1 Filed 1/6/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Petitioner,

v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; MICHAEL DEONTRAY WILLIAMS, Real Party in Interest. E060260 (Super.Ct.No. RIF076640) OPINION

ORIGINAL PROCEEDINGS; petition for wr it of mandate and/or prohibition. Michele Levine, Judge. Petition granted. Paul E. Zellerbach, District Attorney , and Emily R. Hanks, Deputy District Attorney, for Petitioner. No appearance for Respondent.2 Steven L. Harmon, Public Defender, and William A. Merone k, Deputy Public Defender, for Real Party in Interest. Under the Three Strikes Reform Act of 20 12 (Prop. 36, as a pproved by voters, Gen. Elec. (Nov. 6, 2012)) (the Act), “prisone rs currently serving sentences of 25 years to life for a third felony conviction which was not a serious or violent felony may seek court review of their indeterminate sentences and, under certain circumstances, obtain resentencing as if they had only one prior serious or violent felony conviction.” ( People v. Superior Court ( Kaulick ) (2013) 215 Cal.App.4th 1279, 1286.) If certain criteria are met, the inmate shall be resentenced “unless th e court, in its discretion, determines that resentencing the petitioner would pose an unreas onable risk of danger to public safety.” (Pen. Code, § 1170.126, subd. (f).) Although the superior c ourt in the instant case opined that real party in interest, the inmate Mi chael Deontray Williams (Williams), currently poses an unreasonable risk of danger, it he ld his petition to recall his sentence in abeyance to give him an opportunity to take pr ograms in prison in order to demonstrate to the court that he no longer pose d a danger to public safety. The People have filed this petition fo r writ of mandate and/or pr ohibition challenging the superior court’s order on the ground that it acted in excess of its jurisdiction. We agree that the superior court acted without statutory authority; accordingly, we grant the People’s petition an d direct the superior court to deny the inmate’s petition for resentencing.3 FACTUAL AND PROCEDUR AL BACKGROUND Williams was convicted in 1998 of being a felon in possession of a firearm. He admitted that he had previously suffered two strike priors (P en. Code, § 667, subds. (c) & (e)) 1 and a prison prior (§ 667.5, subd. (b)). Following the denial of his request to dismiss one of his strikes pursuant to People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497, Williams was sentenced to a term of 25 years to life. In January 2013, Williams filed a petition in the superior court for resentencing under the Act. The People filed opposition, arguing that he was not eligible because he was armed with a firearm during the commission of th e offense. Even if eligible, they argued he posed an unreasonable danger to public sa fety under section 11 70.126, subdivision (f). Both of his strike convictions were for assa ults and the People argued that Williams is a violent person who carried out th e attacks for the benefit of a gang and that he had been free from custody for only a short time before he committed the current offense. The People also noted that Williams has been guilty of serious misconduct in prison, including mutual combat, battery on a peace officer, battery on an inmate, resisting staff by force, and possession of deadly weapons. The trial court recounted Williams’ criminal history. One of his prior strike convictions, case No. CR47157, involved three separate assa ults and a robbery occurring

1 All further statutory references ar e to the Penal Code, unless otherwise indicated.4 on August 29, November 13, and November 20, 1992. Williams was a member of the Westside Project Crips, and he ad mitted the special gang allegations. In another case, case No . CR48829, Williams was again convicted of assault when he and fellow gang members stabbed, beat, ki cked, and robbed the victim in retaliation for a stabbing carried out by a rival gang. They decided to carry out the attacks on April 29 because it was the day of th e Rodney King verdict, and he thought the police would be too busy to catch them. While the superior court expressly did not consider several incidents that were not proven, his prison disciplinar y history shows that Williams has continued to commit numerous prison rule violations over the course of his incarceration, including several for mutual combat. Williams took issue with othe r violations, including one for battery on a peace officer and resisting staff with the use of force. He was transferred to Pelican Bay State Prison and housed at the maximum custody level. After his transfer, he was placed in Administrative Segregation. The court also noted that Williams has a history of mental health problems, including several suicide attemp ts, but opined that these atte mpts were not something she viewed as a negative since they occurred before he received a diagnosis and treatment. At the conclusion of the resentencing hearing on November 15, 2013, the court stated that if it had to rule on the petition that day, it would have to affirm the 25-year-tolife sentence because it would have to find he was still a danger. But the court indicated that it could hold the petition in abeyance and hear it in a yea r, and have the inmate spend5 “one more year in custody, and hear at that time whether or not I believe you will provide this Court with information that satisfies me ” that petitioner was no longer a danger to society. “But I can’t make a determination of that at this time based on the information that I have.” The prosecutor objected to the continuance, stating that was not something that the Court has the jurisdiction to do. The minute order reflects th at the superior court denied the petition “without prejudice at this time and is to be heard by the court one year from
now.” DISCUSSION Under the Act, a defendant convicted of tw o prior serious or violent felonies is subject to the 25-year-to-life sentence only if th e third felony is itsel f a serious or violent felony. If the third felony is not a serious or violent felony, the defendant will receive a sentence as though the defendant had only one prior serious or violent felony conviction, and is therefore a second strike, rather than a third-strike offender. The Act also provides a means whereby prisoners currently serving sentences of 25 years to life for a third felony conviction that was not a serious or vi olent felony may seek court review of their indeterminate sentences and, under certain ci rcumstances, obtain resentencing as if they had only one prior serious or violent felony conviction. According to the specific language of the Act, however, a current inmate is not entitled to resentencing if it would pose an unreasonable risk of da nger to public safety. (§ 1170.126, subd. (f).) In exercising its discretion, the court may cons ider the inmate’s criminal history, his6 disciplinary record while incarcer ated, as well as any other evid ence relevant to the issue. (§ 1170.126, subd. (g).) Williams contends by allowing the court to exercise its discretion and consider any relevant evidence to determin e an inmate’s current dang erousness, section 1170.126, subdivisions (f) and (g), clearly authorizes a court to continue a hearing on a resentencing petition where it believes that the passage of time will assist it in making a fair and accurate determination of an inmate’s dange rousness. In other words, since future dangerousness is the issue, th e court has the discretion to continue the matter to assess the risk factor. Thus, in his view , the risk he posed at the time of the hearing November 15, 2013, would not fairly and accurately refl ect current dangerousness two years down the road. Why not four years or more down the ro ad? Interestingly, Wi lliams cites a parole suitability case, In re Lawrence (2008) 44 Cal.4th 1181, to support this point. The crucial distinction is that the parole board can find an inmate serving a life term unsuitable for parole but rehears the matter w ithin a certain time to assess his behavior in prison, among other factors, to determine his dangerou sness. There is no such provision for reevaluation in the Act. While the court must make an assessment of the risk of danger an inmate will pose in the future, it does not follow that the court may defer making that determination until some indefin ite time in the future. As th e People point out, every day trial courts are required to make discre tionary sentencing decisions based on its assessment of a defendant’s future behavior, but it does not mean they can revisit that decision throughout an inmate’s period of incarceration.7 In interpreting a voter initiative, we apply th e same principles th at govern statutory construction, first giving the words of the stat ute their ordinary meaning. We must also keep in mind that the statutory language must be construed in the context of the statute as a whole and the overall statutory scheme. ( People v. Rizo (2000) 22 Cal.4th 681, 685.) Nothing contained in the plain language of the Act expressly authorizes a court to continue or hold in abeyance a petition for re sentencing for the purpose of reexamining the inmate’s dangerousness. When we examin e the procedural framework of the Act, we reach the exact opposite conclusion. It author izes an inmate to file a single resentencing petition within two years of its effective da te, November 7, 2012. These limitations indicate an intent to resolve these petitions within a finite time period. The plain statutory language provides that the cour t “shall” determine eligibility and “shall” resentence the inmate unless it determines resentencing the petitioner will pose an unreasonable risk of danger to public safety. This language indicates a duty by the court to make these determinations. The drafters of the Act could have created a statutory scheme to allow the court to retain jurisdiction to r eevaluate the danger posed periodically or at some future time. They did not do so. Even when the language of the statute is susceptible of more than one reasonable interpretation, we may “ ‘refer to other indi cia of the voters' inte nt, particularly the analyses and arguments contained in the o fficial ballot pamphlet.’ [Citation.]” ( People v. Rizo , supra , 22 Cal.4th at p. 685.) In this case, the voter information guide indicates that the measure will result in a one-time cost related to handling the sentencing petitions—8 not periodic evaluations to review an inma te’s fitness for rese ntencing and possible release. (Voter Information Guide, Gen. El ec. (Nov. 6, 2012) anal ysis of Prop. 36 by Legis. Analyst, p. 50.) A court acts in excess of its jurisdiction wh ere, though it has jurisdiction over the subject matter and the parties, it has no power to act “except in a particular manner, or to give certain kinds of relief, or to act w ithout the occurrence of certain procedural prerequisites.” ( Abelleira v. District Court of Appeal (1941) 17 Cal.2d 2 80, 288.) The trial court’s order in this matter exceeded its statutory authority, assuming unto itself the authority of a parole board to evaluate and reevaluate the danger Williams posed. Williams contends that the tr ial court had inherent author ity to grant continuances. We do not disagree that, as the court did severa l times in this case, the court has authority to continue proceedings to obtain records, transport the inmate, accommodate counsel, etc, but this order was not made so that it could control its calendar and conduct a full hearing on the matter. Instea d, the court ordered the matter in abeyance for the express purpose of determining whether Williams no longer poses a danger to society. It informed Williams that he was to do certain tasks, including conti nuing programming and mental health treatment in order to co nvince it that he was no longer a danger. The court does not have inherent authority to grant a continuanc e for whatever length of time it deems appropriate to reevaluate the inmate’s dangerousness. We do not believe that it is particularly significant that the trial court characterized its order as holding the matter “in abeyance,” rather than as a continuan ce. We also note9 that the court indicated that it was deny ing the petition without prejudice with the opportunity to have the same petition heard by it in one yea r’s time. The minute order confirms the petition was denied without prejudice but scheduled a new hearing on November 14, 2014. 2 What is important is that the c ourt declined to rule on the petition for resentencing at that time, stating that it wanted to have Williams spend “one more year in custody, and hear at that time whet her or not I believe you will provide this Court with information that satisfies me that yo u’re no longer a danger to society.” Williams chose when to file the petition—he c ould have waited until November 6, 2014, to file it in order to clean up his ac t. While it is true that section 1170.126, subdivision (b), does provide that a petition for recall may be made within two years after the effective date of the Act or at a later date upon showing of good cause, but the trial court did not purport to act under this subd ivision. Moreover, we question whether the fact that a court has the power to find good cause to excuse a late petition authorizes it to defer ruling so that it can monito r subsequent conduct. In this case, the court opined that if it had to rule immediately, it would find Williams was a danger. 3 We must conclude

2 We note that this date is outside the two-year window established in the act for filing a petition. It appears that the trial c ourt may have believed it could continue ruling for a year because that was w ithin the two-year window. Even if the new hearing had been scheduled within this tw o-year window, we would still have to conclude that the trial court exceeded its statutory authority ; we believe the trial court exceeded its statutory authority by delaying a ruling for a year in order to reevaluate his behavior during that time. 3 During oral argument Willliams asserted that the trial court deferred ruling on the petition because it was unsure whether he cu rrently posed a dange r. The record does not support this view.10 that it was required to make a ruling based on its assessment of Williams’ dangerousness at the time of the November 7, 2013 hearing. 4
DISPOSITION The petition for writ of mandate/prohibition is granted. The Superior Court of Riverside County is directed to vacate th e hearing on Williams’ petition or recall of sentence currently scheduled fo r January 23, 2015, and to i ssue a new order denying his petition.
CERTIFIED FOR PUBLICATION

RAMIREZ P. J. We concur:

HOLLENHORST J.

McKINSTER J.

4 Williams contends that the adopti on of Proposition 47 by the voters on November 4, 2014, is significant in that it added section 1170.18, which provides “ ‘unreasonable risk of danger to public sa fety’ means an unreason able risk that the petitioner will commit a new violent felony w ithin the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdiv ision (e) of Section 667.” (§ 1170.18, subd. (c).) He contends that using this definition, the tria l court could not find that he poses a danger to public safety. We disagree. Assuming that the defi nition applies in this case to the determination of dangerousness, th e only conclusion that the trial court could reasonably reach in light of his prison record of serious and violent misconduct is that Williams posed a risk of danger to public safety.