People v. Buford
209 Cal. Rptr. 3d 593
Cal. Ct. App.
2016
Check Treatment

THE PEOPLE, Plaintiff and Respondent, v. VICTOR LEON BUFORD, Defendant and Appellant.

No. F069936

Fifth Dist.

Oct. 27, 2016.

THE SUPREME COURT OF CALIFORNIA GRANTED REVIEW IN THIS MATTER (see Cal. Rules of Court, rules 8.1105(e)(1)(B), 8.1115(e)) January 11, 2017, S238790.

COUNSEL

Heather J. MacKay, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Paul E. O‘Connor, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DETJEN, Acting P. J.—

INTRODUCTION

Victor Leon Buford (defendant), an inmate serving a term of 25 years to life in prison following conviction of a felony that was not violent (as defined by Pen. Code, § 667.5, subd. (c)) or serious (as defined by Pen. Code, § 1192.7, subd. (c)), filed a petition pursuant to the Three Strikes Reform Act of 2012 (hereafter Proposition 36 or the Act) to have his sentence recalled and to be resentenced.1 (§ 1170.126, subd. (b).) Following a hearing, the trial court concluded resentencing would pose an unreasonable risk of danger to public safety and denied the petition.

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 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 in favor 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. We also hold section 1170.18, subdivision (c) does not modify section 1170.126, subdivision (f). As we explain in the unpublished portion of our opinion, we find no abuse of discretion and affirm.

FACTS AND PROCEDURAL HISTORY*

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

DISCUSSION

I

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 1170.126.12 (.) 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).)

A. A trial court‘s ultimate determination regarding dangerousness lies within its discretion; its ruling, therefore, is reviewed for abuse of discretion.

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.]” (.) “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.]” (; see [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 decision constitutes an abuse of discretion. (See .)

B. The burden of proof of preponderance of the evidence applies to proof of the facts, not to the trial court‘s ultimate determination.

Defendant asserts he cannot be denied resentencing unless the People proved dangerousness beyond a reasonable doubt. Alternatively, he says, the People must at least have proven the ultimate conclusion of dangerousness by a preponderance of the evidence. Although we agree preponderance of the evidence is the appropriate standard, we disagree with defendant on its application to the ultimate determination.13

“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.]” (.)

“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 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.” (.) 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., ), 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 (Blakely), we rejected the claim an inmate seeking resentencing pursuant to section 1170.126 had a Sixth Amendment right to a jury determination, beyond a reasonable doubt, on the question of conduct constituting a disqualifying factor. We concluded that (Apprendi) and its progeny (e.g., ; (Cunningham); ) “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), 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.” (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.)14

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 the 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. (Id. 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 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.15 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 .)16

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 to public safety. 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 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 [discussing abuse of discretion and preponderance of the evidence standards].)

Such an interpretation is consistent with California‘s noncapital sentencing scheme.17 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.‘” (, fn. omitted.) Trial courts had “broad discretion” to impose the lower or upper term instead of the middle term of imprisonment (), 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. (Id.; see Cal. Rules of Court, former 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 .)18

In , 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 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.” (.) 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’ “].)19

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.]” (.) The facts 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. If a factor (for example, that the petitioner participated in a riot, 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 [trial court abuses its discretion when factual findings critical to decision find no support in record]; cf. [where trial court erroneously determined the defendant was statutorily ineligible for probation, reviewing court had to decide whether trial court gave sufficient other reasons, supported by facts of case, for probation denial].)

C. Section 1170.126 does not establish or contain a presumption a petitioner‘s sentence must be reduced.

Subdivision (f) of section 1170.126 provides that an eligible petitioner “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.” Defendant contends this language creates a presumption in favor of resentencing.

Defendant first points to the “shall“/“unless” formulation employed by the statute. Under and its progeny (e.g., ;

), all of which deal with section 190.5, subdivision (b),20 defendant argues that at the time Proposition 36 was enacted, it had long been the law that the “shall” option was the presumptive punishment, and so voters must have intended this then-prevailing judicial interpretation to apply. (See ; .)

The California Supreme Court disapproved the foregoing line of cases in . Leaving aside constitutional questions raised by establishing a presumption in favor of life without parole for juveniles after the United States Supreme Court‘s opinion in , 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.” (.)

The same example can be applied to the syntax of section 1170.126, subdivision (f). Because a reading that affords no presumption “accords with common usage” (), we reject the notion voters must have intended there to be a presumption in favor of resentencing or that courts have only limited discretion to deny resentencing (see [discussing courts’ circumscribed power to depart, under § 1385, subd. (a) and (Romero), from sentencing norm established by three strikes law]). 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.21 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 [examining legislative history and voter intent in attempt to resolve statutory ambiguity].) As we stated in , “‘[e]nhancing public safety was a key purpose of the Act’ [citation].” Thus, although one purpose of the Act was to save taxpayer dollars (), “[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, 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.

D. Section 1170.18, subdivision (c), enacted pursuant to Proposition 47, does not modify section 1170.126, subdivision (f).

On November 4, 2014, voters enacted Proposition 47, “the Safe Neighborhoods and Schools Act” (hereafter Proposition 47). It went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) Insofar as is pertinent here, Proposition 47 reduced to misdemeanors certain drug- and theft-related offenses that previously were felonies or “wobblers,” unless they were committed by certain ineligible defendants. Proposition 47 also created a new resentencing provision—section 1170.18—by which a person currently serving a felony sentence for an offense that is now a misdemeanor, may petition

for a recall of that sentence and request resentencing in accordance with the offense statutes as added or amended by Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in subdivision (a) of section 1170.18 shall have his or her sentence recalled and 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.” (Id., subd. (b).)22

Hidden in the lengthy, fairly abstruse text of the proposed law, as presented in the official ballot pamphlet—and nowhere called to voters’ attention—is the provision defendant contends applies to his petition for resentencing under Proposition 36. Subdivision (c) of section 1170.18 provides: “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.” Section 667, subdivision (e)(2)(C)(iv) lists the following felonies, sometimes called “super strike” offenses:

“(I) A ‘sexually violent offense’ as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.

“(II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289.

“(III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288.

“(IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.

“(V) Solicitation to commit murder as defined in Section 653f.

“(VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245.

“(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418.

“(VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.”

The question is whether section 1170.18, subdivision (c) now limits a trial court‘s discretion to deny resentencing under the Act to those cases in which resentencing the defendant would pose an unreasonable risk he or she will commit a new “super strike” offense. Defendant says it does. The People disagree. We agree with the People.23

“‘In interpreting a voter initiative . . ., we apply the same principles that govern statutory construction. [Citation.]’ [Citation.] ‘“The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.]“’ [Citation.]” (.) Thus, in the case of a provision adopted by the voters, “their intent governs. [Citations.]” (.)

To determine intent, “‘we look first to the words themselves. [Citations.]‘” (.) We give the statute‘s words “‘a plain and commonsense meaning. [Citation.] We do not, however, consider the statutory language “in isolation.” [Citation.] Rather, we look to “the entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . [Citation.]” [Citation.] That is, we construe the words in question “in context, keeping in mind the nature and obvious purpose of the statute. . . .” [Citation.]’ [Citation.] We must harmonize ‘the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.’ [Citations.]’ [Citation.]” (.) We “accord[] significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. . . . [S]tatutes or statutory sections relating to the

same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.]” ( [241 Cal.Rptr. 67, 743 P.2d 1323].)

““When statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it.” [Citation.]’ [Citation.]” ( [66 Cal.Rptr.2d 431, 941 P.2d 64].) On its face, “[a]s used throughout this Code,” as employed in section 1170.18, subdivision (c), clearly and unambiguously refers to the Penal Code, not merely section 1170.18 or the other provisions contained in Proposition 47. (See [134 P.2d 505]; see also [15 Cal.Rptr.3d 344]; [9 Cal.Rptr.2d 255].) This does not mean, however, that the definition contained in section 1170.18, subdivision (c) must inexorably be read into section 1170.126, subdivision (f). (Cf. .) “The literal language of a statute does not prevail if it conflicts with the lawmakers’ intent . . . [Citations.]” (.) ” ‘The apparent purpose of a statute will not be sacrificed to a literal construction.’ [Citation.]” ( [114 Cal.Rptr. 460, 523 P.2d 260].) Rather, “the literal meaning of a statute must be in accord with its purpose.” ( [76 Cal.Rptr.3d 372].) “[I]t is settled that the language of a statute should not be given a literal meaning if doing so would result in absurd consequences that the [voters] did not intend” ( [128 Cal.Rptr.2d 92, 59 P.3d 164]), or would “frustrate[] the manifest purposes of the legislation as a whole . . . .” ( [13 Cal.Rptr.2d 379].) “To this extent, therefore, intent prevails over the letter of the law and the letter will be read in accordance with the spirit of the enactment. [Citation.]” (; accord, [65 Cal.Rptr.2d 610, 939 P.2d 1310].)

Thus, ‘we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]’ [Citation.] We also “refer to other indicia of the voters’ intent, particularly the analyses and arguments contained in the official ballot pamphlet.” [Citation.]’ [Citation.]” (.) We consider “the consequences that will flow from a particular interpretation” (), as well as “the wider historical circumstances” of the statute‘s or statutes’ enactment (ibid.). ” ‘Using these extrinsic aids, we “select the construction that comports most closely with the apparent intent of the [electorate], with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.” [Citation.]’ [Citation.]” (.)

Proposition 47 and the Act address related, but not identical, subjects. As we explain, reading them together, and considering section 1170.18, subdivision (c) in the context of the statutory framework as a whole (see ; [25 Cal.Rptr.2d 109, 863 P.2d 179]; [237 Cal.Rptr. 677]), we conclude its literal meaning 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 (see [9 Cal.Rptr.2d 20]).

As is evidenced by its title, the Act was aimed solely at revising the three strikes law. That law, as originally enacted by the Legislature, was described by us as follows:

“Under the three strikes law, defendants are punished not just for their current offense but for their recidivism. Recidivism in the commission of multiple felonies poses a danger to society justifying the imposition of longer sentences for subsequent offenses. [Citation.] The primary goals of recidivist statutes are: ‘. . . to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person‘s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.’ [Citation.]”

“By enacting the three strikes law, the Legislature acknowledged the will of Californians that the goals of retribution, deterrence, and incapacitation be given precedence in determining the appropriate punishment for crimes. Further, those goals were best achieved by ensuring ‘longer prison sentences and greater punishment’ for second and third ‘strikers.‘” ( [51 Cal.Rptr.2d 106].)24

A few months before the November 6, 2012, general election, the California Supreme Court observed: “One aspect of the [three strikes] law that has proven controversial is that the lengthy punishment prescribed by the law may be imposed not only when a defendant [who has previously been convicted of one or more serious or violent felonies] is convicted of another serious or violent felony but also when he or she is convicted of any offense that is categorized under California law as a felony. This is so even when the current, so-called triggering, offense is nonviolent and may be widely perceived as relatively minor. [Citations.]” (.)

Clearly, by approving the Act, voters resolved this controversy in favor of strike offenders. Thus, one of the “Findings and Declarations” of the Act stated the Act would “[r]estore the Three Strikes law to the public‘s original understanding by requiring life sentences only when a defendant‘s current conviction is for a violent or serious crime.” (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 1, p. 105.)25 Nowhere, however, do the ballot materials for the Act suggest voters intended essentially to release existing third strike offenders in all but the most egregious cases, as would be the result if the definition of “unreasonable risk of danger to public safety” contained in section 1170.18, subdivision (c) were engrafted onto resentencing proceedings under section 1170.126, subdivision (f). That voters did not intend such a result is amply demonstrated by the fact an indeterminate life term remains mandatory under the Act for a wide range of current offenses even if the offender does not have a prior conviction for a “super strike” offense (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)), and that an inmate is rendered ineligible for resentencing under section 1170.126 for an array of reasons beyond his or her having suffered such a prior conviction (§ 1170.126, subd. (e)(2)).

The Act clearly placed public safety above the cost savings likely to accrue as a result of its enactment. Thus, uncodified 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, some italics omitted.) As we explained in , “Although the Act ‘diluted’ the three strikes law somewhat [citation], ‘[e]nhancing public safety was a key purpose of the Act’ [citation].”

In contrast, Proposition 47—while titled “the Safe Neighborhoods and Schools Act“—emphasized monetary savings. The “Findings and Declarations” state: “The people of the State of California find and declare as follows: [] The people enact the Safe Neighborhoods and Schools Act to ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K-12 schools, victim services, and mental health and drug treatment. This act ensures that sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.) Uncodified section 15 of the measure provides: “This act shall be broadly construed to accomplish its purposes,” while uncodified section 18 states: “This act shall be liberally construed to effectuate its purposes.” (Voter Information Guide, Gen. Elec., supra, text of Prop. 47, p. 74.) Proposition 47 requires misdemeanor sentences for various drug possession and property offenses, unless the perpetrator has a prior conviction for a “super strike” offense or for an offense requiring sex offender registration pursuant to section 290, subdivision (c). (Health & Saf. Code, §§ 11350, subd. (a), 11357, subd. (a), 11377, subd. (a); Pen. Code, §§ 459.5, subd. (a), 473, subd. (b), 476a, subd. (b), 490.2, subd. (a), 496, subd. (a), 666, subd. (b).) Section 1170.18 renders ineligible for resentencing only those inmates whose current offense would now be a misdemeanor, but who have a prior conviction for a “super strike” offense or for an offense requiring sex offender registration pursuant to section 290, subdivision (c). (§ 1170.18, subds. (a), (i).)

Nowhere in the ballot materials for Proposition 47 were voters given any indication that initiative, which dealt with offenders whose current convictions would now be misdemeanors rather than felonies, had any impact on Proposition 36—enacted a scant two years earlier—which dealt with offenders whose current convictions would still be felonies, albeit not third strikes. For instance, the “Official Title and Summary” stated, in pertinent part, that Proposition 47 would “[r]equire[] resentencing for persons serving felony sentences for these offenses [i.e., offenses that require misdemeanor sentences under the measure,] unless court finds unreasonable public safety risk.” (Voter Information Guide, Gen. Elec., supra, official title and summary of Prop. 47, p. 34.) In explaining what Proposition 47 would do, the Legislative Analyst stated: “This measure reduces penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes. The measure also allows certain offenders who have been previously convicted of such crimes to apply for reduced sentences.” (Voter Information Guide, Gen. Elec., supra, analysis of Prop. 47 by Legis. Analyst, p. 35, italics added.) With respect to the resentencing provision, the Legislative Analyst explained: “This measure allows offenders currently serving felony sentences for the above crimes [i.e., grand theft, shoplifting, receiving stolen property, writing bad checks, check forgery, and drug possession] to apply to have their felony sentences reduced to misdemeanor sentences. In addition, certain offenders who have already completed a sentence for a felony that the measure changes could apply to the court to have their felony conviction changed to a misdemeanor. However, no offender who has committed a specified severe crime could be resentenced or have their conviction changed. In addition, the measure states that a court is not required to resentence an offender currently serving a felony sentence if the court finds it likely that the offender will commit a specified severe crime. Offenders who are resentenced would be required to be on state parole for one year, unless the judge chooses to remove that requirement.” (Id. at p. 36, italics added.)

Similarly, the arguments in favor of and against Proposition 47 spoke in terms solely of Proposition 47, and never mentioned the Act. The “Argument in Favor of Proposition 47” talked of prioritizing serious and violent crime so as to stop wasting prison space “on petty crimes,” stop “wasting money on warehousing people in prisons for nonviolent petty crimes,” and stop California‘s overcrowded prisons from “incarcerating too many people convicted of low-level, nonviolent offenses.” (Voter Information Guide, Gen. Elec., supra, argument in favor of Prop. 47, p. 38.) The “Rebuttal to Argument Against Proposition 47” reiterated these themes, and never suggested Proposition 47 would have any effect on resentencing under the Act. (See Voter Information Guide, Gen. Elec., supra, rebuttal to argument against Prop. 47, p. 39.) Although the “Rebuttal to Argument in Favor of Proposition 47” asserted 10,000 inmates would be eligible for early release under the measure, and that many of them had prior convictions “for serious crimes, such as assault, robbery and home burglary” (Voter Information Guide, Gen. Elec., supra, rebuttal to argument in favor of Prop. 47, p. 38), it contained no suggestion the early release provisions would extend to inmates whose current offenses remained felonies under the Act. The same is true of the discussion of resentencing contained in the “Argument Against Proposition 47.” (Voter Information Guide, Gen. Elec., supra, argument against Prop. 47, p. 39.)

In light of the foregoing, we cannot reasonably conclude voters intended the definition of “unreasonable risk of danger to public safety” contained in section 1170.18, subdivision (c) to apply to that phrase as it appears in section 1170.126, subdivision (f), despite the former section‘s preamble, “As used throughout this Code . . . .” Voters cannot intend something of which they are unaware.

We are mindful “it has long been settled that ‘[t]he enacting body is deemed to be aware of existing laws and judicial constructions in effect at the time legislation is enacted’ [citation], ‘and to have enacted or amended a statute in light thereof’ [citation]. ‘This principle applies to legislation enacted by initiative. [Citation.]’ [Citation.]” (; accord, [210 Cal.Rptr. 631, 694 P.2d 744].) Thus, we presume voters were aware “unreasonable risk of danger to public safety,” as used in section 1170.126, subdivision (f), had been judicially construed as not being impermissibly vague, but as nevertheless having no fixed definition. ( [178 Cal.Rptr.3d 883]; .) Because nowhere in the ballot materials for Proposition 47 was it called to voters’ attention the definition of the phrase contained in section 1170.18, subdivision (c) would apply to resentencing proceedings under the Act, we simply cannot conclude voters intended Proposition 47 to alter the Act in that respect.26 Voters are not asked or presumed to be able to discern all potential effects of a proposed initiative measure; this is why they are provided with voter information guides containing not only the actual text of such a measure, but also a neutral explanation and analysis by the Legislative Analyst and arguments in support of and in opposition to the measure. As we have already observed, none of those materials so much as hinted that Proposition 47 could have the slightest effect on resentencing under the Act. (Cf. [legislative history of enactment included information bill would add definition of particular term to Pub. Contract Code]).27

Nor can we infer an intent to extend section 1170.18, subdivision (c)‘s definition to proceedings under section 1170.126 because the phrase in question only appears in those sections of the Penal Code. The only resentencing mentioned in the Proposition 47 ballot materials was resentencing for inmates whose current offenses would be reduced to misdemeanors, not those who would still warrant second strike felony terms. There is a huge difference, both legally and in public safety risked, between someone with multiple prior serious and/or violent felony convictions whose current offense is (or would be, if committed today) a misdemeanor, and someone whose current offense is a felony. Accordingly, treating the two groups differently for resentencing purposes does not lead to absurd results, but rather is eminently logical.

We recognize it is an established rule of statutory construction “that when statutes are in pari materia similar phrases appearing in each should be given like meanings. [Citations.]” ( [146 Cal.Rptr. 859, 580 P.2d 274], overruled on another ground in [83 Cal.Rptr.2d 533, 973 P.2d 512] and disapproved on another ground in [12 Cal.Rptr.2d 586, 837 P.2d 1100]; see .) We question whether Proposition 36 and Proposition 47 are truly in pari materia: That phrase means “[o]n the same subject; relating to the same matter” (Black‘s Law Dict. (9th ed. 2009) p. 862), and the two measures (albeit with some overlap) address different levels of offenses and offenders. (19) In any event, “canons of statutory construction are merely aids to ascertaining probable legislative intent” ( [183 Cal.Rptr. 647, 646 P.2d 809]); they are “mere guides and will not be applied so as to defeat the underlying legislative intent otherwise determined [citation]” ().

The Act was intended to reform the three strikes law while keeping intact that scheme‘s core commitment to public safety. Allowing trial courts broad discretion to determine whether resentencing an eligible petitioner under the Act “would pose an unreasonable risk of danger to public safety” (§ 1170.126, subd. (f)) clearly furthers the Act‘s purpose. Whatever the wisdom of Proposition 47‘s policy of nearly universal resentencing where misdemeanants are concerned—and “[i]t is not for us to gainsay the wisdom of this legislative choice” ( [47 Cal.Rptr.3d 248, 139 P.3d 1196])—constraining that discretion so that all but the worst felony offenders are released manifestly does not, nor does it comport with the voters’ intent in enacting either measure. Accordingly, Proposition 47 has no effect on defendant‘s petition for resentencing under the Act.28

E. The focus in a section 1170.126, subdivision (f) analysis is on whether the petitioner currently poses an unreasonable risk of danger to public safety.

Defendant contends there must be a “logical nexus” between the factors considered in the trial court‘s decision and current dangerousness. In support, he relies, in part, on parole cases.

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.” (.)

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 agree with defendant that the proper focus is on whether the petitioner currently poses an unreasonable risk of danger to public safety. (Cf. [82 Cal.Rptr.3d

213, 190 P.3d 573]; .) 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.]” (.) “‘[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 crime in isolation, without consideration of the passage of time or the attendant changes in the inmate‘s psychological or mental attitude. [Citation.]’ [Citation.]” (.)

II

The Trial Court‘s Ruling*

DISPOSITION

The order denying the petition is affirmed.

Smith, J., concurred.

PEÑA, J., Concurring.—I concur in the judgment and the majority opinion with the exception of part ID. I agree defendant Victor Leon Buford may not take advantage of Proposition 47‘s1 newly enacted definition of ” ‘unreasonable risk of danger to public safety‘” as provided in Penal Code section 1170.18, subdivision (c) (section 1170.18(c)). I do so not because there is any ambiguity in the language used in section 1170.18(c) or the notion that the statute does not mean what it says, i.e., that the new definition applies “throughout this Code.” (Ibid.) Rather, in my view, there is no indication the electorate, in enacting section 1170.18(c), intended it to apply retroactively to resentencing determinations under Proposition 36, the Three Strikes Reform Act of 2012 (the Act).2

I. After November 4, 2014, the definition of ” ‘unreasonable risk of danger’ ” in section 1170.18(c) applies throughout the Penal Code

Section 1170.18(c) provides: “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.”

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(c) cannot apply to defendant. This is the only inquiry we must make to resolve the issue of whether the definition in section 1170.18(c) applies to defendant. However, the majority has opted to determine whether the new definition applies to any resentencing provisions for this or any future petitions under the Act. I respectfully disagree with the majority‘s analysis and conclusion on this broader issue. ” “When construing a statute, we must “ascertain the intent of the Legislature so as to effectuate the purpose of the law.“’ [Citation.] ‘[W]e begin with the words of a statute and give these words their ordinary meaning.’ [Citation.] ‘If the statutory language is clear and unambiguous, then we need go no further.’ [Citation.] If, however, the language supports more than one reasonable construction, we may consider ‘a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.’ [Citation.] Using these extrinsic aids, we ‘select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ [Citation.]” ( [120 Cal.Rptr.2d 783, 47 P.3d 629].)

Where the statutory language is so clear and unambiguous, there is no need for statutory construction or to resort to legislative materials or other outside sources. ( [64 Cal.Rptr.2d 741].) Absent ambiguity, it is presumed the voters intend the meaning apparent on the face of an initiative measure, and the courts may not add to the statute or rewrite it to conform to a presumed intent not apparent in its language. ( [58 Cal.Rptr.2d 855, 926 P.2d 1042].)

In determining whether the words enacted here are unambiguous, we do not write on a blank slate. For example, in [15 Cal.Rptr.3d 344], the court stated there “is nothing ambiguous about the phrase ‘as used in this code.’ ” It held the definition of ” ‘Emergency,’ as used in this code” applied to the entire Public Contract Code, and it was not limited to a particular chapter, article, or division of that code. (Ibid., italics omitted.) Also, in [134 P.2d 505], the court held: “The words ‘as in this code provided’ (Penal Code, § 182) refer to the Penal Code.”

In a similar vein, the court in [16 Cal.Rptr.3d 869, 94 P.3d 1071], applied the plain meaning rule as follows:

“The statutory language of the provision defining ‘duress’ in each of the rape statutes is clear and unambiguous. The definition of ‘duress’ in both the rape and spousal rape statutes begins with the phrase, ‘As used in this section, “duress” means . . . .’ (§§ 261, subd. (b), 262, subd. (c).) This clear language belies any legislative intent to apply the definitions of ‘duress’ in the rape and spousal rape statutes to any other sexual offenses.

“Starting from the premise that in 1990 the Legislature incorporated into the rape statute a definition of ‘duress’ that already was in use for other sexual offenses, defendant argues that the Legislature must have intended its 1993 amendment of the definition of ‘duress’ in the rape statute, and the incorporation of this new definition into the spousal rape statute, to apply as well to other sexual offenses that use the term ‘duress.’ Defendant observes: ‘The legislative history does not suggest any rationale for why the Legislature would want its 1993 amendment of the definition of “duress” to apply only to rape so that it would have one meaning when the rape statutes use the phrase “force, violence, duress, menace, or fear of immediate and unlawful bodily injury” but another, much more expansive meaning when the identical phrase is used in the statutes defining sodomy, lewd acts on a child, oral copulation and foreign object rape.’

“But the Legislature was not required to set forth its reasons for providing a different definition of ‘duress’ for rape and spousal rape than has been used in other sexual offenses; it is clear that it did so. ‘When ” ‘statutory language is clear and unambiguous there is no need for construction, and courts should not indulge in it.’ ” [Citations.] The plain meaning of words in a statute may be disregarded only when that meaning is ” ‘repugnant to the general purview of the act,’ or for some other compelling reason . . . .” [Citations.]’ [Citation.] As we said in an analogous situation: ‘It is our task to construe, not to amend, the statute. “In the construction of a statute . . . the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or omit what has been inserted . . . .” [Citation.] We may not, under the guise of construction, rewrite the law or give the words an effect different from the plain and direct import of the terms used.’ [Citation.]”

The majority pays lip service to the plain meaning rule and then ignores it. While acknowledging the language used is unambiguous, it nonetheless engages in statutory construction to determine whether the electorate really intended to say what it actually enacted. The end result is a rewriting of the statute so that it comports with the majority‘s view of what the voters really intended. The majority has rewritten section 1170.18(c) so that it now states: “As used in this section only, ‘unreasonable risk of danger to public safety’ means . . . .” The majority does so without providing a compelling reason to do so and without showing the plain language used has a ” ‘meaning [that] is “repugnant to the general purview of the act.” ’ ” (.) Because the Act had not previously defined the phrase “unreasonable risk of danger to public safety,” the definition in section 1170.18(c) cannot be repugnant or contradictory to the Act, nor does the majority claim the definition is repugnant to the general purview of Proposition 47. For these reasons, I respectfully disagree with the majority on this part of the opinion.

I note the Sixth District Court of Appeal in [195 Cal.Rptr.3d 597] has reached the same result as the majority here under nearly identical reasoning. There the court seemingly acknowledges that applying the plain meaning rule would not lead to absurd results. However, like the majority here, the court refused to give the words used their unambiguous, ordinary meaning, stating “we would need the most compelling proof that the voters intended what we see as an unreasonable and counterintuitive result.” (Id. at p. 737.)

Subsequently, the Sixth Appellate District, in an opinion authored by one of the justices who concurred in the Esparza decision, reversed position after further reflection and further research on the public debate surrounding the passage of Proposition 47. ( [203 Cal.Rptr.3d 700], review granted Aug. 31, 2016, S236179.) The majority in Cordova extensively outlined in the opinion how the question of whether Proposition 47 could affect petitions under the Act was widely debated in the state by opponents of the measure. (Cordova, supra, at pp. 560-564.)

The majority here dismisses these sources of information stating, “We are aware of no California Supreme Court authority identifying Internet and media sources as reliable bases for ascertaining voters’ intent.” (Maj. opn., ante, at fn. 26, par. 2, p. 911.) However, the Cordova case cites two such cases— [186 Cal.Rptr. 30, 651 P.2d 274] and [149 Cal.Rptr. 239, 583 P.2d 1281]—that considered other informative sources on voter intent. Conversely, the majority has cited to no case or authority that confines or otherwise limits the search for voters’ intent to ballot summaries and arguments. I quote from the Brosnahan case:

“Finally, petitioners insist that the complexity of Proposition 8 may have led to confusion or deception among voters, who were assertedly uninformed regarding the contents of the measure. Yet, as was the case in both Amador and FPPC,3 Proposition 8 received widespread publicity. Newspaper, radio and television editorials focused on its provisions, and extensive public debate involving candidates, letters to the editor, etc., described the pros and cons of the measure. . . .

“Petitioners’ entire argument that, in approving Proposition 8, the voters must have been misled or confused is based upon the improbable assumption that the people did not know what they were doing. . . . Rather, in accordance with our tradition, ‘we ordinarily should assume that the voters who approved a constitutional amendment “. . . have voted intelligently upon an amendment to their organic law, the whole text of which was supplied each of them prior to the election and which they must be assumed to have duly considered.“’ [Citations.]” (.)

The majority in Cordova has debunked the arguments relied upon in Esparza and the majority opinion in this case regarding what the voters must have intended based on legislative history and arguments for and against the passage of Proposition 47. However, until further clarification from our California Supreme Court, I rely, as I must, on the plain meaning rule. (.)

II. Section 1170.18(c) has no application to defendant‘s resentencing under the Act

I do concur in the result because there is nothing in Proposition 47 to indicate the definition enacted under section 1170.18(c) is to be applied retroactively to defendant under the Act.

I begin my analysis with section 3 of the Penal Code, which provides that “[n]o part of it is retroactive, unless expressly so declared.” “Whether a statute operates prospectively or retroactively is, at least in the first instance, a matter of legislative intent. When the Legislature has not made its intent on the matter clear,” section 3 provides the default rule. ( [142 Cal.Rptr.3d 824, 278 P.3d 1182].) Proposition 47 is silent on the question of whether it applies retroactively to proceedings under the Act. The analysis of Proposition 47 by the Legislative Analyst and the arguments for and against Proposition 47 are also silent on this question. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) pp. 34-39.) Because the statute contains no express declaration that section 1170.18(c) applies retroactively to proceedings under the Act, and there is no clearly implied intent of retroactivity in the legislative history, the default rule applies. Defendant cites [48 Cal.Rptr. 172, 408 P.2d 948] to argue retroactive application.

In Estrada, the 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. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.” (.)

Defendant argues that under the Estrada case, unless there is a “saving clause” providing for prospective application, a statute lessening punishment is presumed to apply to all cases not yet reduced to a final judgment on the statute‘s effective date. (.) However, the Estrada case has been revisited by our Supreme Court on several occasions. In , the court stated: ”Estrada is today properly understood, not as weakening or modifying the default rule of prospective operation codified in [Penal Code] 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.” “The holding in Estrada was founded on the premise that ’ “[a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law.” ’ ” (Ibid., at p. 325.) In Brown, the court did not apply the Estrada rule because “a statute increasing the rate at which prisoners may earn credits for good behavior 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.” (.)

Similarly here, Estrada does not control because applying the definition of “unreasonable risk of danger to public safety” in Proposition 47 to petitions for resentencing under the Act does not reduce punishment for a particular crime.4 Instead, the downward modification of a sentence authorized by the Act is dependent not just on the current offense but on any number of unlimited factors related to the individual offender, including criminal conviction history, disciplinary and rehabilitation records, and “[a]ny 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.” (Pen. Code, § 1170.126, subd. (g)(3).)

For this reason also, defendant‘s argument his equal protection rights would be violated if he is denied retroactive application is unavailing. In light of the unlimited factors related to individual offenders that inform the exercise of discretion, no two individual offenders may be said to be similarly situated for purposes of resentencing under the Act. Defendant fails to establish he has been denied equal protection as against any other similarly situated individual.

Because section 1170.18(c)‘s definition of ” ‘unreasonable risk of danger to public safety’ ” does not apply retroactively to the Act, the sentencing court applied the correct standard in exercising its discretion to not resentence defendant. Since defendant has failed to show an abuse of that discretion, I concur in the majority‘s affirmance of the judgment.

Appellant‘s petition for review by the Supreme Court was granted January 11, 2017, S238790.

Notes

1
All statutory references are to the Penal Code unless otherwise stated. The Safe Neighborhoods and Schools Act (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014)).
2
The issue of whether Proposition 47‘s definition of unreasonable risk of danger to public safety applies in Proposition 36 resentencing proceedings is pending before the California Supreme Court in [180 Cal.Rptr.3d 443], review granted February 18, 2015, S223676, and [181 Cal.Rptr.3d 229], review granted February 18, 2015, S223825.
3
“FPPC” refers to [157 Cal.Rptr. 855, 599 P.2d 46] (“Given the widespread public debate of initiatives, the explanations in the ballot pamphlets and in the media, it is unreasonable to assume that initiative measures receive less scrutiny than proposed legislation.” [italics added]).
4
The majority in acknowledged Estrada‘s limited applicability, but found in favor of retroactivity for other reasons not urged here by defendant nor briefed by the People. As the retroactivity issue is currently pending, I will wait for guidance from our Supreme Court on this issue.
12
“An inmate is eligible for resentencing if: [[] (1) The inmate 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. [][] (2) The inmate‘s current sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12. [][] (3) The inmate has no prior convictions for any of the offenses appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.” (§ 1170.126, subd. (e).)
13
The People do not dispute defendant‘s claim the burden of proof lies with the prosecution. (E.g., ; (Kaulick).) The trial court here expressly placed the burden on the People.
14
Neither nor undermines Dillon or Kaulick‘s reliance thereon. Unlike Dillon, Descamps dealt with judicial factfinding concerning a prior conviction used to enhance a sentence (, 570 U.S. at pp. [133 S.Ct. at pp. 2281–2282]), while Pepper involved a plenary resentencing after the defendant‘s sentence had been set aside on appeal ().
15
As noted, ante, we have previously discussed Kaulick in the context of the initial determination whether an inmate is eligible for resentencing under the Act. (Blakely, supra, 225 Cal.App.4th at pp. 1058, 1060–1061; .) Nothing we say here should be taken as disagreement with or modification of those opinions. We deal here with a different aspect of the retrospective portion of the Act and a subject not before us in our prior cases.
16
We recognize that in the case of people who are involuntarily committed as narcotics addicts or for analogous reasons, the California Supreme Court has found the appropriate standard of proof to be beyond a reasonable doubt. (See, e.g., .) Defendant received the protections of that standard of proof (and the right to a jury trial) at the time he was convicted of his commitment offense and was found to have suffered his prior strike convictions. (See ; .)
17
The determination of the appropriate penalty in a capital case “is ‘essentially moral and normative [citation], and therefore . . . there is no burden of proof or burden of persuasion.‘” (, disapproved on another ground in .)
18
After Cunningham concluded the DSL violated a defendant‘s Sixth Amendment right to a jury trial (), the Legislature amended section 1170 so that “(1) the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the discretion to impose an upper, middle or lower term based on reasons he or she states.” (.) Subdivision (b) of section 1170 states the court “shall select the term which, in the court‘s discretion, best serves the interests of justice.”
19
We reject defendant‘s claim that if there need only be substantial evidence of the underlying facts, then review of the ultimate dangerousness determination for abuse of discretion is no more stringent than the highly deferential “some evidence” standard applicable to review of executive branch decisions in parole cases. (See .) Whatever the similarities between the “abuse of discretion” and “some evidence” standards (compare [abuse of discretion standard is “‘deferential‘” but “‘not empty‘“] with [“some evidence” standard is “unquestionably deferential” but “not toothless“]), examining the underlying facts for substantial evidence requires us to “‘review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the [challenged fact by a preponderance of the evidence]. [Citations.]’ [Citation.] We resolve all conflicts in the evidence and questions of credibility in favor of the [finding], and we indulge every reasonable inference the [trier of fact] could draw from the evidence. [Citation.]” (.) Moreover, as we have observed, the language of section 1170.126, subdivisions (f) and (g) expressly allocates to the trial court‘s discretion the ultimate determination of dangerousness. A review of the trial court‘s exercise of discretion requires a determination whether that court reasonably and nonarbitrarily found resentencing the petitioner would pose an unreasonable risk of danger to public safety, and not merely a review of whether evidence established the facts of that inmate‘s criminal and disciplinary history. (See ; .)
20
Section 190.5, subdivision (b) provides, in pertinent part: “The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances has been found to be true . . . , who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.”
21
Because a trial court can deny resentencing under section 1170.126, subdivision (f) only upon a finding of unreasonable risk of danger to public safety, a trial court would abuse its discretion, as in a Romero situation, by refusing to resentence a petitioner because of antipathy toward the Act or a personal belief a particular defendant deserved an indeterminate term for reasons other than dangerousness. (See .)
22
Proposition 47 also created a process whereby eligible persons who have already completed their sentences may have the particular conviction or convictions designated as misdemeanors. (§ 1170.18, subds. (f), (g).)
23
It appears that a number of inmates will be eligible to seek resentencing under both the Act and Proposition 47. Such an inmate need not wait to file a petition under Proposition 47 until the trial court‘s ruling on the inmate‘s petition under the Act is final. A trial court is not divested of jurisdiction over a Proposition 47 petition by the fact a petition under the Act is pending, whether in a trial court or a Court of Appeal, with respect to the same inmate. (Cf. ; ; .) While the general rule is that “an appeal from an order in a criminal case removes the subject matter of that order from the jurisdiction of the trial court [citations] . . .” (), the subject matter of a ruling on a petition under the Act is legally independent from a petition under Proposition 47 (see ).
24
The foregoing applies equally to the three strikes initiative measure that added section 1170.12 to the Penal Code. The following statement of intent preceded the text of the statute in Proposition 184, which was approved by voters on November 8, 1994: ” ‘It is the intent of the People of the State of California in enacting this measure 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.’ ” (Ballot Pamp., Gen. Elec. (Nov. 8, 1994) p. 64.)
25
The voter information guides for both the November 6, 2012, general election (which contains Prop. 36) and the November 4, 2014, general election (which contains Prop. 47) can be accessed at <http://www.sos.ca.gov/elections/voting-resources/voter-information-guides/> (as of Oct. 27, 2016).
26
That one of the authors of both measures may have so intended (St. John & Gerber, Prop. 47 jolts landscape of California justice system (Nov. 5, 2014) Los Angeles Times <http://www.latimes.com/local/politics/la-me-ff-pol-proposition47-20141106-story.html> [as of Oct. 27, 2016]; see Stanford Law School Directory—Michael Romano <https://law.stanford.edu/directory/michael-romano/> [as of Oct. 27, 2016]) is, in light of the information actually conveyed to voters, of no import (see [124 Cal.Rptr.2d 464, 52 P.3d 648]; [34 Cal.Rptr.3d 520]). The concurring opinion cites [203 Cal.Rptr.3d 700], review granted August 31, 2016, S236179, as demonstrating the question whether Proposition 47 would affect petitions under the Act was widely debated in the state prior to the election. (Conc. opn. of Peña, J., post, at pp. 917-918.) We are aware of no California Supreme Court authority identifying Internet and media sources as reliable bases for ascertaining voters’ intent.
27
For the same reasons, we reject any suggestion the definition contained in section 1170.18, subdivision (c) was intended to clarify the true meaning of “unreasonable risk of danger to public safety” as used in section 1170.126, subdivision (f). (Cf. [46 Cal.Rptr.2d 822]; [222 Cal.Rptr. 673].)
28
Were we to find section 1170.18, subdivision (c) modifies section 1170.126, subdivision (f), we would conclude it does not do so retroactively. Section 3—“No part of [the Penal Code] is retroactive, unless expressly so declared“—is the default rule. ( [142 Cal.Rptr.3d 824, 278 P.3d 1182].) [48 Cal.Rptr. 172, 408 P.2d 948], which stands for the proposition that absent a “saving clause” providing for prospective application, a statute lessening punishment is presumed to apply to all cases not yet final on the statute‘s effective date, does not control, because applying the definition of ” ‘unreasonable risk of danger to public safety’ ” contained in section 1170.18, subdivision (c) to petitions for resentencing under the Act does not reduce punishment for a particular criminal offense. (See .) We believe, however, that a finding of nonretroactivity inexorably leads to the possibility of prospective-only application, and prospective-only application of Proposition 47‘s definition to resentencing petitions under the Act would raise serious, perhaps insurmountable, equal protection issues. (Indeed, the parties here engage in a spirited argument concerning equal protection.) “Mindful of the serious constitutional questions that might arise were we to accept a literal construction of the statutory language, and of our obligation wherever possible both to carry out the intent of the electorate and to construe statutes so as to preserve their constitutionality [citations]” ( [217 Cal.Rptr. 685, 704 P.2d 752]), we rest our holding on the reasoning set out in our opinion, ante.
*
See footnote, ante, page 886.
Read the detailed case summary