Court did not abuse its discretion by denying Proposition 36 resentencing petition based on facts proved by preponderance of the evidence. After the Three Strikes Reform Act of 2012 (Prop. 36) went into effect, Payne, an inmate serving a life Three Strikes term for evading an officer (Veh. Code, § 2800.2), petitioned for reduction of his sentence. (Pen. Code, § 1170.126.) His petition was denied after the trial court found his release would pose an unreasonable risk of danger to the public. He appealed. Held: Affirmed. The standard of proof serves to allocate the risk of error between the litigants and to reflect the relative importance attached to the ultimate decision to be made. The preponderance standard apportions the risks between the litigants relatively equally. It is the presumptive standard to be applied except as otherwise provided by law (Evid. Code, § 115). No standard of proof is set forth in section 1170.126. Because of the serious consequences of resentencing a dangerous Three Strikes inmate as a two strike offender, it is appropriate to apportion the risks of error in an equal fashion. Thus, at a hearing on a resentencing petition, the prosecution has the burden of proving facts that support a “dangerousness” finding by a preponderance of the evidence. Proof of these facts does not implicate Sixth Amendment rights because the hearing involves a potential reduction of a defendant’s sentence. These facts are subject to review for substantial evidence. However, a preponderance standard does not apply to the trial court’s determination whether the defendant poses a danger, i.e., the court need not find that resentencing a defendant would, more likely than not, pose an unreasonable risk to public safety. The court’s finding is reviewed for an abuse of discretion (Pen. Code, § 1170.126, subd. (f), (g)).
Penal Code section 1170.126, the resentencing provision of the Three Strikes Reform Act, does not carry a presumption that a third strike offender’s sentence should be reduced. Section 1170.126, subdivision (f) states that a qualified defendant “shall be resentenced” as a two strike offender unless the court finds that such resentencing would pose an unreasonable risk of danger to the public. “This does not mean, however, [that the court’s] discretion is circumscribed in the sense it can only find dangerousness in extraordinary cases.” The decision is left to the court’s discretion. This conclusion comports with the plain meaning of the statute, effectuates the voters’ intent in enacting Proposition 36, and maintains the proper focus on public safety.
The focus of section 1170.126, subdivision (f) is on whether the defendant currently poses a risk of danger to public safety. Payne claimed the trial court is required to articulate a nexus between the factors it considered in denying a resentencing petition and current dangerousness, as employed in parole cases. Without deciding whether parole cases are akin to Proposition 36 resentencing hearings, the court agreed that the proper focus “is on whether the petitioner currently poses an unreasonable risk of danger to public safety.” It also agreed that a court could only find current dangerousness based on a defendant’s criminal history if those facts support the conclusion the defendant continues to constitute a danger. Here, the court’s finding that Payne posed a current danger to the public is sufficienta finding of likelihood of violence is not required.
