SEE CONCURRING OPINION

Filed 12/17/14

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RANDY LYNN PAYNE,

Defendant and Appellant.

F067838

(Super. Ct. Nos. SUF20408 & 

SUF20409)

OPINION

APPEAL from a judgment of the Superior Court of Merced County. Mark V. 

Bacciarini, Judge.

Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant 

and Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and 

Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

 

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

certified for publication with the exception of part III of the Discussion and the 

concurring opinion.
2.

INTRODUCTION

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

created a postconviction release proceeding for third strike offenders serving 

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

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

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

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

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

After the Act went into effect, Randy Lynn Payne (defendant), an inmate serving a 

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

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

have his sentence recalled and to be resentenced. Following a hearing, the trial court 

found defendant “present[ed] an unreasonable risk of danger to public safety if released.”

In the published portion of this opinion, we hold the People have the burden of 

proving, by a preponderance of the evidence, facts on which a finding that resentencing a 

petitioner would pose an unreasonable risk of danger to public safety reasonably can be 

based. Those facts are reviewed for substantial evidence. We further hold, however, that 

the preponderance of the evidence standard does not apply to the trial court’s 

determination regarding dangerousness, nor does section 1170.126, subdivision (f), create 

a presumption of resentencing. The ultimate decision — whether resentencing an inmate

would pose an unreasonable risk of danger to public safety — instead lies within the 

sound discretion of the trial court. In the unpublished portion of the opinion, we 

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

section 1170.126, subdivision (f). Finding no abuse of discretion, we affirm.

 

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

FACTS AND PROCEDURAL HISTORY

On February 10, 1996, defendant was observed stealing several cases of motor oil 

from a convenience store/gas station in Merced.2 He subsequently led a California 

Highway Patrol officer in a pursuit on Highway 99. Defendant drove at speeds well over 

100 miles per hour, sometimes traveling partly on the center divider and other times 

traveling on the shoulder. His driving forced other vehicles to move out of his way to 

avoid collision. As defendant approached the Livingston city limits, he drove onto the 

shoulder to pass vehicles stopped at a red traffic light. Defendant lost control of the car, 

flipped over, and struck a power pole. The car had been stolen. 

On August 12, 1996, a jury convicted defendant of two felonies: evading arrest 

while operating a motor vehicle (Veh. Code, § 2800.2) and petty theft with prior theft 

convictions (§§ 488, 666).3 Defendant was found to have three prior serious or violent 

felony convictions within the meaning of the three strikes law. On April 22, 1997, he 

was sentenced to 25 years to life in prison. 

On or about December 21, 2012, defendant filed a petition under

section 1170.126. He represented he was statutorily eligible for such relief, and argued 

he should be resentenced to a second strike term of 48 months in prison and be released 

from custody. 

The People opposed the petition. They pointed to defendant’s 14-year-long record 

of criminal convictions, which included three strike convictions (one for robbery and two 

for residential burglary); the high risk of danger to others posed by his commitment 

offense; and defendant’s admission, to the probation officer, that he had a drug problem. 

 

2 The facts of defendant’s commitment conviction are derived from our opinion in 

People v. Payne (May 26, 1998, F026894) [nonpub. opn.], of which we have taken 

judicial notice by separate order.

3 The jury was unable to reach a verdict on a count charging defendant with 

unlawful taking of a motor vehicle. (Veh. Code, § 10851.) 
4.

The People asserted defendant’s conduct in prison had been poor, as he had violated 

prison disciplinary rules on a number of occasions. The People argued that, even after 

participating in Narcotics Anonymous and Alcoholics Anonymous programs over the 

years, defendant incurred disciplinary write-ups for “narcotic diversion” — diverting 

morphine medication he was to swallow — and possession of alcohol, most recently in 

2013. The People further argued that, if defendant were released, he would face 

difficulty earning sufficient income by lawful means, as his prison records revealed his 

lack of marketable trade skills and lack of education. Based on the foregoing, the People 

asserted the trial court should find resentencing defendant would pose an unreasonable 

risk of danger to public safety. 

The petition was heard on August 5, 2013.4 The court considered its own files in 

the matter, as well as defendant’s records — his “central file” — from the California 

Department of Corrections and Rehabilitation (CDCR).

Information in defendant’s CDCR records included the probation officer’s report

for defendant’s commitment offenses. It showed defendant, who was born in 1963, had 

an adult criminal conviction record dating back to 1982. Between 1982 and 1996, he 

incurred nine misdemeanor convictions for crimes that included burglary, petty theft with 

a prior conviction, and carrying a concealed weapon on his person; and seven cases in 

which he was convicted of one or more felonies that included multiple burglaries and 

robbery.

5 Defendant told the probation officer he dropped out of high school; started 

 

4 Because the judge who imposed defendant’s third strike term was retired, the 

matter was heard by a different judge. (See § 1170.126, subd. (j).)

5 The robbery conviction arose out of an incident in which defendant apparently 

believed he was reclaiming a bicycle stolen from him. Defendant and the victim argued 

over ownership of the bicycle. Defendant said he was going back to his truck to get 

something. When he returned, he had a plastic bag in his hand that appeared to contain a 

handgun. The victim handed over the bicycle, which defendant placed in his truck and 

drove away. Defendant, who was on parole from the California Rehabilitation Center, 
5.

using PCP when he was 12 years old and then moved on to cocaine, heroin, LSD, 

methamphetamine, and marijuana; and injected a mixture of cocaine and heroin as his 

“drug of choice.” He considered himself dependent on drugs, and had been dependent in 

the past. Defendant also stated he drank three-fifths of a gallon of whiskey a week, and 

drank wine and beer. CDCR reception center information showed defendant had a 

history of heart and kidney disease and that he claimed work experience in a walnut 

processing plant, laying train tracks, and field work. 

Defendant’s CDCR records contained several rules violation reports. In 1998, he 

was found guilty of possession of United States currency. In 1999, he was placed into 

administrative segregation pending investigation into allegations of narcotics trafficking 

in the prison’s general population. In 2004, he was found guilty of mutual combat. He 

admitted punching the other inmate who, defendant said, was only defending himself. 

Defendant characterized the inmate as “a homeboy” who was irritating him. Staff had to

use pepper spray and a baton strike to break up the fight. In 2006, a hypodermic syringe 

with a needle was found in the cell defendant shared with another inmate. Defendant

admitted it was his, and said he found it in the garbage after a building search. In 2008, 

defendant was found guilty of possession of tobacco. In 2010, defendant was found 

guilty of circumventing medical procedures by diverting medication. Defendant 

acknowledged he was required to place his medication into his mouth, swallow it, and 

then allow the nurse to determine he had done so. In 2012, a random search of a cell 

assigned to defendant and another inmate revealed a garbage bag full of inmatemanufactured alcohol (“‘pruno’”). Defendant stated the pruno was his. At the hearing, 

he pled guilty to possession of inmate-manufactured alcohol and stated, “‘It wasn’t mine, 

but I took it.’” The most recent rules violation report, dated January 1, 2013, was, again,

 

pled no contest pursuant to People v. West (1970) 3 Cal.3d 595 in exchange for dismissal 

of a five-year enhancement. 
6.

for circumventing medical procedures by diverting medication. Defendant stood in the

pill line for his “‘as needed’” morphine dose, placed the pill in his mouth and drank his 

water, but did not swallow the pill. Defendant was written up multiple times for failing 

to report or being late to class or to his work assignment, being out of bounds, not being 

in his cell during inmate count, violating grooming and cell regulations, and smoking (a

violation of state law).

Defendant’s most recent annual review, dated October 31, 2012, showed him in 

“Close B” custody. His placement score was 19, the mandatory minimum for a prisoner 

with a life sentence. His records contained numerous good reports from his prison work 

supervisors. They also contained verification of his participation in Narcotics 

Anonymous, Alcoholics Anonymous, and a victims’ awareness program over various

periods of time.6 He also received a certificate of proficiency as a sewing machine 

operator. 

Defendant’s central file contained a therapeutic progress report, dated May 23, 

2013, by Dr. Mathews, a clinical psychologist at the prison.7 Mathews related defendant

had been able to make “some true and substantial progress” in the four years she had 

been treating him, and had deepened his commitment to “making something better of 

himself.” She found he was not as “materially- driven” as in the past, and although he 

had struggled with substance abuse issues, he had managed to successfully face them and 

was engaged in an ongoing dialogue with her about them. She believed defendant had 

 

6

In February 2004, defendant was presented certificates of attendance attesting to 

his regular attendance of 25 months in Alcoholics Anonymous and Narcotics 

Anonymous. 

7 Defendant’s file also contained voluminous interdisciplinary progress notes that 

were listed as “Confidential Client/Patient Information.” Although the court considered 

Mathews’s written notes and live testimony, it sustained a claim of privilege with respect 

to the confidential records and did not consider them in reaching its decision. We neither 

summarize nor consider the confidential information.
7.

“attained a maturity that has allowed him to no longer be the reactive, angry young man 

he once was.” She believed he was now capable of delaying gratification. She opined he 

would make a good candidate for resentencing under the Act.

Mathews testified at the hearing. She had been defendant’s primary treating 

mental health clinician since the spring of 2009. She concurred with defendant’s 

previous clinician’s diagnoses that defendant had a “mood disorder not otherwise 

specified” and polysubstance abuse in institutional remission.8 Although defendant was 

prescribed various medications in the past, he had taken no psychotropic medications 

since Mathews had been treating him. Defendant’s drug addiction involved multiple 

substances and reportedly dated from the age of about 10 to 11 years old. Mathews was 

aware defendant was prescribed morphine while on her caseload. She was concerned 

with morphine use because she believed it contributes to depression. 

Mathews related she and defendant had long conversations about “his short fuse” 

and “his tendency to personalize things.” She thought defendant had done “really well” 

developing the capacity to look at what was truly being said so as not to personalize 

comments. The major change Mathews saw in defendant was his ability to delay 

gratification. She found he did not have to have “some of the material comfort ... he 

used to want and actively hustle to get” before he was incarcerated. Asked by defense 

counsel if she thought the court should have concerns regarding defendant’s substance 

abuse if released, Mathews responded: “I think the Court would be wise to concern 

[itself] with whether or not he would have a stable environment. I think [defendant] is 

actually capable with very, very small amounts of money of getting back onto his feet 

because of his abilities and discussions with me about his interest and ideas and education 

 

8 A diagnosis of mood disorder is not a major mental illness. It means people have 

fluctuating capacity to cope, moodiness, depression, anxiety, and sometimes difficulty 

sleeping. 
8.

and real estate. [¶] But ... I don’t feel good about him going out and not having a 

structure. My concern would be his just, kind of, floating out there and feeling 

overwhelmed by society after 17 years of incarceration.” Mathews thought a sober living 

environment would be very important, and had discussed the possibility with defendant

who seemed receptive to the idea. Mathews was of the opinion that anyone who had ever 

had a problem with substance abuse continued to have a problem, and she saw defendant

as continuing to struggle in that respect. 

Defendant testified at the hearing. He admitted having a longstanding drug 

problem, but denied possessing or consuming any medication not prescribed for him 

during the 17 years he had most recently been in prison, even though he could have 

obtained illicit drugs had he wanted to. Defendant was prescribed morphine from 2008 

to 2013 because of spinal problems. He explained he did not immediately swallow his 

medication in the January 2013 incident, because his neck was swollen that morning. 

The nurse who reported him in 2010 and 2013 was a temporary nurse; defendant took his

medication three times a day and never had a problem with the regular staff nurses. He 

denied the pruno was his; he took the blame because the inmate to whom it belonged had 

a parole hearing coming up. The syringe found in 2006 belonged to his cellmate, who 

was scheduled to go home in three days.

Defendant testified he would never again use drugs, because it had cost him too 

much. Although he would not have a problem if he were released, he would be willing to 

go into transitional housing. He had a means of support because he had won a civil 

judgment. He also had family in the Modesto area. He planned to get involved with his 

brother in buying, fixing up, and reselling foreclosed homes, and he also planned to do 

volunteer work.

The prosecutor argued that, based on the totality of the circumstances (defendant’s 

prior criminal history, the circumstances of his commitment offense, his disciplinary

record, and the fact he was still struggling with substance abuse), defendant remained a 
9.

danger to public safety. Defense counsel pointed to defendant’s explanation for some of 

the disciplinary violations, and noted he had no write-ups for hiding or selling pills, and 

only one assaultive-type incident. She argued he was focused on the future and had 

participated in drug and alcohol programs as best he could, and argued nothing had been 

presented to show he would be a risk of danger should he be released.

The court took the matter under submission. On August 20, 2013, the court stated 

it had spent a significant amount of time reviewing the case file and records and 

considering the testimony presented. Based on “all of those things,” it found “there is a 

risk of dangerousness” with which it was “not comfortable.” It denied the petition for the 

reasons set out in its written ruling. That ruling read, in pertinent part:

“The court places the burden of persuasion on the prosecution. That

is, the state must convince the court, by a preponderance of the evidence, 

that to resentence a defendant as a ‘second strike offender’ would present 

an unreasonable risk of danger to the public. Unless the court finds the 

defendant presents such a danger, he or she shall be resentenced. The 

drafters of Penal Code section 1170.126 have given the court guidance on 

pertinent factors to consider. [¶] ... [¶]

“The district attorney focuses on the nature of defendant’s prior 

criminal history, the facts and circumstances surrounding the life 

commitment offense, the defendant’s disciplinary record while 

incarcerated, and his life - long substance abuse problems. The 

prosecution’s position is that, when taken together, these factors 

demonstrate that resentencing [defendant] would pose an unreasonable risk 

of danger to public safety. In response, the defense called Dr. Mathews ....

“The court finds Dr. Mathews[’s] opinions regarding [defendant] to 

be unhelpful to [defendant]. The court notes that Dr. Mathews candidly 

admits that [defendant’s] substance abuse is in institutional remission, and 

should concern the court. She further opined that [defendant] continues to 

have a substance abuse problem. Perhaps most importantly, Dr. Mathews 

diagnoses [defendant] with a mood disorder (NOS) that leaves [defendant]

with a ‘fluctuating ability to cope’. This, combined with his ongoing 

substance abuse problems, greatly concerns the court.

“To the extent that Dr. Mathews characterizes [defendant’s] 

commitment offense as relatively minor, the court strongly disagrees. A 
10.

jury convicted [defendant] of felony evading .... As cited by the 

prosecutor, [defendant] has ‘proved himself to be a threat to public safety 

and security’. His criminal career has been long and extensive. His prior 

serious felony convictions were residential burglaries. The court finds that 

those offenses do involve a high risk of physical danger, as did the evading 

offense. His record of rehabilitation while incarcerated is sparse. Indeed, 

he continues to receive disciplinary write - ups as recently as this year. The 

court further places little weight on [defendant’s] explanation that he ‘took 

the fall’ for a fellow inmate on at least two occasions. [Defendant] 

admitted that he lied to prison authorities to achieve his goals, and the court 

has little doubt he would be dishonest here in an attempt to win his 

freedom.

“When taken together, the foregoing facts lead the court to find that 

the District Attorney has, by a preponderance of the evidence, met his 

burden of proof and persuasion. The court is convinced that [defendant] 

would present an unreasonable risk of danger to public safety if released.” 

DISCUSSION

I

The Applicable Legal Principles

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, 

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

 

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

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

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

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

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

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

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

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

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

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

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

Section 1170.12.” (§ 1170.126, subd. (e).)
11.

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

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

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

[¶] (1) The [inmate’s] criminal conviction history, including the type of crimes 

committed, the extent of injury to victims, the length of prior prison commitments, and 

the remoteness of the crimes; [¶] (2) The [inmate’s] disciplinary record and record of 

rehabilitation while incarcerated; and [¶] (3) Any other evidence the court, within its 

discretion, determines to be relevant in deciding whether a new sentence would result in 

an unreasonable risk of danger to public safety.” (Id., subd. (g).)

A. A TRIAL COURT’S ULTIMATE DETERMINATION REGARDING DANGEROUSNESS LIES 

WITHIN ITS DISCRETION; ITS RULING, THEREFORE, IS REVIEWED FOR ABUSE OF 

DISCRETION. 

Defendant argues the trial court’s decision regarding dangerousness should be 

reviewed for substantial evidence.10 We disagree. 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. 

 

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

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

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

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

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

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

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

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

[Citation.]” (Ibid.)
12.

[Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see 

People v. Williams (1998) 17 Cal.4th 148, 162 [abuse-of-discretion review asks whether 

ruling in question falls outside bounds of reason under applicable law and relevant 

facts].)

Under the clear language of section 1170.126, the ultimate determination that 

resentencing would pose an unreasonable risk of danger is a discretionary one. We, 

therefore, review that determination for abuse of discretion. Of course, if there is no 

evidence in the record to support the decision, the decision constitutes an abuse of 

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

B. THE BURDEN OF PROOF BY PREPONDERANCE OF THE EVIDENCE APPLIES TO PROOF 

OF THE FACTS, NOT TO THE TRIAL COURT’S ULTIMATE DETERMINATION. 

Defendant asserts a trial court cannot deny resentencing due to dangerousness

unless the People have proved dangerousness beyond a reasonable doubt. The People 

contend their burden is preponderance of the evidence.11

“The standard of proof, the United States Supreme Court has said, 

‘serves to allocate the risk of error between the litigants and to indicate the 

relative importance attached to the ultimate decision.’ [Citation.] At one 

end of the spectrum is the ‘preponderance of the evidence’ standard, which 

apportions the risk of error among litigants in roughly equal fashion. 

[Citation.] At the other end of the spectrum is the ‘beyond a reasonable 

doubt’ standard applied in criminal cases, in which ‘our society imposes 

almost the entire risk of error upon itself.’ [Citation.] Between those two 

standards is the intermediate standard of clear and convincing evidence. 

[Citation.] These three standards are codified in California’s Evidence 

Code. Section 115 of that code states: ‘The burden of proof may require a 

party to ... establish the existence or nonexistence of a fact by a 

preponderance of the evidence, by clear and convincing proof, or by proof 

beyond a reasonable doubt. [¶] Except as otherwise provided by law, the 

 

11 The parties have assumed whatever burden exists is on the People. Case law 

supports that assumption. (E.g., People v. Flores (2014) 227 Cal.App.4th 1070, 1075-

1076; People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301, fn. 25 

(Kaulick).) The trial court here expressly placed the burden on the prosecution. 
13.

burden of proof requires proof by a preponderance of the evidence.’ 

(Italics added.)

“If the Legislature has not established a standard of proof, a court 

must determine the appropriate standard by considering all aspects of the 

law. [Citation.] No standard of proof is specified in section [1170.126] ....

“‘The standard of proof that is required in a given instance has been 

said to reflect “... the degree of confidence our society thinks [the 

factfinder] should have in the correctness of factual conclusions for a 

particular type of adjudication.” ... The standard of proof may therefore 

vary, depending upon the gravity of the consequences that would result 

from an erroneous determination of the issue involved.’ [Citations.]” 

(People v. Arriaga (2014) 58 Cal.4th 950, 961-962.)

“In enacting section 1170.126 as part of Proposition 36, the issue before the voters 

was not whether a defendant could or should be punished more harshly for a particular 

aspect of his or her offense, but whether, having already been found to warrant an 

indeterminate life sentence as a third strike offender, he or she should now be eligible for 

a lesser term.” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1036.) Although voters 

could have permitted automatic resentencing, under any and all circumstances, of those 

eligible therefor, they did not do so. This demonstrates a recognition of two highly 

plausible scenarios: (1) Some inmates sentenced to indeterminate terms under the 

original version of the three strikes law for crimes not defined as serious or violent 

felonies may have started out not posing any greater risk of danger than recidivists who 

will now be sentenced to determinate terms as second strike offenders under the 

prospective provisions of the Act, but have become violent or otherwise dangerous while 

imprisoned, or (2) Enough time might have passed since some inmates committed their 

criminal offenses so that those offenses no longer make such inmates dangerous, but 

other factors do. Because of the severe consequences to society that may result if a 

dangerous inmate is resentenced as a second strike offender and released to the 

community upon completion of his or her term with little or no supervision (see, e.g., 

§ 3451) and without undergoing any suitability assessment (see, e.g., In re Lawrence 
14.

(2008) 44 Cal.4th 1181, 1204), we believe it appropriate to apportion the risk of error in 

roughly equal fashion. 

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

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

the burden of proving “dangerousness” by a preponderance of the evidence. (Kaulick,

supra, 215 Cal.App.4th at pp. 1301-1305 & fn. 25; see Evid. Code, § 115.) That court 

determined this is so because “dangerousness is not a factor which enhances the sentence 

imposed when a defendant is resentenced under the Act; instead, dangerousness is a 

hurdle which must be crossed in order for a defendant to be resentenced at all.” (Kaulick, 

supra, at p. 1303.) Kaulick explained:

“The maximum sentence to which Kaulick, and those similarly 

situated to him, is subject was, and shall always be, the indeterminate life 

term to which he was originally sentenced. While [the Act] presents him 

with an opportunity to be resentenced to a lesser term, unless certain facts 

are established, he is nonetheless still subject to the third strike sentence 

based on the facts established at the time he was originally sentenced. As 

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

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

dangerousness), and such factor need not be established by proof beyond a 

reasonable doubt to a jury.” (Ibid.)

In People v. Blakely (2014) 225 Cal.App.4th 1042, 1059-1062 (Blakely), we 

rejected the claim an inmate seeking resentencing pursuant to section 1170.126 had a 

Sixth Amendment right to a jury determination, beyond a reasonable doubt, on the 

question of conduct constituting a disqualifying factor. We concluded that Apprendi v. 

New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny (e.g., Alleyne v. United 

States (2013) 570 U.S. ___ [133 S.Ct. 2151]; Cunningham v. California (2007) 549 U.S. 

270 (Cunningham); Blakely v. Washington (2004) 542 U.S. 296) “do not apply to a 

determination of eligibility for resentencing under the Act.” (Blakely, supra, 225 

Cal.App.4th at p. 1060.) We also relied heavily on Kaulick. 
15.

In rejecting application of the beyond a reasonable doubt standard, Kaulick

discussed the United States Supreme Court’s conclusion in Dillon v. United States (2010) 

560 U.S. 817, 828 (Dillon), that “a defendant’s Sixth Amendment right to have essential 

facts found by a jury beyond a reasonable doubt do not apply to limits on downward 

sentence modifications due to intervening laws.” 12 (Kaulick, supra, 215 Cal.App.4th at 

p. 1304.) Kaulick found Dillon’s language applicable. Since the retrospective part of the 

Act is not constitutionally required, but an act of lenity on the part of the electorate and 

provides for a proceeding where the original sentence may be modified downward, any 

facts found at such a proceeding, such as dangerousness, do not implicate Sixth 

Amendment issues. Thus, there is no constitutional requirement that the facts be 

established beyond a reasonable doubt. (Kaulick, supra, at pp. 1304-1305.)

Although in Blakely, we applied Kaulick’s analysis to the initial determination of 

eligibility for resentencing under the Act (Blakely, supra, 225 Cal.App.4th at p. 1061), it 

applies equally to the issue whether resentencing the petitioner would pose an 

unreasonable risk of danger to public safety. A denial of an inmate’s petition does not 

increase the penalty to which that inmate is already subject, but instead removes the 

inmate from the scope of an act of lenity on the part of the electorate to which he or she is 

not constitutionally entitled. (Blakely, supra, at p. 1062.) That the denial is based on a 

determination of dangerousness does not change that conclusion. 

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

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

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

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

 

12 Pepper v. United States (2011) 562 U.S. 476 [131 S.Ct. 1229] does not undermine 

Dillon’s or Kaulick’s reliance thereon. Unlike Dillon, Pepper involved a plenary 

resentencing after the defendant’s sentence had been set aside on appeal. (Pepper, supra,

562 U.S. at p. ___ [131 S.Ct. at p. 1236].)
16.

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

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

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

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

that determination itself.13 Nevertheless, we believe it supports our interpretation. 

Accordingly, we hold preponderance of the evidence is the applicable standard of 

proof, regardless whether we analyze the issue as one of Sixth Amendment jurisprudence 

or due process. (See People v. Flores, supra, 227 Cal.App.4th at p. 1076.)14 

This does not, however, mean 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. Nor does it mean evidence of dangerousness 

must preponderate over evidence of rehabilitation for resentencing to be denied.

The language of section 1170.126, subdivision (f) expressly provides the petitioner 

shall be resentenced unless the court, in its discretion, makes a determination that 

resentencing would pose an unreasonable risk of danger. The statute does not say the 

petitioner shall be resentenced unless the People prove resentencing would pose such a 

risk.

 

13 As noted, ante, we have previously discussed Kaulick in the context of the initial 

determination whether an inmate is eligible for resentencing under the Act. (Blakely, 

supra, 225 Cal.App.4th at pp. 1058, 1060-1061; People v. Osuna, supra, 225 Cal.App.4th 

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

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

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

14 We recognize that in the case of people who are involuntarily committed as 

narcotics addicts or for analogous reasons, the California Supreme Court has found the 

appropriate standard of proof to be beyond a reasonable doubt. (See, e.g., People v. 

Thomas (1977) 19 Cal.3d 630, 637-638.) Defendant received the protections of that 

standard of proof (and the right to a jury trial) at the time he was found to have suffered 

his prior strike convictions, however. (People v. Nguyen (2009) 46 Cal.4th 1007, 1015; 

People v. Towers (2007) 150 Cal.App.4th 1273, 1277.)
17.

Considering the language of subdivisions (f) and (g) of section 1170.126, we 

conclude the People have the burden of establishing, by a preponderance of the evidence, 

facts from which a determination resentencing the petitioner would pose an unreasonable 

risk of danger to public safety can reasonably be made. The reasons a trial court finds 

resentencing would pose an unreasonable risk of danger, or its weighing of evidence 

showing dangerousness versus evidence showing rehabilitation, lie within the court’s 

discretion. The ultimate determination that resentencing would pose an unreasonable risk 

of danger is a discretionary one. While the determination must be supported by facts 

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

danger by a preponderance of the evidence. (See In re Robert L., supra, 21 Cal.App.4th 

at pp. 1065-1067 [discussing abuse of discretion and preponderance of the evidence 

standards].) 

Such an interpretation is consistent with California’s noncapital sentencing 

scheme.15 Under the determinate sentencing law (DSL) as it existed prior to 

Cunningham, “three terms of imprisonment [were] specified by statute for most offenses. 

The trial court’s discretion in selecting among [those] options [was] limited by 

section 1170, subdivision (b), which direct[ed] that ‘the court shall order imposition of 

the middle term, unless there are circumstances in aggravation or mitigation of the 

crime.’” (People v. Black (2007) 41 Cal.4th 799, 808, fn. omitted.) Trial courts had 

“broad discretion” to impose the lower or upper term instead of the middle term of 

imprisonment (People v. Scott (1994) 9 Cal.4th 331, 349), and generally were required by 

the statutes and sentencing rules to state reasons for their discretionary sentencing choices 

(ibid.). Such reasons had to be “supported by a preponderance of the evidence in the 

 

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

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

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

Cal.4th 1302, 1362.)
18.

record” and reasonably related to the particular sentencing determination. (Ibid.; see 

former Cal. Rules of Court, rule 4.420(b).) Even after the DSL was reformed and 

amended in response to Cunningham, so as to eliminate judicial factfinding in selection 

of the appropriate term when three possible prison terms are specified by statute, 

establishment of facts by a preponderance of the evidence remains necessary with respect 

to certain discretionary sentencing decisions. (See In re Coley (2012) 55 Cal.4th 524, 

557-558.)16 

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

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

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

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

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

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

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

The trial court’s ultimate determination when considering a petition for 

resentencing under section 1170.126 is analogous to an evaluation of the relative weight 

of mitigating and aggravating circumstances. Such an evaluation “is not equivalent to a 

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

that the trial court need not apply a preponderance of the evidence standard, in that it 

need not find resentencing the petitioner would, more likely than not, pose an 

 

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

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

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

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

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

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

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

interests of justice.”
19.

unreasonable risk of danger to public safety. (See Kaulick, supra, 215 Cal.App.4th at 

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

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

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

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

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

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

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

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

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

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

evidence.17 If a factor (for example, that the petitioner recently committed a battery, is 

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

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

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

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

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

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

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

denial].)

 

17 We agree with defendant that “substantial evidence,” not the significantly more 

deferential “some evidence” standard applicable to review of executive branch decisions 

in parole cases (see In re Rosenkrantz (2002) 29 Cal.4th 616, 658, 665), is the appropriate 

appellate standard.
20.

C. SECTION 1170.126 DOES NOT ESTABLISH OR CONTAIN A PRESUMPTION A 

PETITIONER’S SENTENCE BE REDUCED. 

Defendant argues a section 1170.126 resentencing “is the converse of a Romero 

hearing and establishes a presumption that the life term be reduced to a second strike 

sentence.” (Some capitalization & underscoring omitted.) 

In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the 

California Supreme Court held that trial courts retain discretion to strike, in furtherance 

of justice under section 1385, subdivision (a), prior felony conviction allegations in cases 

brought under the three strikes law. (Romero, supra, at pp. 529-530.) The court 

subsequently clarified, however, that in deciding whether to do so, “the court in question 

must consider whether, in light of the nature and circumstances of his present felonies 

and prior serious and/or violent felony convictions, and the particulars of his background, 

character, and prospects, the defendant may be deemed outside the scheme’s spirit, in 

whole or in part, and hence should be treated as though he had not previously been 

convicted of one or more serious and/or violent felonies.” (People v. Williams, supra, 17 

Cal.4th at p. 161.)

Because the three strikes law was intended to restrict trial courts’ discretion in 

sentencing repeat offenders, the state high court determined there were “stringent 

standards” sentencing courts must follow in order to find a defendant should be treated as 

falling outside the three strikes scheme. (People v. Carmony, supra, 33 Cal.4th at 

p. 377.) The court explained:

“[T]he three strikes law not only establishes a sentencing norm, it 

carefully circumscribes the trial court’s power to depart from this norm and 

requires the court to explicitly justify its decision to do so. In doing so, the 

law creates a strong presumption that any sentence that conforms to these 

sentencing norms is both rational and proper.

“In light of this presumption, a trial court will only abuse its 

discretion in failing to strike a prior felony conviction allegation in limited 

circumstances. For example, an abuse of discretion occurs where the trial 

court was not ‘aware of its discretion’ to dismiss [citation], or where the 
21.

court considered impermissible factors in declining to dismiss [citation]. 

Moreover, ‘the sentencing norms [established by the Three Strikes law 

may, as a matter of law,] produce[] an “arbitrary, capricious or patently 

absurd” result’ under the specific facts of a particular case. [Citation.]

“But ‘[i]t is not enough to show that reasonable people might 

disagree about whether to strike one or more’ prior conviction allegations. 

[Citation.] ... Because the circumstances must be ‘extraordinary ... by 

which a career criminal can be deemed to fall outside the spirit of the very 

scheme within which he squarely falls once he commits a strike as part of a 

long and continuous criminal record, the continuation of which the law was 

meant to attack’ [citation], the circumstances where no reasonable people 

could disagree that the criminal falls outside the spirit of the three strikes 

scheme must be even more extraordinary.” (People v. Carmony, supra, 33 

Cal.4th at p. 378.)

As we explained in Blakely, supra, 225 Cal.App.4th at page 1054, “The purpose of 

the three strikes law has been variously stated as being ‘“to ensure longer prison 

sentences and greater punishment for those who commit a felony and have been 

previously convicted of serious and/or violent felony offenses”’ [citation] and ‘to 

promote the state’s compelling interest in the protection of public safety and in punishing 

recidivism’ [citation]. Although the Act ‘diluted’ the three strikes law somewhat 

[citation], ‘[e]nhancing public safety was a key purpose of the Act’ [citation].” Because 

public safety remains a key purpose of the law under the Act, we reject defendant’s 

assertion that a section 1170.126 proceeding is the converse of a Romero determination, 

so that any refusal to resentence an eligible inmate must be subjected to the same 

rigorous scrutiny as the granting of a Romero motion.18 

 

18 Because a trial court can deny resentencing under section 1170.126, 

subdivision (f), only upon a finding of unreasonable risk of danger to public safety, a trial 

court would abuse its discretion, as in a Romero situation, by refusing to resentence a 

petitioner because of antipathy toward the Act or a personal belief a particular defendant

deserved an indeterminate term for reasons other than dangerousness. (See People v. 

Williams, supra, 17 Cal.4th at pp. 159, 161.)
22.

Relying on People v. Guinn (1994) 28 Cal.App.4th 1130, 1141-1142, 1145 and its 

progeny (e.g., People v. Murray (2012) 203 Cal.App.4th 277, 282; People v. Ybarra 

(2008) 166 Cal.App.4th 1069, 1089), all of which deal with section 190.5, 

subdivision (b),19 defendant contends the “shall”/“unless” formulation employed in 

subdivision (f) of section 1170.126 “establishes a mandatory presumption of reduction of 

... [a] sentence, subject only to a limited exception for extraordinary cases of current 

dangerousness.” (Some capitalization & underscoring omitted.)

The California Supreme Court recently disapproved the cases relied on by 

defendant. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1370, 1387.) Leaving aside 

constitutional questions raised by establishing a presumption in favor of life without 

parole for juveniles after the United States Supreme Court’s opinion in Miller v. Alabama 

(2012) 567 U.S. ___ [132 S.Ct. 2455], the state high court’s review of the text of 

section 190.5, subdivision (b) led it to conclude the syntax is ambiguous concerning any 

presumption. The court stated: “It is not unreasonable to read this text ... to mean that a 

court ‘shall’ impose life without parole unless ‘at the discretion of the court’ a sentence 

of 25 years to life appears more appropriate. [Citation.] But it is equally reasonable to 

read the text to mean that a court may select one of the two penalties in the exercise of its 

discretion, with no presumption in favor of one or the other. The latter reading accords 

with common usage. For example, if a teacher informed her students that ‘you must take 

a final exam or, at your discretion, write a term paper,’ it would be reasonable for the 

students to believe they were equally free to pursue either option. The text of 

 

19 Section 190.5, subdivision (b) provides, in pertinent part: “The penalty for a 

defendant found guilty of murder in the first degree, in any case in which one or more 

special circumstances ... has been found to be true ..., who was 16 years of age or older 

and under the age of 18 years at the time of the commission of the crime, shall be 

confinement in the state prison for life without the possibility of parole or, at the 

discretion of the court, 25 years to life.”
23.

section 190.5[, subdivision ](b) does not clearly indicate whether the statute was intended 

to make life without parole the presumptive sentence.” (People v. Gutierrez, supra, 58 

Cal.4th at p. 1371.)

The same example can be applied to the syntax of section 1170.126, 

subdivision (f). Thus, we do not agree with defendant that resentencing to a second strike 

term “is the ‘generally mandatory’ disposition, subject only to ‘circumscribed’ discretion 

to retain” the indeterminate third strike term. A court considering whether to resentence 

an eligible petitioner under section 1170.126, subdivision (f) has circumscribed discretion 

in the sense it can only refuse to resentence if it finds that to do so would pose an 

unreasonable risk of danger to public safety on the facts of the particular case before it. 

This does not mean, however, its discretion is circumscribed in the sense it can only find 

dangerousness in extraordinary cases. To the contrary, it can do so in any case in which 

such a finding is rational under the totality of the circumstances.

Such a conclusion comports with the plain language of the statute. Moreover, a 

conclusion resentencing to a second strike term is a generally mandatory presumption 

from which courts can depart only in extraordinary cases, as defendant asserts, would run 

directly contrary to the intent of the voters in passing the Act. (See People v. Gutierrez,

supra, 58 Cal.4th at pp. 1371-1372 [examining legislative history and voter intent in 

attempt to resolve statutory ambiguity].) As we stated in People v. Osuna, supra, 225 

Cal.App.4th at page 1036, “‘[e]nhancing public safety was a key purpose of the Act’ 

[citation].” Thus, although one purpose of the Act was to save taxpayer dollars (People 

v. Osuna, supra, at p. 1037), “[i]t is clear the electorate’s intent was not to throw open the 

prison doors to all third strike offenders whose current convictions were not for serious or 

violent felonies, but only to those who were perceived as nondangerous or posing little or 

no risk to the public.” (Id. at p. 1038, second italics added.) Had voters intended to 

permit retention of an indeterminate term only in extraordinary cases, they would have 

said so in subdivision (f) of section 1170.126, rather than employing language that 
24.

affords courts broad discretion to find dangerousness. They also would not have afforded 

the trial court the power to consider any evidence it determined to be relevant to the issue 

as they did in subdivision (g)(3) of the statute.20 

D. THE FOCUS IN A SECTION 1170.126, SUBDIVISION (F) ANALYSIS, IS ON WHETHER 

PETITIONER CURRENTLY POSES AN UNREASONABLE RISK OF DANGER TO PUBLIC 

SAFETY. 

Defendant contends the trial court “must articulate a rational nexus” between the 

factors considered in its decision and current dangerousness “as with parole denials.” 

(Some capitalization & underscoring omitted.) 

In discussing the “some evidence” standard applicable in parole cases, the 

California Supreme Court has stated: “This standard is unquestionably deferential, but 

certainly is not toothless, and ‘due consideration’ of the specified factors requires more 

than rote recitation of the relevant factors with no reasoning establishing a rational nexus 

between those factors and the necessary basis for the ultimate decision — the 

determination of current dangerousness.” (In re Lawrence, supra, 44 Cal.4th at p. 1210.)

 

20 Defendant points to an article written by two of the authors of the Act, in which 

they assert the intent of Proposition 36 is that inmates will be entitled to resentencing in 

all but the rarest cases involving true risk to public safety. Assuming this material is 

properly before us, it does not help defendant, because it finds no support in either the 

language of section 1170.126 itself or in the ballot materials related to Proposition 36. 

For instance, although the “ARGUMENT IN FAVOR OF PROPOSITION 36” stated the 

measure had been “carefully crafted ... so that truly dangerous criminals” would receive 

no benefits from the Act (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) argument 

in favor of Prop. 36, p. 52), it did not suggest dangerousness would properly be found 

only in rare cases. Thus, the authors’ intent is not a reliable indicator of what voters 

intended. (See People v. Garcia (2002) 28 Cal.4th 1166, 1175-1176, fn. 5; California 

Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699-701; 

Carleson v. Superior Court (1972) 27 Cal.App.3d 1, 9, fn. 11; see also People v. Rizo 

(2000) 22 Cal.4th 681, 685.) Rather, the statutory language and ballot materials suggest 

voters intended resentencing would be denied in any case in which it would pose an 

unreasonable risk of danger to public safety, and they entrusted to their local judges the 

discretion to make that determination.
25.

Although we decline to decide how and to what extent parole cases inform the 

decision whether to resentence a petitioner under the Act or our review of such a 

decision, we do agree with defendant that the proper focus is on whether the petitioner 

currently poses an unreasonable risk of danger to public safety. (Cf. In re Shaputis 

(2008) 44 Cal.4th 1241, 1254; In re Lawrence, supra, 44 Cal.4th at p. 1214.) We also 

agree a trial court may properly deny resentencing under the Act based solely on 

immutable facts such as a petitioner’s criminal history “only if those facts support the 

ultimate conclusion that an inmate continues to pose an unreasonable risk to public 

safety. [Citation.]” (In re Lawrence, supra, at p. 1221.) “[T]he relevant inquiry is 

whether [a petitioner’s prior criminal and/or disciplinary history], when considered in 

light of other facts in the record, are such that they continue to be predictive of current 

dangerousness many years [later]. This inquiry is ... an individualized one, and cannot 

be undertaken simply by examining the circumstances of [the petitioner’s criminal 

history] in isolation, without consideration of the passage of time or the attendant changes 

in the inmate’s psychological or mental attitude. [Citation.]’ [Citation.]” (In re 

Shaputis, supra, 44 Cal.4th at pp. 1254-1255.)

II

The Trial Court’s Ruling

Applying the foregoing principles, we conclude defendant has not borne his 

burden on appeal of establishing the trial court’s ruling exceeds the bounds of reason. 

Although appellant counsels us to remember that, if he were sentenced today for the same 

commitment offenses he could not be sentenced to a life term as a third strike offender,

we note the same would be true of any prisoner eligible for resentencing under 

section 1170.126. Defendant also argues voters have determined prisoners like him do 

not pose an unreasonable risk of danger. If that were so, voters would not have given 

trial courts discretion to decide what evidence is relevant to such a determination, or to 

make such determination. We find those arguments unpersuasive. 
26.

Here, the trial court clearly was aware it was required to find defendant currently 

posed an unreasonable risk to public safety. As the court stated in its written ruling, 

“Unless the court finds the defendant presents such a danger, he or she shall be 

resentenced.” (Italics added & omitted.) 

Additionally, the trial court’s ruling conveyed reasoning which established a nexus 

between the evidence before it and current dangerousness. Defendant appears to contend 

an express statement of reasons supporting a finding of dangerousness is required, but 

section 1170.126 — in contrast to section 1385, subdivision (a) — contains no such 

requirement. The trial court’s ruling here was more than adequate for meaningful 

appellate review, and “the application of reasoned analysis” is apparent from its ruling. 

(In re Young (2012) 204 Cal.App.4th 288, 306.) Moreover, the court did not merely rely 

on long-ago crimes, although defendant’s criminal record certainly figured into its 

determination. 

Defendant complains the trial court discounted or ignored any evidence favorable 

to him, such as the remoteness of his criminal offenses, his classification score, his health 

and age, and Mathews’s assessment. These matters were all before the court, however, 

and the court expressly stated it had reviewed the case file and records and considered the 

testimony, and that its determination was “[b]ased on all of those things.” Although it 

may not have expressly mentioned each piece of evidence individually, this does not 

mean it failed to consider all the evidence. 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.) That defendant

does not agree with the conclusion the court reached, or the weight or lack of weight it 

accorded to the various facts before it, does not mean the trial court erred.

Defendant argues the trial court erroneously framed the pertinent issue as an 

inquiry into the risk of recidivism in general, when it should have been looking at the 

likelihood of future violence. The court did not err. Section 1170.126, subdivision (f) 
27.

does not say a petitioner shall be resentenced unless the court determines resentencing the 

petitioner would pose an unreasonable risk of violence; rather, it speaks in terms of 

danger to public safety.21 That a crime (or criminal) can constitute a danger to public 

safety without being violent is too obvious to dispute (see, e.g., People v. Hughes (2002) 

27 Cal.4th 287, 355; People v. Villalobos (2006) 145 Cal.App.4th 310, 317) and is 

recognized both by the three strikes law’s inclusion as a strike, by reference to 

section 1192.7, subdivision (c)’s definition of a “serious felony,” any first degree 

burglary, furnishing certain drugs to a minor, and grand theft involving a firearm (§§ 667, 

subd. (d)(1), 1170.12, subd. (b)(1), 1192.7, subd. (c)(18), (24) & (26)), and by 

section 1170.126, subdivision (e)(2)’s disqualification from eligibility for resentencing 

persons convicted of certain narcotics offenses (see §§ 667, subd. (e)(2)(C)(i), 1170.12, 

subd. (c)(2)(C)(i)). Although the ballot materials concerning Proposition 36 focused on 

violent criminals, section 7 of the Act provides: “This act is an exercise of the public 

power of the people of the State of California for the protection of the health, safety, and 

welfare of the people of the State of California, and shall be liberally construed to 

effectuate those purposes.” (Italics omitted.) To condition resentencing denials upon the 

likelihood of future violence would run contrary to the language of section 1170.126, 

subdivision (f) and voters’ intent, and would not effectuate the purposes of the Act.

Finally, defendant contends that, in light of the Act’s express purpose of “a more 

rational and cost-effective allocation of the crippling expenses of California’s prison 

 

21 Words and phrases used in the Penal Code “must be construed according to the 

context and the approved usage of the language ....” (§ 7, subd. 16.) In interpreting a 

ballot initiative, we afford the words used their ordinary and usual meaning. (People v. 

Park (2013) 56 Cal.4th 782, 796.) “[S]afety” has been variously defined as “the 

condition of being safe: freedom from exposure to danger: exemption from hurt, injury or 

loss” (Webster’s 3d New Internat. Dict. (1986) p. 1998) and “[t]he condition of being 

safe; freedom from danger, risk, or injury” (American Heritage Dict. (2d college ed. 

1982) p. 1084).
28.

system,” trial courts are required to weigh fiscal considerations in deciding resentencing 

petitions, something the trial court here did not do. In our view, the notion that the cost 

of continued incarceration has some bearing on whether resentencing a particular inmate 

would pose an unreasonable risk of danger to public safety is a non sequitur. Although 

saving money is a goal of the Act, it does not override the primary purpose of the three 

strikes law and the Act as a whole — the protection of public safety. (See People v. 

Osuna, supra, 225 Cal.App.4th at pp. 1036-1038.) The trial court was not required to 

take the cost of continued imprisonment into account or undertake the equivalent of a 

cost-benefit analysis in determining whether resentencing defendant would pose an 

unreasonable risk of danger to public safety; the Act already did so, and the electorate has 

determined keeping criminals who pose an unreasonable risk of danger to public safety 

behind bars for their full three strikes sentence is more important than saving money.

III*

Section 1170.18, Subdivision (c)

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

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

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

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

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

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

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

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

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

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

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

 

* See footnote, ante, page 1.
29.

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

danger to public safety.” (Id., subd. (b).)22

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

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

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

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

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

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

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

“super strike” offenses:

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

Section 6600 of the Welfare and Institutions Code.

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

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

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

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

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

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

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

age, in violation of Section 288.

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

offense, defined in Sections 187 to 191.5, inclusive.

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

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

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

 

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

completed their sentences may have the particular conviction or convictions designated 

as misdemeanors. (§ 1170.18, subds. (f), (g).)
30.

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

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

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

California by life imprisonment or death.”

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

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

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

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

23

 

23 We solicited supplemental briefing concerning Proposition 47. Among the 

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

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

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

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

applicability regardless of whether defendant might obtain resentencing under 

Proposition 47.

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

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

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

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

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

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

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

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

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

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

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

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

332). 

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

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

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

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

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

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

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

proceedings, whether in a trial court or on appeal, under the Act. Nothing we say should 
31.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

be read as expressing any opinion concerning defendant’s eligibility to seek, or the 

appropriate result should he seek, resentencing under Proposition 47.
32.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

95.)

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

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

contemporaneous administrative construction, and the statutory scheme of which the 

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

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

[Citation.]’ [Citation.]” (People v. Osuna, supra, 225 Cal.App.4th at p. 1034.) We 
33.

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

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

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

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

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

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

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

pp. 1034-1035.)

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

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

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

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

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

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

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

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

5).

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

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

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

their current offense but for their recidivism. Recidivism in the 

commission of multiple felonies poses a danger to society justifying the 

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

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

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

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

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

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

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

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

dividing felony theft from petty larceny, the point at which a recidivist will 
34.

be deemed to have demonstrated the necessary propensities and the amount 

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

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

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

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

incapacitation be given precedence in determining the appropriate 

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

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

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

824.)24

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

and Statutory Notes, 50C West’s Ann. Pen. Code (2004 ed.) foll. § 1170.12, p. 239.)
35.

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

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

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

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

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

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

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

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

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

subd. (e)(2)).

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

result of its enactment. Thus, as we previously observed, uncodified section 7 of the Act 

provides: “This act is an exercise of the public power of the people of the State of 

California for the protection of the health, safety, and welfare of the people of the State of 

California, and shall be liberally construed to effectuate those purposes.” (Voter 

Information Guide, Gen. Elec. (Nov. 6, 2012), supra, text of proposed law, p. 110, 

original italics omitted, italics added.) As we explained in People v. Osuna, supra, 225 

Cal.App.4th at page 1036, “Although the Act ‘diluted’ the three strikes law somewhat 

[citation], ‘[e]nhancing public safety was a key purpose of the Act’ [citation].”

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

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

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

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

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

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

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

sentences for people convicted of dangerous crimes like rape, murder, and child 
36.

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

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

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

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

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

Proposition 47 requires misdemeanor sentences for various drug possession and property 

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

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

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

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

Section 1170.18 renders ineligible for resentencing only those inmates whose current 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

reduced sentences.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, 
37.

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

resentencing provision, the Legislative Analyst explained:

“This measure allows offenders currently serving felony sentences 

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

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

to have their felony sentences reduced to misdemeanor sentences. In 

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

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

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

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

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

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

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

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

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

p. 36, italics added.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

against Prop. 47, p. 39.)

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

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

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

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

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

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

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

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

2014) Los Angeles Times <http://www.latimes.com/local/politics/la-me-ff-polproposition47-20141106-story.html> [as of Dec. 17, 2014].) Looking at the information 

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

of no import. (Cf. People v. Garcia, supra, 28 Cal.4th at pp. 1175-1176, fn. 5; People v. 

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

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

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

to be aware of existing laws and judicial constructions in effect at the time legislation is 

enacted’ [citation], ‘and to have enacted or amended a statute in light thereof’ [citation]. 

‘This principle applies to legislation enacted by initiative. [Citation.]’ [Citation.]” 

(People v. Superior Court (Cervantes), supra, 225 Cal.App.4th at p. 1015; accord, In re 

Lance W. (1985) 37 Cal.3d 873, 890, fn. 11.) Thus, we presume voters were aware 

“unreasonable risk of danger to public safety,” as used in section 1170.126,

subdivision (f), had been judicially construed as not being impermissibly vague, but as 

nevertheless having no fixed definition. (People v. Garcia (2014) 230 Cal.App.4th 763, 
39.

769-770, petn. for review pending, petn. filed Nov. 18, 2014; People v. Flores, supra,

227 Cal.App.4th at p. 1075.) Because nowhere in the ballot materials for Proposition 47 

was it called to voters’ attention the definition of the phrase contained in section 1170.18, 

subdivision (c) would apply to resentencing proceedings under the Act, we simply cannot 

conclude voters intended Proposition 47 to alter the Act in that respect. Voters are not 

asked or presumed to be able to discern all potential effects of a proposed initiative 

measure; this is why they are provided with voter information guides containing not only 

the actual text of such a measure, but also a neutral explanation and analysis by the 

Legislative Analyst and arguments in support of and in opposition to the measure. As we 

have already observed, none of those materials so much as hinted that Proposition 47 

could have the slightest effect on resentencing under the Act. (Cf. Marshall v. Pasadena 

Unified School Dist., supra, 119 Cal.App.4th at pp. 1255-1256 [legislative history of 

enactment included information bill would add definition of particular term to Public 

Contract Code].)25

We are asked to infer an intent to extend section 1170.18, subdivision (c)’s 

definition to proceedings under section 1170.126 because the phrase in question only 

appears in those sections of the Penal Code. We cannot do so. The only resentencing 

mentioned in the Proposition 47 ballot materials was resentencing for inmates whose 

current offenses would be reduced to misdemeanors, not those who would still warrant 

second strike felony terms. There is a huge difference, both legally and in public safety 

risked, between someone with multiple prior serious and/or violent felony convictions 

whose current offense is (or would be, if committed today) a misdemeanor, and someone 

 

25 For the same reasons, we reject any suggestion the definition contained in 

section 1170.18, subdivision (c) was intended to clarify the true meaning of 

“unreasonable risk of danger to public safety” as used in section 1170.126, 

subdivision (f). (Cf. Re-Open Rambla, Inc. v. Board of Supervisors (1995) 39 

Cal.App.4th 1499, 1511; In re Connie M. (1986) 176 Cal.App.3d 1225, 1238.)
40.

whose current offense is a felony. Accordingly, treating the two groups differently for 

resentencing purposes does not lead to absurd results, but rather is eminently logical.

We recognize “[i]t is an established rule of statutory construction ... that when 

statutes are in pari materia similar phrases appearing in each should be given like 

meanings. [Citations.]” (People v. Caudillo (1978) 21 Cal.3d 562, 585, overruled on 

another ground in People v. Martinez (1999) 20 Cal.4th 225, 229, 237, fn. 6 & 

disapproved on another ground in People v. Escobar (1992) 3 Cal.4th 740, 749-751 & 

fn. 5; see Robbins v. Omnibus R. Co. (1867) 32 Cal. 472, 474.) We question whether 

Proposition 47 and the Act are truly in pari materia: That phrase means “[o]n the same 

subject; relating to the same matter” (Black’s Law Dict. (9th ed. 2009) p. 862), and the 

two measures (albeit with some overlap) address different levels of offenses and 

offenders. In any event, “canons of statutory construction are merely aids to ascertaining 

probable legislative intent” (Stone v. Superior Court (1982) 31 Cal.3d 503, 521, fn. 10); 

they are “mere guides and will not be applied so as to defeat the underlying legislative 

intent otherwise determined [citation]” (Dyna-Med, Inc. v. Fair Employment & Housing 

Com., supra, 43 Cal.3d at p. 1391).

The Act was intended to reform the three strikes law while keeping intact that 

scheme’s core commitment to public safety. Allowing trial courts broad discretion to 

determine whether resentencing an eligible petitioner under the Act “would pose an 

unreasonable risk of danger to public safety” (§ 1170.126, subd. (f)) clearly furthers the 

Act’s purpose. Whatever the wisdom of Proposition 47’s policy of near-universal 

resentencing where misdemeanants are concerned — and “[i]t is not for us to gainsay the 

wisdom of this legislative choice” (Bernard v. Foley (2006) 39 Cal.4th 794, 813) —

constraining that discretion so that all but the worst felony offenders are released 

manifestly does not, nor does it comport with voters’ intent in enacting either measure.

Accordingly, Proposition 47 has no effect on defendant’s petition for resentencing 

under the Act. Defendant is not entitled to a remand so the trial court can redetermine 
41.

defendant’s entitlement to resentencing under the Act utilizing the definition of 

“‘unreasonable risk of danger to public safety’” contained in section 1170.18, 

subdivision (c).26

DISPOSITION

The judgment is affirmed.

_____________________

DETJEN, J.

I CONCUR:

_____________________

LEVY, Acting P.J.

 

26 Recently, the Third District Court of Appeal held section 1170.18, 

subdivision (c)’s definition of “‘unreasonable risk of danger to public safety’” does not 

apply retroactively to defendants whose petitions for resentencing under the Act were 

decided before the effective date of Proposition 47. (People v. Chaney (Dec. 1, 2014, 

C073949) ___ Cal.App.4th ___, ___-___ [2014 D.A.R. 15934, 15935-15936].) Chaney

did not decide whether Proposition 47’s definition applies prospectively to such petitions. 

(Chaney, supra, at p. ___, fn. 3 [2014 D.A.R. 15934, 15936, fn. 3].) Were we to 

conclude section 1170.18, subdivision (c) modifies section 1170.126, subdivision (f), we 

would agree with Chaney that it does not do so retroactively. We believe, however, that 

a finding of nonretroactivity inexorably leads to the possibility of prospective-only 

application, and that prospective-only application of Proposition 47’s definition to 

resentencing petitions under the Act would raise serious, perhaps insurmountable, equal 

protection issues. “Mindful of the serious constitutional questions that might arise were 

we to accept a literal construction of the statutory language, and of our obligation 

wherever possible both to carry out the intent of the electorate and to construe statutes so 

as to preserve their constitutionality [citations]” (People v. Skinner (1985) 39 Cal.3d 765, 

769), we rest our holding on the reasoning set out in our opinion, ante.
PEÑA, J.,

I concur in the judgment and the majority opinion with the exception of part III. I 

agree defendant may not take advantage of Proposition 47’s1 newly enacted definition of 

“unreasonable risk of danger to public safety,” as provided in Penal Code section 

1170.18, subdivision (c) (1170.18(c)). I do so not because there is any ambiguity in the 

language used in section 1170.18(c) or the notion that the statute does not mean what it 

says, i.e., that the new definition applies “throughout this Code.” Rather, in my view, 

there is no indication the electorate, in enacting section 1170.18(c), intended it to apply 

retroactively to resentencing determinations under Proposition 36, the Three Strikes 

Reform Act of 2012 (the Act).

I. After November 4, 2014, the definition of “unreasonable risk of danger” in 

Section 1170.18(c) applies throughout the Penal Code

Section 1170.18(c) provides: “As used throughout this Code, ‘unreasonable risk 

of danger to public safety’ means an unreasonable risk that the petitioner will commit a 

new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph

(2) of subdivision (e) of Section 667.”

This section and subdivision were enacted on November 4, 2014, when California 

voters passed Proposition 47, long past the time of defendant’s resentencing hearing. 

Unless the legislation was designed or intended to apply retroactively, the definition in 

section 1170.18(c) cannot apply to defendant. This is the only inquiry we must make to 

resolve the issue of whether the definition in section 1170.18(c) applies to defendant. 

However, the majority has opted to determine whether the new definition applies to any 

resentencing provisions under the Act, past, present, or future. I respectfully disagree 

with the majority’s analysis and conclusion on this broader issue.

 

1The Safe Neighborhood and Schools Act (Prop. 47, as approved by voters, Gen. Elec.

(Nov. 4, 2014)).
2.

“‘When construing a statute, we must “ascertain the intent of the 

Legislature so as to effectuate the purpose of the law.”’ [Citations.] ‘[W]e 

begin with the words of a statute and give these words their ordinary 

meaning.’ [Citation.] ‘If the statutory language is clear and unambiguous, 

then we need go no further.’ [Citation.] If, however, the language supports 

more than one reasonable construction, we may consider ‘a variety of 

extrinsic aids, including the ostensible objects to be achieved, the evils to 

be remedied, the legislative history, public policy, contemporaneous 

administrative construction, and the statutory scheme of which the statute is 

a part.’ [Citation.] Using these extrinsic aids, we ‘select the construction 

that comports most closely with the apparent intent of the Legislature, with 

a view to promoting rather than defeating the general purpose of the statute, 

and avoid an interpretation that would lead to absurd consequences.’ 

[Citation.]” (People v. Sinohui (2002) 28 Cal.4th 205, 211-212.)

Where the statutory language is so clear and unambiguous, there is no need for 

statutory construction or to resort to legislative materials or other outside sources. 

(Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366, 1371.) Absent ambiguity, it is 

presumed the voters intend the meaning apparent on the face of an initiative measure, and 

the courts may not add to the statute or rewrite it to conform to a presumed intent not 

apparent in its language. (People v. ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 

294, 301.)

In determining whether the words enacted here are unambiguous, we do not write 

on a blank slate. For example, in Marshall v. Pasadena Unified School Dist. (2004) 119 

Cal.App.4th 1241, 1255, the court stated there “is nothing ambiguous about the phrase 

‘as used in this code.’” It held the definition of “Emergency, as used in this code” 

applied to the entire Public Contract Code, and it was not limited to a particular chapter, 

article, or division of that code. Also, in People v. Bucchierre (1943) 57 Cal.App.2d 153, 

166, the court held: “The words ‘as in this code provided’ (Penal Code, § 182) refer to 

the Penal Code.”

In a similar vein, the court in People v. Leal (2004) 33 Cal.4th 999, 1007-1008, 

applied the plain meaning rule as follows:
3.

“The statutory language of the provision defining ‘duress’ in each of 

the rape statutes is clear and unambiguous. The definition of ‘duress’ in 

both the rape and spousal rape statutes begins with the phrase, ‘As used in

this section, “duress” means ....’ (§§ 261, subd. (b), 262, subd. (c).) This 

clear language belies any legislative intent to apply the definitions of 

‘duress’ in the rape and spousal rape statutes to any other sexual offenses.

“Starting from the premise that in 1990 the Legislature incorporated 

into the rape statute a definition of ‘duress’ that already was in use for other 

sexual offenses, defendant argues that the Legislature must have intended 

its 1993 amendment of the definition of ‘duress’ in the rape statute, and the 

incorporation of this new definition into the spousal rape statute, to apply as 

well to other sexual offenses that use the term ‘duress.’ Defendant 

observes: ‘The legislative history does not suggest any rationale for why 

the Legislature would want its 1993 amendment of the definition of 

“duress” to apply only to rape so that it would have one meaning when the 

rape statutes use the phrase “force, violence, duress, menace, or fear of 

immediate and unlawful bodily injury” but another, much more expansive 

meaning when the identical phrase is used in the statutes defining sodomy, 

lewd acts on a child, oral copulation and foreign object rape.’

“But the Legislature was not required to set forth its reasons for 

providing a different definition of ‘duress’ for rape and spousal rape than 

has been used in other sexual offenses; it is clear that it did so. ‘When 

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

construction, and courts should not indulge in it.’” [Citations.] The plain 

meaning of words in a statute may be disregarded only when that meaning 

is “‘repugnant to the general purview of the act,’ or for some other 

compelling reason ....” [Citations.]’ [Citation.] As we said in an 

analogous situation: ‘It is our task to construe, not to amend, the statute. 

“In the construction of a statute ... the office of the judge is simply to 

ascertain and declare what is in terms or in substance contained therein, not 

to insert what has been omitted or omit what has been inserted ....” 

[Citation.] We may not, under the guise of construction, rewrite the law or 

give the words an effect different from the plain and direct import of the 

terms used.’ [Citation.]”

The majority pays lip service to the plain meaning rule and then ignores it. While 

acknowledging the language used is unambiguous, it nonetheless engages in statutory 

construction to determine whether the electorate really intended to say what it actually 

enacted. The end result is a rewriting of the statute so that it comports with the majority’s 
4.

view of what the voters really intended. The majority has rewritten section 1170.18(c) so 

that it now states: “As used in this section only, ‘unreasonable risk of danger to public 

safety’ means ....” The majority does so without providing a compelling reason to do so 

and without showing the plain language used has a “‘meaning [that] is “‘repugnant to the 

general purview of the act.’”’” (People v. Leal, supra, 33 Cal.4th at p. 1008.) Because 

the Act had not previously defined the phrase “unreasonable risk of danger to public 

safety,” the definition in section 1170.18(c) cannot be repugnant or contradictory to the 

Act, nor does the majority claim the definition is repugnant to the general purview of 

Proposition 47. For these reasons, I respectfully disagree with the majority on this part of 

the opinion.

II. Section 1170.18(c) has no application to defendant’s resentencing under the 

Act

I do concur in the result because there is nothing in Proposition 47 to indicate the 

definition enacted under section 1170.18(c) is to be applied retroactively to defendant 

under the Act.

I begin my analysis with section 3 of the Penal Code, which provides that “[n]o 

part of it is retroactive, unless expressly so declared.” “Whether a statute operates 

prospectively or retroactively is, at least in the first instance, a matter of legislative intent. 

When the Legislature has not made its intent on the matter clear,” section 3 provides the 

default rule. (People v. Brown (2012) 54 Cal.4th 314, 319.) Proposition 47 is silent on 

the question of whether it applies retroactively to proceedings under the Act. The 

analysis of Proposition 47 by the legislative analyst and the arguments for and against 

Proposition 47 are also silent on this question. (Voter Information Guide, Gen. Elec.

(Nov. 4, 2014) pp. 34-39.) Because the statute contains no express declaration that 

section 1170.18(c) applies retroactively to proceedings under the Act, and there is no 

clearly implied intent of retroactivity in the legislative history, the default rule applies.
5.

Defendant cites In re Estrada (1965) 63 Cal.2d 740 to argue retroactive 

application.

In Estrada, the court stated:

“When the Legislature amends a statute so as to lessen the punishment it 

has obviously expressly determined that its former penalty was too severe 

and that a lighter punishment is proper as punishment for the commission 

of the prohibited act. It is an inevitable inference that the Legislature must 

have intended that the new statute imposing the new lighter penalty now 

deemed to be sufficient should apply to every case to which it 

constitutionally could apply. The amendatory act imposing the lighter 

punishment can be applied constitutionally to acts committed before its 

passage provided the judgment convicting the defendant of the act is not 

final. This intent seems obvious, because to hold otherwise would be to 

conclude that the Legislature was motivated by a desire for vengeance, a 

conclusion not permitted in view of modern theories of penology.” (In re 

Estrada, supra, 63 Cal.2d at p. 745.)

One may argue that under the Estrada case, unless there is a “savings clause” 

providing for prospective application, a statute lessening punishment is presumed to 

apply to all cases not yet reduced to a final judgment on the statute’s effective date. (In 

re Estrada, supra, 63 Cal.2d at pp. 744-745, 747-748.) However, the Estrada case has 

been revisited by our Supreme Court on several occasions. In People v. Brown, supra, 54 

Cal.4th at page 324 the court stated: “Estrada is today properly understood, not as 

weakening or modifying the default rule of prospective operation codified in [Penal 

Code] section 3, but rather as informing the rule’s application in a specific context by 

articulating the reasonable presumption that a legislative act mitigating the punishment 

for a particular criminal offense is intended to apply to all nonfinal judgments.” “The 

holding in Estrada was founded on the premise that ‘“[a] legislative mitigation of the 

penalty for a particular crime represents a legislative judgment that the lesser penalty or 

the different treatment is sufficient to meet the legitimate ends of the criminal law.”’” 

(Id. at p. 325.) In Brown, the court did not apply the Estrada rule because “a statute 

increasing the rate at which prisoners may earn credits for good behavior does not 
6.

represent a judgment about the needs of the criminal law with respect to a particular 

criminal offense, and thus does not support an analogous inference of retroactive intent.” 

(People v. Brown, supra, at p. 325.)

Similarly here, Estrada does not control because applying the definition of 

“unreasonable risk to public safety” in Proposition 47 to petitions for resentencing under 

the Act does not reduce punishment for a particular crime. Instead, the downward 

modification of a sentence authorized by the Act is dependent not just on the current 

offense but on any number of unlimited factors related to the individual offender, 

including criminal conviction history, disciplinary and rehabilitation records, and “[a]ny 

other evidence the court, within its discretion, determines to be relevant in deciding 

whether a new sentence would result in an unreasonable risk of danger to public safety.” 

(Pen. Code, § 1170.126, subd. (g)(3).)

For this reason also, defendant’s argument his equal protection rights would be 

violated if he is denied retroactive application is unavailing. In light of the unlimited 

factors related to individual offenders that inform the exercise of discretion, no two 

individual offenders may be said to be similarly situated for purposes of resentencing 

under the Act. Unlike In re Kapperman (1974) 11 Cal.3d 542, upon which defendant 

relies, Proposition 47’s new definition does not automatically confer a benefit such as 

credit for time served prior to commencement of their prison sentence to some prisoners 

and not others based solely on their commitment date.

Nor is this case similar to Village of Willowbrook v. Olech (2000) 528 U.S. 562

also relied upon by defendant. There, the plaintiff (Olech) alleged she was intentionally 

treated differently from others similarly situated and that there was no rational basis for 

the difference in treatment. Specifically, the defendant (Village) had intentionally 

demanded a 33-foot easement as a condition of connecting her property to the municipal 

water supply where the Village required only a 15-foot easement from other similarly 

situated property owners. After a three-month delay, Village relented and agreed to 
7.

provide water service with only a 15-foot easement. Olech also alleged Village was 

actually motivated by ill will resulting from Olech’s prior filing of an unrelated and 

unsuccessful lawsuit against Village. The high court held that apart from the Village’s 

subjective motivation, the fact the Village required a 33-foot easement from Olech as a 

condition for connecting her property while it required only a 15-foot easement from the 

other similarly situated property owners sufficiently stated a claim for relief under 

traditional equal protection analysis. (Id. at pp. 563-565.) Here, defendant has not shown 

he is similarly situated to others to whom the new definition has applied or may apply, 

nor has he established that he has been treated differently as a result of some arbitrary 

discrimination.

Because section 1170.18(c)’s definition of “unreasonable risk of danger to public 

safety” does not apply retroactively to the Act, the sentencing court applied the correct 

standard in exercising its discretion to not resentence defendant.

2 Since defendant has 

failed to show an abuse of that discretion, I concur in the majority’s affirmance of the 

judgment.

___________________________

PEÑA, J.

 

2Recently in People v. Chaney (Oct. 29, 2014 C073949) __ Cal.App.4th __ the Third 

District Court of Appeal held the definition of “unreasonable risk of danger to public 

safety” as provided in section 1170.18(c) does not apply retroactively. I agree.