve had quite a number of these 

1170.126 petitions, quite a few of them, as a matter of fact. And in many instances, the 

People have agreed to resentencing and the court has resentenced parties. And obviously, 

the court’s not reluctant to resentence over the objection of the People. The court makes 

its own independent judgments here pursuant to subsection G. [¶] I have to say I agree 

wholeheartedly with the comments offered by [the prosecutor] Mr. Woods. I think -- I’m 

surprised and disappointed with the continued lack of respect Mr. Santos has for authority 

even after having been incarcerated. Today, his statements under oath reflect a failure to 

acknowledge the wrongfulness, I think, of his criminal acts for which he’s already been 

convicted.” The trial court noted defendant’s lack of remorse for or denial of the conduct 

for which he was convicted. The trial judge further observed, “His prison record is not 

exemplary; I would hope to see that in a case where I’m resentencing pursuant to 

1170.126. He’s been involved in altercations, repeatedly used controlled substances, 

pruno . . . . While in prison, he’s possessed cell phones, he has not been cooperative with 

authorities when in prison or while authorities in prison are investigating his -- his in 

prison misconduct. And he does have an extensive record outside of prison. [¶] So, I 

feel uncomfortable in releasing him earlier than the sentence I already imposed. I feel 

uncomfortable that he would, based on all these factors, continue to pose unreasonable 

risk of harm to public safety.” 

STANDARD OF REVIEW

We review a trial court’s section 1170.126, subdivision (g) finding for abuse of 

discretion. (§ 1170.126, subds. (f), (g) [the trial court has the discretion to make 

dangerousness finding and to consider any evidence it deems relevant in making that 
8

finding]; see generally In re Richard E. (1978) 21 Cal.3d 349, 354 [an exercise of 

discretion will not be disturbed on appeal unless abused].) As the party challenging the 

trial court’s order, the defendant bears the burden of clearly showing that the order was 

irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 376.) Absent that 

showing, we presume the trial court acted properly. (Id. at pp. 376-377.) We will not 

reverse the trial court’s decision merely because reasonable people might disagree. 

(Id. at p. 377.) The trial court does not abuse its discretion unless its decision is so 

irrational or arbitrary that no reasonable person could agree with it. (Ibid.)

Defendant contends we must review the trial court’s order under a dual standard 

consisting of abuse of discretion and “some evidence” of current dangerousness, as used 

when we review the decision of the Board of Parole Hearings or the Governor to deny an 

inmate parole. (In re Lawrence (2008) 44 Cal.4th 1181, 1191 [the standard of review in 

parole determination cases is whether “some evidence” supports the conclusion of the 

Board of Parole Hearings or the Governor that the inmate is unsuitable for parole because 

he or she is currently dangerous].) We disagree that the “some evidence” standard of 

review applies to our review. 

“Whether to grant parole to an inmate serving an indeterminate sentence is a 

decision vested in the executive branch, under our state Constitution and statutes. The 

scope of judicial review is limited. The ‘some evidence’ standard . . . is meant to serve 

the interests of due process by guarding against arbitrary or capricious parole decisions, 

without overriding or controlling the exercise of executive discretion.” (In re Shaputis

(2011) 53 Cal.4th 192, 198-199.) While the ultimate conclusion on parole suitability is 

subject to judicial review, that review is narrower in scope than appellate review of a 

lower court’s judgment. (Id. at p. 215.) As defendant acknowledges, the review of a trial 

court’s denial of a section 1170.126 petition does not implicate separation of powers 

issues which are present in the review of parole suitability determinations by the 
9

executive branch. The highly deferential “some evidence” standard of review is 

inappropriate for our review of the trial court’s exercise of discretion in this case.

DISCUSSION

I

Defendant argues the trial court abused its discretion in denying his section 

1170.126 petition because the “complete facts” of his pre-2003 crimes were not before 

the trial court. 

We begin our discussion with an overview of the Act. The California electorate 

approved the Act, amending sections 667 and 1170.12 and adding section 1170.126, 

during the November 6, 2012 general election. (People v. Yearwood (2013) 

213 Cal.App.4th 161, 167 (Yearwood).) The Act became effective the next day. (Id. at 

pp. 167, 169.) The amendments to sections 667 and 1170.12 changed the requirements 

for sentencing a third strike offender to an indeterminate prison term of 25 years to life. 

(Yearwood, at p. 167.) Prior to the Act, a defendant with two prior serious or violent 

felony convictions would be subject to a 25-year-to-life sentence under the three strikes 

law upon conviction of any new felony. (Id. at pp. 167-168.) “The Act diluted the three 

strikes law by reserving the life sentence for cases where the current crime is a serious or 

violent felony or the prosecution has pled and proved an enumerated disqualifying factor. 

In all other cases, the recidivist will be sentenced as a second strike offender.” (Ibid.)

The Act also “created a postconviction release proceeding [in section 1170.126] 

whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the 

three strikes law for a crime that is not a serious or violent felony and who is not 

disqualified, may have his or her sentence recalled and be sentenced as a second strike 

offender unless the court determines that resentencing would pose an unreasonable risk of 

danger to public safety.” (Yearwood, supra, 213 Cal.App.4th at p. 168.) To obtain a 

sentencing reduction under section 1170.126, an inmate must file a petition for a recall of 

sentence in the trial court that entered the judgment of conviction in his or her case by 
10

November 7, 2014, or at a later date upon a showing of good cause. (§ 1170.126, 

subd. (b).) “Upon receipt of such a petition, the trial court must determine if it satisfies 

the criteria contained in subdivision (e) of section 1170.126. [Citation.] If it does, the 

[petitioner] shall be resentenced as a second strike offender ‘unless the court, in its 

discretion, determines that resentencing the petitioner would pose an unreasonable risk of 

danger to public safety.’ [Citation.]” (Yearwood, supra, 213 Cal.App.4th at p. 170.)

A key purpose of the Act is to enhance public safety. (People v. Osuna (2014) 

225 Cal.App.4th 1020, 1036-1038 (Osuna); Yearwood, supra, 213 Cal.App.4th at 

pp. 171, 175 [ballot arguments for Proposition 36 focused on keeping dangerous and 

violent criminals in prison].) The proponents of Proposition 36 were concerned about 

keeping dangerous criminals and violent repeat offenders off the streets. (Voter 

Information Guide, Gen. Elec. (Nov. 6, 2012) argument in favor of Prop. 36, p. 52.) The 

proponents of Proposition 36 said, “Criminal justice experts and law enforcement leaders 

carefully crafted Prop. 36 so that truly dangerous criminals will receive no benefits

whatsoever from the reform.” (Ibid.) The ballot materials “expressly distinguished 

between dangerous criminals who were deserving of life sentences, and petty criminals 

(such as shoplifters and those convicted of simple drug possession) who posed little or no 

risk to the public and did not deserve life sentences. It 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.” (Osuna, supra, 225 Cal.App.4th 

at p. 1038, italics omitted.)

The Act does not define “unreasonable risk of danger to public safety.”2 Instead, 

it gives a trial court discretion to make the dangerousness determination. (§ 1170.126, 

 

2 Defendant does not contend that the definition of “unreasonable risk of danger to 

public safety” in section 1170.18, which the voters added to the Penal Code when they 
11

subd. (f).) The Act provides that in exercising its discretion under section 1170.126, the 

trial 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 trial 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).)

In sum, section 1170.126 entrusts the trial court with the discretion to deny 

resentencing if the trial court determines that resentencing would pose an unreasonable 

risk of danger to public safety. (Yearwood, supra, 213 Cal.App.4th at p. 176.) In such a 

case, the petitioner must finish out the term to which he or she was originally sentenced. 

(People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1303 (Kaulick).)

Defendant claims the trial court was required to consider all of the mitigating and 

aggravating facts of his prior crimes in order to determine whether he posed a current 

public safety risk. But his argument is contrary to the language of section 1170.126.

Our primary task in construing a statute adopted by voter initiative is to ascertain 

the intent of the electorate so as to effectuate the purpose of the law. (People v. Jones

(1993) 5 Cal.4th 1142, 1146 (Jones); Osuna, supra, 225 Cal.App.4th at p. 1034.) To 

determine intent, we turn first to the words of the statute. (Jones, supra, 5 Cal.4th at 

p. 1146.) When the language of a statute is clear and unambiguous, there is no need for 

construction. (Ibid.; Osuna, supra, 225 Cal.App.4th at p. 1034.)

 

approved Proposition 47 on November 4, 2014, applies retroactively to this case, and we 

do not decide that issue. The California Supreme Court has granted review in cases 

involving whether Proposition 47’s definition of “unreasonable risk of danger to public 

safety” applies to resentencing under section 1170.126. (People v. Chaney, review

granted Feb. 18, 2015, S223676; People v. Valencia, review granted Feb. 18, 2015, 

S223825.)
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Section 1170.126 uses the terms “shall” and “may.” For example, it provides that 

the trial court shall determine whether a petitioner is eligible for resentencing under 

section 1170.126, subdivision (e). (§ 1170.126. subd. (f).) And a trial court may 

consider factors including the petitioner’s criminal conviction history, disciplinary 

record, and record of rehabilitation while incarcerated. (§ 1170.126, subd. (g).) 

“When the Legislature has . . . used both ‘shall’ and ‘may’ in close proximity in a 

particular context, we may fairly infer the Legislature intended mandatory and 

discretionary meanings, respectively. The ordinary import of ‘may’ is a grant of 

discretion.” (In re Richard E., supra, 21 Cal.3d at pp. 353-354.) The use of the term 

“discretion” in conjunction with the term “may” also supports our conclusion that section 

1170.126, subdivision (g) gives a trial court an option, and not a mandate, to consider 

certain factors. Looking at the words of section 1170.126, we conclude the statute does 

not require a trial court to consider all of the facts of a petitioner’s prior crimes. Instead, 

a trial court has the discretion to consider any evidence it determines is relevant in 

making the dangerousness determination. (§ 1170.126, subd. (g).)

Our construction is consistent with the indicia of voter intent in the Voter 

Information Guide for Proposition 36. The Guide states, “In determining whether an 

offender poses such a risk, the court could consider any evidence it determines is 

relevant, such as the offender’s criminal history, behavior in prison, and participation in 

rehabilitation programs.” (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) analysis 

by the legislative analyst, p. 50.) The Guide indicates the voters intended to grant the 

trial court discretion to decide what evidence to consider in evaluating the risk of 

modifying a petitioner’s sentence.

In any event, the record shows the trial court was aware of the section 1170.126, 

subdivision (g) factors, and it considered factors other than defendant’s criminal history

in making its dangerousness determination. The trial judge considered defendant’s incustody record and continued lack of respect for authority. Defendant’s “prison packet” 
13

showed numerous rules violations by defendant in jail and in prison. Defendant does not 

contend that the evidence of his institutional disciplinary record and record of 

rehabilitation while incarcerated was inadequate.

Defendant fails to demonstrate prejudicial error.

II

Defendant next argues the trial court abused its discretion in denying his petition 

because the trial court did not order a psychological assessment to aid it in evaluating

defendant’s insight into his prior crimes and risk to public safety. Defendant cites 

section 2240 of title 15 of the California Code of Regulations and section 1369 in support 

of his claim. 

Section 2240 of title 15 of the California Code of Regulations relates to 

comprehensive risk assessments prepared for parole suitability determinations. 

Subdivision (a) of the section states, “Prior to a life inmate’s initial parole consideration 

hearing, a Comprehensive Risk Assessment will be performed by a licensed psychologist 

employed by the Board of Parole Hearings, except as provided in subsection (g).” (Cal. 

Code Regs., tit. 15, § 2240, subd. (a).)

Section 1369 relates to a defendant’s present mental competence to stand trial. 

Section 1369, subdivision (a) provides that the trial court shall appoint a psychiatrist or 

licensed psychologist, and any other expert the court may deem appropriate, to examine 

the defendant in order to evaluate, among other things, the defendant’s ability or inability 

to understand the nature of the criminal proceedings and assist counsel in the conduct of a 

defense in a rational manner. Defendant’s mental competency was not at issue at the 

section 1170.126 proceeding, and he did not ask the trial court to order a psychological 

assessment. 

The authorities cited by defendant do not reference postconviction sentence recall 

proceedings under section 1170.126. Defendant does not cite, and we have not found, 

any authority requiring psychological evaluations to be prepared for a section 1170.126 
14

proceeding. The Act and the Voter Information Guide for Proposition 36 do not mention 

psychological assessments and certainly do not impose the sua sponte duty defendant 

advocates. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) pp. 48-51, 105-110.)

The trial court had evidence of defendant’s insight into his prior criminal behavior, 

namely defendant’s testimony about his past crimes. As the trial court found, defendant 

failed to acknowledge the wrongfulness of his prior criminal acts. As for defendant’s 

current risk to public safety, the trial court had evidence of and considered defendant’s 

criminal history, in-custody record, and present attitude toward his prior crimes and law 

enforcement authority. The trial court had discretion under section 1170.126 to decide 

what evidence was relevant in deciding whether resentencing would result in an 

unreasonable risk of danger to public safety. (§ 1170.126, subd. (g).) 

Section 1170.126 does not require the trial court to order a psychological 

assessment of defendant.

III

Defendant also argues the trial court abused its discretion in denying his petition 

because the trial court failed to articulate a rational nexus between the factors it 

considered and defendant’s then-current public safety risk. Defendant cites parole 

determination cases in support of his claim that the trial court was required to articulate 

how the factors it considered rendered defendant currently dangerous. 

Although we do not decide how and to what extent parole determination cases 

control our review of section 1170.126 orders,3 we agree with defendant that there must 

 

3 Unlike the language indicating discretion in section 1170.126, subdivision (g), the 

regulations governing parole decisions enumerate the factors which the Board of Parole 

Hearings must consider in determining suitability for parole. (Contra, § 1170.126,

subd. (g) with Cal. Code Regs., tit. 15, § 2281, subd. (b).) “Such information shall 

include the circumstances of the prisoner’s: social history; past and present mental state; 

past criminal history, including involvement in other criminal misconduct which is 

reliably documented; the base and other commitment offenses, including behavior before, 
15

be a connection between the factors the trial court considered and defendant’s current 

dangerousness because as we have explained, a key purpose of the Act is to enhance 

public safety. (Yearwood, supra, 213 Cal.App.4th at p. 171, 175-176.) Here, the trial 

court stated its reasons for determining that resentencing defendant would pose an 

unreasonable risk of danger to public safety, and the reasons involve factors that the 

electorate approved for making a dangerousness determination under section 1170.126. 

The trial court’s reasons for denying defendant resentencing are rationally connected to 

defendant’s current public safety risk.

The trial court considered defendant’s “extensive record outside of prison.” 

Defendant has a criminal history dating back to 1980 when he was 13. He had at least 

one juvenile adjudication each year from 1980 to 1985, his juvenile adjudications 

included three counts of burglary (§ 459), and he was convicted of his first felony in 1985 

when he was 18 years old. That felony involved the personal use of a firearm. 

Defendant suffered his second felony conviction, involving corporal injury to a spouse, 

three years later. He was committed to state prison for three years as a result of that 

conviction. But defendant reoffended in 1994 when he committed drug related offenses, 

including manufacture of methamphetamine, for which he received a substantial prison

sentence. Despite his numerous prior adjudications and convictions and having received 

a substantial prison sentence for his 1994 convictions, defendant committed the current 

drug-related offenses in 2003. A defendant’s past criminal conduct can evince present or 

 

during and after the crime; past and present attitude toward the crime; any conditions of 

treatment or control, including the use of special conditions under which the prisoner may 

safely be released to the community; and any other information which bears on the 

prisoner’s suitability for release.” (Cal. Code Regs., tit. 15, § 2281, subd. (b).) A 

gubernatorial parole decision must be based upon the same factors that the Board of 

Parole Hearings is required to consider. (In re Rosenkrantz (2002) 29 Cal.4th 616, 660-

661.) 
16

future danger. (§ 1170.126, subd. (g)(1) [the trial court may consider the petitioner’s 

criminal conviction history].) 

Defendant argues his 1985 and 1988 convictions were remote and were not 

probative of his current dangerousness. However, the trial judge also considered the 

information in defendant’s prison packet, which showed defendant’s post-2003 

conviction attitude and behavior. While defendant received good reports from his prison 

work supervisor in 2010, 2011, and 2012, he committed numerous institutional rules 

violations. He was involved in a physical altercation in jail, found in possession of cell 

phones, pruno or other contraband in jail and in prison, and he failed to comply with the 

directives of jail officials. He was disciplined on two occasions in 2011 for possession 

of a cell phone, which is a serious rule violation. (Cal. Code Regs., tit. 15, § 3315,

subd. (a)(3)(X).) Despite prior disciplinary actions related to pruno while at the Shasta 

County Detention Facility, defendant persisted in making pruno when he was in state 

prison and he was disciplined in 2011 for possession of pruno. The trial judge found that 

defendant displayed a “continued lack of respect . . . for authority even after having been 

incarcerated.” The record also shows that while he admitted he was an alcoholic and a 

methamphetamine addict, there was no evidence defendant had sought to address his 

addictions. Defendant’s in-custody conduct and failure to address his substance abuse 

issues are rationally related to his present dangerousness. (§ 1170.126, subd. (g)(2) [the 

trial court may consider the petitioner’s disciplinary record and record of rehabilitation 

while incarcerated]; Kaulick, supra, 215 Cal.App.4th at p. 1293, fn. 10 [when a petition 

for resentencing is filed many years after the defendant was sentenced, the petitioner’s 

conduct in the interim may be extremely relevant to a determination of whether a lesser 

sentence is appropriate].) Further, defendant still failed to take responsibility for his 

criminal acts. Lack of remorse could also be probative of a likelihood to repeat criminal 

conduct under similar circumstances. (People v. Key (1984) 153 Cal.App.3d 888, 900.)
17

The record supports the trial court’s findings. Defendant’s criminal history, 

postconviction disciplinary record, failure to address his substance abuse issues, and 

failure to accept responsibility for the crimes of which he was convicted reasonably relate 

to whether resentencing him would pose an unreasonable risk of danger to public safety. 

The trial court did not abuse its discretion in denying defendant’s section 1170.126 

petition.

DISPOSITION

The order denying resentencing is affirmed.

 /S/

Mauro, J.

We concur:

 /S/

Butz, Acting P. J.

 /S/

Duarte, J.