Filed 2/27/15 P. v. Taylor 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,
Plaintiff and Respondent, E059227
v. (Super.Ct.No. RIF139865)
TANYA FELICIA TAYLOR, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Martin Kassman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Tanya Felicia Taylor appeals from an order denying her
petition to recall her sentence under the Three Strikes Reform Act of 2012, added by
1 Proposition 36 (as approved by voters, Gen. Elec. (Nov. 6, 2012)) (the Reform Act).
(Pen. Code, § 1170.126.)1 On appeal, defendant raises several arguments to support her
claim that the trial court erred in finding her ineligible for resentencing under the Reform
Act. For the reasons explained post, we reject defendant’s contentions and affirm the
trial court’s order denying defendant relief under the Reform Act.
I
FACTUAL AND PROCEDURAL BACKGROUND2
A. Present Commitment Offenses
On October 29, 2007, defendant entered a business called “Check Cashing” and
attempted to cash a check in the amount of $150,000. The check was made payable to
“Tanya Taylor” (defendant) from the “Valley Queen Cheese Factory.” Defendant
claimed the check was for a discrimination claim against a company she had worked for
about six years earlier.
Police were subsequently alerted. Riverside County Sheriff’s Deputy Anthony
Gannuscio responded to the call. Defendant told him that she was trying to cash the
$150,000 check awarded to her for a discrimination claim.
Investigation revealed that defendant had never worked for Valley Queen Cheese
Factory and that that company had never been the subject of any discrimination litigation.
1 All future statutory references are to the Penal Code, unless otherwise stated.
2 The factual and procedural background is taken from this court’s nonpublished opinions affirming defendant’s current convictions (see People v. Taylor (July 31, 2009, E046225) [nonpub. opn.] and People v. Taylor (Mar. 8, 2011, E050082) [nonpub. opn.]).
2 The check in question was fraudulent, and the company had had problems with
fraudulent checks.
B. Prior Convictions
Defendant’s criminal history, excluding her prior strike convictions, includes
offenses for misdemeanor battery (§ 243, subd. (e)) in 1997, misdemeanor false
impersonation (§ 529) in 1998, and misdemeanor forgery (§ 475, subd. (a)). In each of
those cases, defendant was granted probation along with a jail commitment.
From November 25, 1998 to December 20, 1998, defendant participated in a series
of armed robberies; gun shots were fired during seven of them. Defendant was the
getaway driver for these robberies. She was on parole for about a year and a half for
these robberies when she committed the current offenses.
The details of defendant’s prior strike offenses are as follows:
(1) On November 25, 1998, two men entered the Hazit Market in Perris at
6:25 p. m. One man demanded the store’s money and used a gun to fire two rounds
during the crime, striking the cigarette display case, cash register, and ceiling. The
electronic cash register, valued at $600, was damaged.
(2) On November 25, 1998, the Super Mini Mart in Perris was robbed by two men
at 6:52 p.m. One man fired a gun above one of the victim’s heads; about $200 was taken.
(3) On November 29, 1998, the Meadow Brook Market on State Highway 74 was
robbed by two men after one man fired a gun at the back counter, striking a wall.
Approximately $2,000 was stolen. Police suspected a vehicle and a third person assisted
in the suspects’ escape.
3 (4) On December 1, 1998, two men entered Mel’s Liquor & Check Cashing Store
in Moreno Valley. One man pointed a firearm at the victim while demanding money.
The store owners had their own firearm, and one chased the robbers away after a scuffle.
Three shots were fired. The suspects entered a vehicle and fled the area.
(5) On December 1, 1998, two men entered the Open Liquor & Deli Store in Lake
Elsinore about 7:54 p.m. with a firearm and robbed the store. One man pointed a gun at
the clerk while demanding money. Approximately $500 was stolen.
(6) On December 4, 1998, Jr.’s Market in Moreno Valley was robbed at 4:30 p.m.
by two men. One held a black semiautomatic handgun, which he pointed at the victims
while demanding money. Approximately $2,000 was stolen.
(7) On December 5, 1998, at 6:50 p.m., two men entered Charlie Bois Liquor
Store in Moreno Valley and robbed the store of about $200. During the robbery, one man
pointed a semiautomatic pistol at the victim while demanding the money.
(8) On December 5, 1998, the A & M Market on State Highway 74 was robbed by
two men at 7:16 p.m. During the robbery, a gun was pointed at an employee while
$2,000 in cash and checks were taken by both suspects. Shots were fired at one of the
employees when he tried to follow the men.
(9) December 9, 1998, a Washington Mutual Bank in Sun City was robbed. One
suspect fired a shot at the ceiling; one of them kicked an employee in her head and side;
and one of them “shoved a gun against” another employee’s head. When a customer
tried to follow the suspects as they left the bank, a shot was fired at her. The robbers
stole about $3,195 in cash and fled in a car being driven by a female.
4 (10) On December 20, 1998, two men entered Country Store Liquor in Moreno
Valley at 7:43 p.m. One man pointed a gun at a clerk and demanded money; he fired
shots when he was given only $100.
(11) On December 20, 1998, the Car Wash & Market in Perris was robbed by two
men; one wielded a firearm and pointed it at the clerk while demanding money. They
stole approximately $500 in cash and $100 worth of lottery tickets.
Defendant was arrested on December 21, 1998, along with the two male suspects.
She was apprehended while attempting to cash a large number of the lottery tickets stolen
the previous day. During the investigation, officers discovered that defendant had used
her vehicle to transport the armed robbers and was the getaway driver. Defendant shared
the proceeds from the robberies with the male suspects.
On December 10, 2000, defendant was convicted of multiple serious felonies,
including one count of attempted robbery (§§ 664, 211), 15 counts of robbery (§ 211),
one count of assault with a firearm (§ 245, subd. (a)(2)), and three counts of assault with
a semiautomatic firearm (245, subd. (b)), resulting in a sentence of 14 years in state
prison.
Defendant served about six years in state prison before she was released on parole
on May 12, 2006. Defendant violated parole on October 29, 2007, when she committed
the instant offenses.
C. Procedural Background of the Current Offenses
In a bifurcated proceeding, a jury found defendant guilty of one count of second
degree burglary (§ 459) (count 1) and one count of possession of a check with the intent
5 to defraud (§ 475, subd. (c)) (count 2). Defendant subsequently admitted having
sustained 20 prior strike convictions within the meaning of sections 1170.12 and 667 and
one prior prison term within the meaning of section 667.5. On May 16, 2008, the
Honorable Arjuna T. Saraydarian (retired) dismissed 19 of defendant’s prior strikes and
sentenced her to a total term of seven years in state prison.
In the first appeal, the People appealed, arguing the trial court abused its discretion
in granting the motion to strike 19 of the prior strike convictions pursuant to People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). (§ 1238, subd. (a)(10).) We
agreed with the People, reversed the ruling, and remanded the matter to the trial court to
resentence defendant (People v. Taylor, supra, E046225).
The resentencing hearing was held on January 8, 2010. After reviewing the
supplemental Romero motion and hearing argument from counsel, Judge Saraydarian
declined to strike any of the 19 prior strike convictions. The court then sentenced
defendant to 25 years to life on count 1; 25 years to life on count 2, stayed pursuant to
section 654; and one year on the prison prior, for a total indeterminate term of 26 years to
life in state prison.
Defendant subsequently appealed, arguing her 26-year-to-life term constituted
cruel and unusual punishment in violation of the state and federal Constitutions. In an
unpublished opinion filed on March 8, 2011, we rejected defendant’s contention and
affirmed the judgment (People v. Taylor, supra, E050082).
On November 6, 2012, the electorate passed Proposition 36, the Reform Act.
Among other things, this ballot measure enacted section 1170.126, which permits persons
6 currently serving an indeterminate life term under the “Three Strikes” law to file a
petition in the sentencing court seeking to be resentenced to a determinate term as a
second striker. (§ 1170.126, subd. (f).) If the trial court determines, in its discretion, that
the defendant meets the criteria of section 1170.126, subdivision (e), the court may
resentence the defendant. (§ 1170.126, subds. (f), (g).)
Section 1170.126, subdivision (e), provides, as pertinent here, that a defendant is
eligible for resentencing if he or she “is serving an indeterminate term of life
imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or
subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not
defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or
subdivision (c) of Section 1192.7.” (§ 1170.126, subd. (e)(1).)
On December 4, 2012, defendant wrote a letter to the Riverside County Public
Defender’s office inquiring as to how she could seek resentencing under the Reform Act.
On December 14, 2012, the Honorable Becky Dugan appointed a public defender to
represent defendant, notified the district attorney, and set a hearing for the following
month. The public defender who had represented defendant at her trial and at her
resentencing hearing was assigned to represent defendant.
In January, February, and March 2013, five hearings in defendant’s absence were
held in regard to defendant’s petition. On May 23, 2013, the prosecutor informed the
court that defendant’s public defender had declared a conflict. The court thereafter
appointed another public defender to represent defendant.
7 Judge Dugan heard defendant’s petition to recall her sentence under
section 1170.126 on June 27 and July 19, 2013. At that time, the court reviewed
documentary evidence submitted by the parties. When filing her petition, defendant had
submitted various prison records documenting her accomplishments and behavior while
incarcerated. While these records showed various achievements, they also revealed
numerous and repeated rule violations and infractions. In addition, defendant had
submitted two institutional “laudatory chrono” reports (“chronos”) documenting her
behavior purportedly from two different correctional officers, praising her for her
exemplary behavior and affirming that she was prepared to reenter society. These
“chronos” were provided by defendant personally to defense counsel. Because these
“chronos” were different from defendant’s overall behavioral history while in prison, the
prosecutor suspected fraud.
At the petition to recall hearing, the court also heard testimony from the two
correctional officers who had allegedly authored the “chronos.” Both of the officers
testified that they had never issued the “chronos” on behalf of defendant; that they had
never signed the “chronos”; and that the “chronos” were fake. The court also heard
testimony from two inmates that had been housed with defendant. The inmates claimed
that defendant had asked them to ask the correctional officer for defendant’s “chronos.”
The court also heard testimony from defendant. Defendant claimed that she had no
knowledge the “chronos” were fraudulent. She explained that she had asked the
correctional officers for them; that they had arrived in her cell some time later; and that
8 she had assumed the “chronos” came from the correctional officers since she had asked
the officers for them.
The court thereafter questioned defendant. During the colloquy between
defendant and the court, defendant acknowledged that she did not have any positive
“chronos” from correctional officers; that she had many run-ins with the officers for
cussing at them and arguing with them. That colloquy also enumerated many rules
violations and infractions committed by defendant including instances of mutual
combats, numerous failures to report to her job assignments, failures to participate in
rehabilitative programs, interferences with prison head counts, fighting, disobeying
orders, and falsification of documents. Defendant had presented a forged pass from a
correctional officer who had not been working on the date it was issued to see a
counselor; she had also forged a document for appeal in the prison system.
Following argument from counsel, the court denied defendant’s petition. The
court observed that defendant’s recalcitrant behavior in prison showed her immaturity
and lack of insight and found that defendant’s attempt to defraud the court by submitting
the fake “chronos” in support of her petition demonstrated a calculated and deliberate
willingness to deceive the court for her own purposes. In light of the circumstances, the
court concluded that defendant continued to pose a substantial danger to public safety and
that although defendant may not commit a violent crime, the court had no doubt
defendant would continue her pattern of manipulative behavior thereby constituting a
substantial risk of financial devastation to others.
9 Defendant timely filed an appeal on July 23, 2014.3
II
DISCUSSION
Defendant makes several arguments relating to the denial of her petition to recall
her sentence. Specifically, she argues that the order denying her petition is invalid,
because the judge who ruled on the petition was not the judge who had originally
sentenced her and the statutory requirements for having a different judge rule on the
petition were not satisfied. In the alternative, defendant contends that the trial court erred
when it denied her petition, because the People failed to prove by a preponderance of the
evidence resentencing her would pose an unreasonable risk of danger to public safety.
A. The Reform Act Generally
The Reform Act amended sections 667 and 1170.12 and added section 1170.126;
it changed the requirements for sentencing some third strike offenders. “Under the
original version of the three strikes law a recidivist with two or more prior strikes who is
convicted of any new felony is subject to an indeterminate life sentence. The [Reform]
Act diluted the three strikes law by reserving the life sentence for cases where the current
crime is a serious or violent felony or the prosecution has pled and proved an enumerated
disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike
offender. [Citations.] The [Reform] Act also created a postconviction release proceeding
3 We note that in Teal v. Superior Court (2014) 60 Cal.4th 595, our Supreme Court recently concluded decisions under the Reform Act are appealable orders.
10 whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the
three strikes law for a crime that is not a serious or violent felony and who is not
disqualified, may have his or her sentence recalled and be sentenced as a second strike
offender unless the court determines that resentencing would pose an unreasonable risk of
danger to public safety. (§ 1170.126.)” (People v. Yearwood (2013) 213 Cal.App.4th
161, 167-168 (Yearwood).)
“Thus, there are two parts to the [Reform] 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 [citations]; 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.)”
(People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1292 (Kaulick), italics
in original.) “The main difference between the prospective and the retrospective parts of
the [Reform] Act is that the retrospective part of the [Reform] Act contains an ‘escape
valve’ from resentencing for prisoners whose release poses a risk of danger.” (Id. at
p. 1293.)
It is undisputed that defendant’s current commitment felony offenses of second
degree burglary (§ 459) and possession of a check with the intent to defraud (§ 475,
subd. (c)) are not serious or violent felonies under section 667.5, subdivision (c), or
section 1192.7, subdivision (c). However, the inquiry does not end with whether or not
the current convictions are a serious or violent felony. As previously noted, if the
petition satisfies the criteria contained in subdivision (e) of section 1170.126, the inmate
11 shall be resentenced as a second strike offender “ ‘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).) In exercising this discretion the trial court may
consider the prisoner’s criminal history, disciplinary record and record of rehabilitation
while incarcerated and any other relevant evidence. (§ 1170.126, subd. (g).)”
(Yearwood, supra, 213 Cal.App.4th at pp. 170-171.)
In approving the Reform Act, the voters found and declared that its purpose was to
prevent the early release of dangerous criminals and relieve prison overcrowding by
allowing low-risk, nonviolent inmates serving life sentences for petty crimes, such as
shoplifting and simple drug possession, to receive twice the normal sentence instead of a
life sentence. (Voter Information Guide., Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 1,
subds. (3), (4) & (5), p. 105; see People v. White (2014) 223 Cal.App.4th 512, 522
(White) (review den. Apr. 30, 2014, S217030).) The electorate also mandated that the
Reform Act be liberally construed to effectuate the protection of the health, safety, and
welfare of the people of California. (Voter Information Guide, supra, text of Prop. 36,
§ 7, p. 110; see White, supra, at p. 522.) Accordingly, we liberally construe the
provisions of the Reform Act in order to effectuate its foregoing purposes; and note that
findings in voter information guides may be used to illuminate ambiguous or uncertain
provisions of an enactment. (See White, supra, at p. 522; Yearwood, supra, 213
Cal.App.4th at pp.170-171.)
12 B. Failure of Petition to be Heard by the Original Sentencing Judge
Initially, defendant argues that the denial of her petition to recall her sentence was
invalid because Judge Dugan, who denied the petition, was not the judge who had
originally sentenced her. The People respond defendant forfeited this claim for failing to
assert it in the court below.
Section 1170.126, subdivision (b), specifies that an inmate petitioning for
resentencing must file the petition “ ‘before the trial court that entered the judgment of
conviction in his or her case.’ The reference to ‘the trial court that entered the judgment’
is clearly a reference to the trial judge. This is confirmed by a later subdivision, which
uses the terms ‘judge’ and ‘court’ interchangeably, when identifying the judicial officer
who must rule on the petition.” (Kaulick, supra, 215 Cal.App.4th at pp. 1300-1301.)
Section 1170.126, subdivision (j) provides, “ ‘[i]f the court that originally sentenced the
defendant is not available to resentence the defendant, the presiding judge shall designate
another judge to rule on the defendant’s petition.’ ” (Kaulick, at p. 1301.)
“It is therefore clear that the initial sentencing judge shall rule on the prisoner’s
petition. However, as with other rights, a defendant may waive the right for the petition
to be considered by a particular judge. ‘A valid waiver of any right, however,
presupposes an actual and demonstrable knowledge of the right being waived so that the
waiver is deemed knowing and intelligent. Courts should not find a waiver by mere
silence or acquiescence even when the defendant is represented by counsel. [Citation.]’
[Citation.]” (Kaulick, supra, 215 Cal.App.4th at p. 1301, fn. omitted, quoting People v.
Poole (1985) 168 Cal.App.3d 516, 521.)
13 Here, we find that the record impliedly shows Judge Saraydarian, the judge who
had originally sentenced defendant in 2008 and resentenced her in 2010, was unavailable
to resentence defendant, and therefore Judge Dugan properly ruled on defendant’s
petition. The record shows that Judge Saraydarian was retired at the time he had
sentenced defendant in 2008 and resentenced defendant in 2010. More than six years had
gone by since defendant’s original sentence. When defendant filed her petition in
December 2012, Judge Dugan, who was the presiding judge according to the court’s
minute order, acknowledged that Judge Saraydarian had originally sentenced defendant.
At another hearing a month later on January 23, 2013, Judge Dugan appointed the public
defender, who had originally represented defendant at trial and at the resentencing
proceedings, to represent defendant on her petition, and then continued the matter to
February 8, 2013, to subpoena defendant’s prison records. The February 8, 2013 hearing
was before the Honorable Larrie R. Brainard. At that time, the parties stipulated to a
continuance and Judge Brainard continued the matter to February 25, 2013. The
subsequent hearings were heard by Judge Dugan. Presumably, Judge Dugan ruled on the
petition because Judge Saraydarian was unavailable.
Even if the record does not impliedly show Judge Saraydarian was unavailable, we
find defendant forfeited this claim. Before directly confronting the question, we consider
what we mean by the words “forfeit” and “waiver.” Over the years, cases have used the
words loosely to describe two related, but distinct, concepts: (1) losing a right by failing
to assert it, more precisely called forfeiture; and (2) intentionally relinquishing a known
right. “ ‘[T]he terms ‘waiver’ and ‘forfeiture’ have long been used interchangeably. The
14 United States Supreme Court recently observed, however: ‘Waiver is different from
forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver
is the “intentional relinquishment or abandonment of a known right.” [Citations.]’
(United States v. Olano [(1993) 507 U.S. 725, 733 (123 L.Ed.2d 508, 519, 113 S.Ct.
1770)].)” (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371, quoting People v.
Saunders (1993) 5 Cal.4th 580, 590, fn. 6.)
Although we agree with defendant that she did not waive her right to have her
petition heard by Judge Saraydarian, we agree with the People that defendant forfeited
this claim by failing to make a timely assertion of this right in the court below. Forfeiture
principles are appropriately applied to most kinds of trial error, and we see no reason not
to extend forfeiture in the context of this case. (See, e.g., People v. Freeman (2010) 47
Cal.4th 993, 999-1000 [applying forfeiture in the context of failure to seek writ review
after denial of a statutory motion for judicial qualification]; People v. Scott (1994) 9
Cal.4th 331, 351 [waiver or forfeiture for trial court’s failure to properly make or
articulate sentencing choices]; People v. Daya (1994) 29 Cal.App.4th 697, 714 [applying
forfeiture in modification of jury instructions].)
Moreover, even if we find defendant did not forfeit this claim, as explained below,
ante, II. C., we find any error to be harmless. A “miscarriage of justice” should be
declared only when the court after an examination of the entire cause, including the
evidence, is of the opinion that it is reasonably probable that a result more favorable to
the appealing party would have been reached in the absence of the error. (People v.
Watson (1956) 46 Cal.2d 818, 836.) This, of course, is the familiar “reasonably
15 probable” standard that represents the harmless-error test generally applicable under
current California law. We see no reason to extend the harmless-error test in the context
of this case.
C. Denial of Petition
Defendant contends the trial court erred in finding that resentencing her posed an
unreasonable risk of danger, because the evidence presented by the People “fell short of
justifying a finding” that she presents such a risk. This suggests that “substantial
evidence” is the appropriate standard for our review. It is not. The abuse of discretion
standard applies to our review, as explained below, and we structure the discussion
accordingly.
Review of the trial court’s ruling on the petition involves more than one issue. In
part, we are called upon to determine the meaning of section 1170.126, particularly the
provision that states: “the petitioner shall be resentenced . . . 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), italics added.) We independently
determine issues of law, such as the interpretation and construction of statutory language.
(People v. Love (2005) 132 Cal.App.4th 276, 284.) The principles of statutory
interpretation apply to voter initiatives, as well as to enactments of the Legislature.
(Ramos v. Superior Court (2007) 146 Cal.App.4th 719, 727.)
Beyond any issues of statutory interpretation, we are also called upon to review
the trial court’s discretionary ruling, finding that a new sentence would represent an
unreasonable risk of danger to the public. “[S]ection 1170.126 entrusts the trial court
16 with discretion that may be exercised to protect the public. A court may deny a
section 1170.126 petition if, after examination of the prisoner’s criminal history,
disciplinary record while incarcerated, and any other relevant evidence, it determines
that the prisoner poses ‘an unreasonable risk of danger to public safety.’ (§ 1170.126,
subd. (f).)” (Yearwood, supra, 213 Cal.App.4th at p. 176.)
“Where, as here, a discretionary power is statutorily vested in the trial court,” we
apply the abuse of discretion standard. (People v. Rodrigues (1994) 8 Cal.4th 1060,
1124-1125.) Reviewing courts often apply that standard to the review of discretionary
postconviction decisions. (Romero, supra, 13 Cal.4th at p. 531 [decision to dismiss or
strike a prior conviction allegation under § 1385]; People v. Carmony (2004) 33 Cal.4th
367, 375 [refusal to dismiss or strike a prior conviction allegation under § 1385]; People
v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974, 977 [decision whether to reduce
a wobbler offense to a misdemeanor under § 17, subd. (b)].)
We conclude the abuse of discretion standard applies to the review of the trial
court’s section 1170.126 discretionary risk-of-danger finding. As such, we review the
record to determine if the trial court abused its discretion in finding by a preponderance
of the evidence that defendant “would pose an unreasonable risk of danger to public
safety.” (§ 1170.126, subd. (f); Kaulick, supra, 215 Cal.App.4th at p. 1301.) When the
standard of review is abuse of discretion, the reviewing court “examines the ruling of the
trial court and asks whether it exceeds the bounds of reason or is arbitrary, whimsical or
capricious. [Citations.] This standard involves abundant deference to the trial court’s
rulings.” (People v. Jackson (2005) 128 Cal.App.4th 1009, 1018; Rodrigues, supra,
17 8 Cal.4th at pp. 1124-1125.) Where the record shows the trial court balanced the relevant
facts and reached an impartial decision in conformity with the law, we affirm. (People v.
Zichwic (2001) 94 Cal.App.4th 944, 961.)
Here, the trial court exercised its discretion not to resentence defendant in the
manner prescribed by section 1170.126. The court balanced the relevant factors and
concluded defendant continued to pose an unreasonable risk of danger to public safety.
The court acknowledged that it had considered granting defendant’s petition but found
defendant continued to pose a danger to public safety based on the nature of her prior
robberies, her disciplinary record while incarcerated, and its finding “beyond a
reasonable doubt that [defendant] forged [the] chronos or had somebody forge them for
her.” In response to defendant’s denial that she did not forge the “chronos,” the court
noted that there was no logical explanation for the positive “chronos”; that defendant did
not deserve them; that she had not earned the positive notes in the “chronos”; that two
correctional officers had testified they had not generated the “chronos” or would have
never given her positive “chronos” given defendant’s behavior while incarcerated; and
that the “chronos” were sent directly by defendant to her former public defender. The
court also noted defendant’s prior robberies were violent, armed robberies; that witnesses
had actually seen defendant participate in them, not just as a driver; and that defendant
had continued to commit crimes while in prison “in the sense of creating documents out
of cold cloth . . . .” As the court pointed out, defendant had led a life of crime and had
continued to lead a life of crime while incarcerated to serve her purpose. The current
18 convictions were not serious or violent, but the court expressed concern that if defendant
“will commit an offense in custody for her needs, what on earth will she do out?”
The People met their burden to convince the trial court that defendant continued to
pose an unreasonable risk of danger to public safety by a preponderance of the evidence.
(Evid. Code, § 115.) No more was required.
Defendant’s prior robbery convictions were violent; defendant had committed
numerous rules violations and infractions; and defendant had forged prison documents to
serve her purpose. Defendant’s actions indeed demonstrated immaturity, lack of insight,
and a lack of rehabilitation or reformation. Defendant’s strike offenses involved weapons
and threats of violence in the commission of a number of robberies. Defendant failed at
each opportunity in the past to learn from her mistakes. After her grants of probation,
time spent in jail and prison, and release from prison custody, she soon reoffended in
much the same way, by trying to cash a forged check in the amount of $150,000. And,
while in custody on the present commitment offenses, although defendant had a few
positive achievements, defendant still acted out, cursed at staff, failed to report as
assigned, failed to participate in rehabilitative programs, interfered with prison head
counts, disobeyed orders, fought with other inmates, and falsified documents.
Defendant displayed remarkably little understanding of the consequences of her
actions. She had done little or nothing to gain perspective, to improve herself, to make
amends for the wrongs she had done, or even to express minimal understanding of the
harms she had caused. The record here was replete with many different kinds of
incidents, both in defendant’s criminal record and in her prison correctional files, which
19 indicated that defendant continued to pose an ongoing risk to public safety were she to be
released. She had achieved very little in the way of documented efforts at rehabilitation
and she had continued to minimize her own misconduct. It simply cannot be said that the
trial court’s determination that defendant remained an unreasonable risk to public safety
was an arbitrary, whimsical, or capricious conclusion. (See, e.g., People v. Nocelotl
(2012) 211 Cal.App.4th 1091, 1097.)
Defendant appears to argue that the phrase “unreasonable risk of danger to public
safety” in the Reform Act was not intended for inmates like her “whose recent history
suggests that they might forge hall passes, inflate their resumes with invested praise from
supervisors, or even present phony checks for cashing,” but for inmates who are violent
offenders. We reject this contention.
While the voter information guide or the ballot pamphlet for the Reform Act notes
the intent of the Reform Act was to keep violent offenders off the streets and to release
nonviolent inmates to save taxpayer money (see Voter Information Guide, supra, text of
Prop. 36, § 1, subds. (3), (4) & (5), p. 105), the Reform Act clearly gives the trial court
discretion to determine whether resentencing would pose an “unreasonable risk of
danger to public safety.” The Reform Act clearly had a dual purpose—that of
ameliorating unduly harsh third strike sentences and protecting the public. The
Reform Act does not define the phrase “ ‘unreasonable risk of danger to public
safety’ . . . . The word ‘unreasonable’ ‘ “is a widely used and well understood word and
clearly so when juxtaposed” ’ with ‘risk of danger.’ (. . . People v. Morgan (2007) 42
Cal.4th 593, 606 . . . [‘ “As the Supreme Court stated in Go-Bart Importing Co. v. United
20 States (1931) 282 U.S. 344, 357 [75 L.Ed. 374, 51 S.Ct. 153], ‘There is no formula for
the determination of reasonableness.’ Yet standards of this kind are not impermissively
vague, provided their meaning can be objectively ascertained by reference to common
experiences of mankind.” ’].)” (People v. Flores (2014) 227 Cal.App.4th 1070, 1075
(Flores) [appellate court recently rejected inmate’s claim that the phrase “unreasonable
risk” is not impermissibly vague].)
“Surely a superior court judge is capable of exercising discretion, justly applying
the public safety exception, and determining whether a lesser sentence would pose an
unreasonable risk of harm to the public safety. (See, e.g., People v. Espinoza (2014) 226
Cal.App.4th 635 [grant of relief where a lesser sentence would not impose an
unreasonable risk of harm to the public safety].) This is one of those instances where the
law is supposed to have what is referred to by Chief Justice Rehnquist as ‘ “play in the
joints.” ’ (Locke v. Davey (2004) 540 U.S. 712, 718, 158 L.Ed.2d 1, 124 S.Ct. 1307.)
‘This is a descriptive way of saying that the law is flexible enough for the . . . trial court
to achieve a just result depending on the facts, law, and equities of the situation.’
[Citation.]” (Flores, supra, 227 Cal.App.4th at p. 1075, fn. omitted.)
There is likely some level of trauma or victimization in the commission of almost
any type of offense. However, it is no less true that the facts applicable to some criminal
offenses will show them to be less traumatizing, and the offender perhaps less dangerous
to public safety than the facts in other cases. There is no blanket determination that all
offenders who commit property crimes or fraud crimes are less dangerous than other
offenders. Regardless of whether or not defendant’s actions while in custody were
21 violent or nonviolent, she had demonstrated a lack of ability to conform her conduct to
society’s standards and continued to pose an unreasonable risk to public safety should she
be released from prison. The trial court was well aware of the positive factors defendant
cites on appeal, but determined that based on a weighing of all the factors, including the
negative ones we have recounted that demonstrate dangerousness, the court reasonably
believed defendant presented an unreasonable risk of danger to public safety. Thus,
defendant has not shown the trial court’s exercise of its discretion was an abuse of that
discretion.
D. Application of Proposition 47
In a supplemental brief, defendant argues that this court should apply the
definition of the phrase “unreasonable risk of danger to public safety” as defined in
section 1170.18, subdivision (c), to the phrase as it appears in section 1170.126,
subdivision (f).4 Defendant also argues that section 1170.18 applies retroactively and
that under the definition of “unreasonable risk of danger to public safety” as defined in
section 1170.18, subdivision (c), and as applied in section 1170.126, subdivision (f),
resentencing defendant under section 1170.126 would not pose an unreasonable risk of
danger to public safety. We find that Proposition 47 is not retroactive, and therefore we
need not decide defendant’s remaining contentions.
4 Section 1170.18 was enacted by the voters at the November 4, 2014 general election as part of the Safe Neighborhoods and Schools Act, otherwise known as and referred to herein as Proposition 47.
22 Proposition 47 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).)
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), italics added.)
“No part of [the Penal Code] is retroactive, unless expressly so declared.” (§ 3.)
The California Supreme Court “ha[s] described section 3, and its identical counterparts
in other codes (e.g., Civ. Code, § 3; Code Civ. Proc., § 3), as codifying ‘the time-honored
principle . . . that in the absence of an express retroactivity provision, a statute will
not be applied retroactively unless it is very clear from extrinsic sources that the
Legislature . . . must have intended a retroactive application.’ ” (People v. Brown (2012)
54 Cal.4th 314, 319 (Brown).) “In interpreting a voter initiative, we apply the same
principles that govern our construction of a statute.” (People v. Lopez (2005) 34 Cal.4th
1002, 1006.)
23 Proposition 47 is silent as to its retroactive application to proceedings under the
Reform Act. Similarly, the analysis of Proposition 47 by the legislative analyst, the
arguments in favor of Proposition 47, and the arguments against Proposition 47 are silent
as to the retroactive application to proceedings under the Reform Act. (Voter
Information Guide, Gen. Elec. (Nov. 4, 2014), text of Prop. 47 & analysis by Legis.
Analyst, pp. 34-39.) Thus, there is “no clear and unavoidable implication” of
retroactivity that “arises from the relevant extrinsic sources.” (Brown, supra, 54 Cal.4th
at p. 320.) As noted earlier, this section and subdivision were enacted on November 4,
2014, when California voters passed Proposition 47, long past the time of defendant’s
resentencing hearing. Unless the legislation was designed or intended to apply
retroactively, the definition in section 1170.18, subdivision (c), cannot apply to
defendant.
Nevertheless, defendant contends that the principle enunciated in In re Estrada
(1965) 63 Cal.2d 740 (Estrada) compels a finding of retroactivity here. As we explain,
Estrada does not apply.
In Estrada, our Supreme Court stated: “When the Legislature amends a statute so
as to lessen the punishment it has obviously expressly determined that its former penalty
was too severe and that a lighter punishment is proper as punishment for the commission
of the prohibited act. It is an inevitable inference that the Legislature must have intended
that the new statute imposing the new lighter penalty now deemed to be sufficient should
apply to every case to which it constitutionally could apply.” (Estrada, supra, 63 Cal.2d
at p. 745.) This includes “acts committed before its passage provided the judgment
24 convicting the defendant of the act is not final.” (Ibid.) Accordingly, a statute lessening
punishment is presumed to apply to all cases not yet reduced to final judgment on the
statute’s effective date, unless there is a “saving clause” providing for prospective
application. (Id. at pp. 744-745, 747-748.)
Contrary to defendant’s assertion, Estrada does not apply here because applying
the definition of “unreasonable risk to public safety” in Proposition 47 to petitions for
resentencing under the Reform Act does not reduce punishment for a particular crime.
Rather, it changes the lens through which the dangerousness determinations under the
Reform Act are made. Using the words of Brown, that “does not represent a judgment
about the needs of the criminal law with respect to a particular criminal offense, and
thus does not support an analogous inference of retroactive intent.” (Brown, supra,
54 Cal.4th at p. 325.) As the California Supreme Court explained in Brown, “Estrada
is . . . properly understood, not as weakening or modifying the default rule of prospective
operation codified in section 3, but rather as informing the rule’s application in a specific
context by articulating the reasonable presumption that a legislative act mitigating the
punishment for a particular criminal offense is intended to apply to all nonfinal
judgments.” (Brown, supra, 54 Cal.4th at p. 324.)
Brown addressed the 2010 amendment to former section 4019 that increased the
rate at which eligible prisoners could earn conduct credit for time spent in local custody.
(Brown, supra, 54 Cal.4th at pp. 317-318.) In passing this amendment, the Legislature
did not “express[ly] declar[e] that increased conduct credits [we]re to be awarded
retroactively, and [there was] no clear and unavoidable implication to that effect . . . from
25 the relevant extrinsic sources, i.e., the legislative history.” (Id. at p. 320.) Thus, the
California Supreme Court applied the “default rule” in section 3 that “ ‘No part of [the
Penal Code] is retroactive, unless expressly so declared.’ ” (Brown, at pp. 319-320.) In
doing so, our Supreme Court rejected the defendant’s argument that Estrada “should be
understood to apply more broadly to any statute that reduces punishment in any manner,
and that to increase credits is to reduce punishment.” (Brown, at p. 325.) The court
rejected defendant’s argument for two reasons: “First, the argument would expand the
Estrada rule’s scope of operation in precisely the manner we forbade . . . . Second, the
argument does not in any event represent a logical extension of Estrada’s reasoning. We
do not take issue with the proposition that a convicted prisoner who is released a day
early is punished a day less. But, as we have explained, the rule and logic of Estrada is
specifically directed to a statute that represents ‘ “a legislative mitigation of the penalty
for a particular crime” ’ [citation] because such a law supports the inference that the
Legislature would prefer to impose the new, shorter penalty rather than to ‘ “satisfy a
desire for vengeance” ’ [citation.]. The same logic does not inform our understanding of
a law that rewards good behavior in prison.” (Brown, at p. 325, italics omitted.)
Expanding the Estrada rule’s scope of operation here to the definition of
“unreasonable risk to public safety” in Proposition 47 in a petition for resentencing under
the Reform Act would conflict with section 3’s “default rule of prospective operation”
(Brown, supra, 54 Cal.4th at p. 324) where there is no evidence in Proposition 47 that this
definition was to apply retrospectively to petitions for resentencing under the Reform Act
and would be improper given that the definition of “unreasonable risk to public safety” in
26 Proposition 47 does not reduce punishment for a particular crime. For these reasons, we
hold that the definition of “unreasonable risk to public safety” in Proposition 47 does not
apply retroactively to a defendant such as the one here whose petition for resentencing
under the Reform Act was decided before the effective date of Proposition 47.5
III
DISPOSITION
The order denying defendant’s petition for a recall of her life sentence and for
resentencing as a second strike offender under the Reform Act is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI Acting P. J. We concur:
KING J.
MILLER J.
5 We note that on February 18, 2015, the California Supreme Court granted review of People v. Chaney (2014) 231 Cal.App.4th 1391, review granted February 18, 2015, S223676, which held that the definition of “unreasonable risk of danger to public safety” from Proposition 47 does not apply retroactively to petitions for recall and resentencing under the Reform Act. On this same date, the California Supreme Court also granted review of People v. Valencia (2014) 232 Cal.App.4th 514, review granted February 18, 2015, S223825, which held that the literal meaning of section 1170.18, subdivision (c), as added by Proposition 47 does not comport with the purpose of the Reform Act, and applying it to resentencing proceedings under the Reform Act would frustrate, rather than promote, that purpose and the intent of the electorate in enacting both initiative measures.