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People v. Losa

California Court of Appeals, Fifth District

December 19, 2014

THE PEOPLE, Plaintiff and Respondent,
v.
DOUGLAS ROY LOSA, Defendant and Appellant.

[CERTIFIED FOR PARTIAL PUBLICATION[*]]

APPEAL from a judgment of the Superior Court of Madera County. No. 13142 Dale J. Blea, Judge.

Page 790

COUNSEL

Deanna Lamb, 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, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

Page 791

DETJEN, J.

INTRODUCTION

The Three Strikes Reform Act of 2012 (hereafter 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, Douglas Roy Losa (defendant), an inmate serving a term of 25 years to life following conviction of a felony that was not violent (as defined by § 667.5, subd. (c)) or serious (as defined by § 1192.7, subd. (c)), filed a petition for recall of sentence and request for resentencing under the Act. Following a hearing, the trial court found resentencing defendant would present an unreasonable risk of danger to public safety and denied the petition.

In the unpublished portion of this opinion, we hold the People have the burden of proving, by a preponderance of the evidence, facts on which a finding that resentencing a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. The trial court’s determination whether to resentence a petitioner, however, is reviewed for abuse of discretion. We also hold recently enacted section 1170.18, subdivision (c) does not modify section 1170.126, subdivision (f). Because we conclude the People met their burden and the trial court did not abuse its discretion, we affirm. We publish our discussion of defendant’s claim a petitioner is entitled to proof beyond a reasonable doubt and a jury trial on the “dangerousness” issue based on equal protection principles.

FACTS AND PROCEDURAL HISTORY [*]


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