Three Strikes Reform Act “unreasonable risk of danger” limitation on resentencing is not impermissibly vague. In 2008, a jury convicted Flores of taking a car (Veh. Code, § 10851, subd. (a)). He admitted two prior strike allegations and was sentenced to 25 years to life under the Three Strikes law. After the Strike Reform Act (Proposition 36) was approved by the voters on November 6, 2012, Flores petitioned for resentencing. The trial court denied his request, impliedly finding him outside the “spirit” of the Act. He appealed, claiming the phrase that limits resentencing in the statutory implementation of the Act, i.e., that the defendant will “pose an unreasonable risk of danger to public safety” is unconstitutionally vague. Held: Affirmed. Pursuant to the Act, a defendant with two or more prior serious felonies will not receive a Three Strikes sentence unless the current felony is serious or violent. An inmate serving a 25-years-to-life sentence for a current felony that was not serious, may petition the trial court for resentencing as a second-strike offender. One limitation on such resentencing is where the court finds the defendant poses an unreasonable risk of danger if resentenced. The word “unreasonable” is not impermissibly vague, as it “is a widely used and well understood word and clearly so when juxtaposed with ‘risk of danger.'” The public safety exception in the Act is an instance where the law is supposed to be flexible to allow the trial court to achieve a just result based on the circumstances of the case. Without deciding the issue, the Court of Appeal noted that it was debatable whether the vagueness doctrine (which requires the government to give reasonable notice to the public so that it will know what is, and what is not, a crime) has application to a trial judge making a discretionary sentencing decision.

The question of “dangerousness” need not be submitted to a jury; the standard of proof is preponderance of the evidence. Flores claimed that dangerousness is a fact which should be decided by a jury beyond a reasonable doubt. The court agreed with the decision in People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, that retrospective application of the Act is not constitutionally required but provides for a proceeding whereby an original sentence may be reduced. Thus, any facts found at such a proceeding do not implicate the Sixth Amendment and need be found only by a preponderance of the evidence.

The court did not err by refusing to remove Flores’ shackles during the hearing on his petition for resentencing. Flores challenged the trial court’s refusal to remove his shackles while he testified at the hearing on his petition. While restraints can impair a defendant’s ability to testify effectively, there is no evidence that it did so in this instance.