Trial court abused its discretion in determining that resentencing defendant under Proposition 36 would pose an unreasonable risk of danger to public safety where it failed to consider when he would be released if the petition was granted. In three separate matters occurring prior to 2004, Williams received life sentences under the Three Strikes law. In 2014, he filed a petition under Penal Code section 1170.126 (Prop. 36) to recall his sentence on the offenses that were not serious or violent felonies. The trial court denied the petition, finding that the Williams’ release would pose an unreasonable risk to public safety. Held: Reversed and remanded for additional proceedings. Proposition 36 amended the Penal Code to reserve a Three Strikes life sentence for defendants whose current offense is serious or violent, unless an exception applies, and established a procedure for qualified defendants to seek resentencing. If a defendant is eligible for resentencing and is not subject to one of the disqualifying factors, the trial court must determine whether resentencing the defendant poses an unreasonable risk of danger to public safety. (Pen. Code, § 1170.126.) Relying on the reasoning in People v. Johnson (2015) 61 Cal.4th 674, the Court of Appeal here concluded that a trial court must look to when a defendant would be released if the petition is granted and the defendant is resentenced when determining whether resentencing the defendant poses an unreasonable risk of danger. A defendant who would obtain immediate release if the petition is granted poses a different potential danger to society than a defendant who could be released only at some future date after the Board of Parole Hearings determined that he no longer posed a threat to safety. In this case, the trial court did not determine what defendant’s new sentence would be if the petition were granted on all eligible counts and did not consider when, if ever, he would be released if the petition was granted. This was an abuse of discretion.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C080351.PDF