Third strike offender seeking resentencing under the Three Strikes Reform Act (Prop. 36; Pen. Code, § 1170.126) does not have the right to a jury trial on the issue of whether he poses an unreasonable risk of danger to public safety if resentenced. Lopez was sentenced to 25 years to life under the Three Strikes law for possession of methamphetamine for sale (Health & Saf. Code, § 11378). He filed a petition seeking resentencing under Proposition 36, but the trial court denied it after finding that Lopez would pose an unreasonable risk of danger to public safety. Lopez appealed on numerous grounds, including that his trial counsel rendered ineffective assistance by failing to request a jury trial. Held: Affirmed. The Sixth Amendment requires that all facts increasing the penalty for a crime beyond the prescribed statutory maximum be submitted to a jury and proved beyond a reasonable doubt. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) However, a finding that a third strike offender poses an unreasonable risk of danger to public safety does not increase the statutory maximum penalty and therefore does not trigger the Sixth Amendment. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279.) This is because a 25-years-to-life term remains the statutory maximum penalty until the third strike offender clears the “unreasonable risk of danger” “hurdle.”

The superior court did not abuse its discretion by finding an inmate with a history of violent behavior would pose an unreasonable risk of danger to public safety if resentenced. Lopez also argued on appeal that the superior court abused its discretion by denying him resentencing because (1) he had not been violent during the last 13 years in prison, (2) he has lupus, and (3) he has post-release plans. Held: The superior court did not abuse of discretion. In 1989, Lopez burglarized a home and tried to gouge out the homeowner’s eyes. Also in 1989, he assaulted police and escaped from jail by force. In 1992, he stole a car and rammed a police cruiser to evade arrest. In 1996 he assaulted his girlfriend and the police officers that arrived to intervene. In 2000, while incarcerated, he assaulted a correctional officer. He is also a member of the Northern Structure prison gang. Although Lopez has not been disciplined for actual violence since 2000, this does not reflect that Lopez’s risk of dangerousness has subsided, because he has been housed in the SHU since 2000. Also, in 2010, Lopez was found in possession of a deadly weapon and in 2010 he was disciplined for gang activity. Furthermore, there was no evidence admitted indicating that his medical condition (lupus) limits his potential for violence. Thus, the superior court did not abuse its discretion in concluding that Lopez poses an unreasonable risk of danger to public safety.

New definition of “unreasonable risk of danger to public safety” in Proposition 47 (Pen. Code, § 1170.18, subd. (c)) does not apply to resentencing under the Three Strikes Reform Act (Pen. Code, § 1170.126). The Court of Appeal acknowledged that Proposition 47 specifically states that its new definition of unreasonable risk of danger applies throughout “this Code” and thus it unambiguously applies to resentencing under Penal Code section 1170.126, which uses the same term. However, the basic principle of statutory construction that courts should not undertake to rewrite unambiguous statutory language (In re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339, 348) must yield “when it appears clear that a word has been erroneously used, and a judicial correction will best carry out the intent of the adopting body.” (People v. Skinner (1985) 39 Cal.3d 765, 775.) The Court of Appeal concluded that the word “Code” was erroneously used in Proposition 47 and the voters really meant, “Act” for a number of reasons.