Filed 12/16/14 

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

 v. 

DAVID JOHN VALENCIA, 

Defendant and Appellant. 

F067946 

(Super. Ct. No. CRF30714) 

OPINION

 APPEAL from a judgment of the Superior Court of Tuolumne County. Eleanor 

Provost, Judge. 

 Stephanie L. Gunther for Defendant and Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Peter 

W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOoo- 

 

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of part I of the Discussion. 
2. 

INTRODUCTION 

 The Three Strikes Reform Act of 2012 (hereafter Proposition 36 or the Act) 

created a postconviction release proceeding for third strike offenders serving 

indeterminate life sentences for crimes that are not serious or violent felonies. If such an 

inmate meets the criteria enumerated in Penal Code section 1170.126, subdivision (e), he 

or she will be resentenced as a second strike offender unless the court determines such 

resentencing would pose an unreasonable risk of danger to public safety.1 (§ 1170.126, 

subd. (f); People v. Yearwood (2013) 213 Cal.App.4th 161, 168.) 

 After the Act went into effect, David John Valencia (defendant), an inmate serving 

a term of 25 years to life following conviction of a felony that was not violent (as defined 

by § 667.5, subd. (c)) or serious (as defined by § 1192.7, subd. (c)), filed a petition for 

recall of sentence and request for resentencing under the Act. Following a hearing, the 

trial court found defendant to be an unreasonable risk to public safety and denied the 

petition. 

 We conclude the trial court did not abuse its discretion by denying the petition. In 

the unpublished portion of our opinion, we reject defendant’s claims the trial court used 

the wrong standard, failed to properly evaluate whether defendant posed an unreasonable 

risk to society, and had to appoint an expert to evaluate defendant regarding current 

dangerousness; and his claim the prosecution did not meet its burden of establishing 

dangerousness; his claim his sentence of 25 years to life constitutes cruel and unusual 

punishment; and his claim the errors violated his right to due process. In the published 

portion, we conclude recently enacted section 1170.18, subdivision (c) does not modify 

section 1170.126, subdivision (f). We affirm. 

 

1 Further statutory references are to the Penal Code unless otherwise stated. 
3. 

FACTS AND PROCEDURAL HISTORY

 On September 13, 2009, neighbors heard an argument between defendant and his 

wife, Carrie Kobel. They were yelling and screaming and Kobel was crying.2 Kobel was 

then seen coming down her driveway, with defendant following. Defendant pushed 

Kobel, causing her to fall to the ground, then punched her multiple times. When Kobel, 

who was screaming for help, asked witnesses to call the police, defendant told them to 

mind their own business and became aggressive and intimidating toward them. When the 

police arrived, Kobel related she and defendant had gotten into an argument when she 

went to move her truck into the driveway so friends coming over would have a place to 

park. Kobel’s driver’s license had been suspended due to a vehicle accident in which she 

had been under the influence of alcohol. Defendant objected to her driving because the 

couple had been drinking and he thought she was going to leave. Kobel told him she was 

only moving the truck, but when she went to do so, defendant hit her in the back of the 

head. Defendant denied there had been a fight; he said Kobel was intoxicated and 

attempting to leave, and he was only trying to stop her. Although he denied hitting 

Kobel, injuries to his knuckles were inconsistent with that claim. Kobel was treated for a 

laceration on her head that was closed with staples. 

 At trial, a woman who had been in a relationship with defendant in 2000 testified 

defendant had assaulted her by hitting her “full force” with his fist between her temple 

and ear. She suffered a ruptured eardrum from the incident. 

 On December 2, 2009, a jury convicted defendant of felony spousal abuse 

(§ 273.5). He admitted suffering five felony convictions, two of which constituted 

strikes. On January 6, 2010, he was sentenced to prison for 25 years to life. 

 

2 The facts of defendant’s commitment offense are taken from our opinion in People 

v. Valencia (Mar. 3, 2011, F059244) [nonpub. opn.], which is contained in the clerk’s 

transcript of the present appeal. 
4. 

 On May 13, 2013, defendant filed a petition to recall sentence and request for 

resentencing under section 1170.126.3 Defendant represented his strike record consisted 

of a 1995 conviction for kidnapping (§ 207, subd. (a)) and a 1996 conviction for making 

a criminal threat (§ 422). Appended to the petition was a letter from defendant’s parents, 

stating their support for him and willingness to assist him in obtaining psychological help 

and drug/alcohol treatment; a letter from the Salvation Army Adult Rehabilitation Center 

in San Francisco, stating it appeared defendant was eligible for intake; letters from the 

Delancey Street Foundation in San Francisco, thanking defendant for his interest and 

explaining how to apply upon release, but stating acceptance could not be guaranteed;4 an 

informational “chrono,” dated March 8, 2010, documenting defendant requested 

segregated housing because he feared for his safety after refusing to sign a petition being 

submitted by other White inmates, one of whom accused him of being a coward, after 

which defendant was told he had to stab the person who called him a coward or he would 

be “‘dealt with’”; and an inmate request, dated March 12, 2013, in which defendant asked 

to be placed on waiting lists for anger management and Alcoholics Anonymous (AA) 

meetings. Defendant also related he had enrolled in a mail-order anger management 

course. He subsequently presented a certificate, dated May 15, 2013, attesting to his 

completion of the “‘Grant me the Serenity Workbook” for AA, and inmate passes 

showing he was issued a pass allowing him to attend AA meetings on April 24, May 8, 

and May 15, 2013.5 

 

3 The petition was originally filed on April 15, 2013. It is unclear from the record 

why the petition was refiled. 

4 Several of the letters were from 2009. 

5 Although the passes contained spaces for arrival and departure times, none were 

noted. 
5. 

 The People opposed the petition. They asserted that in addition to the strike 

convictions, defendant had felony convictions for violating section 273.5 in 2000, 

section 69 in 1996, and Vehicle Code section 23152, subdivision (a) in 1996, in addition 

to 12 misdemeanor convictions between 1987 and 2007. The People set out the 

comments made by the trial court when it denied defendant’s request to dismiss one of 

his strikes for purposes of sentencing on his commitment offense, and argued 

circumstances had not changed. They asserted defendant’s prior record documented his 

violence, his continuous pattern of criminal conduct, and his failure to learn despite being 

offered treatment and rehabilitation programs. They also asserted defendant had not 

participated in any programs while imprisoned to address his violent tendencies. 

Accordingly, they argued he posed an unreasonable risk of danger. 

 In his reply to the opposition, defendant noted his commitment offense was not for 

a serious or violent felony, so if he were sentenced now, the court would not have the 

option of sentencing him to 25 years to life; the prosecutor offered him a six-year 

sentence prior to trial; and the commitment offense involved him “wrestl[ing]” with his 

wife in an attempt to stop her from driving because she was intoxicated. Defendant 

argued the People had the burden of establishing he was an unreasonable risk to public 

safety, and his crimes from a decade earlier were insufficient. He noted he had not had 

any further convictions while incarcerated, and asserted his prison record did not 

demonstrate patterns of violent and predatory behavior. 

 The petition was heard August 9, 2013, before the judge who sentenced defendant 

to the third strike term.6 At the outset, the court found defendant eligible for 

resentencing, and placed the burden on the People with respect to whether resentencing 

 

6 We recite the evidence and argument at the hearing, and the court’s ruling, in 

some detail due to the way defendant has excerpted minor portions — particularly of the 

court’s comments — as a basis for many of his claims on appeal. 
6. 

defendant would pose an unreasonable risk of danger to public safety. Over the 

prosecutor’s objection, the trial court admitted a document showing defendant’s in-prison 

risk classification was one, which was low. 

 The defense called witnesses at the hearing. Defendant’s mother testified she had 

not seen defendant during his most recent prison stay until the Sunday before the hearing, 

as she was partially disabled and unable to travel, although they communicated by letter 

and sporadically by telephone. Since defendant was no longer under the influence of 

alcohol, his mother noticed his attitude was changing. He had apologized for being such 

a disappointment. If defendant were released from prison, he would be able to live with 

his parents in Sonora. 

 Defendant testified he had been in prison this last time almost four years, and he 

had two prior prison terms.7 During his current term, he had no disciplinary actions. 

During his previous terms, he had one write-up for brewing alcohol. Defendant related 

that during his current prison term, he was in AA and had been taking a mail-order course 

on anger management and learning how to live a better life. Due to overcrowding, he 

was “in reception” for 28 months, where nothing was offered. Now, however, he 

attended AA meetings once a week. The mail-order course, which he only recently 

discovered, involved a curriculum where the school sent information, the student 

completed and returned it, and the school gave a score. Defendant had done the first six 

lessons. He did not know how many were left before he received his certificate. He 

started both AA and the mail-order course around April 2013. 

 

7 The prison term defendant had before his current term was for felony domestic 

battery. He pled guilty and was sentenced to four years. Defendant admitted having 

violated probation at various times, but denied violating a protective order in his prior 

domestic violence case. He completed a 52-week batterer’s course in conjunction with 

that domestic violence case. 
7. 

 Defendant related that since 2010, he had been housed in protective custody. He 

was asked to stab someone and refused. He explained that the gangs run the prison, and 

if an inmate does not do what they say, he will be next. Because defendant did not want 

to be violent, he went into protective custody. 

 Prior to trial, defendant was offered a six-year sentence. He turned it down 

because his wife said she bumped her head when she got in the truck. Defendant did not 

remember much about the day the incident happened, but knew he stopped her from 

drinking and driving. He did not make the right decisions, but was under the impression 

he had some type of reduced culpability. 

 If defendant were released from prison, he planned to enter a residential program 

such as the Salvation Army or Delancey Street, so he could learn to change his life. Both 

were one- or two-year programs. Defendant represented he was accepted into Delancey 

Street earlier, and had been accepted into the Salvation Army program since he had been 

in prison. 

 Defendant apologized for what he had done and stated he had learned his lesson. 

He professed a desire to change his life. He stated he was ready to change his life and be 

sober. 

 At the conclusion of the hearing, defense counsel argued that anyone with strike 

priors would have a history like defendant, so something more was needed to show he 

would pose an unreasonable risk of danger. Counsel argued the strikes were 17 and 18 

years old, and the felony before the commitment offense was nine years earlier. Counsel 

pointed to defendant’s lack of in-prison disciplinary record, and noted that if the current 

case occurred now, defendant’s maximum sentence would be eight years. Counsel 

argued defendant wanted to change his life and was going to go into a program. Given 

all the circumstances, he asserted, the People had not met their burden of showing 

defendant was an unreasonable risk. 
8. 

 The prosecutor argued that being a good prisoner was not the same thing as being 

a safe citizen. He acknowledged that anyone in a three strikes case had a history, but in 

defendant’s case, the nature of that history, intervening events, and conduct showed he 

was an unreasonable risk in society. The prosecutor argued that defendant had been 

given “break after break” and “program after program,” but had done nothing to stop and 

in fact was continuing to be violent. The prosecutor noted that although defendant’s 

strike convictions were some time ago, defendant continued criminal conduct in the 

intervening time, including violence against women that resulted in injury even after his 

completion of a 52-week batterers’ course. The prosecutor also pointed out that 

defendant did not even start his AA or mail-order programs until a month before he filed 

his petition. 

 This ensued: 

 “THE COURT: ... My concern is not whether today he would be 

facing the same charges.... I spent probably the last month almost thinking 

about it ..., because ... this does kind of make me think about, did I make a 

mistake in that sentence? 

 “I was well aware of Romero[8]

 when I sentenced him. I knew I 

could strike a strike. I have struck prior strikes as the DA’s Office 

knows.... 

 “I think that Prop. 36 was based on the idea that judges would be 

sentencing people to prison ... for like a billy club when you are a two 

striker. They were for thefts when you were a two striker. They were for 

drugs, possession and even transportation and maybe even possession with 

intent to sell. All of those would have been the kind of things I think that 

the public was looking at. It’s hard for me to think that they intended 

somebody ... who I do believe is dangerous to be out again. I can’t think 

of a better predictor of future conduct than past conduct. 

 “And as [the prosecutor] points out, what you do in prison really 

doesn’t have a whole lot to do with what you do when you’re outside there 

 

8 People v. Superior Court (Romero) (1996) 13 Cal.4th 497. 
9. 

and you have access to drugs and alcohol. In this case, primarily alcohol, I 

think. I picture the idea of his coming home and living on Stewart Street 

and there are bars within a block. [¶] ... [¶] 

 “THE DEFENDANT: I won’t come back to Sonora. I’ll go to 

Delancey Street. My wife’s bipolar. I’m done with domestic violence and 

I’m done with drinking. I’m ready to change my life. You guys got me 

scared straight. 

 “THE COURT: But we’ve heard that before. [¶] ... [¶] ... You had 

a previous alcohol program; did you not? What did you do that time? 

 “THE DEFENDANT: Stole a bottle — 

 “THE COURT: But you did a program for alcohol? 

 “THE DEFENDANT: Yeah. 

 “THE COURT: How long of a program? 

 “THE DEFENDANT: I don’t know. Like, I was in AA and stuff 

for a year and I stayed sober the whole time. It’s when I stopped 

participating in recovery that — 

 “THE COURT: Then you did a fifty-two week domestic violence 

program, yet we still have this offense with very serious — I think any time 

you have sutures, that’s a big deal. Most people can be hit ... without 

requiring sutures. This was serious. 

 “THE DEFENDANT: Yeah. But see — 

 “THE COURT: I cannot bring myself to do this. I think he is a 

danger to public safety. And as I said during the sentencing, he had nine 

grants of probation and was on probation when this happened. It was for 

something fairly minor.... [¶] ... [¶] ... But this was serious injuries to a 

victim and unprovoked. I just thought unprovoked. I could not and the 

jury could not buy the idea that you had to do something and that it was 

absolutely necessary for you to clobber on her to make her not drive. That 

was just pure nonsense and I thought so at the time and obviously the jury 

did too. [¶] ... [¶] ... I cannot grant this. I just feel that he is a danger. He 

is an unreasonable risk to public safety. And, in particular, to the women 

he’s around. I just can’t do this. 

 “So I’m going to deny the petition.... [¶] ... [¶] 
10. 

 “THE DEFENDANT: I will be appealing this then. I have a right to 

an appeal .... [¶] ... [¶] ... I went to trial, so this new law will attach to it, 

so I would like for you to file a Notice of Appeal. [¶] ... [¶] ... Because I 

can show it’s more likely than not that the Court would have accepted my 

plea, so it’s not really genuine that you believe I’m a risk to public safety, 

because you — the other three strikers with the same case would take deals. 

[¶] ... [¶] ... I’m not a risk to public safety. This is not right.” 

DISCUSSION

 Defendant says the trial court erred by denying his petition because (1) the court 

used the wrong standard, (2) the court failed to properly evaluate whether defendant 

posed an unreasonable risk to society, (3) the prosecution failed to meet its burden of 

establishing dangerousness by a preponderance of the evidence, (4) the prosecution failed 

to meet its burden of establishing some evidence that defendant currently posed an 

unreasonable risk, and (5) the court should have sua sponte appointed an expert to 

evaluate defendant with respect to current dangerousness. Defendant further contends a 

sentence of 25 years to life constitutes cruel and unusual punishment in violation of the 

Eighth Amendment to the United States Constitution, and that the various errors violated 

his due process rights. Finally, defendant contends the definition of “unreasonable risk of 

danger to public safety” contained in section 1170.18, subdivision (c) applies to 

resentencing proceedings under the Act. We reject his arguments. 

I*

The trial court did not err by denying defendant’s petition. 

 In order to be eligible for resentencing as a second strike offender under the Act, 

the inmate petitioner must satisfy the three criteria set out in subdivision (e) of 

section 1170.126.9 (People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 

 

* See footnote, ante, page 1. 

9 “An inmate is eligible for resentencing if: [¶] (1) The inmate is serving an 

indeterminate term of life imprisonment imposed pursuant to paragraph (2) of 

subdivision (e) of Section 667 or subdivision (c) of Section 1170.12 for a conviction of a 

felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) 
11. 

989.) If the inmate satisfies all these criteria, as did defendant, he or she “shall be 

resentenced [as a second strike offender] unless the court, in its discretion, determines 

that resentencing the [inmate] would pose an unreasonable risk of danger to public 

safety.” (§ 1170.126, subd. (f).) In exercising this discretion, “the court may consider: 

[¶] (1) The [inmate’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 [inmate’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.” (Id., subd. (g).) 

 The plain language of subdivisions (f) and (g) of section 1170.126 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].) “‘“[T]he burden is on the party 

 

of Section 667.5 or subdivision (c) of Section 1192.7. [¶] (2) The inmate’s current 

sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), 

inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or 

clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of 

Section 1170.12. [¶] (3) The inmate has no prior convictions for any of the offenses 

appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of 

Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of 

Section 1170.12.” (§ 1170.126, subd. (e).)
12. 

attacking the sentence to clearly show that the sentencing decision was irrational or 

arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to 

have acted to achieve legitimate sentencing objectives, and its discretionary 

determination ... will not be set aside on review.”’ [Citation.]” (People v. Carmony, 

supra, 33 Cal.4th at pp. 376-377.) 

 “Because ‘all discretionary authority is contextual’ [citation], we cannot determine 

whether a trial court has acted irrationally or arbitrarily ... without considering the legal 

principles and policies that should have guided the court’s actions.” (People v. Carmony, 

supra, 33 Cal.4th at p. 377.) “An abuse of discretion is shown when the trial court 

applies the wrong legal standard. [Citation.]” (Costco Wholesale Corp. v. Superior 

Court (2009) 47 Cal.4th 725, 733.) 

 Under the clear language of section 1170.126, we review the trial court’s ultimate 

determination whether to resentence a petitioner for abuse of discretion. Of course, if 

there is no evidence in the record to support the decision, the decision constitutes an 

abuse of discretion. (See In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.) Thus, the 

questions arise which party has the burden of producing such evidence, and to what 

degree of certainty, and what level of support — what standard of proof — is required for 

a trial court to rely on such evidence? (See People v. Mower (2002) 28 Cal.4th 457, 

476.) 

 Division Three of the Second District Court of Appeal has stated that, where a 

court’s discretion under section 1170.126, subdivision (f) is concerned, the People bear 

the burden of proving “dangerousness” by a preponderance of the evidence. (People v. 

Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301-1305 & fn. 25 (Kaulick); 

see Evid. Code, § 115.) That court determined this is so — and Apprendi v. New Jersey 

(2000) 530 U.S. 466 (Apprendi) and its progeny do not apply — because “dangerousness 

is not a factor which enhances the sentence imposed when a defendant is resentenced 
13. 

under the Act; instead, dangerousness is a hurdle which must be crossed in order for a 

defendant to be resentenced at all.” (Kaulick, supra, at p. 1303.) 

 We agree with Kaulick that the applicable standard is preponderance of the 

evidence.10 This does not mean, however, that the trial court must apply that standard in 

making its ultimate determination whether to resentence a petitioner, or we must review 

that determination for substantial evidence.11 Nor does it mean evidence of 

dangerousness must preponderate over evidence of rehabilitation in order for 

resentencing to be denied. Instead, taking into account the language of subdivisions (f) 

and (g) of section 1170.126, we conclude it means the People have the burden of 

establishing, by a preponderance of the evidence, facts from which a determination 

resentencing the petitioner would pose an unreasonable risk of danger to public safety 

can reasonably be made.12 Stated another way, evidence showing a petitioner poses a 

 

10 We have previously discussed Kaulick in the context of the initial determination 

whether an inmate is eligible for resentencing under the Act. (People v. Blakely (2014) 

225 Cal.App.4th 1042, 1058, 1060-1061; People v. Osuna (2014) 225 Cal.App.4th 1020, 

1033, 1039-1040.) Nothing we say here should be taken as disagreement with or 

modification of those opinions. We deal here with a different aspect of the retrospective 

portion of the Act and a subject not before us in our prior cases. 

11 The substantial evidence test applies to an appellate court’s review of findings 

made under the preponderance of the evidence standard. (People v. Wong (2010) 186 

Cal.App.4th 1433, 1444.) Under that test, the appellate court reviews the record in the 

light most favorable to the challenged finding, to determine whether it discloses evidence 

that is reasonable, credible, and of solid value such that a reasonable trier of fact could 

make the finding by a preponderance of the evidence. The appellate court “resolve[s] all 

conflicts in the evidence and questions of credibility in favor of the [finding], and ... 

indulge[s] every reasonable inference the [trier of fact] could draw from the evidence. 

[Citation.]” (Ibid.) 

12 Courts and parties have assumed whatever burden exists is on the People. (E.g., 

People v. Flores (2014) 227 Cal.App.4th 1070, 1075-1076; Kaulick, supra, 215 

Cal.App.4th at p. 1301, fn. 25.) Such allocation is in harmony with the language of 

section 1170.126, subdivision (f) that an eligible petitioner “shall be resentenced ... 

unless” the court makes the required determination. 
14. 

risk of danger to public safety must be proven by the People by a preponderance of the 

evidence. The reasons a trial court finds resentencing would pose an unreasonable risk of 

danger, or its weighing of evidence showing dangerousness versus evidence showing 

rehabilitation, lie within the court’s discretion. The ultimate determination that 

resentencing would pose an unreasonable risk of danger is a discretionary one. While the 

determination must be supported by record evidence established by a preponderance, the 

trial court need not itself find an unreasonable risk of danger by a preponderance of the 

evidence. (See In re Robert L., supra, 21 Cal.App.4th at pp. 1065-1067 [discussing 

abuse of discretion and preponderance of the evidence standards].) 

 Such an interpretation is consistent with California’s noncapital sentencing 

scheme.13 Under the determinate sentencing law (DSL) as it existed prior to 

Cunningham v. California (2007) 549 U.S. 270 (Cunningham), “three terms of 

imprisonment [were] specified by statute for most offenses. The trial court’s discretion in 

selecting among [those] options [was] limited by section 1170, subdivision (b), which 

direct[ed] that ‘the court shall order imposition of the middle term, unless there are 

circumstances in aggravation or mitigation of the crime.’” (People v. Black (2007) 41 

Cal.4th 799, 808, fn. omitted.) Trial courts had “broad discretion” to impose the lower or 

upper term instead of the middle term of imprisonment (People v. Scott (1994) 9 Cal.4th 

331, 349), and generally were required by the statutes and sentencing rules to state 

reasons for their discretionary sentencing choices (ibid.). Such reasons had to be 

“supported by a preponderance of the evidence in the record” and reasonably related to 

the particular sentencing determination. (Ibid.; see former Cal. Rules of Court, 

rule 4.420(b).) Even after the DSL was reformed and amended in response to 

 

13 The determination of the appropriate penalty in a capital case “‘is “essentially 

moral and normative ..., and therefore ... there is no burden of proof or burden of 

persuasion. [Citation.]” [Citation.]’ [Citations.]” (People v. McKinzie (2012) 54 

Cal.4th 1302, 1362.) 
15. 

Cunningham, so as to eliminate judicial factfinding in selection of the appropriate term 

when three possible prison terms are specified by statute, establishment of facts by a 

preponderance of the evidence remains necessary with respect to certain discretionary 

sentencing decisions. (See In re Coley (2012) 55 Cal.4th 524, 557-558.)14

 In People v. Sandoval (2007) 41 Cal.4th 825, 850-851, the California Supreme 

Court stated that, in making its discretionary sentencing choices post-Cunningham, “the 

trial court need only ‘state [its] reasons’ [citation]; it is not required to identify 

aggravating and mitigating factors, apply a preponderance of the evidence standard, or 

specify the ‘ultimate facts’ that ‘justify[] the term selected.’ [Citations.] Rather, the 

court must ‘state in simple language the primary factor or factors that support the exercise 

of discretion.’ [Citation.]” (Italics added.) 

 We do not read the foregoing statement as suggesting the People bear no burden in 

a proceeding to determine whether a petitioner should be resentenced under the Act. 

Subdivision (g) of section 1170.126 contemplates the trial court’s consideration of 

evidence. It stands to reason someone must produce that evidence. Under Evidence 

Code section 115, “‘[b]urden of proof’ means the obligation of a party to establish by 

evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or 

the court.... [¶] Except as otherwise provided by law, the burden of proof requires proof 

by a preponderance of the evidence.” 

 

14 After Cunningham concluded the DSL violated a defendant’s Sixth Amendment 

right to a jury trial (Cunningham, supra, 549 U.S. at p. 281), the Legislature amended 

section 1170 so that now “(1) the middle term is no longer the presumptive term absent 

aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the 

discretion to impose an upper, middle or lower term based on reasons he or she states.” 

(People v. Wilson (2008) 164 Cal.App.4th 988, 992.) Subdivision (b) of section 1170 

states the court “shall select the term which, in the court’s discretion, best serves the 

interests of justice.” 
16. 

 However, the trial court’s ultimate determination when considering a petition for 

resentencing under section 1170.126 — whether resentencing the petitioner would pose 

an unreasonable risk of danger to public safety — is analogous to an evaluation of the 

relative weight of mitigating and aggravating circumstances. Such an evaluation “is not 

equivalent to a factual finding.” (People v. Black, supra, 41 Cal.4th at p. 814, fn. 4.) It 

follows, then, that the trial court need not apply a preponderance of the evidence 

standard, in that it need not find resentencing the petitioner would, more likely than not, 

pose an unreasonable risk of danger to public safety. (See Kaulick, supra, 215 

Cal.App.4th at p. 1305, fn. 28 [preponderance standard means “‘more likely than not’”].) 

Kaulick found the prosecution bears the burden of establishing “dangerousness” 

by a preponderance of the evidence against a claim the Apprendi line of cases requires 

proof beyond a reasonable doubt. (Kaulick, supra, 215 Cal.App.4th at pp. 1301-1302.) 

As a result, it had no real occasion to address the interplay between the burden of proof 

and the trial court’s exercise of discretion as that issue is presented here, or to clarify 

whether the prosecution is required to establish “dangerousness” in the sense of facts

upon which the trial court may base the ultimate determination resentencing a petitioner 

would pose an unreasonable risk of danger to public safety, or in the sense of establishing 

that determination itself. Nevertheless, we believe it supports our interpretation. Kaulick

stated, in part: “The maximum sentence to which Kaulick, and those similarly situated to 

him, is subject was, and shall always be, the indeterminate life term to which he was 

originally sentenced. While [the Act] presents him with an opportunity to be resentenced 

to a lesser term, unless certain facts are established, he is nonetheless still subject to the 

third strike sentence based on the facts established at the time he was originally 

sentenced. As such, a court’s discretionary decision to decline to modify the sentence in 

his favor can be based on any otherwise appropriate factor (i.e., dangerousness), and 

such factor need not be established by proof beyond a reasonable doubt to a jury.” (Id. 

at p. 1303, italics added.) The court further stated: “[I]t is the general rule in California 
17. 

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. [Citation.]” (Id. at p. 1305, italics added.) 

 Finally, Kaulick rejected the suggestion a trial court could determine resentencing 

a petitioner would pose an unreasonable risk of danger to public safety, yet still have the 

discretion to resentence that petitioner to a second strike term. (Kaulick, supra, 215 

Cal.App.4th at pp. 1293-1294, fn. 12.) The court explained: “The language of ... 

section 1170.126, subdivision (f), states that the petitioner shall be resentenced unless the 

court finds an unreasonable risk of danger. It does not state that if the court finds an 

unreasonable risk of danger, it can nonetheless resentence the petitioner. In any event, 

the ballot arguments in support of Proposition 36 emphasized that the Act would not 

benefit ‘“truly dangerous criminals.”’ [Citation.] It is impossible to believe that the 

voters intended to allow a court the discretion to resentence defendants whose 

resentencing that court had already found would present an unreasonable risk of danger.” 

(Ibid.) 

 We concur with Kaulick’s rejection of the argument. Nevertheless, it seems to us 

that if the prosecution had the burden of proving the ultimate issue in a resentencing 

proceeding, a trial court necessarily would be divested of its discretion to resentence in 

any case in which that burden of proof was met. Yet the language of section 1170.126, 

subdivision (f) expressly provides the petitioner shall be resentenced unless the court, in 

its discretion, makes a determination that resentencing would pose an unreasonable risk 

of danger. The statute does not say the petitioner shall be resentenced unless the People 

prove resentencing would pose such a risk. 

 To summarize, a trial court need not determine, by a preponderance of the 

evidence, that resentencing a petitioner would pose an unreasonable risk of danger to 

public safety before it can properly deny a petition for resentencing under the Act. Nor is 

the court’s ultimate determination subject to substantial evidence review. Rather, its 
18. 

finding will be upheld if it does not constitute an abuse of discretion, i.e., if it falls within 

“the bounds of reason, all of the circumstances being considered. [Citations.]” (People 

v. Giminez (1975) 14 Cal.3d 68, 72.) The facts or evidence upon which the court’s 

finding of unreasonable risk is based must be proven by the People by a preponderance of 

the evidence, however, and are themselves subject to our review for substantial 

evidence.15 If a factor (for example, that the petitioner recently committed a battery, is 

violent due to repeated instances of mutual combat, etc.) is not established by a 

preponderance of the evidence, it cannot form the basis for a finding of unreasonable risk. 

(See People v. Cluff (2001) 87 Cal.App.4th 991, 998 [trial court abuses its discretion 

when factual findings critical to decision find no support in record]; cf. People v. Read 

(1990) 221 Cal.App.3d 685, 689-691 [where trial court erroneously determined defendant 

was statutorily ineligible for probation, reviewing court was required to determine 

whether trial court gave sufficient other reasons, supported by facts of case, for probation 

denial].) 

 Applying these principles to the present case, and examining the record as a 

whole, rather than cherry-picked fragments, it is readily apparent the trial court did not 

err by denying defendant’s petition. We generally presume a trial court has properly 

followed established law. Although this presumption does not apply where the law was 

unclear or uncertain when the lower court acted (People v. Diaz (1992) 3 Cal.4th 495, 

567), Kaulick was decided several months before the sentencing court ruled on 

defendant’s petition. Moreover, the parties’ pleadings and arguments, and the court’s 

own comments (either at the hearing itself or on one of the occasions when the matter 

 

15 “Substantial evidence,” not the significantly more deferential “some evidence” 

standard applicable to review of executive branch decisions in parole cases (see In re 

Rosenkrantz (2002) 29 Cal.4th 616, 658, 665), is the appropriate appellate standard. 
19. 

was continued) show the court was aware of which party had to establish what and to 

what level of certainty. 

 Contrary to defendant’s claim, the manner in which the court mentioned its prior 

Romero ruling does not suggest it mistook its broad authority to resentence defendant 

under section 1170.126 for the limited authority to dismiss a strike under that case. Nor 

do we agree with defendant’s assertion the court failed to properly evaluate whether 

defendant posed an unreasonable risk to public safety by basing its finding solely on 

information it had at the time of the original sentencing. Evidence concerning the factors 

set out in subdivision (g) of section 1170.126, including defendant’s lack of in-prison 

disciplinary record, his low-risk assessment score, and his attendance of AA meetings 

and participation in a mail-order anger management class, was all before the court (as 

was the fact defendant only started participating in AA and the mail-order class about one 

month before he filed his resentencing petition). That the trial court may not have 

expressly mentioned some of these factors does not mean it failed to consider them and, 

in the absence of any showing to the contrary, we presume it did so. (Evid. Code, § 664; 

see Denham v. Superior Court (1970) 2 Cal.3d 557, 564; cf. People v. Sparks (1968) 262 

Cal.App.2d 597, 600-601.) Defendant’s true argument is that the court did not credit 

them in the manner and to the extent defendant thinks is appropriate. We find the court 

acted well within its discretion, however, and — again contrary to defendant’s claim — 

made its finding based on its view of defendant’s current risk to society, a view that was 

supported by record evidence. 

 Defendant says the prosecution failed to meet its burden of establishing 

dangerousness by a preponderance of the evidence. He apparently bases this on the fact 

he presented witnesses while the People did not. The prosecutor adduced evidence 

through his cross-examination of defendant and defendant’s mother, however, and was 

entitled to rely on information (such as defendant’s criminal history, the circumstances of 

the commitment offense, and defendant’s presently belated and previously unsuccessful 
20. 

rehabilitation efforts) that was already before the trial court and established at least by a 

preponderance.16 We have explained the applicable burden and standard of proof, ante. 

The evidence before the court was sufficient to permit a rational trier of fact to conclude 

resentencing defendant would pose an unreasonable risk of danger to public safety, as 

required by section 1170.126, subdivision (f). 

 Apparently analogizing a resentencing proceeding under the Act to a parole 

proceeding for an inmate serving a life term (see § 3041; In re Lawrence (2008) 44 

Cal.4th 1181, 1223-1224), defendant chides the court for failing to appoint, sua sponte, 

an expert to evaluate defendant with respect to current dangerousness and his 

psychological or mental attitude. He says it is “clear” expert psychological evidence was 

required to address the issue of defendant’s current threat to society, if any. He is wrong. 

 Defendant cites Evidence Code section 730 for the proposition an expert may be 

appointed by a court sua sponte for the purpose of obtaining an impartial expert 

opinion.17 (See Mercury Casualty Co. v. Superior Court (1986) 179 Cal.App.3d 1027, 

1032.) That statute “does not authorize the appointment of experts after trial in 

connection with sentencing proceedings.” (People v. Stuckey (2009) 175 Cal.App.4th 

898, 905; id. at p. 913.) Regardless of whether a proceeding under section 1170.126 is 

likened to a trial or is part of a sentencing proceeding, “a trial court has inherent power, 

independent of statute, to exercise its discretion and control over all proceedings relating 

 

16 “‘Evidence’ means testimony, writings, material objects, or other things presented 

to the senses that are offered to prove the existence or nonexistence of a fact.” (Evid. 

Code, § 140.) 

17 Evidence Code section 730 provides, in relevant part: “When it appears to the 

court, at any time before or during the trial of an action, that expert evidence is or may be 

required by the court ..., the court on its own motion ... may appoint one or more experts 

to investigate, to render a report as may be ordered by the court, and to testify as an 

expert at the trial of the action relative to the fact or matter as to which the expert 

evidence is or may be required.” 
21. 

to the litigation before it [citation],” including “the power to obtain evidence upon which 

the judgment of the court may rest [citation].” (Johnson v. Banducci (1963) 212 

Cal.App.2d 254, 260; see Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.) 

Thus, it appears a court could appoint an expert, on its own motion, to conduct an 

evaluation concerning the risk of danger currently posed to public safety by an inmate 

seeking resentencing under the Act.18

 However, “[t]he decision on the need for the appointment of an expert lies within 

the discretion of the trial court and the trial court’s decision will not be set aside absent an 

abuse of that discretion. [Citations.]” (People v. Gaglione (1994) 26 Cal.App.4th 1291, 

1304, disapproved on other grounds in People v. Martinez (1995) 11 Cal.4th 434, 452 & 

People v. Levesque (1995) 35 Cal.App.4th 530, 539; accord, People v. Vatelli (1971) 15 

Cal.App.3d 54, 61; see In re Eric A. (1999) 73 Cal.App.4th 1390, 1394, fn. 4.) Whatever 

the similarities between the decisions whether to resentence under the Act and to grant 

parole to an inmate serving a life term, appointment of an expert did not fall outside the 

bounds of reason in this case. The question before the court was whether resentencing 

defendant would pose an unreasonable risk of danger to public safety. Given the 

information already before the court, the court could make the required determination 

itself, without the input of an expert. As has been stated in the context of a claim the 

word “unreasonable” is impermissibly vague, “Surely a superior court judge is capable of 

exercising discretion, justly applying the public safety exception, and determining 

whether a lesser sentence would pose an unreasonable risk of harm to the public safety. 

[Citation.]” (People v. Flores, supra, 227 Cal.App.4th at p. 1075.)19

 

18 Accordingly, we need not determine the source of a court’s authority to do so. 

19 In re Lawrence, supra, 44 Cal.4th 1181, does not hold to the contrary. In that 

case, the Governor reversed a parole grant in part based on negative language found in 

early psychiatric evaluations of the inmate that suggested the inmate’s release would pose 

an unreasonable risk of danger to the public. (Id. at pp. 1190, 1223.) The California 
22. 

 Defendant next contends his sentence of 25 years to life constitutes cruel and 

unusual punishment as prohibited by the Eighth Amendment to the United States 

Constitution. We question whether this issue is properly before us, since the trial court 

did not impose sentence, but merely left intact a sentence we already concluded was 

constitutional. (People v. Valencia, supra, F059244.) 

 In any event, for the reasons we cited in People v. Ingram (1995) 40 Cal.App.4th 

1397, 1412-1416, disapproved on another ground in People v. Dotson (1997) 16 Cal.4th 

547, 560, footnote 8, defendant’s history of habitual criminal behavior renders his claim 

meritless. It is not the current charge that qualifies defendant for this term, but rather his 

history as a repeat offender. “[H]abitual offender statutes have long withstood the 

constitutional claim of cruel or unusual punishment. [Citations.]” (Ingram, at p. 1413.) 

Defendant has proven he holds little regard for the law and is immune to resultant 

punishments for his conduct. In this instance, “it becomes the duty of government to 

seek some other method to curb his criminal propensities that he might not continue to 

further inflict himself upon law-abiding members of society. This, we think, may be 

done even to the extent of depriving him permanently of his liberty....” (In re 

Rosencrantz (1928) 205 Cal. 534, 539.) 

 Defendant appears to base his claim on the premise that because now an offender 

in his position would be sentenced to no more than eight years for violating 

section 273.5, defendant’s sentence is unconstitutionally disproportionate. He says: 

 

Supreme Court rejected the Governor’s conclusion, stating: “[T]he passage of time is 

highly probative to the determination before us, and reliance upon outdated psychological 

reports — clearly contradicted by [the inmate’s] successful participation in years of 

intensive therapy, a long series of reports declaring [the inmate] to be free of 

psychological problems and no longer a threat to public safety, and [the inmate’s] own 

insight into her participation in this crime — does not supply some evidence justifying 

the Governor’s conclusion that [the inmate] continues to pose a threat to public safety.” 

(Id. at p. 1224.) 
23. 

“The sentence imposed for a violation of ... section 273.5 for any other defendant in any 

jurisdiction in California is not the same as [defendant’s] sentence. [Defendant] was 

sentenced to an indeterminate sentence while any other defendant would be sentenced to 

no more than eight years.” 

 Defendant’s premise is faulty. Any third strike offender convicted of violating 

section 273.5 before the Act amended sections 667 and 1170.12 is serving a sentence of 

at least 25 years to life, like defendant, unless he or she has been determined not to pose 

an unreasonable risk of danger to public safety. Defendant cites no authority for the 

proposition that a subsequent downward modification in a statutorily prescribed sentence 

renders unconstitutional a punishment that was constitutional when imposed. (See, e.g., 

Ewing v. California (2003) 538 U.S. 11, 28-31 (lead opn. of O’Connor, J.) [three strikes 

sentence of 25 years to life not unconstitutionally disproportionate where current offense 

was grand theft].) 

 Last, defendant contends the various errors committed by the trial court in the 

section 1170.126 proceeding and the disproportionality of his sentence violated his due 

process rights. He says the section 1170.126 hearing was fundamentally unfair because 

of the trial court’s errors and because the hearing was defendant’s “only shot at 

resentencing.” 

 We have rejected all defendant’s claims of error and cruel and unusual 

punishment. To the extent defendant may be arguing section 1170.126, subdivision (b) 

violates due process because it limits a defendant to the filing of a single petition and 

requires that, unless good cause is shown, the petition must be filed within two years after 

the effective date of the Act, we find no fundamental unfairness. We reach the same 

conclusion if we interpret defendant’s argument as a claim that, because of the two-year 

limit, he was unfairly deprived of the opportunity to demonstrate a lengthy period of 

nonviolence that would have allayed the trial court’s concerns. The ability to seek 

resentencing “is not constitutionally required, but an act of lenity on the part of the 
24. 

electorate.” (Kaulick, supra, 215 Cal.App.4th at p. 1304.)20 There was no due process 

violation. 

II 

Section 1170.18, subdivision (c), enacted pursuant to Proposition 47, 

does not modify section 1170.126, subdivision (f). 

 On November 4, 2014, voters enacted Proposition 47, “the Safe Neighborhoods 

and Schools Act” (hereafter Proposition 47). It went into effect the next day. (Cal. 

Const., art. II, § 10, subd. (a).) Insofar as is pertinent here, Proposition 47 renders 

misdemeanors certain drug- and theft-related offenses that previously were felonies or 

“wobblers,” unless they were committed by certain ineligible defendants. Proposition 47 

also created a new resentencing provision — section 1170.18 — by which a person 

currently serving a felony sentence for an offense that is now a misdemeanor, may 

petition for a recall of that sentence and request resentencing in accordance with the 

offense statutes as added or amended by Proposition 47. (§ 1170.18, subd. (a).) A 

person who satisfies the criteria in subdivision (a) of section 1170.18 shall have his or her 

sentence recalled and be “resentenced to a misdemeanor ... unless the court, in its 

 

20 We express no opinion whether an inmate could bring more than one petition, or 

file a petition and then seek a lengthy continuance in order to establish a prolonged 

period of rehabilitation, or whether the desire to establish such a period would constitute 

good cause for filing a petition beyond the two-year period. The record established 

previous attempts to rehabilitate defendant (through, for example, a 52-week batterers’ 

course) were woefully unsuccessful. The evidence further suggested his current belated 

efforts were undertaken not for purposes of true rehabilitation, but with a view toward 

convincing the court to resentence him. Moreover, his crimes were not particularly 

remote and his most recent offense involved violence his record amply demonstrated was 

not an instance of aberrant behavior. 
25. 

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

danger to public safety.” (Id., subd. (b).)21

 Hidden in the lengthy, fairly abstruse text of the proposed law, as presented in the 

official ballot pamphlet — and nowhere called to voters’ attention — is the provision at 

issue in the present appeal. Subdivision (c) of section 1170.18 provides: “As used 

throughout this Code, ‘unreasonable risk of danger to public safety’ means an 

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

of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.” 

Section 667, subdivision (e)(2)(C)(iv) lists the following felonies, sometimes called 

“super strike” offenses: 

 “(I) A ‘sexually violent offense’ as defined in subdivision (b) of 

Section 6600 of the Welfare and Institutions Code. 

 “(II) Oral copulation with a child who is under 14 years of age, and 

who is more than 10 years younger than he or she as defined by Section 

288a, sodomy with another person who is under 14 years of age and more 

than 10 years younger than he or she as defined by Section 286, or sexual 

penetration with another person who is under 14 years of age, and who is 

more than 10 years younger than he or she, as defined by Section 289. 

 “(III) A lewd or lascivious act involving a child under 14 years of 

age, in violation of Section 288. 

 “(IV) Any homicide offense, including any attempted homicide 

offense, defined in Sections 187 to 191.5, inclusive. 

 “(V) Solicitation to commit murder as defined in Section 653f. 

 “(VI) Assault with a machine gun on a peace officer or firefighter, as 

defined in paragraph (3) of subdivision (d) of Section 245. 

 

21 Proposition 47 also created a process whereby eligible persons who have already 

completed their sentences may have the particular conviction or convictions designated 

as misdemeanors. (§ 1170.18, subds. (f), (g).) 
26. 

 “(VII) Possession of a weapon of mass destruction, as defined in 

paragraph (1) of subdivision (a) of Section 11418. 

 “(VIII) Any serious and/or violent felony offense punishable in 

California by life imprisonment or death.” 

 The question is whether section 1170.18, subdivision (c) now limits a trial court’s 

discretion to deny resentencing under the Act to those cases in which resentencing the 

defendant would pose an unreasonable risk he or she will commit a new “super strike” 

offense. Defendant says it does. The People disagree. We agree with the People.22

 

22 We solicited supplemental briefing concerning Proposition 47. Among the 

questions we asked counsel to answer were whether defendant met the criteria for 

resentencing under section 1170.18 and, if so, whether we needed to determine the 

applicability, if any, of section 1170.18, subdivision (c) to resentencing proceedings 

under section 1170.126. We are satisfied it is appropriate for us to reach the issue of 

applicability regardless of whether defendant might obtain resentencing under 

Proposition 47. 

 It appears that a number of inmates will be eligible to seek resentencing under 

both the Act and Proposition 47. Such an inmate need not wait to file a petition under 

Proposition 47 until the trial court’s ruling on the inmate’s petition under the Act is final. 

A trial court is not divested of jurisdiction over a Proposition 47 petition by the fact a 

petition under the Act is pending, whether in a trial court or a Court of Appeal, with 

respect to the same inmate. (Cf. People v. Mayfield (1993) 5 Cal.4th 220, 222-227; 

People v. Johnson (1992) 3 Cal.4th 1183, 1256-1257; People v. Alanis (2008) 158 

Cal.App.4th 1467, 1472-1473.) While the general rule is that “an appeal from an order in 

a criminal case removes the subject matter of that order from the jurisdiction of the trial 

court [citations]” (Anderson v. Superior Court (1967) 66 Cal.2d 863, 865), the subject 

matter of a ruling on a petition under the Act is legally independent from a petition under 

Proposition 47 (see People v. Superior Court (Gregory) (2005) 129 Cal.App.4th 324, 

332). 

 In light of the differences between the two proceedings — for instance, an inmate 

resentenced under Proposition 47 is generally subject to one year of parole (§§ 1170.18, 

subd. (d), 3000.08), while an inmate resentenced under the Act is subject to up to three 

years of postrelease community supervision (§ 3451; People v. Tubbs (2014) 230 

Cal.App.4th 578, 585-586, petn. for review pending, petn. filed Nov. 12, 2014; People v. 

Espinoza (2014) 226 Cal.App.4th 635, 637-638) — we express no opinion concerning 

whether the granting of a Proposition 47 petition would render moot resentencing 

proceedings, whether in a trial court or on appeal, under the Act. 
27. 

 “‘In interpreting a voter initiative ..., we apply the same principles that govern 

statutory construction. [Citation.]’ [Citation.] ‘“The fundamental purpose of statutory 

construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of 

the law. [Citations.]”’ [Citation.]” (People v. Superior Court (Cervantes) (2014) 225 

Cal.App.4th 1007, 1014.) Thus, in the case of a provision adopted by the voters, “their 

intent governs. [Citations.]” (People v. Jones (1993) 5 Cal.4th 1142, 1146.) 

 To determine intent, “‘we look first to the words themselves. [Citations.]’” 

(People v. Superior Court (Cervantes), supra, 225 Cal.App.4th at p. 1014.) We give the 

statute’s words “‘a plain and commonsense meaning. [Citation.] We do not, however, 

consider the statutory language “in isolation.” [Citation.] Rather, we look to “the entire 

substance of the statute ... in order to determine the scope and purpose of the 

provision .... [Citation.]” [Citation.] That is, we construe the words in question “‘in 

context, keeping in mind the nature and obvious purpose of the statute ....’ [Citation.]” 

[Citation.] We must harmonize “the various parts of a statutory enactment ... by 

considering the particular clause or section in the context of the statutory framework as a 

whole.” [Citations.]’ [Citation.]” (People v. Acosta (2002) 29 Cal.4th 105, 112.) We 

“accord[] significance, if possible, to every word, phrase and sentence in pursuance of the 

legislative purpose. A construction making some words surplusage is to be avoided.... 

[S]tatutes or statutory sections relating to the same subject must be harmonized, both 

internally and with each other, to the extent possible. [Citations.]” (Dyna-Med, Inc. v. 

Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.) 

 “‘“When statutory language is clear and unambiguous, there is no need for 

construction and courts should not indulge in it.” [Citation.]’ [Citation.]” (People v. 

Hendrix (1997) 16 Cal.4th 508, 512.) On its face, “[a]s used throughout this Code,” as 

employed in section 1170.18, subdivision (c), clearly and unambiguously refers to the 

Penal Code, not merely section 1170.18 or the other provisions contained in 

Proposition 47. (See People v. Bucchierre (1943) 57 Cal.App.2d 153, 164-165, 166; see 
28. 

also Marshall v. Pasadena Unified School Dist. (2004) 119 Cal.App.4th 1241, 1254-

1255; People v. Vasquez (1992) 7 Cal.App.4th 763, 766.) 

 This does not mean, however, that the definition contained in section 1170.18, 

subdivision (c) must inexorably be read into section 1170.126, subdivision (f). (Cf. 

Marshall v. Pasadena Unified School Dist., supra, 119 Cal.App.4th at p. 1255.) “The 

literal language of a statute does not prevail if it conflicts with the lawmakers’ intent .... 

[Citations.]” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1033-1034.) “‘The 

apparent purpose of a statute will not be sacrificed to a literal construction.’ [Citation.]” 

(Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 733.) Rather, “the literal meaning 

of a statute must be in accord with its purpose.” (People v. Mohammed (2008) 162 

Cal.App.4th 920, 927.) “[I]t is settled that the language of a statute should not be given a 

literal meaning if doing so would result in absurd consequences that the [voters] did not 

intend” (In re Michele D. (2002) 29 Cal.4th 600, 606), or would “frustrate[] the manifest 

purposes of the legislation as a whole ....” (People v. Williams (1992) 10 Cal.App.4th 

1389, 1393.) “To this extent, therefore, intent prevails over the letter of the law and the 

letter will be read in accordance with the spirit of the enactment. [Citation.]” (In re 

Michele D., supra, 29 Cal.4th at p. 606; accord, People v. Ledesma (1997) 16 Cal.4th 90, 

95.) 

 Thus, “‘we look to a variety of extrinsic aids, including the ostensible objects to be 

achieved, the evils to be remedied, the legislative history, public policy, 

contemporaneous administrative construction, and the statutory scheme of which the 

statute is a part. [Citations.]’ [Citation.] We also ‘“refer to other indicia of the voters’ 

intent, particularly the analyses and arguments contained in the official ballot pamphlet.” 

[Citation.]’ [Citation.]” (People v. Osuna, supra, 225 Cal.App.4th at p. 1034.) We 

consider “the consequences that will flow from a particular interpretation” (Dyna-Med, 

Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at p. 1387), as well as “the 

wider historical circumstances” of the statute’s or statutes’ enactment (ibid.). “‘Using 
29. 

these extrinsic aids, we “select the construction that comports most closely with the 

apparent intent of the [electorate], with a view to promoting rather than defeating the 

general purpose of the statute, and avoid an interpretation that would lead to absurd 

consequences.” [Citation.]’ [Citation.]” (People v. Osuna, supra, 225 Cal.App.4th at 

pp. 1034-1035.) 

 Proposition 47 and the Act address related, but not identical, subjects. As we 

explain, reading them together, and considering section 1170.18, subdivision (c) in the 

context of the statutory framework as a whole (see People v. Acosta, supra, 29 Cal.4th at 

p. 112; Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 658-659; In re 

Cindy B. (1987) 192 Cal.App.3d 771, 781), we conclude its literal meaning does not 

comport with the purpose of the Act, and applying it to resentencing proceedings under 

the Act would frustrate, rather than promote, that purpose and the intent of the electorate 

in enacting both initiative measures (see People v. Disibio (1992) 7 Cal.App.4th Supp. 1, 

5). 

 As is evidenced by its title, the Act was aimed solely at revising the three strikes 

law. That law, as originally enacted by the Legislature, was described by us as follows: 

 “Under the three strikes law, defendants are punished not just for 

their current offense but for their recidivism. Recidivism in the 

commission of multiple felonies poses a danger to society justifying the 

imposition of longer sentences for subsequent offenses. [Citation.] The 

primary goals of recidivist statutes are: ‘... to deter repeat offenders and, at 

some point in the life of one who repeatedly commits criminal offenses 

serious enough to be punished as felonies, to segregate that person from the 

rest of society for an extended period of time. This segregation and its 

duration are based not merely on that person’s most recent offense but also 

on the propensities he has demonstrated over a period of time during which 

he has been convicted of and sentenced for other crimes. Like the line 

dividing felony theft from petty larceny, the point at which a recidivist will 

be deemed to have demonstrated the necessary propensities and the amount 

of time that the recidivist will be isolated from society are matters largely 

within the discretion of the punishing jurisdiction.’ [Citation.] 
30. 

 “By enacting the three strikes law, the Legislature acknowledged the 

will of Californians that the goals of retribution, deterrence, and 

incapacitation be given precedence in determining the appropriate 

punishment for crimes. Further, those goals were best achieved by 

ensuring ‘longer prison sentences and greater punishment’ for second and 

third ‘strikers.’” (People v. Cooper (1996) 43 Cal.App.4th 815, 823-

824.)23

 A few months before the November 6, 2012, election, the California Supreme 

Court observed: “One aspect of the [three strikes] law that has proven controversial is 

that the lengthy punishment prescribed by the law may be imposed not only when ... a 

defendant [who has previously been convicted of one or more serious or violent felonies] 

is convicted of another serious or violent felony but also when he or she is convicted of 

any offense that is categorized under California law as a felony. This is so even when the 

current, so-called triggering, offense is nonviolent and may be widely perceived as 

relatively minor. [Citations.]” (In re Coley (2012) 55 Cal.4th 524, 528-529.) 

 Clearly, by approving the Act, voters resolved this controversy in favor of strike 

offenders. Thus, one of the “Findings and Declarations” of the Act stated the Act would 

“[r]estore the Three Strikes law to the public’s original understanding by requiring life 

sentences only when a defendant’s current conviction is for a violent or serious crime.” 

(Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of proposed law, § 1, p. 105.) 

Nowhere, however, do the ballot materials for the Act suggest voters intended essentially 

to open the prison doors to existing third strike offenders in all but the most egregious 

cases, as would be the result if the definition of “‘unreasonable risk of danger to public 

 

23 The foregoing applies equally to the three strikes initiative measure that added 

section 1170.12 to the Penal Code. The following statement of intent preceded the text of 

the statute in Proposition 184, which was approved by voters on November 8, 1994: “‘It 

is the intent of the People of the State of California in enacting this measure to ensure 

longer prison sentences and greater punishment for those who commit a felony and have 

been previously convicted of serious and/or violent felony offenses.’” (See Historical 

and Statutory Notes, 50C West’s Ann. Pen. Code (2004 ed.) foll. § 1170.12, p. 239.) 
31. 

safety’” contained in section 1170.18, subdivision (c) were engrafted onto resentencing 

proceedings under section 1170.126, subdivision (f). That voters did not intend such a 

result is amply demonstrated by the fact an indeterminate life term remains mandatory 

under the Act for a wide range of current offenses even if the offender does not have a 

prior conviction for a “super strike” offense (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)), 

and that an inmate is rendered ineligible for resentencing under section 1170.126 for an 

array of reasons beyond his or her having suffered such a prior conviction (§ 1170.126, 

subd. (e)(2)). 

 The Act clearly placed public safety above the cost savings likely to accrue as a 

result of its enactment. Thus, uncodified section 7 of the Act provides: “This act is an 

exercise of the public power of the people of the State of California for the protection of 

the health, safety, and welfare of the people of the State of California, and shall be 

liberally construed to effectuate those purposes.” (Voter Information Guide, Gen. Elec. 

(Nov. 6, 2012), supra, text of proposed law, p. 110, original italics omitted, italics 

added.) As we explained in People v. Osuna, supra, 225 Cal.App.4th at page 1036, 

“Although the Act ‘diluted’ the three strikes law somewhat [citation], ‘[e]nhancing public 

safety was a key purpose of the Act’ [citation].” 

 In contrast, Proposition 47 — while titled “the Safe Neighborhoods and Schools 

Act” — emphasized monetary savings. The “Findings and Declarations” state: “The 

people of the State of California find and declare as follows: [¶] The people enact the 

Safe Neighborhoods and Schools Act to ensure that prison spending is focused on violent 

and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to 

invest the savings generated from this act into prevention and support programs in K-12 

schools, victim services, and mental health and drug treatment. This act ensures that 

sentences for people convicted of dangerous crimes like rape, murder, and child 

molestation are not changed.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text 

of proposed law, § 2, p. 70.) Uncodified section 15 of the measure provides: “This act 
32. 

shall be broadly construed to accomplish its purposes,” while uncodified section 18 

states: “This act shall be liberally construed to effectuate its purposes.” (Voter 

Information Guide, Gen. Elec. (Nov. 4, 2014), supra, text of proposed law, p. 74.) 

Proposition 47 requires misdemeanor sentences for various drug possession and property 

offenses, unless the perpetrator has a prior conviction for a “super strike” offense or for 

an offense requiring sex offender registration pursuant to section 290, subdivision (c). 

(Health & Saf. Code, §§ 11350, subd. (a), 11357, subd. (a), 11377, subd. (a); §§ 459.5, 

subd. (a), 473, subd. (b), 476a, subd. (b), 490.2, subd. (a), 496, subd. (a), 666, subd. (b).) 

Section 1170.18 renders ineligible for resentencing only those inmates whose current 

offense would now be a misdemeanor, but who have a prior conviction for a “super 

strike” offense or for an offense requiring sex offender registration pursuant to 

section 290, subdivision (c). (§ 1170.18, subds. (a), (i).) 

 Nowhere in the ballot materials for Proposition 47 were voters given any 

indication that initiative, which dealt with offenders whose current convictions would 

now be misdemeanors rather than felonies, had any impact on the Act, which dealt with 

offenders whose current convictions would still be felonies, albeit not third strikes. For 

instance, the Official Title and Summary stated, in pertinent part, that Proposition 47 

would “[r]equire[] resentencing for persons serving felony sentences for these offenses[, 

i.e., offenses that require misdemeanor sentences under the measure] unless court finds 

unreasonable public safety risk.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), 

supra, official title and summary, p. 34.) In explaining what Proposition 47 would do, 

the Legislative Analyst stated: “This measure reduces penalties for certain offenders 

convicted of nonserious and nonviolent property and drug crimes. This measure also 

allows certain offenders who have been previously convicted of such crimes to apply for 

reduced sentences.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, 

analysis of Prop. 47 by Legis. Analyst, p. 35, italics added.) With respect to the 

resentencing provision, the Legislative Analyst explained: 
33. 

 “This measure allows offenders currently serving felony sentences 

for the above crimes[, i.e., grand theft, shoplifting, receiving stolen 

property, writing bad checks, check forgery, and drug possession] to apply 

to have their felony sentences reduced to misdemeanor sentences. In 

addition, certain offenders who have already completed a sentence for a 

felony that the measure changes could apply to the court to have their 

felony conviction changed to a misdemeanor. However, no offender who 

has committed a specified severe crime could be resentenced or have their 

conviction changed. In addition, the measure states that a court is not 

required to resentence an offender currently serving a felony sentence if the 

court finds it likely that the offender will commit a specified severe crime. 

Offenders who are resentenced would be required to be on state parole for 

one year, unless the judge chooses to remove that requirement.” (Id. at 

p. 36, italics added.) 

 Similarly, the arguments in favor of and against Proposition 47 spoke in terms 

solely of Proposition 47, and never mentioned the Act. The Argument in Favor of 

Proposition 47 spoke in terms of prioritizing serious and violent crime so as to stop 

wasting prison space “on petty crimes,” stop “wasting money on warehousing people in 

prisons for nonviolent petty crimes,” and stop California’s overcrowded prisons from 

“incarcerating too many people convicted of low-level, nonviolent offenses.” (Voter 

Information Guide, Gen. Elec. (Nov. 4, 2014), supra, argument in favor of Prop. 47, 

p. 38.) The Rebuttal to Argument Against Proposition 47 reiterated these themes, and 

never suggested Proposition 47 would have any effect on resentencing under the Act. 

(See Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, rebuttal to argument 

against Prop. 47, p. 39.) Although the Rebuttal to Argument in Favor of Proposition 47 

asserted 10,000 inmates would be eligible for early release under the measure, and that 

many of them had prior convictions “for serious crimes, such as assault, robbery and 

home burglary” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, rebuttal to 

argument in favor of Prop. 47, p. 38), there is no suggestion the early release provisions 

would extend to inmates whose current offenses remained felonies under the Act. The 

same is true of the discussion of resentencing contained in the Argument Against 
34. 

Proposition 47. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, argument 

against Prop. 47, p. 39.) 

 In light of the foregoing, we cannot reasonably conclude voters intended the 

definition of “‘unreasonable risk of danger to public safety’” contained in 

section 1170.18, subdivision (c) to apply to that phrase as it appears in section 1170.126, 

subdivision (f), despite the former section’s preamble, “As used throughout this 

Code ....” Voters cannot intend something of which they are unaware. 

 We are cognizant one of the Act’s authors has taken the position Proposition 47’s 

definition of “unreasonable risk of danger” applies to resentencing proceedings under the 

Act. (St. John & Gerber, Prop. 47 Jolts Landscape of California Justice System (Nov. 5, 

2014) Los Angeles Times <http://www.latimes.com/local/politics/la-me-ff-polproposition47-20141106-story.html> [as of Dec. 16, 2014].) Looking at the information 

conveyed to voters, however, this clearly was not their intent and so an author’s desire is 

of no import. (Cf. People v. Garcia (2002) 28 Cal.4th 1166, 1175-1176, fn. 5; People v. 

Bradley (2012) 208 Cal.App.4th 64, 83; Kaufman & Broad Communities, Inc. v. 

Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 30.) 

 We are also mindful “it has long been settled that ‘[t]he enacting body is deemed 

to be aware of existing laws and judicial constructions in effect at the time legislation is 

enacted’ [citation], ‘and to have enacted or amended a statute in light thereof’ [citation]. 

‘This principle applies to legislation enacted by initiative. [Citation.]’ [Citation.]” 

(People v. Superior Court (Cervantes), supra, 225 Cal.App.4th at p. 1015; accord, In re 

Lance W. (1985) 37 Cal.3d 873, 890, fn. 11.) Thus, we presume voters were aware 

“unreasonable risk of danger to public safety,” as used in section 1170.126, 

subdivision (f), had been judicially construed as not being impermissibly vague, but as 

nevertheless having no fixed definition. (People v. Garcia (2014) 230 Cal.App.4th 763, 

769-770, petn. for review pending, petn. filed Nov. 18, 2014; People v. Flores (2014) 227 

Cal.App.4th 1070, 1075.) Because nowhere in the ballot materials for Proposition 47 
35. 

was it called to voters’ attention the definition of the phrase contained in section 1170.18, 

subdivision (c) would apply to resentencing proceedings under the Act, we simply cannot 

conclude voters intended Proposition 47 to alter the Act in that respect. Voters are not 

asked or presumed to be able to discern all potential effects of a proposed initiative 

measure; this is why they are provided with voter information guides containing not only 

the actual text of such a measure, but also a neutral explanation and analysis by the 

Legislative Analyst and arguments in support of and in opposition to the measure. As we 

have already observed, none of those materials so much as hinted that Proposition 47 

could have the slightest effect on resentencing under the Act. (Cf. Marshall v. Pasadena 

Unified School Dist., supra, 119 Cal.App.4th at pp. 1255-1256 [legislative history of 

enactment included information bill would add definition of particular term to Public 

Contract Code].)24

 We are asked to infer an intent to extend section 1170.18, subdivision (c)’s 

definition to proceedings under section 1170.126 because the phrase in question only 

appears in those sections of the Penal Code. We cannot do so. The only resentencing 

mentioned in the Proposition 47 ballot materials was resentencing for inmates whose 

current offenses would be reduced to misdemeanors, not those who would still warrant 

second strike felony terms. There is a huge difference, both legally and in public safety 

risked, between someone with multiple prior serious and/or violent felony convictions 

whose current offense is (or would be, if committed today) a misdemeanor, and someone 

whose current offense is a felony. Accordingly, treating the two groups differently for 

resentencing purposes does not lead to absurd results, but rather is eminently logical. 

 

24 For the same reasons, we reject any suggestion the definition contained in 

section 1170.18, subdivision (c) was intended to clarify the true meaning of 

“unreasonable risk of danger to public safety” as used in section 1170.126, 

subdivision (f). (Cf. Re-Open Rambla, Inc. v. Board of Supervisors (1995) 39 

Cal.App.4th 1499, 1511; In re Connie M. (1986) 176 Cal.App.3d 1225, 1238.) 
36. 

 We recognize “[i]t is an established rule of statutory construction ... that when 

statutes are in pari materia similar phrases appearing in each should be given like 

meanings. [Citations.]” (People v. Caudillo (1978) 21 Cal.3d 562, 585, overruled on 

another ground in People v. Martinez (1999) 20 Cal.4th 225, 229, 237, fn. 6 & 

disapproved on another ground in People v. Escobar (1992) 3 Cal.4th 740, 749-751 & 

fn. 5; see Robbins v. Omnibus R. Co. (1867) 32 Cal. 472, 474.) We question whether 

Proposition 47 and the Act are truly in pari materia: That phrase means “[o]n the same 

subject; relating to the same matter” (Black’s Law Dict. (9th ed. 2009) p. 862), and the 

two measures (albeit with some overlap) address different levels of offenses and 

offenders. In any event, “canons of statutory construction are merely aids to ascertaining 

probable legislative intent” (Stone v. Superior Court (1982) 31 Cal.3d 503, 521, fn. 10); 

they are “mere guides and will not be applied so as to defeat the underlying legislative 

intent otherwise determined [citation]” (Dyna-Med, Inc. v. Fair Employment & Housing 

Com., supra, 43 Cal.3d at p. 1391). 

 The Act was intended to reform the three strikes law while keeping intact that 

scheme’s core commitment to public safety. Allowing trial courts broad discretion to 

determine whether resentencing an eligible petitioner under the Act “would pose an 

unreasonable risk of danger to public safety” (§ 1170.126, subd. (f)) clearly furthers the 

Act’s purpose. Whatever the wisdom of Proposition 47’s policy of near-universal 

resentencing where misdemeanants are concerned — and “[i]t is not for us to gainsay the 

wisdom of this legislative choice” (Bernard v. Foley (2006) 39 Cal.4th 794, 813) — 

constraining that discretion so that all but the worst felony offenders are released 

manifestly does not, nor does it comport with voters’ intent in enacting either measure. 

 Accordingly, Proposition 47 has no effect on defendant’s petition for resentencing 

under the Act. Defendant is not entitled to a remand so the trial court can redetermine 

defendant’s entitlement to resentencing under the Act utilizing the definition of 
37. 

“‘unreasonable risk of danger to public safety’” contained in section 1170.18, 

subdivision (c).25

DISPOSITION

 The judgment is affirmed. 

 _____________________ 

DETJEN, J. 

I CONCUR: 

 _____________________ 

 LEVY, Acting P.J. 

 

25 Recently, the Third District Court of Appeal held section 1170.18, 

subdivision (c)’s definition of “‘unreasonable risk of danger to public safety’” does not 

apply retroactively to defendants whose petitions for resentencing under the Act were 

decided before the effective date of Proposition 47. (People v. Chaney (Dec. 1, 2014, 

C073949) ___ Cal.App.4th ___, ___-___ [2014 D.A.R. 15934, 15935-15936].) Chaney

did not decide whether Proposition 47’s definition applies prospectively to such petitions. 

(Chaney, supra, at p. ___, fn. 3 [2014 D.A.R. 15934, 15936, fn. 3].) Were we to 

conclude section 1170.18, subdivision (c) modifies section 1170.126, subdivision (f), we 

would agree with Chaney that it does not do so retroactively. We believe, however, that 

a finding of nonretroactivity inexorably leads to the possibility of prospective-only 

application, and that prospective-only application of Proposition 47’s definition to 

resentencing petitions under the Act would raise serious, perhaps insurmountable, equal 

protection issues. “Mindful of the serious constitutional questions that might arise were 

we to accept a literal construction of the statutory language, and of our obligation 

wherever possible both to carry out the intent of the electorate and to construe statutes so 

as to preserve their constitutionality [citations]” (People v. Skinner (1985) 39 Cal.3d 765, 

769), we rest our holding on the reasoning set out in our opinion, ante. 
PEÑA, J., 

 I concur in the judgment and the majority opinion with the exception of part II. I 

agree defendant may not take advantage of Proposition 47’s1 newly enacted definition of 

“unreasonable risk of danger to public safety,” as provided in Penal Code section 

1170.18, subdivision (c) (1170.18(c)). I do so not because there is any ambiguity in the 

language used in section 1170.18(c) or the notion that the statute does not mean what it 

says, i.e., that the new definition applies “throughout this Code.” Rather, in my view, 

there is no indication the electorate, in enacting section 1170.18(c), intended it to apply 

retroactively to resentencing determinations under Proposition 36, the Three Strikes 

Reform Act of 2012 (the Act). 

I. After November 4, 2014, the definition of “unreasonable risk of danger” in 

Section 1170.18(c) applies throughout the Penal Code 

 Section 1170.18(c) provides: “As used throughout this Code, ‘unreasonable risk 

of danger to public safety’ means an unreasonable risk that the petitioner will commit a 

new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph 

(2) of subdivision (e) of Section 667.” 

 This section and subdivision were enacted on November 4, 2014, when California 

voters passed Proposition 47, long past the time of defendant’s resentencing hearing. 

Unless the legislation was designed or intended to apply retroactively, the definition in 

section 1170.18(c) cannot apply to defendant. This is the only inquiry we must make to 

resolve the issue of whether the definition in section 1170.18(c) applies to defendant. 

However, the majority has opted to determine whether the new definition applies to any 

resentencing provisions under the Act, past, present, or future. I respectfully disagree 

with the majority’s analysis and conclusion on this broader issue. 

 

1The Safe Neighborhood and Schools Act (Prop. 47, as approved by voters, Gen. Elec. 

(Nov. 4, 2014)). 
2. 

 “‘When construing a statute, we must “ascertain the intent of the 

Legislature so as to effectuate the purpose of the law.”’ [Citations.] ‘[W]e 

begin with the words of a statute and give these words their ordinary 

meaning.’ [Citation.] ‘If the statutory language is clear and unambiguous, 

then we need go no further.’ [Citation.] If, however, the language supports 

more than one reasonable construction, we may consider ‘a variety of 

extrinsic aids, including the ostensible objects to be achieved, the evils to 

be remedied, the legislative history, public policy, contemporaneous 

administrative construction, and the statutory scheme of which the statute is 

a part.’ [Citation.] Using these extrinsic aids, we ‘select the construction 

that comports most closely with the apparent intent of the Legislature, with 

a view to promoting rather than defeating the general purpose of the statute, 

and avoid an interpretation that would lead to absurd consequences.’ 

[Citation.]” (People v. Sinohui (2002) 28 Cal.4th 205, 211-212.) 

 Where the statutory language is so clear and unambiguous, there is no need for 

statutory construction or to resort to legislative materials or other outside sources. 

(Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366, 1371.) Absent ambiguity, it is 

presumed the voters intend the meaning apparent on the face of an initiative measure, and 

the courts may not add to the statute or rewrite it to conform to a presumed intent not 

apparent in its language. (People v. ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 

294, 301.) 

 In determining whether the words enacted here are unambiguous, we do not write 

on a blank slate. For example, in Marshall v. Pasadena Unified School Dist. (2004) 119 

Cal.App.4th 1241, 1255, the court stated there “is nothing ambiguous about the phrase 

‘as used in this code.’” It held the definition of “Emergency, as used in this code” 

applied to the entire Public Contract Code, and it was not limited to a particular chapter, 

article, or division of that code. Also, in People v. Bucchierre (1943) 57 Cal.App.2d 153, 

166, the court held: “The words ‘as in this code provided’ (Penal Code, § 182) refer to 

the Penal Code.” 

 In a similar vein, the court in People v. Leal (2004) 33 Cal.4th 999, 1007-1008, 

applied the plain meaning rule as follows: 
3. 

 “The statutory language of the provision defining ‘duress’ in each of 

the rape statutes is clear and unambiguous. The definition of ‘duress’ in 

both the rape and spousal rape statutes begins with the phrase, ‘As used in 

this section, “duress” means ....’ (§§ 261, subd. (b), 262, subd. (c).) This 

clear language belies any legislative intent to apply the definitions of 

‘duress’ in the rape and spousal rape statutes to any other sexual offenses. 

 “Starting from the premise that in 1990 the Legislature incorporated 

into the rape statute a definition of ‘duress’ that already was in use for other 

sexual offenses, defendant argues that the Legislature must have intended 

its 1993 amendment of the definition of ‘duress’ in the rape statute, and the 

incorporation of this new definition into the spousal rape statute, to apply as 

well to other sexual offenses that use the term ‘duress.’ Defendant 

observes: ‘The legislative history does not suggest any rationale for why 

the Legislature would want its 1993 amendment of the definition of 

“duress” to apply only to rape so that it would have one meaning when the 

rape statutes use the phrase “force, violence, duress, menace, or fear of 

immediate and unlawful bodily injury” but another, much more expansive 

meaning when the identical phrase is used in the statutes defining sodomy, 

lewd acts on a child, oral copulation and foreign object rape.’ 

 “But the Legislature was not required to set forth its reasons for 

providing a different definition of ‘duress’ for rape and spousal rape than 

has been used in other sexual offenses; it is clear that it did so. ‘When 

“‘statutory language is ... clear and unambiguous there is no need for 

construction, and courts should not indulge in it.’” [Citations.] The plain 

meaning of words in a statute may be disregarded only when that meaning 

is “‘repugnant to the general purview of the act,’ or for some other 

compelling reason ....” [Citations.]’ [Citation.] As we said in an 

analogous situation: ‘It is our task to construe, not to amend, the statute. 

“In the construction of a statute ... the office of the judge is simply to 

ascertain and declare what is in terms or in substance contained therein, not 

to insert what has been omitted or omit what has been inserted ....” 

[Citation.] We may not, under the guise of construction, rewrite the law or 

give the words an effect different from the plain and direct import of the 

terms used.’ [Citation.]” 

 The majority pays lip service to the plain meaning rule and then ignores it. While 

acknowledging the language used is unambiguous, it nonetheless engages in statutory 

construction to determine whether the electorate really intended to say what it actually 

enacted. The end result is a rewriting of the statute so that it comports with the majority’s 
4. 

view of what the voters really intended. The majority has rewritten section 1170.18(c) so 

that it now states: “As used in this section only, ‘unreasonable risk of danger to public 

safety’ means ....” The majority does so without providing a compelling reason to do so 

and without showing the plain language used has a “‘meaning [that] is “‘repugnant to the 

general purview of the act.’”’” (People v. Leal, supra, 33 Cal.4th at p. 1008.) Because 

the Act had not previously defined the phrase “unreasonable risk of danger to public 

safety,” the definition in section 1170.18(c) cannot be repugnant or contradictory to the 

Act, nor does the majority claim the definition is repugnant to the general purview of 

Proposition 47. For these reasons, I respectfully disagree with the majority on this part of 

the opinion. 

II. Section 1170.18(c) has no application to defendant’s resentencing under the 

Act 

 I do concur in the result because there is nothing in Proposition 47 to indicate the 

definition enacted under section 1170.18(c) is to be applied retroactively to defendant 

under the Act. 

 I begin my analysis with section 3 of the Penal Code, which provides that “[n]o 

part of it is retroactive, unless expressly so declared.” “Whether a statute operates 

prospectively or retroactively is, at least in the first instance, a matter of legislative intent. 

When the Legislature has not made its intent on the matter clear,” section 3 provides the 

default rule. (People v. Brown (2012) 54 Cal.4th 314, 319.) Proposition 47 is silent on 

the question of whether it applies retroactively to proceedings under the Act. The 

analysis of Proposition 47 by the legislative analyst and the arguments for and against 

Proposition 47 are also silent on this question. (Voter Information Guide, Gen. Elec. 

(Nov. 4, 2014) pp. 34-39.) Because the statute contains no express declaration that 

section 1170.18(c) applies retroactively to proceedings under the Act, and there is no 

clearly implied intent of retroactivity in the legislative history, the default rule applies. 
5. 

 Defendant relies on People v. Sandoval (2007) 41 Cal.4th 825 to support his 

position the new definition should be applied retroactively to cases like his, which are 

currently pending appeal from a denial of resentencing under the Act. However, the 

Sandoval case presented much different considerations from those present here. There, 

the court granted review for the following reasons: 

“[T]o determine whether defendant’s Sixth Amendment rights as defined in 

Cunningham v. California (2007) 549 U.S. 270 ... were violated by the 

imposition of an upper term sentence and, if so, the remedy to which [he or] 

she is entitled. In Cunningham, the United States Supreme Court disagreed 

with this court’s decision in People v. Black (2005) 35 Cal.4th 1238 ... and 

held that California’s determinate sentencing law ... violates a defendant’s 

federal constitutional right to a jury trial under the Sixth and Fourteenth 

Amendments to the United States Constitution by assigning to the trial 

judge, rather than to the jury, the authority to find the facts that render a 

defendant eligible for an upper term sentence. We conclude that 

defendant’s Sixth Amendment right to a jury trial was violated and, 

although harmless error analysis applies to such violations, the error in the 

present case was not harmless beyond a reasonable doubt and the case must 

be remanded for resentencing. For the reasons explained below, we also 

conclude that upon remand, the trial court may exercise its discretion to 

impose any of the three terms available for defendant’s offense.” (People 

v. Sandoval, supra, 41 Cal.4th at pp. 831-832.) 

 In the interim between People v. Black, supra, 35 Cal.4th 1238 and People v. 

Sandoval, supra, 41 Cal.4th 825, the Legislature amended the determinate sentencing law 

to cure its constitutional defect as found in Cunningham v. California, supra, 549 U.S. 

270. Although the Legislature failed to provide for retroactive application, the Sandoval

court decided it was responsible for fashioning “a constitutional procedure for 

resentencing in cases in which Cunningham requires a reversal of an upper term 

sentence.” (People v. Sandoval, supra, at p. 846.) The court explained: 

 “If we assume that the new legislation does not apply directly to 

cases pending on appeal that are remanded for resentencing, our task in 

deciding the appropriate sentencing procedure to be applied by a trial court 

on remand is somewhat analogous to what we faced in In re Hawthorne

[(2005)] 35 Cal.4th 40. There, the Legislature enacted a statute intended to 
6. 

implement the United States Supreme Court’s decision in Atkins v. Virginia

(2002) 536 U.S. 304, which held that the federal Constitution prohibits 

execution of the mentally retarded. (See In re Hawthorne, supra, 35 

Cal.4th at p. 44.) The legislation, however, did not provide for cases in 

which the death penalty already had been imposed. (In re Hawthorne, 

supra, 35 Cal.4th at p. 45.) In such a situation, ‘[t]he task thus falls to this 

court to formulate appropriate procedures for resolving postconviction 

claims.’ (Ibid.) 

 “In Hawthorne, we adopted procedures for postconviction claims 

that tracked the statute ‘as closely as logic and practicality permit,’ in order 

‘to maintain consistency with our own [state’s] legislation ... and to avoid 

due process and equal protection implications.’ (In re Hawthorne, supra, 

35 Cal.4th at p. 47.) Likewise, in the present case, we direct that 

sentencing proceedings to be held in cases that are remanded because the 

sentence imposed was determined to be erroneous under Cunningham, 

supra, 549 U.S. 270, are to be conducted in a manner consistent with the 

amendments to the [determinate sentencing law] adopted by the 

Legislature.” (People v. Sandoval, supra, 41 Cal.4th at p. 846.) 

 In this case, there is no constitutional violation in the manner the trial court 

conducted its sentencing determination. Thus, there is no occasion to remand this case, 

and we instead affirm the trial court’s determination. Defendant has identified no due 

process or equal protection concerns that might invalidate Proposition 47 or the Act if he 

is denied retroactive application.2 I perceive none. 

 Although defendant has not relied upon In re Estrada (1965) 63 Cal.2d 740 to 

argue retroactive application, the People have cited it as distinguishable from this case. I 

discuss the Estrada case out of an abundance of caution. 

 In Estrada, the court stated: 

“When the Legislature amends a statute so as to lessen the punishment it 

has obviously expressly determined that its former penalty was too severe 

and that a lighter punishment is proper as punishment for the commission 

of the prohibited act. It is an inevitable inference that the Legislature must 

have intended that the new statute imposing the new lighter penalty now 

 

2Defendant did not raise any due process or equal protection arguments relating to the 

retroactivity issue in his supplemental briefing. 
7. 

deemed to be sufficient should apply to every case to which it 

constitutionally could apply. The amendatory act imposing the lighter 

punishment can be applied constitutionally to acts committed before its 

passage provided the judgment convicting the defendant of the act is not 

final. This intent seems obvious, because to hold otherwise would be to 

conclude that the Legislature was motivated by a desire for vengeance, a 

conclusion not permitted in view of modern theories of penology.” (In re 

Estrada, supra, 63 Cal.2d at p. 745.) 

 One may argue that under the Estrada case, unless there is a “savings clause” 

providing for prospective application, a statute lessening punishment is presumed to 

apply to all cases not yet reduced to a final judgment on the statute’s effective date. (In 

re Estrada, supra, 63 Cal.2d at pp. 744-745, 747-748.) However, the Estrada case has 

been revisited by our Supreme Court on several occasions. In People v. Brown, supra, 54 

Cal.4th at page 324 the court stated: “Estrada is today properly understood, not as 

weakening or modifying the default rule of prospective operation codified in [Penal 

Code] section 3, but rather as informing the rule’s application in a specific context by 

articulating the reasonable presumption that a legislative act mitigating the punishment 

for a particular criminal offense is intended to apply to all nonfinal judgments.” “The 

holding in Estrada was founded on the premise that ‘“[a] legislative mitigation of the 

penalty for a particular crime represents a legislative judgment that the lesser penalty or 

the different treatment is sufficient to meet the legitimate ends of the criminal law.”’” 

(Id. at p. 325.) In Brown, the court did not apply the Estrada rule because “a statute 

increasing the rate at which prisoners may earn credits for good behavior does not 

represent a judgment about the needs of the criminal law with respect to a particular 

criminal offense, and thus does not support an analogous inference of retroactive intent.” 

(People v. Brown, supra, at p. 325.) 

 Similarly here, Estrada does not control because applying the definition of 

“unreasonable risk to public safety” in Proposition 47 to petitions for resentencing under 

the Act does not reduce punishment for a particular crime. Instead, the downward 

modification of a sentence authorized by the Act is dependent not just on the current 
8. 

offense but on any number of unlimited factors related to the individual offender, 

including criminal conviction history, disciplinary and rehabilitation records, and “[a]ny 

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.” 

(Pen. Code, § 1170.126, subd. (g)(3).) 

 Because section 1170.18(c)’s definition of “unreasonable risk of danger to public 

safety” does not apply retroactively to the Act, the sentencing court applied the correct 

standard in exercising its discretion to not resentence defendant.3 Since defendant has 

failed to show an abuse of that discretion, I concur in the majority’s affirmance of the 

judgment. 

 __________________________ 

PEÑA, J. 

 

3Recently in People v. Chaney (Oct. 29, 2014 C073949) __ Cal.App.4th __ the Third 

District Court of Appeal held the definition of “unreasonable risk of danger to public 

safety” as provided in section 1170.18(c) does not apply retroactively. I agree.