Proposition 47’s definition of “unreasonable risk of danger to public safety” is the appropriate standard to apply in Proposition 36 resentencings. In 2000, Valdez was given a life Three Strikes sentence for possession of heroin and being a felon in possession of a gun. In 2013, he petitioned for resentencing pursuant to Proposition 36, the Three Strikes Reform Act. The trial court denied the petition, finding Valdez posed an unreasonable risk of danger to the public. Valdez appealed, claiming the definition of “unreasonable risk of danger” contained in Proposition 47 should be applied to Proposition 36 hearings. Held: Reversed. Proposition 36 was enacted by voter initiative in 2014 (Pen. Code, § 1170.126). It revises the Three Strikes law to provide for a life sentence only where the current offense is serious or violent, unless there is a disqualifying factor/offense that is pled and proved, and provides a procedure whereby an eligible defendant may seek resentencing. The trial court may deny resentencing if it finds the petitioner poses an “unreasonable risk of danger to public safety,” without defining that standard. Proposition 47, enacted in 2014, reduces certain drug and theft offenses to misdemeanors. It also contains provisions for a defendant to petition for resentencing (Pen. Code, § 1170.18) and allows a court to deny resentencing where it finds the defendant poses an “unreasonable risk of danger to public safety.” It states that, as used “throughout this Code” “unreasonable risk of danger” is the risk a defendant will commit a new violent felony (Pen. Code, § 667.5, subd. (e)(2)(c)(iv)). This definition plainly applies to Proposition 36 resentencing hearings. This interpretation is consistent with the voters’ intent in passing both Propositions and avoids constitutional concerns regarding vagueness. [Editor’s Note: This issue is currently pending in the California Supreme Court. (See People v. Valencia (2014) 232 Cal.App.4th 514, review granted 2/18/2015 (S223825/F067946), People v. Chaney (2014) 231 Cal.App.4th 1391, review granted 2/18/2015 (S223676/C073949).]
By failing to seek a writ of mandate, the prosecution forfeited the argument that petitioner was ineligible for resentencing because he was armed in the commission of the offense. The prosecution opposed Valdez’s petition because his conviction for being a felon in possession of a gun meant he was armed in the commission of the offense and therefore ineligible for resentencing. However, the prosecution failed to seek a writ of mandate after the trial court’s initial eligibility determination, so forfeited this claim. In any event, the evidence reflected that Valdez was arrested in his home and the weapon was located in a car that he shared with his wife. There was no evidence regarding when or how the gun was placed in the car. The trial court’s finding there was insufficient evidence of “ready access” to the weapon to constitute arming was supported by substantial evidence.
Petitioner is not entitled to a jury trial on the issue of dangerousness. Valdez claimed that the trial court’s initial eligibility determination is essentially a finding that he is entitled to resentencing. Therefore the trial court’s dangerousness determination actually increases his minimum sentence and he is entitled to a jury trial on the issue of dangerousness. However, Valdez was never subject to a longer sentence, as his indeterminate term was already legally imposed in an earlier proceeding. Penal Code section 1170.126 offers the opportunity for defendants serving a Three Strikes life term to seek a sentence reduction. A mere finding of eligibility for resentencing does not accord any relief, presumptive or otherwise, from a defendant’s indeterminate term. Thus, the Sixth Amendment right to jury trial is not implicated.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G052105.PDF
