Whether inmate would pose an unreasonable risk of danger to public safety if resentenced under the Three Strikes Reform Act (Pen. Code, § 1170.126) need not be proven beyond a reasonable doubt. In 1995 Buford was convicted of a number of nonserious, nonviolent offenses, including driving under the influence (DUI) and felony evasion, and was sentenced to a life strikes term. After the Three Strikes Reform Act passed, he filed a petition to be resentenced as a second strike offender. The trial court denied Buford’s petition, reasoning that he posed an unreasonable risk of danger to public safety because if resentenced and released he would likely drive drunk again. Buford appealed, arguing, inter alia, that the People failed to prove beyond a reasonable doubt that he posed an unreasonable risk of danger to public safety if resentenced. Held: Affirmed. The Act created a postconviction procedure whereby qualified defendants serving a life strikes sentence for a nonserious, nonviolent felony to petition for resentencing (Pen. Code, § 1170.126.) An otherwise eligible defendant “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.” (Pen. Code, § 1170.126, subd. (f).) While the determination of whether an inmate poses an unreasonable risk is committed to the trial court’s discretion, the facts underlying that determination must be proven by the People by a preponderance of the evidence. Neither the Sixth Amendment nor due process provide a right to a jury determination of facts beyond a reasonable doubt where, as here, a downward modification of a sentence is at issue. (See People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279.)

Section 1170.126 does not create a presumption in favor of resentencing. Buford also argued that section 1170.126, subdivision (f) creates a presumption favoring resentencing because it states that an otherwise eligible petitioner “shall be resentenced” as a second strike offender “unless the court, in its discretion, determines that resentencing” would pose an unreasonable risk. The Court of Appeal disagreed. In People v. Gutierrez (2014) 58 Cal.4th 1354, 1370, the California Supreme Court considered whether similar “shall/unless” syntax in section 190.5 established a presumption in favor of life without parole for juvenile homicide offenders. The Supreme Court held that it did not, reasoning that a reading that affords no presumption “accords with common usage.” The court also provided the example of a teacher who informed her class that they shall take a final exam unless they write a term paper. “[I]t would be reasonable for the students to believe they were equally free to pursue either option.” (Id. at p. 1371.) The same reasoning can be applied to section 1170.126.

Definition of unreasonable risk of danger to public safety set forth in Proposition 47 does not apply to resentencing under the Reform Act. Buford also argued that the new, narrower, definition of unreasonable risk of danger set forth in Proposition 47 applied to resentencing under the Reform Act because the definition set forth in Proposition 47 states that “as used throughout this Code, ‘unreasonable risk of danger to public safety’ means an unreasonable risk that the petitioner will commit a new [super strike offense]” (Pen. Code, § 1170.18, subd. (c)) and the only other place in the Penal Code where the term is used is the Reform Act. The Court of Appeal disagreed, reasoning that “[v]oters cannot intend something of which they are unaware.” Neither the stated purpose of Proposition 47, the ballot materials, nor arguments in support provided any indication that it would have an effect on resentencing under the Reform Act. The court also reasoned that “[v]oters 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 [Reform] Act.” [Editor’s Note: This issue is currently pending in the California Supreme Court. (See People v. Chaney (2014) 231 Cal.App.4th 1391, review granted 2/18/2015 (S223676/C073949), People v. Valencia (2014) 232 Cal.App.4th 514, review granted 2/18/2015 (S223825/F067946).)]

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/F069936.PDF