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Filed 1/22/16 P. v. Martin CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT LOUIS MARTIN,

Defendant and Appellant.

E062562

(Super.Ct.No. HEF970426)

OPINION

APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge. 

Affirmed.

Sharon M. Jones, 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, Charles C. Ragland, Scott C. 

Taylor, and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
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I

INTRODUCTION

Defendant Robert Louis Martin’s criminal record began in 1965 when he was 14 

years old. He has been incarcerated since 1998 for felony possession of .12 grams of 

methamphetamine. He turned 65 years old in January 2016.

After the passage of Proposition 36 and Proposition 47, defendant filed separate 

petitions under Penal Code sections 1170.126 and 1170.181for recall of his indeterminate 

sentence of 26 years to life. Defendant argues the trial court erred when it found 

defendant posed an unreasonable risk of danger to public safety and denied both

petitions. (§§ 1170.126, subds. (f) and (g), 1170.18, subd. (b).) As to the first petition, 

he contends the trial court abused its discretion. As to the second petition, he argues 

dangerousness must be proved beyond a reasonable doubt and the trial court employed 

the wrong criteria for evaluating dangerousness.

Our review of the record concludes that a preponderance of the evidence amply

supported the trial court’s exercise of its discretion. It is unnecessary to prove 

dangerousness beyond a reasonable doubt. Absent any statutory indication, the burden of 

proof is by a preponderance of the evidence, not beyond a reasonable doubt. The trial 

court’s determination was not irrational or arbitrary according to the standard of a 

reasonable person. Defendant’s criminal and prison history demonstrates that he has not 

 

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 All further statutory references are to the Penal Code unless stated otherwise. 
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been rehabilitated. Furthermore, defendant has not rebutted the presumption that the trial 

court appropriately applied the relevant law. We affirm the judgment.

II

BACKGROUND

A. Defendant’s 1998 Commitment Offense and Initial Appeal

Defendant’s 1998 commitment offense involved possession of .12 grams of 

methamphetamine. In 1997, defendant was involved in an altercation with his family 

members and neighbors. Beforehand, another of the people involved gave him the 

methamphetamine and asked him to dispose of it. (People v. Martin (2001) 25 Cal.4th 

1180, 1182-1183.) “Ultimately, defendant wound up outside in the alley behind the 

house, facing a group of adults, [composed] of family members and neighbors[,] as he 

screamed and swung a metal pipe around himself in an arc, as one would swing a 

baseball bat. Defendant also picked up and threw rocks at the group, hitting a neighbor, 

Naomi Biggs, in the leg. Nicole Trip testified that as she tried to go past defendant to 

enter the house to call police, [] defendant stepped in her direction and took a ‘full swing’

at her with the pipe. She ‘jump[ed] back’ and the pipe missed her by three or four feet. 

Defendant did not actually hit anyone with the pipe during the episode.” (Id. at p. 1183.) 

After police arrested defendant, they searched his pants pockets and discovered a ‘bindle’

containing .12 grams of methamphetamine. He claimed the drug was not his. (Ibid.) 

A jury convicted defendant of three offenses: felony assault with a deadly weapon 

(§ 245, subd. (a)(l) [swinging the pipe at victim Nicole Trip]); possession of 
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methamphetamine (Health & Saf. Code, § 11377, subd. (a)); and misdemeanor battery 

(§ 242 [(hitting Naomi Biggs with rocks)].) The court found true the enhancement 

allegations that defendant had not remained free of convictions for five years after 

serving a prison term (§ 667.5, subd. (b)) and had previously been convicted of three 

serious and violent felonies. (§§ 667, subds. (c) & (e), 1170.12, subd. (c); People v. 

Martin, supra, 25 Cal.4th at pp. 1183-1184.)

At sentencing on December 19, 1998, the court expressly declined to exercise its 

discretion under section 1385 to strike any of the prior convictions. Defendant was 

sentenced to two concurrent prison terms of 25 years to life for both of the felony 

convictions; one concurrent term of six months in county jail for the misdemeanor battery 

conviction; and a one-year consecutive prison term for not having remained free of 

imprisonment or felony convictions for five years. (People v. Martin, supra, 25 Cal.4th 

at p. 1184.)

After this court reversed defendant’s conviction of assault with a deadly weapon 

for insufficiency of evidence and vacated the 25-year-to-life indeterminate term for that 

offense, the California Supreme Court affirmed the judgment. (People v. Martin, supra, 

25 Cal.4th at pp. 1184, 1193.) Consequently, defendant is serving a sentence of 26 years 

to life based on his felony conviction for possession of .12 grams of methamphetamine. 

Defendant has now been incarcerated for about 17 years.

B. The Denial of Defendant’s Section 1170.126 Petition

After passage of Proposition 36, the Three Strikes Reform Act of 2012 (the 
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Reform Act), section 1170.126 provides a resentencing option to “persons presently 

serving an indeterminate term of imprisonment pursuant to” the Three Strikes Law. 

(Reform Act, § 6.)

On December 3, 2012, defendant filed a petition for recall of sentence. On May 

31, 2013, the trial court determined that he was eligible to petition for recall but denied 

his petition on the grounds that he posed an unreasonable risk of danger to public safety. 

Defendant appealed, and this court reversed the judgment in an unpublished opinion, on 

the grounds that defendant was denied his constitutional and statutory rights by not 

receiving an opportunity to appear personally at the dangerousness hearing, and that he

received ineffective assistance of counsel when his counsel failed to communicate with 

him before the hearing. (People v. Martin (July 21, 2014, E058888) [nonpub. opn.] at pp. 

9-10.)

On remand, defendant personally appeared at the second petition hearing on 

December 17, 2014. The trial court again determined that defendant posed an 

unreasonable risk of danger to public safety and denied his petition. Defendant filed a 

notice of appeal challenging the second denial of his section 1170.126 petition.

C. Defendant’s Petition for Recall of Sentence Filed Under Section 1170.18

In November 2014, the enactment of Proposition 47, The Safe Neighborhoods and 

Schools Act (the Safe Act), mandated “misdemeanors instead of felonies for nonserious, 

nonviolent crimes like petty theft and drug possession, unless the defendant has prior

convictions for specified violent or serious crimes.” (Safe Act, § 3, subd. (3).) In 
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addition, the Safe Act authorized “consideration of resentencing for anyone who is 

currently serving a sentence for any of the offenses listed herein that are now 

misdemeanors.” (Safe Act, § 3, subd. (4).) The Safe Act added section 1170.18 (Safe 

Act, § 14), which provides a resentencing option to “person[s] currently serving a 

sentence for a conviction, whether by trial or plea, of a felony or felonies who would

have been guilty of a misdemeanor under the act that added this section (‘this act’) had 

this act been in effect at the time of the offense . . . .” (§ 1170.18, subd. (a).)

Defendant filed a petition for resentencing under section 1170.18 to convert his 

felony conviction for possession to a misdemeanor. On March 13, 2015, the trial court 

denied his petition on the grounds that defendant posed an unreasonable risk of danger to 

public safety. Defendant filed a notice of appeal challenging the denial of his section 

1170.18 petition.

III

DISCUSSION

Defendant claims the trial court erred by determining that he poses an 

unreasonable risk of danger to public safety under sections 1170.126 and 1170.18. He 

specifically argues that his criminal history and prison records do not demonstrate that he 

currently poses an unreasonable risk of danger to the public. However, the evidence of 

defendant’s behavior, both in and out of custody, supports the trial court’s dangerousness

determination.
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A. Standard of Review

In his opening brief, defendant concedes the relevant standard of review applied to 

a ruling of dangerousness on a section 1170.126 petition is abuse of discretion. However, 

in his supplemental opening brief, defendant argues the court’s dangerousness 

determination on a section 1170.18 petition must be based on a finding beyond a 

reasonable doubt, rather than by a preponderance of the evidence. We hold both petitions 

are subject to review for abuse of discretion.

In Sentencing California Crimes, the authors describe the standard of review for 

section 1170.126 and section 1170.18 petitions. The denial of resentencing based on 

dangerousness is reviewed for an abuse of discretion. The plain language of both section 

1170.126, subdivisions (f) and (g), and section 1170.18, subdivision (b), calls for an 

exercise of the sentencing court’s discretion: “‘Discretion is the power to make the 

decision, one way or the other.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 

375.) “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 an arbitrary, capricious or patently absurd manner that 

resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. 

Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see People v. Williams (1998) 17 Cal.4th 

148, 162 [abuse-of-discretion review asks whether ruling in question falls outside bounds 

of reason under applicable law and relevant facts]; Couzens et al., Sentencing Cal.

Crimes (The Rutter Group 2015) §§ 20.68 and 25.10.)
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Section 1170.18 does not state what standard of proof should be employed. 

However, the only sentence adjustment possible is a reduction. According to the 

resentencing statute itself, “[u]nder no circumstances may resentencing under this section 

result in the imposition of a term longer than the original sentence.” (§ 1170.18, subd. 

(e).) The resentencing does not violate the constitutional guarantee against sentence 

increases without a jury’s finding. (People v. Bradford (2014) 227 Cal.App.4th 1322, 

1336.) Because there was no possibility that defendant could receive a sentence greater 

than he already received, the proper standard of proof was preponderance of the 

evidence: “[It] is the general rule in California that once a defendant is eligible for an 

increased penalty, the trial court, in exercising its discretion to impose that penalty, may 

rely on factors established by a preponderance of the evidence. (In re Coley (2012) 55 

Cal.4th 524, 557.) As dangerousness is such a factor, preponderance of the evidence is 

the appropriate standard.” (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 

1279, 1305 (Kaulick).)

In Kaulick, the court held the prosecution’s burden is to establish dangerousness 

by a preponderance of the evidence, and not by proof beyond a reasonable doubt: “[A] 

court’s discretionary decision to decline to modify the sentence in his favor can be based 

on any . . . appropriate factor (i.e., dangerousness), and such factor need not be 

established by proof beyond a reasonable doubt to a jury.” (Kaulick, supra, 215 

Cal.App.4th at p. 1303.) The United States Supreme Court has held that most factors 

used to increase penalty must be submitted to the jury and proved beyond a reasonable 
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doubt, but in the context of Proposition 36 (and Proposition 47), “dangerousness is not a 

factor which enhances the sentence imposed when a defendant is resentenced under the 

Act; instead, dangerousness is a hurdle which must be crossed in order for a defendant to 

be resentenced at all. If the court finds that resentencing a prisoner would pose an 

unreasonable risk of danger, the court does not resentence the prisoner, and the petitioner 

simply finishes out the term to which he or she was originally sentenced.” (Kaulick, at p. 

1303.) Any facts found at such a proceeding, such as dangerousness, do not implicate the 

Sixth Amendment. (Id. at pp. 1304-1305.) The trial court, in exercising its discretion, 

may rely on factors establishing the defendant’s dangerousness based on a preponderance 

of the evidence. (Id. at p. 1305.)

Defendant argues the reasoning of Kaulick should not apply to Proposition 47 

determinations, because section 1170.18 involves an entirely different judicial 

mechanism than does section 1170.126 in that section 1170.18 changes the classification 

of the crimes, whereas section 1170.126 permits the reduction of third strikes to second 

strikes. Nevertheless, both statutes require the continued imprisonment of an inmate for a 

crime that would no longer require lengthy imprisonment if the inmate were sentenced 

today. This is permissible because the petitioning inmate may obtain rensentencing if he 

satisfies the necessary conditions of sections 1170.126 or 1170.18. There is no legal 

justification for requiring a disqualifying factor under section 1170.18 to be proved 

beyond a reasonable doubt.
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B. Propositions 36 and 47 and the Meaning of Dangerousness

1. Proposition 36, the Reform Act 

Under the Reform Act, a life sentence for a third strike offender is reserved for 

cases where the new felony is also serious or violent. (People v. Yearwood (2013) 213 

Cal.App.4th 161, 167-168.) In all other cases, the recidivist will now be sentenced as a

second strike offender. (Id. at p. 168; see §§ 667, 1170.12.)

The Reform Act also created a procedure for “persons presently serving an 

indeterminate term of imprisonment” to petition for recall of the sentence and for 

resentencing as a second striker, when the third strike offense is not a serious or violent

felony. (See § 1170.126, subds. (a), (b).) Once a prisoner has met the requirements for 

eligibility for resentencing under section 1170.126, subdivision (e), the prisoner “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.I26, 

subd. (f).) Subdivision (g) describes the facts 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; 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).)
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2. The Safe Act

The Safe Act, just like the Reform Act, created a procedure for inmates to petition 

for recall of the sentence and for resentencing as a misdemeanant if their felony 

conviction would have been a misdemeanor under the new law. (See § 1170.18, subd. 

(a).) Once an inmate has met the requirements for eligibility for resentencing under 

section 1170.18, subdivision (a), the prisoner’s felony sentence “shall be recalled and the 

petitioner resentenced to a misdemeanor . . . 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).) In “exercising its discretion,” the court considers the 

same factors as set forth in section 1170.126, subdivision (g). 

Although section 1170.126 did not define the meaning of “unreasonable risk of 

danger to public safety,” section 1170.18, subdivision (c), defines the phrase to mean “an 

unreasonable risk that the petitioner will commit a new violent felony within the meaning 

of” Penal Code section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (c).) Section 

667, subdivision (e)(2)(C)(iv), enumerates several serious or violent felony convictions 

that are commonly referred to as “super strikes,” and include, among other things, 

sexually violent offenses, any homicide offense, and “any serious and/or violent felony 

offense punishable in California by life imprisonment or death.”

C. The Hearing on Defendant’s Petition Under Section 1170.126

At the hearing on December 17, 2014, the prosecution introduced into evidence a 

copy of defendant’s prison history, a certified copy of his criminal history, and a packet 
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of police reports. Defendant submitted letters of support from his family and friends and

a packet of educational certificates and other certificates of recognition, as well as 

medical documents.

1. Criminal History

Defendant’s criminal history began in 1965 when he was 14 years old. From 1965 

until 1979, he had a record of about 40 criminal incidents. In July 1979, he was arrested 

for raping a woman in a public bathroom. He agreed to a negotiated plea to one count of 

assault with a deadly weapon, and was sentenced to three years in prison. Four more 

incidents occurred in 1979 and 1980. In March 1981, defendant was arrested for raping a 

woman whom he forced into an alley while she was waiting for a bus. He later 

threatened to kill her and her husband if she told anyone. In May 1981, defendant was 

arrested for armed robbery and eventually sentenced to five years in prison. More 

incidents followed in 1983, including when defendant was arrested for shooting the 

owner of a bar as he fled through the rear exit of the bar. In 1987, defendant reportedly

forced a woman to copulate him orally, then kicked and punched her in the face, chest, 

and back, causing her to sustain a broken nose, broken jawbone, swelling, and bruising.

In June 1990, defendant was arrested after he repeatedly beat his 12-year-old son 

with a belt while yelling “I’ll kill you, I’ll kill you!” In August 1990, police were 

dispatched to investigate an attempted rape. The victim told officers that she was with

defendant and his wife at their apartment when defendant grabbed her by the neck from 

behind, knocked her to the ground, struck her several times, and tried to remove her 
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blouse before she fled. Defendant admitted using force but he and his wife claimed it

was to throw the victim out of their home.

Between 1990 and 1997, defendant was involved in multiple incidents—including 

assault, battery, and domestic violence—resulting in contact with the Hemet Police 

Department. In 1992, defendant was convicted of possession of a controlled substance 

and sentenced to one year in jail. In December 1993, defendant was convicted of willful 

infliction of corporal injury of his girlfriend and sentenced to 90 days in jail after he 

choked her, dragged her around the apartment by her neck, and held a butcher knife to

her throat. During the police investigation, defendant kicked the back window out of the 

police car and bent the door frame. In August 1996, defendant was investigated for 

harassing two girls on multiple occasions and attempting to lure them into his car. 

Finally, in 1998, he was sentenced to an indeterminate life sentence for the instant 

offense.

2. Prison History

In prison, defendant was cited repeatedly for rules violations between 2000 and 

2009. In 2000, defendant refused to sign for an envelope and punched his cellmate in the 

mouth. In 2001, defendant was argumentative and disruptive during class. Defendant 

also refused to obey the orders of prison staff and return to his seat until additional staff 

forced him to comply. Defendant disobeyed direct orders and later refused to participate 

in the mandatory standing count. Defendant was involved in a fight with two other 

inmates and tried to strike one inmate when he attempted to comply with orders. The 
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officer used pepper spray against defendant who was uninjured. The other inmate 

sustained several injuries.

In 2002, defendant disobeyed prison staff’s orders and repeatedly appeared outside 

of a classroom, leering at a female instructor, which made the instructor “uncomfortable

and concerned for [her] safety.” In 2004, defendant failed to report to his assignment 

after a yard recall and delayed lockup, later becoming belligerent and argumentative after

refusing to participate in a class assignment.

In 2005, defendant disobeyed prison staff when requested to move away from a 

cell door, telling the prison guard, “Fuck you.” “You stupid Motherfucker!” “Quit being 

a Bitch!” Defendant was disrespectful of the prison staff and cited for growing a beard in 

violation of grooming standards.

In 2006, he became argumentative and upset when he was told to return to his 

assigned housing unit. In 2007, defendant insulted an inmate of another race and was 

threatened by a group of inmates. Defendant was placed in administrative segregation 

after he was found to present an immediate threat to the safety of himself or others and a 

danger to institution security.

In 2008, defendant refused to be housed with a known Crip gang member. 

Defendant refused to follow emergency procedures by entering his assigned class room 

during an active alarm. In 2009, defendant obstructed the view of his bed with a sheet in 

violation of the rules, and later refused to stand during a mandatory count.
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3. The Trial Court’s Ruling

At the hearing, the trial court commented that defendant’s criminal history was 

extensive and voluminous, and that he had a continuous string of arrests and convictions

until he was sentenced to life in prison in 1998. The court observed there was a common 

theme of weapons and of violence against women. Many of defendant’s arrests were 

negotiated into lesser convictions for disposition. Defendant’s history included “1085ls; 

245s; burglaries; auto theft; theft from person; 415s; DUIs; knives; guns; bats; 245 

kidnapping charges; 245 rape charges; 211 DUI; 211 245; 415; 148s; both resisting and 

false ID; 288 arrests; drug arrests; domestic violence arrests . . . [and] there’s more with 

his family, his wife; knives; vandalisms . . . there seems to be a common thread 

throughout his life that makes him a risk of being dangerous.” Additionally, the trial 

court counted 27 incidents in prison

Defendant argued that he had earned various certificates of achievement while in 

prison, including an office services program certificate in 2002; a similar certificate in 

2003; a typing course certificate in 2003; an office procedures program certificate and a 

business life industry program certificate in 2004; a word processing course certificate in 

2005; a school-to-work program certificate, a math-and-literacy course certificate, and an 

adult base education program certificate in 2009; a softball league championship award 

certificate in 2010; a work ethic award in 2011; a certificate of recognition for being an 

umpire in softball in 2011 and 2012; a literacy class certificate in 2012; an office 

procedures certificate in 2014; a GED course completion, a computer literacy class, and a
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Windows Office certificate in 2014. Defendant also cited his medical records, and told

the court that he wears a brace on his back and walks with a cane due to “hypertrophic

spurring.” The trial court noted defendant’s condition appeared to be arthritis.

Defendant denied that he had ever beaten his children—except hitting his son

using a belt with a metal buckle. Defendant tried to explain his background and his past 

behavior and how he had changed. Upon release, defendant planned to live with his 

mother in Inglewood and preferred to enroll in a reentry supervision program. He had 

focused on computer literacy courses in prison.

The court denied defendant’s petition. Defendant contends the trial court abused 

its discretion by determining that he posed an unreasonable risk of danger to public 

safety.

4. Conclusion

Defendant challenges the court’s reliance on some hearsay evidence. However, 

defendant also admits his 1979 conviction for rape, his 1981 robbery conviction, his 1983 

and 1987 convictions for assault, his 1993 domestic violence misdemeanor, and his 1997 

conviction for drug possession. Therefore, the trial court did not rely solely upon “mere 

uncorroborated hearsay” evidence. (Dyer v Watson (1953) 121 Cal.App.2d 84, 92.) 

Instead, we hold substantial evidence amply supported the trial court’s finding of 

dangerousness. (People v. Cluff (2001) 87 Cal.App.4th 991, 998.) The trial court 

considered defendant’s “criminal history, disciplinary record while incarcerated, and . . . 

other relevant evidence,” to determine whether he posed “‘an unreasonable risk of danger 
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to public safety.’ (§ 1170.126, subd. (f).)” (People v. Yearwood, supra, 213 Cal.App.4th 

at p. 176.) Defendant was a career criminal with a history of predatory and violent

behavior and drug use. In prison, he continued to be antisocial, uncooperative, and 

aggressive. A preponderance of the evidence supported the trial court’s finding that he 

posed an unreasonable risk of danger to public safety. Even accounting for the mitigating 

factors, the trial court did not act in an arbitrary or capricious manner when it determined 

that defendant’s criminal and prison history outweighed any mitigating evidence and 

properly exercised its discretion to deny defendant’s petition.

D. The Hearing on Defendant’s Petition Under Section 1170.18

At the section 1170.18 petition hearing on March 12 and 13, 2015, the parties 

submitted much of the same evidence presented at the December 2014 hearing under 

section 1170.126. The prosecutor provided evidence of defendant’s criminal and prison 

history, and documents and police reports of various charged and uncharged crimes. 

Defendant again submitted letters of family support, medical records, and certificates of 

course completion and recognition.

The victim testified about defendant’s 1979 rape offense. She was on her lunch 

break in a park near where she worked when defendant called her into a women’s 

restroom. He blocked her exit, pulled out a hunting knife, and warned her, “‘Don’t 

scream or anything like that, or I’ll kill you.’” He removed her clothes and raped her.

Another person testified about a New Year’s Eve party in 1983. The witness was 

the owner of a Los Angeles nightclub. When defendant grabbed the arm of a woman and 
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pulled her away from her dance partner, the two men began yelling and pushing each 

other. Defendant wielded a small knife. The nightclub owner grabbed his baseball bat 

and told defendant to get out. They fought until the owner’s .45-caliber handgun slipped

out of his holster and defendant retrieved it. As the owner fled into the alley, defendant 

fired the owner’s gun twice and struck him in the upper thigh.

Defendant also testified at the hearing that he has a lumbar spine injury requiring

pain medicine. Defendant wore a back brace to the hearing and explained that he 

occasionally needs a wheelchair. Defendant testified that he took computer classes in 

prison to increase his employment prospects upon release. He disputed the 1979 rape and 

claimed it was consensual but the victim was angry because he did not pay her.

The trial court explained that it read all of the “voluminous” exhibits before the 

hearing, including the exhibits from the December 2014 hearing. The court observed that 

from 1965 until his life sentence in 1998, defendant continued to commit violent crime 

“except when he was incarcerated.” Within a year of defendant being released from 

incarceration, he harassed two teenage girls, attempting to get them into his car. The 

court found defendant was not credible when he discussed the rape incident. The court

commented that defendant’s numerous prison incident reports were “excessive.” 

Defendant also lied about his affiliation with the Bloods gang when he entered prison in 

1998. The court observed that the medical evidence did not show defendant was wholly 

disabled. The court acknowledged the mitigating factors: defendant’s age, his mild 

disability, his computer classes and GED, and the years he has already served for a minor 
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conviction after the appellate court dismissed the underlying violent assault.

The court again recognized that from 1965, when defendant was 14, he 

continuously committed violent crimes except for when he was incarcerated. His crimes 

involved “deadly weapons, guns, knives . . . [and] [a]s far as the victims are concerned, 

they were shot, beaten, raped, psychological injuries, fractures.” Even if no conviction 

resulted, defendant’s crimes were “the super strike type of crimes . . . [r]ape, attempted 

murder, kidnapping, and most involved violence against women. . . .” In prison, he had 

many incident reports. 

The court ruled that releasing defendant would pose an unreasonable risk that he 

would commit a new violent crime, including a “sexually violent crime, maybe a murder 

or attempted murder, or a molestation of someone under the age of 18.” Because

defendant had three prior strikes, he might commit a serious or violent felony offense that

would result in a life sentence.

E. The “Unreasonable Risk of Danger” Standard as Defined in Section 1170.18

Defendant argues the trial court misinterpreted the meaning of “unreasonable risk 

of danger,” as defined by 1170.18, subdivision (c), by evaluating whether he had the 

potential to commit an additional serious or violent felony offense, which would result in 

a life sentence because he is a second strike offender. Defendant also contends the court 

erroneously believed that the misdemeanor offense of molesting a child under the age of 

18 could disqualify him from resentencing.

Defendant has failed to rebut the presumption that the trial court understood the 
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relevant law and appropriately applied it. Contrary to defendant’s contentions, the court

properly evaluated whether defendant posed an unreasonable risk of danger to public 

safety. Under section 1170.18, subdivision (c), “unreasonable risk of danger to public 

safety” means an unreasonable risk that the petitioner will commit a new violent felony 

within the meaning of section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (c).) 

Among other so-called “super strikes,” which include several sexually violent or 

egregious offenses, that subsection includes “[a]ny serious and/or violent felony offense 

punishable in California by life imprisonment or death.” (§ 667, subd. 

(e)(2)(C)(iv)(VIII).)2

Defendant has three strike priors. (People v. Martin, supra, 25 Cal.4th at pp. 

1183-1184.) Therefore any commission of another serious or violent felony offense 

would result in a life sentence under the terms of the Three Strikes Law. (§ 667, subd. 

(e)(2)(A).) For the purposes of section 667, subdivision (e)(2)(C)(iv)(VIII), any serious 

or violent felony offense committed by a second strike offender would result in a life 

sentence. Because defendant has three strike priors, the trial court correctly considered 

the likelihood to reoffend because defendant has three strike priors, and any future 

serious or violent felony conviction would result in a life sentence.

 

2

 We note that the California Supreme Court has granted a hearing in almost 

every published appellate case which addresses “dangerousness,” beginning with People 

v. Valencia (2014) 232 Cal.App.4th 514, and ending most recently with People v. 

Delapena (2015) 238 Cal.App.4th 1414.
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Defendant protests that this interpretation would mean that a defendant with two 

strikes who commits a third felony which is neither violent nor serious would never be 

able to avail himself of resentencing. However, an inmate’s propensity to commit an 

additional felony that is neither violent nor serious would not be sufficient to disqualify 

him from resentencing under section 1170.18. Only the inmate’s propensity to commit 

another serious or violent felony as defined by sections 667.5, subdivision (c), and 

1192.7, subdivision (c), would be relevant to determining dangerousness under section 

1170.18. The likelihood that an inmate with two strike priors would commit any other 

nonserious or nonviolent felony would be irrelevant to the dangerousness determination 

under section 1170.18.

Furthermore, defendant misrepresents the trial court’s comments when he argues

the trial court determined he posed a risk of dangerousness because he may have had a 

propensity to commit the misdemeanor offense of molesting a child. (§ 647.6, subd. 

(a)(1).) What the trial court actually said was, even though defendant is “in custody on a 

minor crime, and he’s already served 18 years, that there is an unreasonable risk that he 

will commit a new violent crime under 1170.18(a) and 667(c) (e) (4) [sic], that is a 

sexually violent crime, maybe a murder or attempt murder, or a molestation of someone 

under the age of 18.” The court did not mention misdemeanor child molestation.

“The general rule is that a trial court is presumed to have been aware of, and 

followed the applicable law.” (People v. Mosley (1997) 53 Cal.App.4th 489, 496, citing 

Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443; Evid. Code, § 
22

664.) The reviewing court presumes the trial court’s decision is correct. (Mosley, at p.

496.) An order is presumed correct and error must be affirmatively shown. (Ibid.) The 

appellate court cannot presume error where the record does not establish on its face that 

the trial court misunderstood the scope of its discretion. (See People v. White Eagle

(1996) 48 Cal.App.4th 1511, 1521-1523; People v. Davis (1996) 50 Cal.App.4th 168, 

170-173.) Here, the record does not establish on its face that the court believed it could 

deny defendant’s petition if it found that defendant had the propensity to commit any 

misdemeanor. Absent any indication to the contrary, defendant has not rebutted the 

presumption that the trial court understood and followed the relevant law in determining 

whether he posed an unreasonable risk of danger to public safety. (Mosley, at p. 496.)

Just like with the section 1170.126 petition, the evidence amply supported the trial 

court’s finding that defendant continued to pose an unreasonable risk to public safety. 

Defendant did not establish he has been rehabilitated. From age 14 in 1965 until his life 

sentence in 1998, defendant continuously committed violent crimes except for when he 

was incarcerated. Many of defendant’s crimes were serious and violent, “the super strike 

type of crimes . . . [r]ape, attempted murder, kidnapping, and most involved violence 

against women, whether it was his wife or women that he picked up off the streets.” The 

numerous prison incidents were “excessive.” Defendant still refuses to accept culpability 

for the 1979 rape conviction.

The trial court’s determination was hardly so irrational or arbitrary that no 

reasonable person could agree with it. Defendant exhibited little remorse and accepted
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no responsibility for his crimes. Considering all the evidence of defendant’s violent 

criminal history, his lengthy disciplinary history in prison, and his failure to accept

culpability, the trial court unquestionably properly exercised its discretion to deny 

defendant’s section 1170.18 petition. Even without considering defendant’s propensity to 

commit serious or violent felony offenses, the evidence presented at the petition hearing

overwhelmingly demonstrated that he posed an unreasonable risk of danger to public 

safety within the meaning of section 1170.18.

IV

DISPOSTIION

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

and 1170.18 petitions. It properly analyzed defendant’s potential for dangerousness.

We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.