Proposition 36 (Pen. Code, § 1170.12) does not create a presumption favoring a two-strike term for third strike offenders who meet its eligibility criteria. In 1999, Florez pleaded guilty to felony possession of cocaine base and received a life Three Strikes sentence. He had four prior robbery convictions. After the Three Strikes Reform Act passed, Florez filed a petition for resentencing under section 1170.126. Although Florez was otherwise eligible for resentencing, the trial court denied his petition, finding he would pose an unreasonable risk of danger to public safety if resentenced. Florez appealed on numerous grounds, including that the trial court failed to understand that section 1170.126 creates a presumption in favor of reducing an eligible petitioner’s sentence. Held: Affirmed. Section 1170.126, subdivision (f) states, in pertinent part, that an otherwise eligible petitioner “shall be resentenced to [a second strike term] unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” Florez argued that the “shall/unless” language establishes a presumption in favor of resentencing. The Court of Appeal rejected the argument, finding support in People v. Gutierrez (2014) 58 Cal.4th 1354, which analyzed similar language in Penal Code section 190.5, the juvenile LWOP statute, and found that it did not establish a presumption. The Court of Appeal also rejected Florez’s argument that the trial court should deny an eligible petition for resentencing only in extraordinary cases, reasoning that such a construction “would undermine the intent of the voters in passing the Reform Actto preserve public safety.”
Trial court did not abuse its discretion in concluding that petitioner posed an unreasonable risk of danger. When making its dangerousness determination, the trial court focused on Florez’s history of violence, including numerous incidents of violence that occurred while Florez was incarcerated. Although the trial court heard evidence that the risk of recidivism diminishes with age, Florez had been involved in numerous violent incidents while incarcerated after turning 55. Florez also argued that the trial court abused its discretion by failing to take into consideration the fiscal drain on the state’s resources that will be incurred due to his continued incarceration. The Court of Appeal rejected the argument. Although saving money is one of the Reform Act’s stated goals, “the electorate already conducted its own cost-benefit analysis by determining that those inmates whose resentencing would pose an unreasonable risk of danger to public safety should not be released, even if resentencing may provide some savings to the state.”
New narrower definition of “unreasonable risk of danger” set forth in Proposition 47 does not apply to resentencing under Proposition 36. Florez also argued that the narrower definition of unreasonable risk of danger set forth in Proposition 47 also applies to resentencing proceedings under Proposition 36. The Court of Appeal disagreed. Among other things, Proposition 47 added section 1170.18, subdivision (c), which provides that, “[a]s used throughout this Code, ‘unreasonable risk of danger to public safety’ means an unreasonable risk that the petitioner will commit a new [super strike].” The only other place where the term “unreasonable risk of danger to public safety” is used in the Penal Code is Proposition 36. The court concluded that this was a drafting error: “if we examine the intent of the electorate in passing Proposition 47, we are compelled to conclude that the word ‘Code’ in section 1170.18, subdivision (c) was erroneously used in place of the word ‘Act’ to refer to the Safe Neighborhoods and Schools Act [i.e., Prop. 47].” [Editor’s Note: Presiding Justice Rushing dissented, arguing that the plain meaning of “throughout this Code” should control and that the use of the word “Code” was not a drafting error. This issue is currently pending review in the California Supreme Court. (See People v. Valencia (2014) 232 Cal.App.4th 514, review granted 2/18/2015 (S223825/F067946); see also People v. Chaney (2014) 231 Cal.App.4th 1391, review granted 2/18/2015 (S223676/C073949).]
There is no right to a jury trial on the determination of dangerousness. Florez argued that the determination of dangerousness must be made by a jury and proved beyond a reasonable doubt and the trial court erred by denying his request for a jury trial. The Court of Appeal rejected the argument, agreeing with People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279.
Trial court did not err by failing to order a supplemental probation report prior to denying inmate’s petition for resentencing. Florez argued that a supplemental probation report was necessary because the decision to resentence him is functionally the equivalent to a decision to place him on probation. The Court of Appeal concluded that Florez forfeited the contention by failing to request a supplemental probation report, and also rejected the argument on the merits, agreeing with People v. Franco (2014) 232 Cal.App.4th 831. Because Florez was not eligible for probation even if he was sentenced as a second strike offender, the trial court was not required to obtain a supplemental probation report.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/H040327.PDF