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Name: People v. Losa
Case #: F067279
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 12/19/2014

A Proposition 36 petitioner is not entitled to a jury trial, or proof beyond a reasonable doubt, on the issue of whether his resentencing poses an “unreasonable risk of danger to the public.” Losa, who had two prior serious felonies, was given a life Three Strikes term for a felony which was not serious or violent. After the 2012 passage of the Three Strikes Reform Act (Prop. 36) he petitioned for resentencing. The trial court denied his petition, finding Losa presented an unreasonable risk of danger to the public if resentenced. He appealed. Held: Affirmed. Losa argued that equal protection requires he be afforded a jury trial and application of a beyond a reasonable doubt standard for a “risk of danger” finding, as these rights are applied to defendants who are being initially sentenced. However, Losa is not similarly situated to defendants entering the prison system or to those who have completed their terms but are being subjected to additional confinement, such as sexually violent predators. He was properly convicted and sentenced under the Three Strikes law in effect at that time. Although he may seek a reduction of his sentence, the court may deny resentencing based on a “risk of danger” finding under a preponderance of the evidence standard. Losa is not subject to indefinite confinement based on this “dangerousness” finding, but on his initial, valid conviction and sentence. Because he is not similarly situated with defendants facing initial sentencing with respect to the purpose of the law, there is no denial of equal protection.