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People v. Aparicio

California Court of Appeals, Fourth District, First Division

January 5, 2015

THE PEOPLE, Plaintiff and Respondent,
v.
LUIS RAMON APARICIO, Defendant and Appellant.

[REVIEW GRANTED BY CAL. SUPREME COURT]

[As modified Jan. 9, 2015.]

APPEAL from an order of the Superior Court of San Diego County, No. SF113576 David J. Danielsen, Judge.

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COUNSEL

Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

McINTYRE, J.

In this case, we hold that the abuse of discretion standard applies when reviewing an appeal from a trial court's denial of a petition for resentencing under Penal Code section 1170.126 based on the trial court's finding that release of the petitioner would present an unreasonable risk of danger to public safety. (Undesignated statutory references are to the Penal Code.) We found no abuse of discretion and affirmed the order.

Appellant subsequently sought rehearing arguing section 1170.18, effective November 5, 2014, as part of Proposition 47 (the Safe Neighborhoods and Schools Act) changed the definition of "unreasonable risk of danger to public safety" as it applies to inmates petitioning for recall of their third-strike life sentence under section 1170.126. (See Cal. Const., art. II, § 10, subd. (a) ["An initiative statute or referendum approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise."].) We decline to address this new issue and affirm the order without prejudice to appellant petitioning for relief from the superior court under section 1170.18.

FACTUAL AND PROCEDURAL BACKGROUND

In March 1985, a juvenile court found true the allegation that Luis Ramon Aparicio committed battery with serious bodily injury after he dislocated the

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victim's nose by pushing the victim's head onto concrete. Aparicio was 15 years old at the time. In August 1986, Aparicio attacked a victim with a knife. In October 1988, Aparicio suffered his first strike conviction for robbery when he and three cohorts robbed two victims of their stereos. During the struggle, one of the assailants stabbed one of the victims. Aparicio was sentenced to 365 days in jail and three ...


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