Filed 1/8/15 P. v. Stevenson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE E058383
Plaintiff and Respondent, (Super.Ct.No. PEF004508)
v. ORDER MODIFYING OPINION AND DENYING PETITION FOR MARCUS WAYNE STEVENSON, REHEARING
Defendant and Appellant. [NO CHANGE IN JUDGMENT]
THE COURT
The petition for rehearing filed on December 29, 2014, is denied. On the court’s
own motion, the opinion filed in this matter on December 11, 2014, is modified as
follows:
On page 10, add a new footnote at the end of the first full paragraph, which
begins, “[D]angerousness is not a factor . . . .” The first full paragraph and new footnote
No. 5 should read as follows:
“[D]angerousness 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 1 all. If the court finds that resentencing a prisoner would pose an
unreasonable risk of danger, the court does not resentence the prisoner, and
the petitioner simply finishes out the term to which he or she was originally
sentenced.” (Kaulick, supra, 215 Cal.App.4th at p. 1303, fn. omitted.)
“[A] court’s discretionary decision to decline to modify the sentence in [a
prisoner’s] 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.) The prosecution bears the burden of
proving a prisoner’s dangerousness by a preponderance of the evidence.
(Id. at p. 1305; People v. Flores (2014) 227 Cal.App.4th 1070, 1075-
1076.)5
5 In a petition for rehearing, defendant for the first time argues that we should reverse and remand for the trial court to reconsider his petition in light of Proposition 47, which “created a new resentencing provision, section 1170.18, under which ‘[a] person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (“this act”) had this act been in effect at the time of the offense may petition for a recall of sentence . . .’ and request resentencing. (§ 1170.18, subd. (a).)” (People v. Chaney (2014) 231 Cal.App.4th 1391, 1395 (Chaney).) Under that provision, an eligible defendant shall be resentenced to a misdemeanor “unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).) Proposition 47 also provides that, “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.” (§ 1170.18, subd. (c).) Defendant contends the new definition of “unreasonable risk of danger to public safety” added by Proposition 47 applies to petitions for recall and resentencing filed pursuant to the Act, and that the trial court would not have found him to be dangerous and would have resentenced him had it applied that new definition. Two courts have [footnote continued on next page] 2 With the addition of new footnote No. 5, all subsequent footnotes should be
renumbered accordingly.
This modification does not change the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. We concur:
RAMIREZ P. J.
CODRINGTON J.
[footnote continued from previous page] recently addressed similar arguments in published decisions, and have rejected it. (Chaney, supra, 231 Cal.App.4th at pp. 1396-1398 [holding that the definition of “unreasonable risk of danger to public safety” from Prop. 47 does not apply retroactively to petitions for recall and resentencing under the Act]; People v. Valencia (Dec. 16, 2014, F067946) ___ Cal.App.4th ___ [2014 Cal.App. Lexis 1149, *15-36] [holding that the “literal meaning [of section 1170.18, subdivision (c), as added by Proposition 47] 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”].)
3 Filed 12/11/14 (unmodified version)
NOT TO BE PUBLISHED IN 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.
THE PEOPLE,
Plaintiff and Respondent, E058383
v. (Super.Ct.No. PEF004508)
MARCUS WAYNE STEVENSON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson and Michael Pulos, Deputy Attorneys General, for Plaintiff and
Respondent.
1 In 2000, defendant Marcus Wayne Stevenson was sentenced to two consecutive
indeterminate terms of 25 years to life for his convictions on two counts of vehicle theft
(Veh. Code, § 10851, subd. (a)), based on his admission that he suffered four prior
serious and violent felony convictions within the meaning of the three strikes law.1
Twelve years later, defendant petitioned the superior court for recall and resentencing
under Proposition 36, known as The Three Strikes Reform Act of 2012 (hereafter the Act
or the Reform Act). The trial court denied the petition because, although defendant is
otherwise eligible for resentencing under the Act, it found that he “pose[s] an
unreasonable risk of danger to public safety.” (Pen. Code,2 § 1170.126, subd. (f).)
Finally, the trial court denied defendant’s renewed petition, concluding it lacked authority
under the Reform Act to resentence defendant on just one of his convictions.
In this appeal (case no. E058383), defendant contends the record does not support
the trial court’s finding that he is a danger to public safety. In the alternative, defendant
contends the trial court had the authority to resentence him on at least one of his
convictions, notwithstanding the finding of dangerousness. We conclude the trial court
did not abuse its discretion by finding that defendant would pose an unreasonable risk of
danger if he was resentenced, and that the finding of dangerousness renders defendant
1 We derive the procedural facts of defendant’s underlying convictions and sentences from the record in defendant’s prior appeal (People v. Stevenson (Apr. 4, 2002, E028990) [nonpub. opn.]), of which we take judicial notice. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
2 Unless otherwise indicated, all further undesignated statutory references are to the Penal Code.
2 ineligible for resentencing on either of his convictions. Therefore, we affirm the denial of
defendant’s petition.
I.
FACTS AND PROCEDURAL BACKGROUND
In an amended information, the People alleged that on May 18, 2000, defendant
stole a Honda motorcycle (Veh. Code, § 10851, subd. (a), count 1), and that on May 9,
2000, he stole a Ford pickup truck (Veh. Code, § 10851, subd. (a), count 2). The People
also alleged for purposes of sentencing that defendant suffered three prior prison terms
(Pen. Code, § 667.5, subd. (b)), and that defendant suffered four prior convictions for
serious and violent felonies (Pen. Code, §§ 667, subds. (c), (e), 1170.12, subd. (c)), to
wit: (1) a June 7, 1989, conviction for first degree burglary (Pen. Code, § 459); (2) a
June 7, 1989, conviction for robbery (Pen. Code, § 211); (3) a June 7, 1989, conviction
for voluntary manslaughter (Pen. Code, § 192); and (4) an October 13, 1981, conviction
for robbery with a firearm (Pen. Code, §§ 211, 12022.5).
At trial, defendant admitted all of the special allegations, and a jury found
defendant guilty of both counts of vehicle theft. The trial court denied defendant’s
request to strike his strike priors for purposes of sentencing pursuant to People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, and it sentenced defendant under the
three strikes law to an indeterminate term of 25 years to life on counts 1 and 2, to be
3 served consecutively.3 The trial court also sentenced defendant to three one-year
enhancements for defendant’s admitted prison priors, to be served consecutively to the
sentence on counts 1 and 2 (§ 667.5, subd. (b)), for a total sentence of 53 years to life.
This court affirmed the judgment. (People v. Stevenson, supra, E028990.)
On November 21, 2012, defendant, in propria persona, filed a petition alleging he
was eligible for recall and resentencing under the Act because his current convictions
were “non-serious, non-violent.” The trial court appointed the county public defender to
represent defendant, who then filed a brief also contending defendant was eligible for
resentencing under the Act. In support of the petition, appointed counsel filed reports of
interviews with prison staff indicating that defendant had no serious infractions or
problems while imprisoned and that he would likely be a productive member of society
upon his release from prison.
In its opposition, the People argued that defendant was not entitled to resentencing
because he posed a danger to public safety. (Pen. Code, § 1170.126, subd. (f).) Using
parole suitability factors as a guide (see Cal. Code Regs., tit. 15, § 2281), the People
argued defendant was unsuitable for resentencing because of his serious and violent
criminal history, his unstable social history, his serious misconduct while in prison, his
lack of remorse, and his inability to live within the law while out of custody. The public
defender filed a memorandum indicating that, contrary to the assertions made in the
3 As this court noted in its unpublished decision affirming defendant’s convictions and sentence, the oral pronouncement of sentence incorrectly stated that the indeterminate term of 25 years to life for counts 1 and 2 were to be served concurrently. (People v. Stevenson, supra, E028990.)
4 opposition, defendant had no serious prison infractions. Finally, the public defender filed
probation reports from defendant’s 1989 manslaughter case and from the underlying
vehicle theft case, letters from defendant to former Judge Spitzer, who sentenced
defendant in the underlying vehicle theft case, and a letter from defendant’s brother-in-
law to Judge Dugan, who heard defendant’s petition.4
At the hearing on defendant’s petition, Judge Dugan stated she read the papers and
evidence submitted by the parties in support of and in opposition to the petition, and that
she read this court’s unpublished decision affirming the judgment. Judge Dugan also
noted that she had conducted two unreported conferences in chambers during which she
reviewed records of defendant’s behavior while in prison. Moving to the merits of the
petition, Judge Dugan concluded defendant was “technically eligible” for resentencing
under the Reform Act, and stated that the sole issue to be decided was whether defendant
was “suitable” for resentencing—“[t]hat is, if I release him, is he a danger to the
community?”
4 “Ordinarily, the original sentencing judge will hear the petition and conduct resentencing unless that judge is unavailable. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1300–1301 . . . [(Kaulick)]; § 1170.126, subds. (b), (j).)” (People v. Bradford (2014) 227 Cal.App.4th 1322, 1329.) Former Judge Spitzer was not available to hear defendant’s petition (see Inquiry Concerning Spitzer (2007) 49 Cal.4th CJP Supp. 254, review den. Mar. 19, 2008, S159603), so it was assigned to Judge Dugan instead (§ 1770.126, subd. (j)).
5 With respect to the People’s allegations about defendant’s behavior while in
prison, counsel for defendant argued the People had misrepresented the record in its
opposition and explained that the documented incidents did not show that defendant was
dangerous. Judge Dugan agreed that defendant was “behaving adequately” while in
prison. However, the judge stated to defendant, “The problem is you live your life in the
state prison system, and every time you get out, you commit horrific crimes.” Judge
Dugan noted that defendant had previously pleaded guilty to voluntary manslaughter and
was sentenced to 20 years in state prison for hitting a store clerk on the head with a
baseball bat to steal $46, which resulted in the man’s death “from the horrible injuries
you inflicted on him.” She also noted that “a very short time” after being released from
prison, defendant committed his current vehicle theft crimes, one of which consisted of
defendant taking advantage of someone who was trying to buy drugs. The judge
characterized that act as “typical of [defendant’s] behavior and how [he] us[es] people.”
Addressing defendant’s conviction for voluntary manslaughter, Judge Dugan
noted that, notwithstanding his guilty plea, defendant later told a probation officer that he
did not hit the man with a baseball bat, and he was not remorseful. In fact, Judge Dugan
noted she had “never seen any document where [defendant] admitted remorse for that at
all.” For example, Judge Dugan read from a 2010 letter defendant wrote to former Judge
Spitzer in which defendant asked to be resentenced. In the letter, defendant expressed
remorse for committing the vehicle thefts, and acknowledged that former Judge Spitzer
said at his sentencing hearing that the term of 25 years to life sentence was “for your
past.” However, Judge Dugan noted that defendant made no mention in the letter of his
6 voluntary manslaughter conviction. “[Y]ou knew that is why [former Judge Spitzer]
sentenced you . . . to the 25 [years] to life. And you didn’t even mention that. You didn’t
even say, ‘I get it.’” Defendant addressed Judge Dugan, and told her, “I am remorseful
and I try my best not to think about that time in my life because it was serious. It was a
bad time in my life.” He explained that he did not mention his voluntary manslaughter
conviction when he wrote to former Judge Spitzer because “he knew about my past.”
Defendant said he did not like to talk about the attack on the store clerk because “it
hurts.”
Judge Dugan also asked defendant about an aunt who testified against him on the
motorcycle theft count, and asked if he remembered that the aunt also testified that
defendant called her 15 to 20 times before trial and asked her to perjure herself on the
stand. Defendant denied that he asked his aunt to perjure herself, and explained that he
was merely trying to ascertain whether she correctly identified him as the person she saw
pushing the motorcycle in a field. With respect to his comments to the probation officer
denying that he hit the store clerk with a baseball bat, even after pleading guilty to
voluntary manslaughter, defendant explained, “I didn’t want to admit that. I wasn’t
lying. I was lying to myself basically.”
After further discussion, Judge Dugan denied the petition. She concluded
defendant still lacked insight into his crime of voluntary manslaughter, and he continued
to make excuses for committing his current crimes so soon after being released on parole.
“I just cannot get over—I cannot shake the fact that you kill a man, serve the time for
7 that, and don’t even take a breath when you get out again. Back on drugs, back doing
crimes, back victimizing people.” Defendant filed a notice of appeal that same day.
Less than a month later, appointed counsel for defendant appeared before Judge
Dugan and requested recall and resentencing on one of defendant’s vehicle theft
convictions. According to counsel, defendant’s two vehicle thefts occurred on separate
occasions, and she argued that section 1170.126 gives the trial court the option to recall
and resentence on just one count. Judge Dugan stated she did not believe she had
jurisdiction under section 1170.126 to separate defendant’s indeterminate life terms.
“I think [section] 1170.126 simply says my job is to look at his petition to recall his
sentence in its entirety . . . and determine whether he is safe to be released to the
community or not at the time I hear the [petition].” Because she had already found that
defendant would pose a danger to the community if he was resentenced, Judge Dugan
denied the request. We granted defendant’s motion to file a constructive notice of appeal
from that order when his appointed counsel failed to do so.
II.
DISCUSSION
Defendant contends the record on appeal does not contain evidence that he poses a
substantial risk of danger to public safety, so the trial court erred by concluding he is not
eligible for resentencing under the Reform Act. In the alternative, defendant argues that,
even if he is ineligible for resentencing on one of his convictions, he is eligible for
resentencing on his other conviction. We conclude the trial court did not abuse its
discretion by finding that defendant would pose an unreasonable risk of danger to the
8 public safety if he were resentenced, and that a finding of dangerousness renders
defendant completely ineligible for recall and resentencing.
A.
The Trial Court Did Not Abuse Its Discretion When It Denied Defendant’s Petition
“On November 6, 2012, the voters approved Proposition 36, the Three Strikes
Reform Act of 2012 (Reform Act), which amended Penal Code sections 667 and 1170.12
and added section 1170.126. [Citation.]” (People v. White (2014) 223 Cal.App.4th 512,
517, fn. omitted.) “[T]here are two parts to the Act: the first part is prospective only,
reducing the sentence to be imposed in future three strike cases where the third strike is
not a serious or violent felony (Pen. Code, §§ 667, 1170.12); the second part is
retrospective, providing similar, but not identical, relief for prisoners already serving
third strike sentences in cases where the third strike was not a serious or violent felony
(Pen. Code, § 1170.126).” (Kaulick, supra, 215 Cal.App.4th at p. 1292.)
“[U]nder the retrospective part of the Act, if the prisoner’s third strike offense was
not serious or violent, and none of the enumerated exceptions applies, the defendant
‘shall be’ sentenced as if the defendant had only a single prior strike, ‘unless the court, in
its discretion, determines that resentencing the petitioner would pose an unreasonable risk
of danger to public safety.’ (Pen. Code, § 1170.126, subd. (f).)” (Kaulick, supra, 215
Cal.App.4th at p. 1293, fn. omitted; see also § 1170.126, subd. (e).) “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; [¶]
9 (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).)
“[D]angerousness 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. If the court finds that
resentencing a prisoner would pose an unreasonable risk of danger, the court does not
resentence the prisoner, and the petitioner simply finishes out the term to which he or she
was originally sentenced.” (Kaulick, supra, 215 Cal.App.4th at p. 1303, fn. omitted.)
“[A] court’s discretionary decision to decline to modify the sentence in [a prisoner’s]
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.) The
prosecution bears the burden of proving a prisoner’s dangerousness by a preponderance
of the evidence. (Id. at p. 1305; People v. Flores (2014) 227 Cal.App.4th 1070, 1075-
1076.)
The parties agree that denial of defendant’s petition is reviewed for abuse of
discretion, and so do we. Subdivisions (f) and (g) of section 1170.126 speak expressly of
the trial court’s discretion to deny a petition for resentencing, notwithstanding the
prisoner’s statutory eligibility, if it concludes that resentencing would pose an
unreasonable risk of danger to the public. “To establish an abuse of discretion,
defendants must demonstrate that the trial court’s decision was so erroneous that it ‘falls
10 outside the bounds of reason.’ [Citations.] A merely debatable ruling cannot be deemed
an abuse of discretion. [Citations.] An abuse of discretion will be ‘established by “a
showing the trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice . . . .”’ [Citation.]”
(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.)
Defendant contends the trial court’s ruling was based on factual
misunderstandings and an incomplete record, so the trial court could not have made an
informed decision and, therefore, it abused its discretion. For instance, defendant
contends Judge Dugan was wrong when she based her denial, in part, on defendant’s
failure to express remorse over his killing of the store clerk. He argues the matter should
be remanded for Judge Dugan to consider the transcript from defendant’s 2001
sentencing hearing (which Judge Dugan apparently did not consider) in which defendant
expressed remorse.
True, at his sentencing hearing in February 2001, defendant told former Judge
Spitzer, “I would never hurt anyone like back in the ‘80s. That was stupid, and it started
as a beer run and it ended up as something else, and I regret that to this day. I swear I do.
I pray.” But, as Judge Dugan noted, just 16 days after pleading guilty to voluntary
manslaughter, defendant “denied responsibility for this offense” during an interview with
the probation department. During the hearing on his petition, defendant still did not
unconditionally express remorse. Defendant told Judge Dugan that he was “remorseful”
for what he did, but in the same sentence he said, “I try my best not to think about that
time in my life because it was serious.” And defendant explained that he did not mention
11 his manslaughter conviction in his 2010 letter to former Judge Spitzer because “it hurts,”
and because he “didn’t want to admit it.” He still showed a lack of insight by denying
that he lied to the probation officer when he denied hitting the store clerk with the bat,
telling Judge Dugan, “I wasn’t lying. I was lying to myself basically.” We are not
convinced that Judge Dugan would have reached a different conclusion about defendant’s
lack of remorse had she considered the transcript of defendant’s 2001 sentencing.
Defendant also contends the matter should be remanded to Judge Dugan to
consider the sentencing transcript because it contradicts her conclusion that defendant
attempted to suborn perjurious testimony from his aunt. At defendant’s sentencing, the
prosecutor stated he was “trouble[ed] that the defendant tried to get off by getting his
aunt to commit perjury.” Defendant denied that he tried to suborn his aunt’s perjury, and
former Judge Spitzer expressed his belief that defendant’s pretrial phone calls to his aunt
did not amount to attempted subornation of perjury. Even if Judge Dugan had the
sentencing transcript in front of her, the result would not likely have been different. True,
when explaining why she was about to deny the petition, Judge Dugan mentioned that
defendant “wanted [his] aunt to lie.” But that was only one of the reasons Judge Dugan
provided for her ruling. Judge Dugan’s ruling was also based on defendant’s lack of
insight into his crime of voluntary manslaughter, defendant’s continued pattern of making
excuses for that crime and for his current crimes, and the fact that defendant committed
additional crimes so soon after his release from prison and he was likely to commit
crimes after release if he were to be resentenced.
12 The record contains ample evidence that defendant lacked insight into his crimes
and failed to take advantage of programming in prison to achieve such insight. He was
unable to articulate any insight into why he had committed the vehicle thefts so soon after
his parole other than to rely on the excuses that he lost his job and was in a bad
environment. His proposed solution was to be released into another community or state.
Therefore, we conclude the trial court did not abuse its discretion by denying defendant’s
petition.5
B.
Defendant’s Dangerousness Renders Him Entirely Ineligible for Resentencing
Defendant also argues that, even if the trial court’s finding of dangerousness
meant he could not be resentenced on both of his convictions for which he is serving
indeterminate life sentences, he was nonetheless eligible for resentencing on at least one
of them. We disagree and conclude that a finding of dangerousness permeates all of a
5 That Judge Dugan focused on whether defendant would be dangerous to the community if immediately released, as opposed to whether he would pose a danger to the community if he was resentenced, as required by section 1170.126, subdivision (f), is of no moment.
13 prisoner’s current convictions and renders him entirely ineligible for recall and
resentencing under the Reform Act.6
“‘In interpreting a voter initiative like [the Act], we apply the same principles that
govern statutory construction.’” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1034.)
“‘In construing statutes, “our fundamental task is ‘to ascertain the intent of the lawmakers
so as to effectuate the purpose of the statute.’ [Citations.] We begin by examining the
statutory language because it generally is the most reliable indicator of legislative intent.
[Citation.] We give the language its usual and ordinary meaning, and ‘[i]f there is no
ambiguity, then we presume the lawmakers meant what they said, and the plain meaning
of the language governs.’ [Citation.]”’” (People v. Gutierrez (2014) 58 Cal.4th 1354,
1369.) If the language of a voter initiative is unclear or ambiguous on its face, “we may
resort to extrinsic sources, including the analyses and arguments contained in the official
ballot pamphlet, and the ostensible objects to be achieved. [Citations.]” (People v. Lopez
(2005) 34 Cal.4th 1002, 1006.) Resort to external sources of legislative or voter intent is
also permissible to confirm an interpretation of the plain language of a statute. (See
Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 279.)
6 We are aware of no published decision that has addressed this issue. A similar split resentencing issue is pending in the California Supreme Court: “Is an inmate serving an indeterminate term of life imprisonment under the Three Strikes Law (Pen. Code, §§ 667, subds. (b)-(j), 1170.12), which was imposed for a conviction of an offense that is not a serious or violent felony, eligible for resentencing on that conviction under the Three Strikes Reform Act if the inmate is also serving an indeterminate term of life imprisonment under the Three Strikes Law for a conviction of an offense that is a serious or violent felony?” (Braziel v. Superior Court, review granted July 30, 2014, S218503; People v. Machado, review granted July 30, 2014, S219819.)
14 The Reform Act clearly provides that the trial court shall recall and resentence an
eligible defendant, “unless the court, in its discretion, determines that resentencing the
petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126,
subd. (f).) The trial court did not limit its finding of dangerousness to only one of
defendant’s current convictions, and a finding that defendant currently poses a risk to
public safety must logically apply to all of his convictions and render him ineligible for
resentencing under section 1170.126, subdivision (f). Put another way, if defendant is
currently dangerous, then he is dangerous in a broader sense, and that dangerousness is
not limited to just one of his convictions. The plain language of the Reform Act simply
cannot be interpreted to mean the trial court may recall and resentence a prisoner on one
conviction notwithstanding a finding of dangerousness.7 We therefore wholeheartedly
agree with the People that “the plainly all-or-nothing factual determination of whether
[defendant] ‘poses an unreasonable risk of danger to public safety’—i.e., whether or not
[defendant] is dangerous—is inherently incompatible with the count-by-count
resentencing [defendant] requests here. It would make little sense to parse [defendant’s]
convictions so as to find that he poses ‘an unreasonable risk of danger to public safety’ as
to one count but not to the other.”
7 Because the Reform Act is not susceptible to “‘“‘two reasonable interpretations [that] stand in relative equipoise,’”’” (People v. Manzo (2012) 53 Cal.4th 880, 889) we disagree with defendant that the rule of lenity requires us to interpret section 1170.126 to provide for recall and resentencing on just one conviction.
15 Further evidence in support of our conclusion is found in the official ballot
pamphlet for Proposition 36, prepared by the Secretary of State.8 In their arguments in
favor of Proposition 36, the supporters argued, “Precious financial and law enforcement
resources should not be improperly diverted to impose life sentences for some non-
violent offenses. Prop. 36 will assure that violent repeat offenders are punished and not
released early.” (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) argument in favor
of Prop. 36, p. 52.)9 They argued that reform of the three strikes law would save
taxpayers money, while at the same time the law “will continue to punish dangerous
career criminals who commit serious violent crimes—keeping them off the streets for 25
years to life.” (Ibid., italics added.) Under the heading “Make Room in Prison for
Dangerous Felons,” the supporters argued, “Prop. 36 will help stop clogging
overcrowded prisons with non-violent offenders, so we have room to keep violent felons
off the streets.” (Ibid.; see also People v. Yearwood (2013) 213 Cal.App.4th 161, 171
(Yearwood).) The proponents asserted, “Prosecutors, judges and police officers
support[ed] Prop. 36 because Prop. 36 helps ensure that prisons can keep dangerous
criminals behind bars for life. Prop. 36 will keep dangerous criminals off the streets.”
(Voter Information Guide, Gen. Elec., supra, argument in favor of Prop. 36, p. 52, italics
added.) Finally, the supporters argued, “Criminal justice experts and law enforcement
8 We grant the People’s request that we take judicial notice of the official ballot pamphlet. (Evid. Code, §§ 452, subd. (c), 459, subd. (a); St. John’s Well Child & Family Center v. Schwarzenegger (2010) 50 Cal.4th 960, 967, fn. 5.)
9 Available at (as of Dec. 11, 2014).
16 leaders carefully crafted Prop. 36 so that truly dangerous criminals will receive no
benefits whatsoever from the reform.” (Ibid., italics added; see also Yearwood, at p. 171.)
In their arguments against adoption of Proposition 36, the opponents argued the
initiative was another attempt by “opponents of tough criminal laws” to reform the three
strikes law, and that Proposition 36 would “allow[] dangerous criminals to get their
prison sentence REDUCED and then RELEASED FROM PRISON!” (Voter Information
Guide, Gen. Elec., supra, argument against Prop. 36, p. 53.) In rebuttal, supporters of
Proposition 36 argued, “Today, dangerous criminals are being released early from prison
because jails are overcrowded with nonviolent offenders who pose no risk to the public.
Prop. 36 prevents dangerous criminals from being released early. People convicted of
shoplifting a pair of socks, stealing bread or baby formula don’t deserve life sentences.”
(Voter Information Guide, Gen. Elec., supra, rebuttal to argument against Prop. 36, p. 53,
italics added; see also Yearwood, supra, 213 Cal.App.4th at p. 171.)
None of the aims expressed by the proponents of Proposition 36 is consistent with
permitting a prisoner, who is found to pose a substantial risk of danger to the public, to be
resentenced on either of his current convictions for which he was sentenced to an
indeterminate term of life. To the contrary, the ballet pamphlet clearly states that the
proponents of Proposition 36 intended that dangerous criminals serving indeterminate life
terms would not benefit from its passage.
17 Defendant nonetheless contends the Reform Act contemplates recall and
resentencing on just one of a prisoner’s current convictions, and he cites subdivisions (h)
and (i) of section 1170.126 as evidence that the voters intended such a result.
Subdivision (h) provides that, if the superior court grants the petition, at the prisoner’s
resentencing it may not “impo[se] a term longer than the original sentence.”
(§ 1170.126, subd. (h); see Kaulick, supra, 215 Cal.App.4th at p. 1303 [“The maximum
sentence to which [the defendant], and those similarly situated to him, is subject was, and
shall always be, the indeterminate life term to which he was originally sentenced”].) And
subdivision (i) provides that a prisoner may waive his personal presence at the hearing on
his petition and, if the petition is granted, he may waive his presence at resentencing so
long as the accusatory pleading is not amended and the trial court does not conduct a new
trial or retrial on the underlying counts in his absence. (§ 1170.126, subd. (i); Kaulick, at
pp. 1299-1300.) Neither subdivision in any way addresses whether the trial court may
grant a petition to recall and resentence a prisoner on just one of his convictions,
notwithstanding a finding under subdivision (f) of section 1170.126 that the prisoner is
dangerous.
Finally, subdivision (k) of section 1170.126 does not support defendant’s
argument either. That subdivision provides: “Nothing in this section is intended to
diminish or abrogate any rights or remedies otherwise available to the defendant.”
(§ 1170.126, subd. (k).) According to defendant, this means a trial court may recall and
resentence a prisoner on one of his convictions because, under existing authority, it has
the authority to strike just one prior conviction under Romero while leaving others intact
18 for purposes of sentencing. (See People v. Garcia (1999) 20 Cal.4th 490, 500 (Garcia);
People v. Carrillo (2001) 87 Cal.App.4th 1416, 1419, fn. 3.) We are not persuaded.
“Section 1170.126(k) protects prisoners from being forced to choose between filing a
petition for a recall of sentence and pursuing other legal remedies to which they might be
entitled (e.g., petition for habeas corpus).” (Yearwood, supra, 213 Cal.App.4th at p. 178,
italics added.) We need not decide whether relief under Romero is still available to
defendant, but we decline to engraft onto section 1170.126 the trial court’s distinct
discretion under section 1385 and Romero.
In sum, we conclude the trial court correctly declined to separate defendant’s
convictions and resentence defendant on just one of them.
III.
DISPOSITION
The postjudgment orders are affirmed.