Defendant is entitled to a new Proposition 36 resentencing hearing because the trial court improperly placed the burden of proof on him during his first hearing. Esparza was serving a 25-years-to-life sentence under the Three Strikes law for two felony convictions for driving under the influence (DUI) with three or more prior DUI’s. After the Three Strikes Reform Act (Prop. 36) passed, he petitioned for resentencing. Esparza met the statutory criteria for resentencing and the issue at his hearing was whether he posed an unreasonable risk of danger to public safety. (See Pen. Code, § 1170.126, subd. (f).) The trial court had Esparza present his evidence and argument before the prosecution. Esparza had been in prison for 16 years and the court found his record to be “the most stellar” it had seen. Nevertheless, the court found that Esparza was currently dangerous based on his extensive criminal record and its inference that Esparza had only started AA meetings in anticipation of filing a resentencing petition. On appeal, Esparza raised a number of arguments, including that the trial court implicitly imposed the burden of proof on him to prove he had rehabilitated in violation of his due process rights. Held: Reversed and remanded for a new resentencing hearing. During Proposition 36 resentencing proceedings, the People have the burden of establishing “dangerousness” by a preponderance of the evidence. Here, the trial court placed the burden on defendant to prove that he would not be a danger to public safety if he was released back into the community. The error was prejudicial because the prosecution did not actually prove the facts on which the court based its dangerousness determination. Although the prosecution presented evidence of Esparza’s criminal history, it did not prove that Esparza’s commitment to AA was recent and insincere. Instead, the record showed that Esparza began attending AA classes several months before Proposition 36 passed.

Definition of unreasonable risk of danger set forth in Proposition 47 (Pen. Code, § 1170.18, subd. (c)) does not apply to resentencing under the Three Strikes Reform Act (Pen. Code, § 1170.126). Esparza also argued that the definition of “unreasonable risk of danger to public safety” set forth in Proposition 47 applies in Proposition 36 resentencing proceedings because the definition is preceded by “As used throughout this Code.” The Court of Appeal rejected that argument, reasoning “If considered solely as a matter of grammatical construction, Proposition 47’s definition of ‘unreasonable risk of danger to public safety’ undoubtedly is tied to the words ‘As used throughout this Code.’ However, such a literal construction is not to be adopted if it conflicts with the voters’ intent shown in the official ballot pamphlet. [Citations.] Nothing in the official ballot pamphlet for Proposition 47 hints at any impact on the procedure for resentencing Three Strikes inmates.” [Editor’s Note: This issue is pending before the California Supreme Court in People v. Chaney (2014) 231 Cal.App.4th 1391, review granted 2/18/2015 (S223676/C073949), and People v. Valencia (2014) 232 Cal.App.4th 514, review granted 2/18/2015 (S223825/F067946).])

A Three Strikes Reform Act petitioner does not have a right to a jury trial on the issue of his dangerousness, and dangerousness is not a fact that must be proven beyond a reasonable doubt. Esparza also argued that the trial court erred by refusing his request for a jury trial on the issue of his dangerousness, and that dangerousness is a fact that must be found beyond a reasonable doubt. The Court of Appeal disagreed, reasoning that the Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt does not apply to limits on downward sentence modifications. (See Dillon v. United States (2010) 560 U.S. 817, 828.) Additionally, the denial of a recall petition does not increase the mandatory minimum sentence for Esparza’s crime. (Cf. Alleyne v. United States (2013) 133 S.Ct. 2151.) The Court of Appeal agreed with People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1304-1305, that “[a]ny facts found at [a Proposition 36 resentencing] proceeding, such as dangerousness, do not implicate Sixth Amendment issues.” The court also agreed with Kaulick’s conclusion that dangerousness does not need to be proven beyond a reasonable doubt and that the proper standard of proof is preponderance of the evidence.