1

Filed 7/7/16 P. v. Jefferson CA4/2 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. LAMONTE ALVIN JEFFERSON, Defendant and Appellant. E063900 (Super.Ct.No. RIF1411960) O P I N I O N

APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed. Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton, Sabrina Y.
Lane

- Erwin, Heidi Salerno, and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.2 I. INTRODUCT ION While serving a 32

- month sent ence for commercial burglary ( Pen. Code, § 459), 1
defendant and appellant, Lamonte Alv in Jefferson , petitioned the trial court to recall his sentence and resentence him as if he had been convicted of misdemeanor shopliftin g (§ § 459.5, 1170.18, subd. ( a ) )

. Defendant stole an ink cartridge worth $24.99 from a
Riverside Kmart store. The parties agreed that defendant’s commercial burglary conviction qualified as a misdemeanor shoplifting conviction. ( § 459.5 [defining shoplifting as including entering a commercial establishment during regular business hours with intent to commit or committing larceny where value of property taken or intended to be taken does not exceed $950 ].) The parties also agreed that, had defendant’s petition been granted at the January 12, 2015, hearing on the petition, defendant would have been eligible for immediate release from prison. However, t he court denied the petition on the ground defendant posed an unreasonable risk o f danger to public safety. (§ 1170.18, subd s . (b) , (c) .) Defendant claims the court erroneously applied the preponderance of the evidence standard to its unreasonable risk of dangerousness determination . He argues the prosecution was required to prove his dangerousness to a jury beyond a reasonable doubt or, at the very least, based on clear and convincing evidence. He also claims the court

1 Unspecified statutory references are to the Penal Code.3

abused its discretion in finding he posed an unreasonable risk of danger to public safety under any standard of p roof. We find no error or abuse of discretion , and affirm.
II. BACKGROUND On September 1 6 , 2014, defendant pled guilty to commercial burglary ( § 459) , a felony, and admitted a strike prior

. In entering his plea, defendant admitted in court that he entered a Kmart store in the City of Riverside “with the idea of taking some of their property.” The guilty plea form that defendant signed does not indicate the circumstances of the crime, but the P eople re present that the commercial burglary was

comm itted on September 3, 2014, when defendant , while on active parole, left a Kmart
store without paying for an ink cartridge worth $24.99. 2 O n September 16, 2014, defendant was sentenced to 16 months in prison on the burglary conviction , doubled to 32 month s based on the strike prior. On November 14, 2014, defendant petitioned the court to recall his 32

- month
sentence and resentence him to not more than six months in county jail, or time served

. (§ § 19, 459.5, 1170.18, subd. (a).) The People opposed the petition and requested a hearing to determine whether defendant posed an unreasonable risk of danger to public safety. At a June 12, 20 1 5, hearing, the court found that defendant posed an unreasonable risk of danger to public safety and denied the petition

.

2 In exchange for defendant’s guilty plea to commercial burglary, the People dismissed two misdem eanor charges, one for theft ( Pen. Code, § 490.5) and another for possessing a glass methamphetamine pipe (Health & Saf. Code, § 11364.1)

.4 III. DISCUSSION
A. Proposition 47

, Overview of Relevant Provisions
In the November 4, 2014, election, the voters enacted Proposition 47, “T he Safe Neighborhoods and S chools Act ” (Proposition 47 or the Act), and the Act went in to effect on November 5, 2014 . ( People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) As pertinent, t he Act added sections 459.5 and 1170.18 to the Penal Code. ( People v.
Rivera , supra , at p. 1091.) Section 459.5 defines “shoplifting” as “entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken d oes not exceed nine hundre d fifty dollars ($950).” (§ 459 .5, subd. (a).) Shoplifting must be punished as a misdemeanor unless the defendant has one or more disqualifying prior convictions

. ( Ibid .) 3 Generally, misdemeanors are punishable by imprisonment in the county jail fo r not more than six months. (§ 19.) Under s ection 1170.18 , subdivision (a), a person who is currently serving a sentence for a felony conviction that would have been a misdemeanor under the Act may petition the court that entered t he judgment of conviction to recall the person’s felony
sentence and resentenc e the person as if he or she had been convicted of the misdemeanor. If the court determines that the defendant satisfies the criteria of section

3 For purposes of section 459.5, a prior conviction is a conviction for an offense specified in section 667, subdivision (e)(2)(C), or an offense requiring registration as a sex o ffender under section 290, subdivision (c). Persons with one or more such prior convictions may be punished pursuant to section 1170, subdivision (h).5

1170.18, subdivision (a), the court is required to recall the felony sentence and resentence the defendant to the misdemeanor sentence , “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) .)
B

. Defendant Was Not Entitled to a Jury Trial on the Dangerousness Finding, and t he Proper Standard of Proof Was Preponderance of the Evidence Defendant first claims he had a right to a jury trial on the dangerousness finding, and that the prosecutor had the burden of proving his dangerousness beyond a reasonable doubt or , at the very least, by clear and convincing evidence. We disagree. Other courts have rejected this claim in the context of Proposition 36, the Three Strikes Re form Act of 2012 (Proposition 36) and its resentencing provision, section 1170.126. ( People v. Superior Court ( Kaulick ) (2013) 215 Cal.App.4th 1279, 1302

- 1305 ( Kaulick ); People v. Flores (2014) 227 Cal.App.4th 1070, 1075

- 1076.) Like section 1170.18, which requires the court not to recall a defendant’s felony sentence and resentence the defendant under Proposition 47 if the court finds the defendant would pose an unreasonable ris k of danger to public safety (§ 1170.18, subds. (b), (c)), section
1170.12 6 includes a sim ilar dangerousness provision (§ 1170.126, subd. (f))

. The reasoning of Kaulick and Flores applies with equal force to dangerousness determinations under Proposition 47, regardless of whether “ ‘ unreasonable risk of danger to public safety ’ ” has the same meaning in sections 1170.18 (Proposition 47) and
117 0.126 (Proposition 36). (See § 1170.18, subd. (c) [defining “ ‘ unreasonable risk of6

danger to public safety ’ ” “[ a]s used throughout this Code”]; People v. Cordova (June 24, 2016, H041050 )

___ Cal.App.4th ___ [2016 Cal.App. L exis 509 [definition of “un reasonable risk of danger to public safety ” in § 1170.18, subd. (c) applies to dangerousness determinations under both Proposition s 47 and 36].) Defendant’s argument begins with the settled pr incipal that, “ ‘“ under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. ”’ ” ( Kaulick , supra , 215 Cal.App.4th at p. 1302, quoting Cunningham v. California (2007) 549 U.S. 270, 281 ; People v. Towne (2008) 44 Cal.4 th 63, 74 .) A finding of dangerousness under Proposition 36 or 47 is not a fact that exposes the defendant to a greater potential sentence , however

. If the court finds the defendant would pose an unreasonable risk of danger to public safety if h e is r e sentenced under Proposition 36 or 47 , the defendant “simply finishes out the term to which he or she was originally sentenced.” ( Ka ulick , supra , at p. 1303 [Proposition 36] .) Additionally, b ecause Propositions 36 and 47 only allow the defendant’s original sentence to be modified downward, not upward, any facts found in a proceeding under section 1170.18 or 1170.126, including the defendant’s dangerousness, do not implicate the defendant’s Sixth Amendment rights. ( Kaulick , supra , 215 Cal.App.4th at pp. 1303

- 1305.) Thus, the principle established by the Apprendi line of cases, that “any fact that increases the penalty for a crime b eyond the prescribed statutory maximum must be subjected to a jury , and proved beyond a reasonable doubt” ( Apprendi v. New Jersey7

(2000) 530 U.S. 466, 490) is inapplicable to dangerousness determinations under Propositions 36 and 47 ( Kaulick , supra , at pp. 1303

- 1305)

. Further , a defendant has no constitutional right to be resentenced under Proposition 36 or 47. Rather, the resentencing provisions of Propositions 36 and 47 are acts of lenity on the part of the electorate. ( Kaulick , supra , 215 Cal.App.4th at p. 1304 [Proposition 36] .) They do not call for the “ wholesale resentencing of eligible petitioners.” ( Ibid .) Thus, there is no Sixth Amendment or other constitutional right to have the prosecution prove dangerousness to a jury beyond a reasonable doubt. ( Id

. at pp. 1304

- 1305 ; see People v. Rivas

- Colon (2015) 241 Cal.App.4th 444, 451

- 452 [following the reasoning of Kaulick and holding that a Proposition 47 defendant has no right to a jury trial on the val ue of the property stolen, a question essential to the defendant ’s eligibility for resentencing under Proposition 47] .) Lastly, the proper standard of proof on a dangerousness finding is the default standard of proof by a preponderance of the evidence. ( Kaulick , supra , 215 Cal.App.4th at p

. 1305; People v. Flores , supra , 227 Cal.App.4th at p. 1076.) Evid ence Code section 115 provides that, “[e]xcept as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence .” No statute or case law provides for a higher standard of proof, including proof by clear and convincing evidence

. Defendant maintains that a defendant whose felony offense satisfies the eligibility requirements of section 1170.18, subdivision (a) is entitled to have his or her felony sentence recalled ; the misdemeanor sentence is the presumptive sentence; and the court is8

authorized to resentence the defendant to the original felony sentence only upon proof beyond a reasonable doubt of the additional factor of dangerousness. Nothing in the language of section 1170.18 or in the other Penal Code provisions added or amended by Proposition 47 supports this interpretation. ( See Kaulick , supra , 215 Cal.App.4th at p. 1303 [rejecting similar argument in Prop osition 36 context].)
C

. The Court Did Not Abuse I ts Discretion in Finding Defendant Posed an Unreasonable Risk of Danger to Public Safety
D efendant claims that, under any standard of proof, the court abused its discretion
in finding he posed an unreasonable risk of danger to public safety. Again, we disagree.
1. Relevant Legal Principles and Standard of Review For purposes of Proposition 47, an “unreasonable risk of danger to public safety” means “an unreasonable risk that the pet itioner will commit a new violent felony” described in section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (c).) These violent felonies are known as “super strikes” and include murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer , possession of a weapon of mass destruction, and any serious or violent felony punishable by death or life imprisonment

. (Couzens & Bigelow, Proposition 47: “The Safe Neighborhoods and Schools Act” (Feb. 2016) pp. 77, 124

- 125, Appendix V [complete listing of super strikes described in § 667, subd. (e)(2)(C)(iv) < http://www.courts.ca.gov/documents/Prop

- 47

- Information.pdf

> [as of Ju ly 7, 2016].)9

In determining whether there is an unreasonable risk that the defendant will

co mmit a super strike, 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. [¶] (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 o f dang er to public safety.” (§ 1170.18, subd. (b)(1)

- (3).) We review a dangerousness finding for an abuse of discretion, given that the court is statutorily required to determine dangero usness “in its discretion.” (§ 1170.18, subd. (b).) “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 a n arbitrary, capricious or patently absurd manner that resulted i n a manifest miscarriage of justice. [Citations.]’ ” ( People v. Rodrigue s (1994) 8 Cal.4th 1060, 1124

- 1125.) The abuse of discretion standard “involves abundant deference” to the court’s ruling. ( People v. Jackson (2005) 128 Cal.App.4th 1009, 1018.)
2

. Relevant Background Before the June 12, 2015, hearing on defendant’s dangerousness , the parties submitted briefs on whether defendant posed an unreasonable risk of danger to public safety

. Evidence concerning defendant’s dangerousness, or lack of dange rousness, was included in the briefs, and both sides presented additional argument at the hearing. The10

pertinent evidence and argument presented on the question of defendant’s dangerousness

are set forth here.

(a) The People’s Evidence (i) The 1997 Home Invasion Robbery
W hen he was 20 years old in 1997, defendant was a principal in an armed, home invasion robbery

. As a result, he was convicted of residential robbery, assault with a firearm, battery with serious bodily injury, and unlawful taking of a vehicle. ( Pen. Code, §§ 211, 245, subd

. (a)(2 ), 243, subd. (d) ; Veh. Code, § 10851 , subd. (a) .) The jury found he personally used a firearm in each count, and personally inflicted great bodily injury in the robbery and assault counts

. ( Pen. Code, §§ 12022. 5 , 12022. 7 .) The 1997 crimes occurred in San Diego and their circumstances are briefly described in People v. Jefferson ( Sept. 30, 1998, D029498) [nonpub. opn.]: “Jefferson and three other masked men entered an apartment where the victim, Laura Mootry, was staying. The apartment belonged to her boyfriend. The men were looking for money and expensive tire rims which belonged to the boyfriend. Eventually the men left, taking a VCR, a gold chain and the tire rims. [¶] During the robbery Mootry was repeatedly struck on the h e ad by the robbers. They also drug her around the apartment by her hair. Mootry was rendered unconscious at one point and ultimately required 13 stiches to close her wounds. [¶] As the robbers were leaving the apart ment, they took Mootry’s car keys. They then took her car, which was not recovered until approximately six weeks later.” ( Id. [at pp. 2

- 3].)11 (ii) Defendant’s Prison Record and Parole Violations For the 1997 crimes, defendant was sentenced to 16 years 8 months in prison and was released on parole in July 2011. While in prison, he was placed in administrative segregation five times, in 1998, 2000, July 2001, October 2001, and 2006. In the 1998,
2 000, and July 2001 incidents, he was involved in melees between Crips and Bloods and ignored repeated commands to “get down” or stop fighting. In the 1998 and July 2001 incidents, he was pepper s prayed. In 2004, he wrote a kite indicating his loyalty to the Blood gang. The kite stated he “keeps it Gangsta 24

- 7,” told a “Soulja” Blood “to D eath
D o U s P art,” and was signed, “ B ulletproof Love, Black Money, South Side Soulja 4 Life, Death View Side, 59 Brim.” In October 2001, defendant threatened a correcti onal officer that he would “kick [the officer’s] mother fucking ass” if the officer searched his cell, and in 2006, defendant gassed a correctional officer with pruno.
D efendant violated parole 10 times following his July 2011 release on parole . He

was “at large ” for 226 days, between May 11, 2012 and April 14, 2014. Twice in April 2014, he violated section 148.9, indicating he was lying about his identity in order to avoid being returned to prison o n parole violations. Defendant was still on parole wh en he committed the commercial burglary of the Kmart store on September 3, 2014 , and was sentenced to 32 months in prison

.

(b) Defendant’s Evidence Defendant’s prison records showed the “RVR” or “Rules Violation Report” for the 1998 incident was dismi ssed; a correctional sergeant determined he was not a participant12

in the 2000 incident, and, in the July 2001 incident, he was not alleged to be one of the inmates engaging in combat. Regarding the 2006 pruno gassing incident, he was “found guilty of a le sser, but included offense” of possessing manufactured alcohol. He emphasized his other RVR’s were many years old, and he had “ no RVR’s ” for fighting with other inmates and no physical altercations with prison staff. He was eligible for and participated in employment while in prison. When released on parole in July 2001, defendant had an “assessment score” of 19, the lowest possible score for his commitment offense, qualifying him to be housed at a “Level 2” facility or yard

. When he was sentenced to p rison in 1998, his assessment score was 69. Defense counsel argued that defendant’ s low assessment score “speaks for itself in his level of dangerousness” and his conduct in prison. Counsel also pointed out that d efendant was part of a group of 72 men wh o were pepper sprayed for a gang

fighting incident , and none of defendant’s parole violations involved violence or injury to
anyone. Defense c ounsel also emphasized that defendant was sentenced to the low term of 16 months, doubled to 32 months, on his current conviction, because “[c]learly there was something in mitigation that the [district attorney] that pled it out in that case felt that it was not worthy of upper term times two, because he did not get six years.” In 2009, defendant married Janice Higgins, who ran a program called “Project
R.A.G.E.

— Release Anger and Guilt for Empowerment.” He was actively involved in the R.A.G.E. program, and Ms. Higgins was committed to ensuring that he led “ a clean,13

sob er and productive ” life. Defendant had a job waiting for him upon his release from prison on his current 32

- month sentence

.

(c) The Court’s Ruling In denying defendant’s petition on dangerousness grounds , the court noted that defendant’s “ most serious ” crime was the 1997 robbery, and “as robberies go ” it was

“ one of the worst ones.” The court reasoned that defendant’s 1997 robbery and related convictions, in combination with his rule violations in prison , his “string of parole violations,” and his curr ent felony conviction, showed he was likely to commit a super strike. 4 (§§ 667, subd. (e)(2)(C)(iv), 1170.18, subd. ( b ) (1), (2) .) 3. Analysis The court did not exceed the bounds of reason in determining that defendant was likely to commit a super strike if resentenced under Proposition 47. The court reasonably determined that defendant’s 1997 robbery , assault, and battery convictions, in combination with his multiple rule vi olations in prison and his multiple parole violations following his July 2011 release from prison , showed he was likely to commit a super strike. Indeed, d efendant personally used a firearm in the 1997 robbery, and personally inflicted great bodily injury on Mootry, the victim of the 1997 robbery

. In sum, the evidence amply support s the court’s determination that defendant posed an unreasonable

4 The People also presented evidence that defendant was indicted in 1995 on charges that were later di smissed, and was arrested in 2014 but not charged with a crime. At the June 12, 2015, hearing, the court made it clear that it was not considering the evidence of defendant’s 1995 indictment or his 2014 arrest in denying defendant’s resentencing petition on dangerousness grounds.14

risk of danger to public safety, that is, that he was likely to commit a super strike, namely, murd er, attempted murder , o r solicitation to commit murder, if resentenced on his 2014 commercial burglary conviction under Proposition 47.
IV . DIS POSITION The order denying defendant’s Proposition 47 petition is affirmed.
CERTIFIED FOR PUBLICATION

CODRINGTON J.

We concur:
RAMIREZ P. J. McKINSTER J.