Filed 9/26/16 P. v. Roberson CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS R. ROBERSON,

Defendant and Appellant.

 B262682

 (Los Angeles County

 Super. Ct. No. LA027670)

APPEAL from an order of the Superior Court of Los Angeles County.

William C. Ryan, Judge. Affirmed.

Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Noah P. Hill and Blythe J. 

Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________________________
2

Defendant Carlos R. Roberson appeals from the postjudgment order denying his 

petition to recall his sentence and for resentencing pursuant to Penal Code section 

1170.126,1 added by Proposition 36 (or Three Strikes Reform Act).2 He contends the 

Proposition 36 court erred in denying his petition, because such denial is contrary to the 

Act’s presumption in favor of resentencing; it violates his constitutional right to due 

process; and the court failed to apply the definition of “unreasonable risk of danger to 

public safety” in Proposition 47.

We affirm the order. Proposition 36 contains no presumption in favor of 

resentencing and does not implicate any due process concerns. Proposition 47’s 

definition of “unreasonable risk of danger to public safety” has no bearing on the 

Proposition 36 finding of dangerousness. The Proposition 36 court’s finding of 

dangerousness is reviewed for abuse of discretion, and no abuse occurred.

BACKGROUND

At trial, the evidence established: On June 25, 1997, a parked Toyota minivan 

was stolen. On June 30, 1997, a police officer observed defendant driving the stolen 

vehicle. He and another officer followed defendant, each activating his respective 

vehicle’s lights and sirens. After entering the San Bernardino Freeway, defendant led the 

officers, who were joined by two California Highway Patrol (CHP) vehicles, on a highspeed chase along two freeways and surface streets for a distance of 48 miles. During the 

chase, he caused four to six rear-end collisions on a freeway, sideswiped a car at an onramp to another, ran a red light, and collided with a truck in the San Fernando Valley. 

 

1 All further section references are to the Penal Code unless otherwise indicated.

2 “On November 6, 2012, the electorate passed Proposition 36, the Three Strikes 

Reform Act of 2012 . . . . Proposition 36 reduced the punishment to be imposed with 

respect to some third strike offenses that are neither serious nor violent, and provided for 

discretionary resentencing in some cases in which third strike sentences were imposed 

with respect to felonies that are neither serious nor violent.” (People v. Johnson (2015) 

61 Cal.4th 674, 679 (Johnson).) Proposition 36 was effective on November 7, 2012. (Id. 

at p. 680.)
3

Defendant crashed the minivan into a tree and was ejected from the vehicle. He 

then fled on foot. When a CHP officer caught up to him, a struggle ensued during which 

defendant tried to grab the officer’s gun; the gun discharged; and defendant was struck in 

the hip before being subdued. On his vehicle floor were screwdrivers and a crowbar. 

The trial court convicted defendant of unlawful driving or taking of a vehicle and 

evading an officer (Veh. Code, §§ 10851, subd. (a), 2800.2, subd. (a)). The court also 

found true the allegations he had sustained three prior serious felony convictions that 

qualified as strikes under the Three Strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. 

(b)-(i)). He was sentenced to prison for 25 years to life as a third striker. 

On appeal, defendant contended the trial court abused its discretion in denying his 

request to vacate two of the prior convictions and sentence him as a second strike 

defendant. Respondent contended the judgment must be modified to impose a parole 

revocation fine. We modified the judgment to reflect the imposition of a suspended 

parole revocation fine (§ 1202.45), and as so modified, we affirmed the judgment.3

In December 2012, defendant filed a petition to recall his sentence and for 

resentencing pursuant to section 1170.126.

In January 2013, the Proposition 36 court issued an order to show cause. In 

September 2013, the People filed opposition, alleging defendant was unsuitable for 

resentencing because he would then pose an unreasonable risk of danger to public safety. 

In February 2014, defendant filed a reply.

On October 8, 2014, a hearing was held on defendant’s suitability for 

resentencing.

On November 4, 2014, California voters approved Proposition 47, an initiative 

measure, which took effect November 5, 2014. (People v. Shabazz (2015) 237 

Cal.App.4th 303, 308.)

 

3 The above background is taken from the earlier unpublished opinion (B127768), 

of which we take judicial notice. (Evid. Code, §§ 452, subd. (d)(1), 459.)
4

On November 12, 2014, the Proposition 36 court ordered supplemental briefing on 

whether Proposition 47’s definition of “unreasonable risk of danger to public safety” was

applicable to determining suitability for resentencing, because such definition 

“potentially would be more favorable to Proposition 36 petitioners.”

On December 15, 2014, both sides filed their respective briefs, and the court took 

the matter under submission.

On January 23, 2015, the Proposition 36 court issued its memorandum of decision. 

As a housekeeping matter, the court noted that on December 16, 2014, a Court of Appeal 

concluded the Proposition 47 danger definition was inapplicable to Proposition 36 

petitions. The court concluded this appellate court opinion rendered moot the parties’ 

supplemental briefing on the same issue. The court found resentencing defendant at that 

time would pose an unreasonable risk of danger to public safety (§1170.126, subd. (f)) 

and exercised its discretion not to resentence defendant. The court then discharged its 

order to show cause and denied the petition.

DISCUSSION

1. Proposition 47 Definition of Danger Is Inapplicable to Proposition 36 

Initially, we point out that on February 18, 2015, our Supreme Court granted 

review in People v. Valencia (S223825), formerly (2014) 232 Cal.App.4th 514 

(Valencia), the appellate court case relied on by the Proposition 36 court as conclusive 

authority that Proposition 47’s danger definition is inapplicable to Proposition 36 

petitions. Valencia therefore is deemed depublished and uncitable as authority pursuant 

to this grant of review.4 The applicability of Proposition 47’s danger definition in the 

Proposition 36 context is pending before that Court in both Valencia, supra, S223825,

and People v. Chaney (S223676), formerly (2014) 231 Cal.App.4th 1391 (Chaney).

5

 

4 This is no longer correct as to grants of review filed on or after July 1, 2016. (Cal. 

Rules of Court, rules 8.1105, 8.1115, amended effective Jul. 1, 2016.) 

5

In its brief, respondent stated in People v. Valdez the Court of Appeal held 

Proposition 47’s definition should apply to Proposition 36 cases. On July 13, 2016, our 
5

In view of the posture of this issue, we shall not belabor the point but simply 

conclude, as did the court in People v. Esparza (2015) 242 Cal.App.4th 726 (Esparza), 

that the voters in enacting Proposition 47 did not intend for its definition of danger to 

extend to petitions under Proposition 36, and thus such definition is inapplicable here. 

Pursuant to Proposition 36, an inmate, otherwise eligible for resentencing, “shall 

be resentenced [as a second striker] unless the court, in its discretion, determines that 

resentencing . . . would pose an unreasonable risk of danger to public safety.” 

(§ 1170.126, subd. (f).) Proposition 47 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.”6(§ 1170.18, subd. 

(c), italics added.)

In Esparza, the court explained: “Plainly, if considered solely as a matter of 

grammatical construction, Proposition 47’s definition of ‘unreasonable risk of danger to 

public safety’ undoubtedly is tied to the words ‘As used throughout this Code.’

However, such a literal construction is not to be adopted if it conflicts with the voters’

intent shown in the official ballot pamphlet. [Citations.] Nothing in the official ballot 

pamphlet for Proposition 47 hints at any impact on the procedure for resentencing three 

strikes inmates.” (Esparza, supra, 242 Cal.App.4th 726 at p. 736.) The court found 

 

Supreme Court denied the People’s petition for review but, at the request of the Court of 

Appeal, granted review on its own motion and transferred the cause to the appellate court 

“with directions to vacate its decision and to reconsider the cause, including the People’s 

motion to abate the proceedings in light of the defendant’s death [citations], as that Court 

sees fit.” (People v. Valdez (2016) 246 Cal.App.4th 1410, revd. with directions, 

including to vacate the decision, S235048.) 

6 “These prior convictions are sometimes referred to as ‘super strikes.’ [Citation.]” 

(Johnson, supra, 61 Cal.4th 674, 682.)
6

defendant failed to satisfy his burden to show a contrary intent on the part of the 

electorate.7 (Id. at p. 737.) Defendant here also fails to meet this burden.

2. Proposition 36 Does Not Implicate Federal or State Constitutional Due 

Process

Defendant contends he has a liberty interest in resentencing under Proposition 36 

protected under the federal guarantee of due process of law (U.S. Const., 5th & 14th 

Amends.) and the comparable but broader state guarantee of due process of law (Cal. 

Const., art. 1, §§ 7, subd. (a), 15). He argues “[s]ection 1170.126 is analogous to the 

liberty interest recognized in” in the two cases involving “a federal due process liberty 

interest in the release from prison on parole,” i.e., Greenholtz v. Nebraska Penal Inmates

(1979) 442 U.S. 1 (Greenholtz) and Board of Pardons v. Allen (1987) 482 U.S. 369 

(Board of Pardons).) Further, he points out under the California Constitution, our 

Supreme Court has held “when an individual is subjected to deprivatory governmental 

action, he always has a due process liberty interest both in fair and unprejudiced decisionmaking and in being treated with respect and dignity,” quoting from People v. Ramirez 

(1979) 25 Cal.3d 260, 267. To protect such interest, he posits when a resentencing 

 

7 No petition for review was filed or review granted in Esparza, which came from 

the Sixth District appellate court. In a subsequent Sixth District case, the majority noted 

Esparza was the only extant decision on this issue and rejected its conclusion. (People v. 

Cordova (2016) 248 Cal.App.4th 543, 552, fn. 8, review granted Aug. 31, 2016, S236179 

(Cordova).) The majority held, instead, the language “throughout this Code” in 

Proposition 47’s definition of “unreasonable risk of danger to public safety” necessarily 

signifies that definition applies to Proposition 36 petitions. (Id. at p. 552.) In his 

dissenting opinion, Justice Premo rejected the majority’s holding and readopted 

Esparza’s that “Proposition 47’s definition of ‘an unreasonable risk of danger to public 

safety’ is inapplicable to Proposition 36.” He explained the words “throughout this 

Code” were merely the product of “a drafting error that must be judicially corrected.” 

(Cordova, at pp. 592-593, fn. omitted.) 

In granting review in Cordova, the Court deferred further action pending 

resolution of a related issue in Chaney, supra, S223676, and Valencia, supra, S223825. 

We decline to consider the Cordova majority opinion persuasive on this point. (See Cal. 

Rules of Court, rules 8.1105, 8.1115, amended effective Jul. 1, 2016.)
7

petition is denied, “there must be a rational nexus between the inmate’s record and the 

court’s conclusion of dangerousness.” 

We are not persuaded by defendant’s claim of a constitutional liberty interest in 

resentencing under Proposition 36. First, his analogy of section 1170.126, subdivisions 

(e) and (f) to the provisions of the Nebraska parole statute in Greenholtz and the 

provisions of the Montana parole statute in Board of Pardons is the equivalent of the 

proverbial comparison of apples with oranges. Second, the denial of a Proposition 36 

petition for resentencing is not the equivalent of a “deprivatory governmental action.” 

Rather, the reduction of a third strike sentence to that of a second strike is an act of lenity. 

In denying a petition for such reduction, the state is not depriving defendant of anything, 

because this court already in his earlier appeal affirmed his third strike sentence. 

We have no quarrel with his proposition that there must exist a rational nexus 

between an inmate’s record and the Proposition 36 court’s finding of dangerousness. 

This is simply defendant’s prelude to discussing the applicable standard of review. As 

defendant proceeds in his argument, he urges “[w]hen a court denies relief under section 

1170.126, the decision is reviewed for an abuse of discretion”; “[i]f the trial court’s 

factual findings are not supported by substantial evidence, they cannot form the basis of 

an unreasonable risk determination”; and “determinations of law are independently 

reviewed, such as the interpretation and construction of statutory language.” These are 

all correct statements of law, but it does not follow that these legal principles apply only 

because defendant has a liberty interest protected by due process in resentencing under 

section 1170.126. 

3. Proposition 36 Does Not Involve Presumption Favoring Resentencing

Defendant contends Proposition 36, also known as the Three Strikes Reform Act, 

created the presumption a life term for a third striker would be reduced to a second strike 

sentence whenever the third strike is not for a violent or serious felony. An argument 

along this vein already has been rejected in several appellate decisions as unsupported by 

pertinent legal authority or compelled by the text of subdivision (f) of section 1170.126 

itself. (Cordova, supra, 248 Cal.App.4th 543, 585-587; Esparza, supra, 242 Cal.App.4th 
8

726, 738-739.) Defendant has provided no applicable argument or persuasive authority 

for revisiting these conclusions. We therefore reject his contention as meritless. 

4. Denial of Proposition 36 Petition Is Not Abuse of Discretion

Defendant contends in denying his resentencing petition, the Proposition 36 court 

applied the wrong standard, i.e., that applicable to granting parole to life prisoners 

convicted of murder. He alternatively contends even if the standard were correct, he met 

that standard. We find both contentions to be without merit.

Pursuant to Proposition 36, if the petitioner is otherwise eligible for resentencing, 

he “shall be resentenced . . . unless the court, in its discretion, determines that 

resentencing [him] would pose an unreasonable risk of danger to public safety.” 

(§1170.126, subd. (f).) “In exercising its discretion in subdivision (f), the court may 

consider: [¶] (1) The petitioner’s criminal conviction history, including the type of 

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

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

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

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

an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (g).)

The exercise of discretion by the Proposition 36 court “‘must not be disturbed on 

appeal except on a showing that the court exercised its discretion in an arbitrary, 

capricious or patently absurd manner that resulted in a manifest miscarriage of justice. 

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

“court does not abuse its discretion unless its decision is so irrational or arbitrary that no 

reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)

No abuse of discretion transpired. The Proposition 36 court did not abuse its 

discretion in assessing his “criminal conviction history” and his “disciplinary record and 

record of rehabilitation while in incarcerated” (§1170.126, subd. (g)). In People v. 

Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, the court concluded, “A trial 

court’s decision to refuse to resentence a prisoner, based on a finding of dangerousness, is 

somewhat akin to a decision denying an inmate parole.” (Id. at p. 1306, fn. 29.) Mindful 
9

of this authority, the Proposition 36 court took into account, among other matters, 

suitability and unsuitability factors that the Board of Prison Terms considers in 

determining whether an inmate is suitable for release on parole. The court concluded 

because “[t[he task of the court here, like the Board, is to consider whether the evidence 

supports the ultimate conclusion that the inmate currently poses an unreasonable risk of 

danger to public safety if resentenced . . . [t]here is no logical reason why the analysis 

should be any different . . . from the analysis that the Board uses to determine suitability.”

Further, the court stated, “In making this determination, the parole cases draw a 

distinction between immutable or static factors, such as the circumstance of the life crime 

and the inmate’s prior criminal record, and mutable or dynamic factors, such as insight 

into the causes of criminality, remorse, behavior in prison, rehabilitative programming 

and current age.” Citing In re Lawrence (2008) 44 Cal.4th 1181, 1219-1220, the court 

noted “[t]he immutable factors tend, over time and in the face of substantial rehabilitative 

programming, to be decreasingly predictive of current dangerousness” while “changes in 

an inmate’s maturity, understanding, and mental state are ‘highly probative’ of current 

dangerousness.”

The court reasoned: A Proposition 36 “court may properly deny resentencing . . . 

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” and “[t]he relevant inquiry is whether a petitioner’s prior criminal history 

and/or disciplinary history, and other relevant evidence, 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.”

Additionally, based on our review of the record, we conclude the factual 

underpinnings of the Proposition 36 court’s conclusion that defendant would pose an 
10

unreasonable risk to public safety if resentenced are supported by substantial evidence 

and that the court’s exercise of its discretion not to resentence defendant is not an abuse. 

In its memorandum of decision, the Proposition 36 court recounted the evidence 

presented at the suitability hearing: defendant’s criminal history and strikes, the 

circumstances of his commitment offense, his disciplinary history and rehabilitative 

programming, and the testimony of Richard Subia, a defense expert, regarding 

defendant’s classification score, disciplinary history, and the availability of rehabilitative 

programming for life inmates.

After setting forth the evidence in some detail, the court found: “Taken as a 

whole, this evidence more than amply demonstrates that [defendant], if resentenced, 

would pose an unreasonable risk of danger to public safety. His current commitment was 

a very dangerous pursuit in which he was in numerous collisions, [he] would not stop and 

when apprehended fought with the police and tried to get the officer’s gun, causing it to 

discharge. Once in prison, he engaged in numerous serious rules violations including 

many that involved physical violence. The last violent 115 was in 2013 and the last 115 

he received was in July 2014. Years of incarceration have done little to stem his rulebreaking behavior and call into question his ability to comply with terms of supervision 

or avoid law-breaking behavior if released. The lack of relevant rehabilitative 

programming also enhances his risk to public safety. The Court has considered the fact 

that he has obtained his GED and his some vocational training but these do not outweigh 

the negative factors.” 

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

ASHMANN-GERST, J. CHAVEZ, J.