Abuse of discretion standard applies when reviewing appeal from denial of Three Strikes Reform Act (Prop. 36) resentencing based on trial court’s finding that petitioner’s release would present an unreasonable risk of danger to public safety. In 1997, Aparicio was sentenced to a life term under the Three Strikes law for a burglary. He had a number of prior offenses and, since 1998, he had nine write-ups while incarcerated, including for engaging in combat with other inmates and for pinching and grabbing a female prison employee. In 2013, the trial court denied Aparicio’s petition for recall of the sentence after reviewing the petition, his criminal history, and a mental health evaluation. The court based its denial on its finding that Aparicio would present an unreasonable risk of danger to public safety. On appeal, Aparicio contended that the appellate court should review the matter de novo because the issue presented a mixed question of law and fact. The prosecutor asserted that the statutory language compelled an abuse of discretion standard. Held: Affirmed. The appellate court agreed with the prosecutor, as Penal Code section 1170.126 expressly gives a trial court discretion in making a dangerousness finding and broad discretion in what factors to consider. Although the dangerousness finding can be classified as a mixed question of law and fact, the determination is essentially a factual inquiry that has little precedential value and, if the trial court makes an erroneous determination, “the consequences are not dire.” For these reasons, the dangerousness determination is examined for an abuse of discretion. Here, Aparicio is a career criminal who has been in and out of prison since 1985. While incarcerated, he was not a model prisoner and continued to minimize the harm he caused to his victims. The trial court did not abuse its discretion in denying resentencing.
Third strike offender seeking to have Proposition 47 retroactively applied in his appeal from the denial of his petition for resentencing under the Three Strikes Reform Act (Pen. Code, § 1170.126) must first file petition for recall under Penal Code section 1170.18. In a petition for rehearing, Aparicio argued that the definition of “unreasonable risk of danger to public safety” in Penal Code section 1170.18 (enacted by Prop. 47) applies to inmates petitioning for recall of their third-strike life sentence. The court granted the petition for rehearing and affirmed the trial court’s order without prejudice to Aparicio petitioning for relief from the trial court under section 1170.18. The Court of Appeal declined to decide Aparicio’s Proposition 47 issues, instead concluding that “Proposition 47 requires the filing of a petition for recall under section 1170.18, subdivision (a).” Aparicio may file the appropriate petition and the superior court must decide the threshold question of whether he is eligible for resentencing.