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People v. Payne

California Court of Appeals, Fifth District

December 17, 2014

THE PEOPLE, Plaintiff and Respondent,
RANDY LYNN PAYNE, Defendant and Appellant.



APPEAL fro a judgment of the Superior Court of Merced County, Nos. SUF20408, SUF20409 Mark V. Bacciarini, Judge.

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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.

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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 [151 Cal.Rptr.3d 901].)

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.

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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. 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.

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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 California's 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 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

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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 inmate-manufactured 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, 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 “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

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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 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.

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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 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

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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 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.”



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)

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(2014) 225 Cal.App.4th 979, 989 [170 Cal.Rptr.3d 763].) If the inmate satisfies all three criteria, as did defendant, he or she “shall be resentenced [as a second strike offender] unless the court, in its discretion, determines that resentencing the [inmate] would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) In exercising this discretion, “the court may consider: [¶] (1) The [inmate’s] criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes; [¶] (2) The [inmate’s] disciplinary record and record of rehabilitation while incarcerated; and [¶] (3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.” (Id., subd. (g).)


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 [14 Cal.Rptr.3d 880, 92 P.3d 369].) "Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 [36 Cal.Rptr.2d 235, 885 P.2d 1]; see People v. Williams (1998) 17 Cal.4th 148, 162 [69 Cal.Rptr.2d 917, 948 P.2d 429] [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

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decision constitutes an abuse of discretion. (See In re Robert L. (1993) 21 Cal.App.4th 1057, 1066 [24 Cal.Rptr.2d 654].)


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 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 [169 Cal.Rptr.3d 678, 320 P.3d 1141].)

“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

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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 [171 Cal.Rptr.3d 55].) 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 (2008) 44 Cal.4th 1181, 1204 [82 Cal.Rptr.3d 169, 190 P.3d 535]), 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 [171 Cal.Rptr.3d 70] (Blakely), we rejected the claim an inmate seeking resentencing pursuant to section 1170.126 had a Sixth Amendment right to a jury

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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 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi) and its progeny (e.g., Alleyne v. United States (2013) 570 U.S. ___ [186 L.Ed.2d 314, 133 S.Ct. 2151]; Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856] (Cunningham); Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531]) "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.

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 [177 L.Ed.2d 271, 130 S.Ct. 2683] (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 and the trial court’s exercise of discretion as that issue is presented here, or to clarify whether the prosecution

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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.

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

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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 [62 Cal.Rptr.3d 569, 161 P.3d 1130], 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 [36 Cal.Rptr.2d 627, 885 P.2d 1040]), and generally were required by the statutes and sentencing rules to state reasons for their discretionary sentencing choices (ibid.). Such reasons had to be “supported by a preponderance of the evidence in the record” and reasonably related to the particular sentencing determination. (Ibid.; see former Cal. Rules of Court, rule 4.420(b).) Even after the DSL was reformed and amended in response to 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 [146 Cal.Rptr.3d 382. 283 P.3d 1252].)[16]

In People v. Sandoval (2007) 41 Cal.4th 825, 850-851 [62 Cal.Rptr.3d 588, 161 P.3d 1146], 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

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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 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 [120 Cal.Rptr. 577, 534 P.2d 65].) 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 [105 Cal.Rptr.2d 80] [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 [272 Cal.Rptr. 197] [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].)

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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 [53 Cal.Rptr.2d 789, 917 P.2d 628] (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 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

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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]

Relying on People v. Guinn (1994) 28 Cal.App.4th 1130, 1141-1142, 1145 [33 Cal.Rptr.2d 791], and its progeny (e.g., People v. Murray (2012) 203 Cal.App.4th 277, 282 [136 Cal.Rptr.3d 820]; People v. Ybarra (2008) 166 Cal.App.4th 1069, 1089 [83 Cal.Rptr.3d 340]), 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 [171 Cal.Rptr.3d 421, 324 P.3d 245].) Leaving aside constitutional questions raised

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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. ___ [183 L.Ed.2d 407, 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 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,

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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 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]


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.)

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

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on whether the petitioner currently poses an unreasonable risk of danger to public safety. (Cf. In re Shaputis (2008) 44 Cal.4th 1241, 1254 [82 Cal.Rptr.3d 213, 190 P.3d 573]; 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.)


The Trial CourtÂ’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.

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

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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 [138 Cal.Rptr.3d 788].) 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 [86 Cal.Rptr. 65, 468 P.2d 193]; cf. People v. Sparks (1968) 262 Cal.App.2d 597, 600-601 [68 Cal.Rptr. 909].) 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) 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 [116 Cal.Rptr.2d 401, 39 P.3d 432]; People v. Villalobos (2006) 145 Cal.App.4th 310, 317 [51 Cal.Rptr.3d 678]) 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) &

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(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." (Voter Information Guide, Gen. Elec, supra, text of Prop. 36, p. 110, 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 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.


Section 1170.18, Subdivision (c) [*]

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The judgment is affirmed.


PENA, J., Concurring. [*]

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