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 Superi or Court of Tuolumne County. Eleanor Provost, Judge. Stephanie L. Gunther fo r Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Stephen G. Herndon and Peter W. Thompson, Deputy Attorneys Gene ral, for Plaintiff and Respondent. -ooOoo-

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.11 10, 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 proceedi ng for third strike offenders serving indeterminate life sentences for crimes that are not serious or vi olent felonies. If such an inmate meets the criteria enumerated in Pena l Code section 1170.126, subdivision (e), he or she will be resentenced as a second stri ke 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 define d 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 In the unpublished portion of our opi nion, we reject defendant’s claims the trial court used the wrong standard, failed to properly evaluate whether de fendant posed an unreasonable risk to society, and had to appoint an expe rt 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, subd ivision (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 PROCED URAL HISTORY On September 13, 2009, neighbors hear d an argument between defendant and his wife, Carrie Kobel. They were yelli ng 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 th e ground, then punched her mu ltiple times. When Kobel, who was screaming for help, asked witnesses to call the police, defe ndant told them to mind their own business and became aggressiveand intimidating toward them. When the police arrived, Kobel related she and defend ant had gotten into an argument when she went to move her truck into the driveway so friends coming over wo uld have a place to park. Kobel’s driver’s license had been susp ended due to a vehicle accident in which she had been under the influence of alcohol. Defendant objectedto 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 tryi ng to stop her. Although he denied hitting Kobel, injuries to his knuckles were inconsiste nt 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 re lationship with defend ant in 2000 testified defendant had assaulted her by hitting her “fu ll 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 su ffering five felony convicti ons, two of which constituted strikes. On January 6, 2010, he was sent enced 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 re call 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). Ap pended to the petition was a letter from defendant’s parents, stating their support for him and willingness to assist him in obtai ning psychologi cal help and drug/alcohol treatment; a letter from the Salvation Army Adult Rehabilitation Center in San Francisco, stating it appeared defend ant was eligible for intake; letters from the Delancey Street Foundation in San Francisc o, thanking defendant for his interest and explaining how to apply upon re lease, 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 inmate s, one of whom accused hi m of being a coward, after which defendant was told he had to stab th e 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 ma nagement and Alcoholics Anonymous (AA) meetings. Defendant also re lated he had enrolled in a mail-order anger management course. He subsequently presented a certif icate, dated May 15, 2013, attesting to his completion of the “‘Grant me the Serenity Wo rkbook” 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 fo r arrival and departure times, none were noted.5. The People opposed the petition. They a sserted that in add ition to the strike convictions, defendant had felony convicti ons 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 deni ed defendant’s request to dismiss one of his strikes for purposes of sentencing on his commitment offense, and argued circumstances had not changed. They assert ed 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 impris oned to address his violent tendencies. Accordingly, they arguedhe posed an unreasona ble risk of danger. In his reply to the opposition, defendantnoted 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 lif e; the prosecutor offered him a six-year sentence prior to trial; and th e 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 burde n 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 pr ison record did not demonstrate patterns of violent and predatory behavior. The petition was heard August 9, 2013, be fore the judge who sentenced defendant to the third strike term. 6 At the outset, the court found defendant eligible for resentencing, and placed the bu rden on the People with resp ect 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 exce rpted minor portions — particularly of the court’s comments — as a basis fo r many of his claims on appeal.6. defendant would pose an unr easonable risk of danger to public safety. Over the prosecutor’s objection, the trial court admitte d a document showing defendant’s in-prison risk classification was one, which was low. The defense called witnesses at the heari ng. Defendant’s mother testified she had not seen defendant during his most recent pris on 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 defe ndant was no longer under the influence of alcohol, his mother noticed his attitude was ch anging. 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 hehad been in prison this last ti me 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 taki ng a mail-order course on anger management and learning how to liv e a better life. Due to overcrowding, he was “in reception” for 28 months, where no thing was offered. Now, however, he attended AA meetings once a week. The mail -order course, which he only recently discovered, involved a curri culum where the school sent information, the student completed and returned it, and the school gave a score. Defendant ha d 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. Defe ndant admitted having violated probation at various times, but denied violating a protective order in his prior domestic violence case. He completed a 52-we ek batterer’s course in conjunction with that domestic violence case.7. Defendant related that sin ce 2010, he had been housed inprotective 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 in to protective custody. Prior to trial, defendant was offered a six-year sentence. He turned it down because his wife said she bump ed her head wh en she got in the truc k. Defendant did not remember much about the day the incident happened, but knew he stopped her from drinking and driving. He did not make th e right decisions, but wa s 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 th e 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, defens e 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 commitmen t 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 sent ence would be eight years. Counsel argued defendant wanted to change his life an d was going to go into a program. Given all the circumstances, he asserted, the Pe ople had not met their burden of showing defendant was an unreasonable risk.8. The prosecutor argued that being a good prisoner was no t the same thing as being a safe citizen. He acknowledge d 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 contin ued criminal conduct in the intervening time, includi ng violence against women that re sulted 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 m onth 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 stru ck 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 lik e 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 dangerou s to be out again. I can’t think of a better predictor of future conduct than past conduct. “And as [the prosecutor] points ou t, 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 ca se, primarily alcohol, I think. I picture the idea of his co ming 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 th at before. [¶] ... [¶] ... You had a previous alcohol progra m; 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 offens e 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 myse lf to do this. I think he is a danger to public safety. And as I sa id during the senten cing, he had nine grants of probation and was on probati on when this happened. It was for something fairly minor.... [¶] ... [¶] ... But this wa s serious injuries to a victim and unprovoked. I just tho ught unprovoked. I could not and the jury could not buy the idea that you ha d 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 th e petition.... [¶] ... [¶]10. “THE DEFENDANT: I w ill be appealing this then. I have a right to an appeal .... [¶] ... [¶] ... I went to tr ial, so this new law will attach to it, so I would like for you to file a Noti ce 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 yo u believe I’m a risk to public safety, because you — the other three strikers w ith the same case would take deals. [¶] ... [¶] ... I’m not a risk to pub lic safety. This is not right.” DISCUSSION Defendant says the trial court erred by denying his pe tition because (1) the court used the wrong standard, (2) the court faile d 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 ev idence 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 th e United States Constitution, and th at the various errors violated his due process rights. Finally, defendant cont ends the definition of “unreasonable risk of danger to public safety” contained in s ection 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 pursua nt 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 se rious and/or violent fe lonies by subdivision (c)11. 989.) If the inmate satisfies all these criteria, as did defe ndant, he or she “shall be resentenced [as a second strike offender] unle ss the court, in its discretion, determines that resentencing the [inmat e] 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 convictio n history, including the type of crimes committed, the extent of inju ry to victims, the length of prior prison commitments, and the remoteness of the crimes; [¶] (2) The [i nmate’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 dang er 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 wh ether 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 subdivisi on (c) of Section 1192.7. [¶ ] (2) The inmate’s current sentence was not imposed for any of the offe nses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragrap h (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 senten cing objectives, and its discretionary determination ... will not be set as ide on review.”’ [Citation.]” ( People v. Carmony,

supra, 33 Cal.4th at pp. 376-377.) “Because ‘all discretionary authority is c ontextual’ [citation], we cannot determine whether a trial court has acted irrationally or arbitrarily ... without considering the legal principles and policies th at should have guided th e court’s actions.” ( People v. Carmony,

supra, 33 Cal.4th at p. 377.) “A n abuse of discretion is sh own 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 1170.1 26, we review the trial court’s ultimate determination whether to resent ence a petitioner for abuse of discretion. Of course, if there is no evidence in the r ecord to support th e 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 ha s the burden of producing su ch 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 C ourt of Appeal has stated that, where a court’s discretion under secti on 1170.126, subdivision (f) is concerned, the People bear the burden of proving “dange rousness” by a preponderance of the evidence. ( People v. Superior Court ( Kaulick) (2013) 215 Cal.App.4th 12 79, 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 ap ply — because “dangerousness is not a factor which enhances the senten ce imposed when a defendant is resentenced13. under the Act; instead, dangerou sness 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 ev idence 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 ev idence, facts from which a determination resentencing the petitioner would pose an unre asonable risk of danger to public safety can reasonably be made. 12 Stated another way, eviden ce showing a petitioner poses a

10 We have previously discussed Kaulick in the context of the initial determination whether an inmate is eligible for resentenci ng 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 sh ould 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, th e appellate court reviews the record in the light most favorable to the ch allenged finding, to determin e whether it discloses evidence that is reasonable, credible, and of solid valu e such that a reasonable trier of fact could make the finding by a preponderance of the ev idence. The appellate court “resolve[s] all conflicts in the evidence and questions of credibility in favor of the [finding], and ... indulge[s] every reasonable in ference the [trier of fact] c ould 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 allo cation is in harmony w ith the language of section 1170.126, subdivision (f) that an e ligible petitioner “shall be resentenced ... unless” the court makes the required determination.14. risk of danger to public safety must be pr oven by the People by a preponderance of the evidence. The reasons a trial court finds resent encing would pose an unreasonable risk of danger, or its weighing of evidence showi ng dangerousness versus evidence showing rehabilitation, lie within the court’s disc retion. 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 unreasonabl e 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 preponderan ce of the eviden ce 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] speci fied 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 preponde rance 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 amende d in response to

13 The determination of the appropriate pe nalty in a capital ca se “‘is “essentially moral and normative ..., and therefore ... ther e is no burden of proof or burden of persuasion. [Citation.]” [C itation.]’ [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 specifie d 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 di scretionary 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 la nguage the primary factor or fact ors 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 petitione r should be resentence d under the Act. Subdivision (g) of section 1170.126 contempl ates the trial court’s consideration of evidence . It stands to reason someone must produce that evid ence. 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 termis no longer the presumptive term absent aggravating or mitigating facts found by th e trial judge; and (2) a trial judge has the discretion to impose an upper, middle or lower te rm based on reasons he or she states.” ( People v. Wilson (2008) 164 Cal.App.4th 988, 992.) Subdivisio n (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 dete rmination 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 anal ogous 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 resentenci ng the petitioner would, mo re likely than not, pose an unreasonable risk of dang er 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 burde n of establishing “dangerousness” by a preponderance of the ev idence against a claim the Apprendiline 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 addr ess the interplay between the burden of proof and the trial court’s exercise of discretion as that issue is presente d 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 u ltimate determination re sentencing a petitioner would pose an unreasonable risk of danger to pu blic safety, or in the sense of establishing that determination itself. Nevertheless, we believe it supports our interpretation. Kaulick stated, in part: “The maximu m sentence to which Kaulick, a nd those similarly situated to him, is subject was, and shall always be, the indeterminate life term to which he was originally sentenced. Wh ile [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 es tablished at the time he was originally sentenced. As such, a court’s discretionary decision to de cline 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 beyo nd a reasonable doubt to a jury .” ( Id

. at p. 1303, italics added.) The court further st ated: “[I]t is the general rule in California17. 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 unreas onable risk of danger to public safety, yet still have the discretion to resentence that petiti oner to a second strike term. ( Kaulick , supra , 215 Cal.App.4th at pp. 1293-1294, fn. 12.) Th e court explained: “The language of ... section 1170.126, subdivision (f), states th at the petitioner shall be resentenced unless the court finds an unreasonable riskof 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 Propos ition 36 emphasized that the Act would not benefit ‘“truly dangerous criminals.”’ [Citat ion.] It is impossible to believe that the voters intended to allow a court the di scretion 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 ha d the burden of proving the ultimate issue in a resentencing proceeding, a trial court necessarily would be divest ed of its discretion to resentence in any case in which that burden of proof was me t. 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 rese ntencing would pose an unreasonable risk of danger. The statute does not say the petiti oner shall be resentenced unless the People prove resentencing woul d pose such a risk. To summarize, a trial court need not determine, by a preponderance of the evidence, that resentencing a petitioner woul d pose an unreasonable risk of danger to public safety before it can properly deny a pe tition for resentencing under the Act. Nor is the court’s ultimate determination subject to substantial evidence review. Rather, its18. 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 circum stances being considered. [Citations.]” ( People v. Giminez (1975) 14 Cal.3d 68, 72.) The facts orevidence 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 ar e 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 inst ances 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 deci sion find no support in record]; cf. People v. Read (1990) 221 Cal.App.3d 685, 689-691 [where tria l court erroneously determined defendant was statutorily ineligible for probation, reviewing court was required to determine whether trial court gave sufficient other reason s, supported by facts of case, for probation denial].) Applying these principles to the pres ent case, and examini ng the record as a whole, rather than cherry-picke d fragments, it is readily apparent the trial court did not err by denying defendant’s pe tition. We generally presum e a trial court has properly followed established law. A lthough 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 befo re 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 significa ntly more deferen tial “some evidence” standard applicable to review of executiv e 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 manne r in which the court mentioned its prior
Romero ruling does not suggest it mistook its br oad 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 publ ic 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 de fendant’s lack of in-prison disciplinary record, his low-ri sk assessment score, and hi s attendance of AA meetings and participation in a mail-or der anger management class, was all before the court (as was the fact defendant only started participati ng in AA and the mail-o rder class about one month before he filed his re sentencing petition). That the trial court may not have expressly mentioned some of th ese 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, an d — 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 pros ecution failed to meet its burden of establishing dangerousness by a preponderance of the evidence. He appare ntly bases this on the fact he presented witnesses while the People di d 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 defendan t’s criminal history, the circumstances of the commitment offense, and defendant’s pres ently belated and previously unsuccessful20. rehabilitation efforts) that was already before the trial court and established at least by a preponderance. 16 We have explained the applicab le burden and standard of proof, ante

. The evidence before the court wa s sufficient to permit a rational trier of fact to conclude resentencing defendant would pose an unreas onable risk of danger to public safety, as required by section 11 70.126, subdivision (f). Apparently analogizing a resentencing proceeding under the Act to a parole proceeding for an inmate serv ing a life term (see § 3041; In re Lawrence (2008) 44 Cal.4th 1181, 1223-1224), defe ndant chides the court for fa iling to appoint, sua sponte, an expert to evaluate defendant with respect to current dangerousness and his psychological or ment al 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 pur pose 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 th e 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 disc retion and control over all proceedings relating

16 “‘Evidence’ means testimony, writings, ma terial objects, or other things presented to the senses that are offered to prove the existence or none xistence 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 curr ently posed to public safety by an inmate seeking resentencing under the Act. 18 However, “[t]he decision on the need for the ap pointment of an expert lies within the discretion of the trial court and the trial co urt’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 d ecisions whether to resentence under the Act and to grant parole to an inmate serving a life term, appoi ntment of an expert did not fall outside the bounds of reason in this case. The questio n before the court was whether resentencing defendant would pose an unr easonable 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 ha s been stated in the context of a claim the word “unreasonable” is impermissibly vague, “Sur ely a superior court judge is capable of exercising discretion, justly applying the p ublic 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 th e 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 th at suggested the inmate’s release would pose an unreasonable risk of danger to the public. ( Id . at pp. 1190, 1223.) The California22. Defendant next contends his sentence of 25 years to life constitutes cruel and unusual punishment as prohibited by th e 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 in tact 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, disapprovedon 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 unusu al punishment. [Citations.]” ( Ingram , at p. 1413.) Defendant has proven he hold s little regard for the law and is immune to resultant punishments for his conduct. In this inst ance, “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 member s of society. This, we think, may be done even to the extent of deprivin g 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 uncon stitutionally disproportionate. He says:

Supreme Court rejected the Governor’s conclu sion, stating: “[T]he passage of time is highly probative to the determ ination before us, and relian ce upon outdated psychological reports — clearly contradicted by [the inma te’s] successful participation in years of intensive therapy, a long series of repor ts 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 crim e — 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 ... se ction 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 defe ndant would be sentenced to no more than eight years.” Defendant’s premise is fau lty. Any third strike offe nder 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 dang er to public safety. Defend ant cites no authority for the proposition that a subsequent downward modification in a st atutorily prescribed sentence renders unconstitutional a punishment that wa s constitutional when imposed. (See, e.g., Ewing v. California (2003) 538 U.S. 11, 28-31 (lead op n. of O’Connor, J.) [three strikes sentence of 25 years to life not unconstitutiona lly disproportionate where current offense was grand theft].) Last, defendant contends the various erro rs committed by the trial court in the section 1170.126 proceeding an d 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 th e hearing was defendant’s “only shot at resentencing.” We have rejected all defendant’s cl aims 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 de fendant 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 argumen t as a claim that, because of the two-year limit, he was unfairly deprived of the oppo rtunity 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 the24. electorate.” ( Kaulick , supra , 215 Cal.App.4th at p. 1304.) 20 There was no due process violation.
II Section 1170.18, subdivis ion (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 Prop osition 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 o ffenses that previously were felonies or “wobblers,” unless they were committed by cert ain 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 conti nuance in order to es tablish 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 ev idence 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 vi olence his record amply demonstrated was not an instance of aberrant behavior.25. discretion, determines that re sentencing the petitioner would po se 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 pe titioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragr aph (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 Welfar e and Institutions Code. “(II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger th an he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years yo unger than he or she as defi ned 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 i nvolving 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 su bdivision (d) of Section 245.

21 Proposition 47 also created a process wh ereby eligible persons who have already completed their sentences may have the particular conviction or convictions designated as misdemeanors. (§ 11 70.18, subds. (f), (g).)26. “(VII) Possession of a weapon of ma ss destruction, as defined in paragraph (1) of subdivision (a) of Section 11418. “(VIII) Any serious and/or violen t felony offense punishable in California by life imprisonment or death.” The question is whether s ection 1170.18, subdivision (c) now limits a trial court’s discretion to deny resentencing under the Ac t to those cases in which resentencing the defendant would pose an unr easonable risk he or she will commit a new “super strike” offense. Defendant says it does. The Pe ople disagree. We agree with the People. 22

22 We solicited supplemental briefing co ncerning Proposition 47. Among the questions we asked counsel to answer we re whether defendant met the criteria for resentencing under section 1170.18 and, if so, whether we need ed to determine the applicability, if any, of s ection 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 de fendant might obtain resentencing under Proposition 47. It appears that a number of inmates will be eligible to seek resentencing under both the Act and Propos ition 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 jurisdic tion over a Prop osition 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.) Wh ile 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 s ubject 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 commun ity supervision (§ 3451; People v. Tubbs (2014) 230 Cal.App.4th 578, 585-586, petn. for revi ew 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 petiti on would render mo ot resentencing proceedings, whether in a trial court or on appeal, under the Act.27. “‘In interpreting a voter in itiative ..., we apply the same principles that govern statutory construction. [Citation.]’ [Citati on.] ‘“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 me aning. [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 obvi ous purpose of the statute ....’ [Citation.]” [Citation.] We must harmonize “the vari ous 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 so me 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 possi ble. [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 shoul d not indulge in it.” [Citation.]’ [Citation.]” ( People v. Hendrix (1997) 16 Cal.4th 508, 512.) On its face , “[a]s used throughou t 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; see28. 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 inexorab ly be read into section 1170.126, subdivision (f). (Cf. Marshall v. Pasadena Unifie d 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 w ill not be sacrificed to a litera l construction.’ [Citation.]” ( Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 733.) Rather, “the literal meaning of a statute must be in acco rd with its purpose.” ( People v. Mohammed (2008) 162 Cal.App.4th 920, 927.) “[I]t is settled that th e language of a statute should not be given a literal meaning if doing so woul d 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 accordan ce with the spirit of the en actment. [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, th e 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 fl ow 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 th e statute’s or statutes’ enactment ( ibid .). “‘Using29. these extrinsic aids, we “sel ect the construction that comp orts 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 re sentencing 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 atrevising the three strikes law. That law, as originally enacted by the Legislature, wa s described by us as follows: “Under the three strikes law, de fendants 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 subs equent offenses. [Citation.] The primary goals of recidivist statutes are: ‘... to deter repeat offenders and, at some point in the life of one who re peatedly commits criminal offenses serious enough to be punished as fel onies, to segregate that person from the rest of society for an ex tended period of time. This segregation and its duration are based not merely on that pe rson’s most recent offense but also on the propensities he ha s demonstrated over a pe riod of time during which he has been convicted of and senten ced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have dem onstrated the necessary propensities and the amount of time that the recidivist will be is olated from society are matters largely within the discretion of the puni shing 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 a nd 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 pr escribed by the law may be imposed not on ly when ... a defendant [who has previously been convicted of one or more serious or violent felonies] is convicted of another serious or violent felo ny 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 De clarations” 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 convi ction 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 ex isting third strike offenders in all but the most egregious cases, as would be the result if the definiti on 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 appr oved by voters on November 8, 1994: “‘It is the intent of the People of the State of California in enacting th is measure to ensure longer prison sentences and greater punishme nt 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, subdiv ision (c) were engrafted onto resentencing proceedings under secti on 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 o ffenses 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 rendere d ineligible for resentencing un der section 1170.126 for an array of reasons beyond his or her having su ffered such a prior c onviction (§ 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 secti on 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 th e people of the State of California , and shall be liberally construed to effectuate those purpose s.” (Voter Information Guide, Gen. Elec. (Nov. 6, 2012), supra , text of proposed la w, 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 Neighbo rhoods and Schools Act” — emphasized monetary savings. The “F indings and Declarations” state: “The people of the State of California find and decl are as follows: [¶] The people enact the Safe Neighborhoods and Schools Act to ensure that prison spen ding is focused on violent and serious offenses, to maximize alternativ es for nonserious, nonviolent crime, and to invest the savings generated from this act in to 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 danger ous 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 act32. 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 sentence s for various drug possession and property offenses, unless the perpetrator has a prior c onviction for a “super strike” offense or for an offense requiring sex offender registrati on 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 in eligible 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, whic h dealt with offenders whos e current convictions would now be misdemeanors rather than felonies, ha d 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 stat ed, in pertinent part, that Proposition 47 would “[r]equire[] resentencing for persons serving felony se ntences for these offenses[, i.e., offenses that require misdemeanor se ntences under the measure] unless court finds unreasonable public safety risk.” (Voter In formation Guide, Gen. Elec. (Nov. 4, 2014),

supra , official title and summary, p. 34.) In explaining wh at Proposition 47 would do, the Legislative Analyst stated: “This meas ure 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 Informati on 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, shop lifting, receiving stolen property, writing bad checks, check forg ery, 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 coul d apply to the court to have their felony conviction changed to a misd emeanor. 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 curren tly serving a felony sentence if the court finds it likely that the offender will commit a specified severe crime. Offenders who are resenten ced 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 an d against Proposition 47 spoke in terms solely of Proposition 47, and never mentione d 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 “was ting money on ware housing people in prisons for nonviolent petty crimes,” and stop California’s overcrowded prisons from “incarcerating too many people convicted of low-level, nonv iolent 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.) A lthough the Rebuttal to Argume nt in Favor of Proposition 47 asserted 10,000 inmates would be eligible fo r early release under the measure, and that many of them had prior convictions “for seri ous crimes, such as assault, robbery and home burglary” (Voter Information Gu ide, 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 resent encing contained in the Argument Against34. Proposition 47. (Voter Information Guide, Gen. Elec . (Nov. 4, 2014), supra , argument against Prop. 47, p. 39.) In light of the foregoing, we canno t reasonably conclude voters intended the definition of “‘unreasonable risk of dang er to public safety’” contained in section 1170.18, subdivision (c) to apply to th at phrase as it appears in section 1170.126, subdivision (f), despite the fo rmer section’s preamble, “A s 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 pos ition Proposition 47’s definition of “unreasonable risk of danger” ap plies 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.la times.com/local/po litics/la-me-ff-polproposition47-20141106-st ory.html> [as of Dec. 16, 2014].) Looking at the information conveyed to voters, howe ver, 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 enac ting body is deemed to be aware of existing laws and judicial cons tructions in effect at the time legislation is enacted’ [citation], ‘and to have enacted or am ended a statute in light thereof’ [citation]. ‘This principle applies to legislation enactedby initiative. [Cita tion.]’ [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 construe d as not being imperm issibly 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 ma terials for Proposition 4735. was it called to voters’ attention the definitio n of the phrase containe d in section 1170.18, subdivision (c) would apply to resentencing pr oceedings under the Act, we simply cannot conclude voters intended Propo sition 47 to alter the Act in th at 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 explanati on 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 materi als 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 11 70.126 because the phras e 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 resent encing 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 felo ny. Accordingly, treating th e two groups differently for resentencing purposes does not lead to absurd results, but ra ther is eminently logical.

24 For the same reasons, we reject a ny suggestion the definition contained in section 1170.18, subdivision (c) was inte nded 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 ru le of statutory construction ... that when

statutes are in pari materia similar phrases appearing ineach 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. 20 09) 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 thre e strikes law while keeping intact that scheme’s core commitment to public safety. Allowing trial courts broad discretion to determine whether resentencing an eligib le 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 effe ct 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 of37. “‘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 defend ants whose petitions for resent encing under the Act were decided before the effective date of Proposition 47. ( People v. Chaney (Dec. 1, 2014, C073949) ___ Cal.App.4th ___, ___-___ [2 014 D.A.R. 15934, 15935-15936].) Chaney did not decide whether Propos ition 47’s definition applies pros pectively to such petitions. ( Chaney, supra, at p. ___, fn. 3 [2014 D.A.R. 15934, 15936, fn. 3].) Were we to conclude section 1170.18, subd ivision (c) modifies section 1170.126, subdivision (f), we would agree with Chaney that it does not do so retroactiv ely. We believe, however, that a finding of nonretroactivity inexorably leads to the possibility of prospective-only application, and that prospective-only ap plication of Propositi on 47’s definition to resentencing petitions under the Act would ra ise serious, perhaps insurmountable, equal protection issues. “Mindful of the serious constitutional questions that might arise were we to accept a literal construction of the st atutory language, a nd of our obligation wherever possible both to carry ou t the intent of the electorate and to construe statutes so as to preserve their co nstitutionality [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’s 1 newly enacted definition of “unreasonable risk of danger to public sa fety,” as provided in Penal Code section 1170.18, subdivision (c) (1170. 18(c)). I do so not because th ere is any ambi guity 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 “thr oughout this Code.” Rather, in my view, there is no indication the electorate, in enac ting section 1170.18(c), intended it to apply retroactively to resentencing determinati ons under Proposition 36, the Three Strikes Reform Act of 2012 (the Act). I. After November 4, 2014, the definition of “unreasonable ri sk of danger” in Section 1170.18(c) applies th roughout the Penal Code Section 1170.18(c) provides: “As used th roughout this Code, ‘unreasonable risk of danger to public safety’ m eans an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clau se (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.” This section and subdivisi on were enacted on November 4, 2014, when California voters passed Proposition 47, long past the tim e 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 determin e whether the new definition applies to any resentencing provisions under the Act, past, pr esent, or future. I respectfully disagree with the majority’s analysis and conclusion on this broader issue.

1 The Safe Neighborhood and Sc hools Act (Prop. 47, as appr oved 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 pur pose of the law.”’ [Citations.] ‘[W]e begin with the words of a statute a nd give these words their ordinary meaning.’ [Citation.] ‘If the statutory language is clear and unambiguous, then we need go no further.’ [Citation.] If, howe ver, 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 extr insic aids, we ‘select the construction that comports most closely with the appa rent intent of the Legislature, with a view to promoting rather than defea ting the general purpose of the statute, and avoid an interpretation that woul d lead to absurd consequences.’ [Citation.]” ( People v. Sinohui (2002) 28 Cal.4th 205, 211-212.) Where the statutory language is so cl ear and unambiguous, there is no need for statutory construction or to resort to legisl ative materials or other outside sources. ( Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366, 1 371.) Absent ambiguity, it is presumed the voters intend the meaning appare nt on the face of an initiative measure, and the courts may not add to the statute or rewr ite 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 th e 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 th ere “is nothing ambiguous about the phrase ‘as used in this code.’” It held the defi nition 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 word s ‘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 provisi on defining ‘duress’ in each of the rape statutes is clear and unambigu ous. 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 in tent 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 ‘dur ess’ that already was in use for other sexual offenses, defendant argues thatthe Legislature must have intended its 1993 amendment of the definition of ‘d uress’ 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 19 93 amendment of the definition of “duress” to apply only to rape so th at 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 us ed in the statutes defining sodomy, lewd acts on a child, oral copula tion and foreign object rape.’ “But the Legislature was not required to set forth its reasons for providing a different definition of ‘dur ess’ 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 a nd unambiguous there is no need for construction, and courts should not indulg e 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 ... th e 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 fro m the plain and direct import of the terms used.’ [Citation.]” The majority pays lip servi ce to the plain meaning rule and then ignores it. While acknowledging the language used is unambig uous, it nonetheless engages in statutory construction to determine whether the electorat e really intended to say what it actually enacted. The end result is a rewriting of the st atute so that it comports with the majority’s4. view of what the voters really intended. Th e 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 with out providing a compelling reason to do so and without showing the plain la nguage 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 defin ition 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 retro actively 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 retroactiv ely 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 stat ute contains no expre ss declaration that section 1170.18(c) applies re troactively to proceedings u nder 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 definiti on should be applied re troactively to cases like his, which are currently pending appeal from a denial of resentencing under the Act. However, the Sandoval case presented much different considera tions from those present here. There, the court granted review for the following reasons: “[T]o determine whether defendant’s Si xth Amendment rights as defined in Cunningham v. California (2007) 549 U.S. 270 ... were violated by the imposition of an upper term sentence a nd, 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 Unite d States Constitution by assigning to the trial judge, rather than to th e jury, the author ity 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 applie s 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 th e 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 am ended the determinate sentencing law to cure its constitutiona l 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 fa shioning “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 legisl ation does not apply directly to cases pending on appeal that are rema nded for resentencing, our task in deciding the appropriate sentencing proc edure to be applied by a trial court on remand is somewhat analog ous to what we faced in In re Hawthorne [(2005)] 35 Cal.4th 40. There, the Le gislature enacted a statute intended to6. implement the United States Supreme Court’s decision in Atkins v. Virginia (2002) 536 U.S. 304, whic h held that the federa l Constitution prohibits execution of the menta lly 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 alre ady had been imposed. ( In re Hawthorne , supra , 35 Cal.4th at p. 45.) In such a situ ation, ‘[t]he task thus falls to this court to formulate appropriate pro cedures 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] legislati on ... and to avoid due process and equal prot ection 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 conducte d 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 dete rmination. 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 statut e so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is pr oper 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

2 Defendant did not raise any du e 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 am endatory act imposing the lighter punishment can be applied constitutio nally to acts committed before its passage provided the judgment convicti ng the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was mo tivated 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 st atute lessening punishment is presumed to apply to all cases not yet reduced to a fina l 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 pr esumption 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 judgm ent 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 ma y 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 Pr oposition 47 to petitions for resentencing under the Act does not reduce punishment for a pa rticular crime. In stead, the downward modification of a sentence authorized by th e Act is dependent not just on the current8. offense but on any number of unlimited fact ors related to the individual offender, including criminal conviction history, disciplinary and reha bilitation 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 unrea sonable risk of danger to public safety.” (Pen. Code, § 1170.1 26, subd. (g)(3).) Because section 1170.18(c)’s definition of “unr easonable risk of danger to public safety” does not apply retroactively to the Ac t, the sentencing court applied the correct standard in exercising its discre tion 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.

3 Recently 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) do es not apply retroactively. I agree.