Opinion
D069606
06-28-2017
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM JOSEPH BAUMER, Defendant and Appellant.
Marianne Harguindeguy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SF141219) APPEAL from an order of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed. Marianne Harguindeguy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant William Joseph Baumer appeals an order of the trial court in which the court denied Baumer's petition for recall of his sentence, filed pursuant to Penal Code section 1170.126, as enacted by Proposition 36, the Three Strikes Reform Act of 2012 (Proposition 36), in November 2012 by California voters. Baumer sought a recall of his sentence and resentencing on four counts. As to two of the counts, the trial court determined that although the offenses for which he was sentenced were eligible for resentencing under Proposition 36, Baumer nevertheless remained an unreasonable risk of danger to the public safety and was therefore not entitled to recall of his sentence on those counts. As to the other two counts, the trial court determined that Baumer was not eligible for recall of his sentence on these counts because he was armed with a deadly weapon during the commission of those offenses.
On appeal, Baumer challenges the trial court's determinations as to all four counts, and asserts a variety of contentions to demonstrate the court's errors and/or abuses of discretion. We conclude that none of Baumer's contentions has merit, and we therefore affirm the order of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The proceedings leading up to this appeal
On January 3, 2001, the trial court sentenced Baumer to 78 years to life in prison as a result of his convictions on four charged counts. A jury convicted Baumer on counts 1 and 2, for battery on a nonconfined person by a prisoner (Pen. Code, § 4501.5). The jury also found true three prison prior allegations (§ 667.5, subd. (b)), and two prior strike allegations (§ 667, subds. (b)-(i)). Baumer entered a plea of no contest, pursuant to People v. West (1970) 3 Cal.3d 595, with respect to count 3, possessing a weapon or sharp instrument while confined in a penal institution (§ 4502, subd. (a)), and count 4, manufacturing a weapon while confined in a penal institution (§ 4502, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
Baumer's 78-year sentence consisted of three consecutive terms of 25 years to life with respect to counts 1, 2 and 3, plus three one-year terms for each of the prison prior allegation true findings. As to count 4, the trial court imposed and stayed, pursuant to section 654, an additional 25-years-to-life term.
On June 16, 2015, Baumer filed a petition pursuant to Proposition 36 (§ 1170.126) for resentencing on all four counts.
The trial court held a hearing on Baumer's Proposition 36 petition, and denied it.
Baumer filed a timely notice of appeal. B. The factual background underlying Baumer's 2001 convictions
Because Baumer pleaded no-contest to counts 3 and 4, we take the underlying facts from evidence presented at the preliminary examination.
On February 6, 1999, a correctional officer at the Richard J. Donovan correctional facility conducted a search of Baumer's one-person cell. The officer found hidden in Baumer's mattress an inmate-manufactured, seven and a half-inch hard plastic object that had been sharpened to a point. The officer believed that the item was intended to be a stabbing instrument.
On the night of April 3, 1999, a correctional officer was conducting a routine count of inmates. As the officer walked by Baumer's cell, he noticed Baumer using an incendiary device to heat a black object. The officer saw Baumer scrape the heated object on the floor to fashion a sharp, pointed object that could be used as a weapon. The officer opined that Baumer was fashioning the object in this manner in order to use the object as a weapon. The following morning, the officer told a correctional sergeant about what he had observed Baumer doing the night before.
At around 8:00 a.m. on April 4, a different correctional officer conducted a search of Baumer's cell. That officer found an object, wrapped in cellophane and hidden inside a bottle of hand lotion, that appeared to be an "inmate-manufactured weapon." The object was approximately five and three-quarters inches long, and had been sharpened to a point at one end.
In the afternoon of June 8, 1999, a correctional officer was removing Baumer's handcuffs through a slot in the cell door. Baumer pulled his hands away from the officer, pulling the handcuffs and the officer's hands into the slot. In the process of doing this, Baumer caused the officer to suffer cuts and abrasions to one of his hands. Baumer refused to return the handcuffs to the officer. Eventually a correctional lieutenant was called, and the lieutenant was able to convince Baumer to return the handcuffs.
On June 11, 1999, while the same officer who had been injured by Baumer's pulling his hands and handcuffs through the cell slot was escorting Baumer to the shower, Baumer verbally threatened the officer, telling him that he would "kick [his] ass even with handcuffs on." Baumer made verbal threats the entire time as they walked to the shower area. After the officer locked Baumer inside the shower area, Baumer turned around and spat in the officer's face.
The April 3 and 4, 1999 incidents led to the charges alleged in counts 3 and 4. The June 8 and June 11, 1999 incidents led to the charges alleged in counts 1 and 2.
III.
DISCUSSION
A. Proposition 36
In November 2012, the electorate passed Proposition 36, which changes the requirements for sentencing a third strike offender. (People v. Yearwood (2013) 213 Cal.App.4th 161, 167 (Yearwood).) Under the former version of the Three Strikes law, an individual with two or more prior strikes who is convicted of any new felony may be sentenced to an indeterminate life sentence. (Yearwood, supra, at p. 167.) Under the new version, a life sentence for a third strike offender is reserved for cases in which the new felony is also serious or violent, or the prosecution has pled and proved an enumerated disqualifying factor. (Id. at pp. 167-168.) In all other cases, a third strike offender is to be sentenced as a second strike offender. (Id. at p. 168.)
Relevant to Baumer's appeal, Proposition 36 also created a procedure permitting the resentencing of "persons presently serving an indeterminate term of imprisonment [under the Three Strikes law], whose sentence under this act would not have been an indeterminate life sentence" under certain enumerated circumstances. (§ 1170.126, subd. (a).) "To obtain a sentencing reduction pursuant to section 1170.126, the prisoner must file a petition for a recall of sentence in the trial court. 'Any person serving an indeterminate term of life imprisonment imposed pursuant to' the three strikes law may file a petition for a recall of his or her sentence within two years after the Act's effective date 'or at a later date upon a showing of good cause.' (§ 1170.126, subd. (b); hereafter 1170.126(b).)" (Yearwood, supra, 213 Cal.App.4th at p. 170.)
" 'An inmate is eligible for resentencing if . . . [¶] . . . [t]he inmate is serving an indeterminate term of life imprisonment imposed pursuant to [the Three Strikes law] for a conviction of a felony or felonies that are not defined as serious and/or violent . . . .' (§ 1170.126, subd. (e)(1).) Like a defendant who is being sentenced under the new provisions, an inmate is disqualified from resentencing if any of the exceptions set forth in section 667, subdivision (e)(2)(C) and section 1170.12, subdivision (c)(2)(C) are present. (§ 1170.126, subd. (e).)[] In contrast to the rules that apply to sentencing, however, the rules governing resentencing provide that an inmate will be denied recall of his or her sentence if 'the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' (§ 1170.126, subd. (f).)" (People v. Johnson (2015) 61 Cal.4th 674, 682 (Johnson), italics added.)
Section 1170.126, subdivision (e) provides:
"An inmate is eligible for resentencing if:
"(1) The inmate is serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.
"(2) The inmate's current sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.
"(3) The inmate has no prior convictions for any of the offenses appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12."
The statutes referenced in section 1170.126, subdivision (e)(2)—i.e., section 667, subdivision (e)(2)(C)(i)-(iii), and section 1170.12, subdivision (c)(2)(C)(i)-(iii)—both provide in relevant part:
"(i) The current offense is a controlled substance charge, in which an allegation under Section 11370.4 or 11379.8 of the Health and Safety Code was admitted or found true.
"(ii) The current offense is a felony sex offense, defined in subdivision (d) of Section 261.5 or Section 262, or any felony offense that results in mandatory registration as a sex offender pursuant to subdivision (c) of Section 290 except for violations of Sections 266 and 285, paragraph (1) of subdivision (b) and subdivision (e) of Section 286, paragraph (1) of subdivision (b) and subdivision (e) of Section 288a, Section 311.11, and Section 314.
"(iii) During the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person." (Italics added.)
Section 1170.126, subdivision (f) provides:
"Upon receiving a petition for recall of sentence under this section, the court shall determine whether the petitioner satisfies the criteria in subdivision (e). If the petitioner satisfies the criteria in subdivision (e), the petitioner shall be resentenced pursuant to paragraph (1) of subdivision (e) of Section 667 and paragraph (1) of subdivision (c) of Section 1170.12 unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety."
In exercising the discretion granted in subdivision (f) of section 1170.126, a trial court "may consider" the following factors:
"(1) The petitioner's criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes;B. Additional background regarding Baumer's Proposition 36 petition, the hearing, and the trial court's ruling
"(2) The petitioner's disciplinary record and record of rehabilitation while incarcerated; and
"(3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety." (§ 1170.126, subd. (g).)
With respect to counts 3 and 4, defense counsel briefed the question whether Baumer was eligible for resentencing on these counts, arguing that he should be determined to be eligible. At the hearing, however, counsel appeared to concede that under California law, "he is not eligible as to those charges [i.e., counts 3 and 4]." Acknowledging that the court "would be required to deny his eligibility on those charges," defense counsel stated that counsel was attempting "to preserve his federal rights." The trial court thereafter stated, "So at this time I'm going to find that he is not eligible for resentencing on Counts 3 and 4[,] that he was armed, and that the federal argument does not require a different result."
With respect to counts 1 and 2, defense counsel briefed the issue of the proper standards to be applied to determining the question of Baumer's dangerousness. Counsel argued that the definition of "unreasonable risk of danger to public safety" provided in Proposition 47 should apply, that the prosecution must meet the beyond a reasonable doubt standard in establishing dangerousness, that a jury must decide the question of dangerousness, and that Baumer does not pose an unreasonable risk to public safety.
At the hearing, the prosecutor argued that although Baumer was eligible for resentencing under Proposition 36 as to counts 1 and 2, the trial court should decline to resentence him because he continues to pose an unreasonable risk of danger to the public. In response, defense counsel argued that because Baumer was ineligible for resentencing on counts 3 and 4 and would therefore continue to be subject to a determination of his dangerousness by the Board of Parole with respect to those offenses, under the authority of Johnson, supra, 61 Cal.4th 674, he could not be considered to be currently dangerous for purposes of resentencing on counts 1 and 2. Counsel also argued that Baumer is not currently dangerous because he has, essentially, "stay[ed] out of trouble" since approximately 2002. Counsel pointed out that Baumer maintained his good behavior after he was eventually transferred from administrative segregation to the "sensitive needs yard."
Ultimately, the court stated the following with respect to Baumer's petition for recall of the sentences on counts 1 and 2:
"First of all, I don't think the Court should be basically what I'm going to say is take the easy way out because, you know, no harm no foul. It's not going to really result in any different long range ramification because he still has the two counts that he's serving his life term on.
"If that were the case then I think by this point in time the court of appeal would have made a determination that it's automatic because how could somebody be a danger if they're going to be in custody,
which is what I actually thought the argument would be along those lines.
"Under our current structure it appears that the Court is supposed to make a determination as to whether he is currently an unreasonable risk of danger to the public safety to resentence where he would be technically released on those two charges. The emphasis on current, and he has made progress to a certain degree. I'm really not surprised about the college or the chess or some of the other things he has done. He is truly one of the brightest defendants I have seen.
"However, he is very manipulative. Was then. And the statements, which I made during the trial that were included in the court of appeal decision provide the basis for that. I mean, that's nothing new and by the same token he could say one thing and then do another if it -- if it met with his needs, with his purpose, his goal. His past history at the point in time that he came for trial, which is what the People are looking at in terms of supporting a finding that he's currently an[ ] unreasonable risk of danger to the public is significant in the sense of the violence that existed in his conduct.
"When he came for trial, he had spent a great deal of time in ad' seg' at that point, and my interpretation of a series of conversations that occurred . . . is that he did not want to go back to ad' seg'. And so I hear what the defense is saying that he has made a turn around, but the turn around is equally consistent with someone who has decided that if he's going [to] spend the rest of his life in prison, he's not going to spend it in ad' seg'.
". . . [B]ut the question that I'm faced with is, is he an unreasonable risk of danger to public safety. Emphasis on the word[s] public safety given his previous conduct, given who he is, how he operates, and you can look at the conduct in terms of taking the handcuffs, the conduct that he had in terms of the threats.
"Just because he's not doing it now doesn't mean that that same -- th[ose] same personality traits aren't still there. I do agree that it appears that there are the improvements as far as being a problem within the prison setting, but that -- as I'm balancing it and as I said, I was pleased to see the college part of it. I'm pleased about the work part because he was all along somebody who could have had a different life. He was bright when he was representing himself. He
made good points. Even after his conviction in this case he had other activities. . . .C. Analysis
"[¶] . . . [¶]
". . . However, the 2011 obstructing the view into the cell. That gives me pause because it's at the very least a precursor to the type of behavior that was existing when he was in custody prior to the decision by the court of appeal, and the date of that is before any of the changes in the law.
"And so in his particular case it isn't -- does he have the ability to maintain his behavior because he does, and he did have the ability to maintain his behavior, but the question is would he continue to maintain his behavior if he were to be released, which is the danger to the public. I don't think he would. When it comes right down to it, with the preponderance of the evidence standard, I don't think he would. If I had [a] beyond a reasonable doubt standard, I would probably be in a different position, but is it more likely that he would maintain his compliance? No. I can't say that based upon my experiences with him and with the totality of his history. I don't think so.
". . . [B]ut faced with all of the information I have now, both the good as well as the prior history, I believe he's an unreasonable risk to public safety. The emphasis on the public safety because I don't think he would maintain his behavior on the outside because I saw what he was doing before and the reason why he would do it again.
"[¶] . . . [¶]
"So the bottom line is at this particular stage I believe he's still currently a danger. It's an unreasonable risk for him to be released."
1. Counts 1 and 2
Baumer raises a number of contentions in asserting that the trial court abused its discretion in determining that resentencing him on counts 1 and 2 would pose an unreasonable risk of danger to public safety. First, Baumer contends that under the authority of Johnson, supra, 61 Cal.4th 674, the trial court abused its discretion in concluding that he is not entitled to resentencing on counts 1 and 2 because he will continue to be incarcerated for indeterminate terms with respect to counts 3 and 4, and therefore, he cannot be a threat to public safety as long as he remains subject to a decision of the Board of Parole Hearings as to his dangerousness.
Baumer contends, in the alternative, that the trial court erred in failing to apply the more limited definition of "unreasonable risk of danger to public safety" provided by the electorate in Proposition 47, and argues further that Proposition 36's reference to "unreasonable risk of danger to public safety" is rendered unconstitutionally vague in the absence of application of the definition of the same phrase as provided in Proposition 47. Finally, Baumer argues that he is entitled to have a jury determine the facts related to the dangerousness finding under Proposition 36, and that he is also entitled to have that determination made subject to the beyond a reasonable doubt standard of proof.
We disagree with all of these contentions, for the reasons discussed below.
a. Johnson does not create a per se rule of no unreasonable risk of danger
Baumer relies on Johnson, supra, 61 Cal.4th 674, to argue that the trial court abused its discretion in declining to resentence him. He contends that Johnson creates a "per se" rule that an inmate who is otherwise eligible for Proposition 36 relief on one count and who remains subject to an indeterminate term or terms on other counts cannot be considered currently dangerous, because he or she will continue to be subjected to the decision of the Board of Parole Hearings (Parole Board) on the other counts and will not be released from prison unless the Parole Board determines that he or she is no longer dangerous to the public.
In Johnson, supra, 61 Cal.4th at page 679-680, the Supreme Court held that an inmate is eligible for resentencing under section 1170.126 on a current conviction that is neither serious nor violent, even though he or she has another current conviction that is serious or violent. Johnson concluded that Proposition 36 "requires an inmate's eligibility for resentencing to be evaluated on a count-by-count basis. So interpreted, an inmate may obtain resentencing with respect to a Three Strikes sentence imposed for a felony that is neither serious nor violent, despite the fact that the inmate remains subject to a third strike sentence of 25 years to life." (Johnson, supra, at p. 688.)
Baumer relies on the following language in Johnson for his contention that Johnson creates a per se rule that he must be determined to be not currently dangerous:
"Considering section 1170.126 in the context of the history of sentencing under the Three Strikes law and Proposition 36's amendments to the sentencing provisions, and construing it in accordance with the legislative history, we conclude that resentencing is allowed with respect to a count that is neither serious nor violent, despite the presence of another count that is serious or violent. Because an inmate who is serving an indeterminate life term for a felony that is serious or violent will not be released on parole until the Board of Parole Hearings concludes he or she is not a threat to the public safety, resentencing with respect to another offense that is neither serious nor violent does not benefit an inmate who remains dangerous. Reducing the inmate's base term by reducing the sentence imposed for an offense that is neither serious nor violent will result only in earlier consideration for parole. If the Board of Parole Hearings determines that the inmate is not a threat to the public safety, the reduction in the base term and the resultant earlier parole date will make room for dangerous felons and save funds that would otherwise be spent incarcerating an inmate who has served a sentence that fits the crime and who is no longer
dangerous." (Johnson, supra, 61 Cal.4th at pp. 694-695, italics added.)
Baumer contends that because the trial court rejected his petition to resentence him on counts 3 and 4, he remains subject to a term of 25 years to life, and since he will therefore continue to be incarcerated "until he is found not to be dangerous by the Board of Parole [H]earings," he "cannot be found to pose a current danger to society." We disagree with Baumer that Johnson somehow creates a per se rule that a trial court must find that an individual who is serving an indeterminate life term for a felony that is serious or violent does not currently pose an unreasonable risk of danger to public safety with respect to another offense that is neither serious nor violent and for which the individual is seeking resentencing pursuant to Proposition 36. Johnson addresses the question whether such an individual may be resentenced under Proposition 36 with respect to an offense that is neither serious nor violent if that person is also serving an indeterminate life term for an offense that is serious or violent. In doing so, Johnson simply concluded that resentencing is available to such an individual. However, Johnson does not suggest that such an individual must be resentenced under Proposition 36 because that person cannot be determined to be currently dangerous due to the fact that he or she continues to be incarcerated pursuant to a separate indeterminate term. We conclude that Johnson does not eliminate a trial court's discretion, authorized by section 1170.126, subdivision (f), to consider the factors identified in subdivision (g) of the same section, in determining whether resentencing the petitioner on a nonviolent, nonserious offense would pose an unreasonable risk of danger to the public safety, irrespective of whether the petitioner remains incarcerated pursuant to an indeterminate term related to a separate count.
b. The standard for "unreasonable risk of danger to public safety" provided in Proposition 47 does not apply to a trial court's determination under a Proposition 36 petition
Again, the electorate enacted section 1170.126 as part of Proposition 36 in November 2012. (Yearwood, supra, 213 Cal.App.4th at p. 167.) In 2014, the voters passed another significant criminal reform measure, Proposition 47, which reduced a number of felony or "wobbler" offenses to misdemeanors (see People v. Rivera (2015) 233 Cal.App.4th 1085, 1091).
Both measures contain procedures for resentencing, under guidelines designed to preclude relief for offenders deemed to present "an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f); § 1170.18, subd. (b).) The provisions of Proposition 36 do not include a definition of the phrase "unreasonable risk of danger to public safety"; rather, they set forth the types of evidence that the trial court may consider in addressing the question whether a defendant is currently dangerous. (See § 1170.126, subd. (g).) The provisions of Proposition 47, however, not only allow a trial court to consider the same evidence as that identified in Proposition 36, but also include a definition of the phrase "unreasonable risk of danger to public safety," specifying that the public safety risk must be a risk that the Proposition 47 petitioner will commit a so-called "super-strike" offense (§ 1170.18, subds. (b), (c); § 667, subd. (e)(2)(C)(iv)).
Although Proposition 47 did not mention Proposition 36, Proposition 47 provided that its definition of "unreasonable risk of danger to public safety" is to apply "throughout this Code." (§ 1170.18, subd. (c).) Baumer argues that because Proposition 47 states that its definition of "unreasonable risk of danger to public safety" applies to the Penal Code, as a whole, the narrow definition of "unreasonable risk of danger to public safety" set forth in section 1170.18, subdivision (c), as enacted by Proposition 47, applies to that same phrase as used in section 1170.126, as enacted by Proposition 36. We disagree.
This issue is currently pending review in the California Supreme Court. (See, e.g., People v. Myers (2016) 245 Cal.App.4th 794, review granted May 25, 2016, S233937; People v. Valencia (2014) 232 Cal.App.4th 514, review granted Feb. 18, 2015, S223825; People v. Chaney (2014) 231 Cal.App.4th 1391, review granted Feb. 18, 2015, S223676.)
The goal of statutory construction "is to ascertain the Legislature's intent so as to effectuate the purpose of the law." (People v. Lopez (2003) 31 Cal.4th 1051, 1056.) We look first " 'at the plain and commonsense meaning of the statute because it is generally the most reliable indicator of legislative intent and purpose.' " (People v. Skiles (2011) 51 Cal.4th 1178, 1185.) If the statutory language is clear and unambiguous, the plain meaning governs, " 'and we need not resort to legislative history to determine the statute's true meaning.' " (Ibid.) However, we also "do not construe statutes in isolation, but rather read every statute 'with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.' " (People v. Pieters (1991) 52 Cal.3d 894, 899.)
In this case, a literal interpretation of the phrase "[a]s used throughout this Code" in Proposition 47 would indicate that Proposition 47's definition of "unreasonable risk of danger to public safety" applies to the entire Penal Code. However, the fact that a literal construction could be easily applied does not convince us that this is the interpretation that the voters actually intended, and " 'our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure.' " (People v. Briceno (2004) 34 Cal.4th 451, 459.)
"[T]he basic principle of statutory and constitutional construction . . . [generally] mandates that courts, in construing a measure, not undertake to rewrite its unambiguous language. [Citation.] That rule is not applied, however, 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. [Citation.] . . . Whether the use of [a particular word] is, in fact, a drafting error can only be determined by reference to the purpose of the section and the intent of the electorate in adopting it." (People v. Skinner (1985) 39 Cal.3d 765, 775-776.)
As we explain, when considering the two relevant statutory provisions at issue, we conclude that the use of the word "Code" in section 1170.18, subdivision (c), rather than the word "Act," is a drafting error, and that this drafting error is appropriately addressed by judicial correction. Specifically, we believe that the voters intended in section 1170.18, subdivision (c) to refer only to Proposition 47, and not to the entire Penal Code. We therefore conclude that the enactment of Proposition 47, including its definition of "unreasonable risk of danger to public safety," did not alter the meaning of that phrase as used in Proposition 36.
First, the language of Proposition 47, as well as its ballot materials, do not indicate that the definition of "unreasonable risk of danger to public safety" was intended to extend beyond Proposition 47 itself. Rather, subdivision (n) of section 1170.18 states, "Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this act." (§ 1170.18, subd. (n), italics added.) If a court ruling on a Proposition 36 petition must grant the petition unless it finds an unreasonable risk that the petitioner will commit a "super strike" under the more limited definition provided in section 1170.18, subdivision (c), the finality of an underlying judgment may be "diminish[ed]" in a case that does not "fall[ ] within the purview of [Proposition 47]." (§ 1170.18, subd. (n).) In addition, the official title and summary, legal analysis, and arguments for and against Proposition 47 do not suggest that Proposition 47 will have an impact on Proposition 36 or on any other voter initiatives. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) pp. 34-39, accessed at <http://vig.cdn.sos.ca.gov/2014/general/pdf/complete-vig.pdf>.) The ballot materials emphasize that the resentencing provisions of Proposition 47 will affect the sentences of only those persons who are serving their sentences as a result of having committed specified nonserious, nonviolent property or drug crimes. Nothing in Proposition 47's ballot materials suggests that the initiative would affect third strike prisoners seeking resentencing pursuant to Proposition 36.
Other wording in section 1170.18, subdivision (c) is also inconsistent with an intent to apply it to the entire Penal Code. Subdivision (c) refers to the "petitioner," a term that is used consistently throughout the enactment to refer to persons who file petitions under "this section" or "this act." (See § 1170.18, subds. (a), (b), (c), (j), (l) & (m).) Subdivision (c)'s use of the term "petitioner" suggests that the term is intended to refer only to those individuals who petition under Proposition 47, not under other enactments. Given this, it would be odd to interpret any of the language of subdivision (c) of section 1170.18 as applying to individuals who are not "petitioners" under Proposition 47.
Finally, the timing of the passage of Proposition 47 in relation to the passage of Proposition 36 is inconsistent with an intent for anything enacted by Proposition 47 to affect the consideration of petitions filed pursuant to Proposition 36. As enacted, Proposition 36 required defendants to file petitions within two years of its enactment, with an allowance for late petitions to be filed only after a showing of good cause. (§ 1170.126, subd. (b).) At the time Proposition 47 was enacted, only two days remained in the two-year period for filing Proposition 36 petitions. A rational voter would not have understood Proposition 47 to change the rules for how a court was to address a petition filed under Proposition 36 when the period for filing such petitions had almost expired.
For these reasons, we, like many other courts, conclude that section 1170.18, subdivision (c) contains a drafting error in its use of the word "Code." The intention was that the phrase "throughout this Code" be "throughout this Act," and the error should be judicially corrected in this manner. As so corrected, Proposition 47's definition of "unreasonable risk of danger to public safety" does not apply to Proposition 36.
c. Proposition 36's reference to "unreasonable risk of danger to public safety" is not unconstitutionally vague in the absence of application of the definition utilized in Proposition 47
In a related argument, Baumer asserts that unless the definition of current dangerousness provided in Proposition 47 applies to Proposition 36, section 1170.126 is unconstitutionally vague. We disagree with this assertion.
First, "it is debatable whether the vagueness doctrine has application to a superior court judge making a discretionary sentencing decision." (People v. Flores (2014) 227 Cal.App.4th 1070, 1074 (Flores).) However, even if we assume that the vagueness doctrine can apply to a discretionary sentencing decision, Baumer's contention is still without merit. " 'The constitutional interest implicated in questions of statutory vagueness is that no person be deprived of "life, liberty, or property without due process of law" ' " as assured by the federal and California Constitutions. A statute must be upheld against a vagueness challenge unless its unconstitutionality " 'clearly, positively and unmistakably appears.' " (People v. Garcia (2014) 230 Cal.App.4th 763, 768 (Garcia).)
The phrase "unreasonable risk of danger to public safety" as used in Proposition 36 " ' "clearly and precisely delineates its reach in words of common understanding." ' " (Flores, supra, 227 Cal.App.4th at p. 1075.) The term " 'unreasonable risk of danger to public safety' is clear because it can be objectively ascertained by reference to the examples of evidence the trial court may consider in making this determination" set forth in subdivision (g) of section 1170.126. (Garcia, supra, 230 Cal.App.4th at pp. 765-766.) We agree with other courts that the word "unreasonable" is not impermissibly vague. (See Flores, supra, at p. 1074; see also Garcia, supra, at p. 769.) " ' "The law is replete with instances in which a person must, at his peril, govern his conduct by such nonmathematical standards as 'reasonable,' 'prudent,' 'necessary and proper,' 'substantial,' and the like. . . . 'There is no formula for the determination of reasonableness.' Yet standards of this kind are not impermissibly vague, provided their meaning can be objectively ascertained by reference to common experiences of mankind." ' " (Garcia, at pp. 769-770.) "Surely a superior court judge is capable of exercising discretion, justly applying the public safety exception, and determining whether a lesser sentence would pose an unreasonable risk of harm to the public safety." (Flores, at p. 1075.)
Nor do we believe that Johnson v. United States (2015) ___ U.S. ___ (Johnson v. United States), on which Baumer relies, requires us to reach a result different from the result reached by the Garcia and Flores courts.
In Johnson v. United States, the United States Supreme Court held that a clause in the Armed Career Criminal Act of 1984 (ACCA) was unconstitutionally vague. (Johnson v. United States, supra, 135 S.Ct. at p. 2557.) Under the ACCA, a defendant convicted of being a felon in possession of a firearm faced more severe punishment if he had three or more previous convictions for a violent felony, defined to include "any felony that 'involves conduct that presents a serious potential risk of physical injury to another.' " (Johnson v. United States, supra, at p. 2555, italics added.) This phrase, referred to as the "residual clause," had been interpreted to require a court to employ a framework known as the "categorical approach" to determine whether the offense qualified. (Id. at pp. 2556-2557.) Under this approach, the inquiry to be undertaken by a court was to consider how the offense was defined, and not in terms of how an individual offender might have committed a crime on a particular occasion. (Id. at p. 2557.) For example, a court was required to "picture the kind of conduct that the crime involves in 'the ordinary case,' and to judge whether that abstraction presents a serious potential risk of physical injury." (Ibid.) The Johnson v. United States court concluded that two features of the residual clause "conspire[d] to make it unconstitutionally vague. In the first place, the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime. It ties the judicial assessment of risk to a judicially imagined 'ordinary case' of a crime, not to real-world facts or statutory elements." (Ibid.) Second, the residual clause left "uncertainty about how much risk it takes for a crime to qualify as a violent felony. It is one thing to apply an imprecise 'serious potential risk' standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction." (Id. at p. 2558.) For these reasons, the court concluded that "[i]ncreasing a defendant's sentence under the [residual] clause denies due process of law." (Id. at p. 2557.)
The manner in which section 1170.126, subdivision (g) operates is distinct from how the ACCA operated. Unlike the ACCA, section 1170.126, subdivision (g) requires that the trial court decide whether a defendant is dangerous based on real-world facts, illustrative examples of which are provided in subdivisions (g)(1), (2), and (3). For example, in this case, the trial court considered Baumer's risk of dangerousness by reference to specific facts in the record. The application of a general qualitative standard to a specific set of facts is not what was of concern in Johnson v. United States. As the Johnson v. United States court explained, "As a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as 'substantial risk' to real-world conduct; 'the law is full of instances where a man's fate depends on his estimating rightly . . . some matter of degree . . . .' " (Johnson v. United States, supra, 135 S.Ct. at p. 2561.) Further, the determination as to a defendant's dangerousness under Proposition 36 does not work to increase a defendant's sentence: "[D]angerousness is not a factor which enhances the sentence imposed when a defendant is resentenced under the Act; instead, dangerousness is a hurdle which must be crossed in order for a defendant to be resentenced at all. If the court finds that resentencing a prisoner would pose an unreasonable risk of danger, the court does not resentence the prisoner, and the petitioner simply finishes out the term to which he or she was originally sentenced. [¶] The maximum sentence to which [the defendant], and those similarly situated to him, is subject was, and shall always be, the indeterminate life term to which he was originally sentenced." (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1303 (Kaulick), internal fn. omitted.) We therefore conclude that Johnson v. United States does not assist Baumer, and does not require a determination that the definition of "unreasonable risk of danger to public safety" is unconstitutionally vague.
d. Baumer is not entitled to have a jury determine the facts related to the dangerousness findings under section 1170 .126, subdivision (f), nor is he entitled to have his current dangerousness found by application of the beyond a reasonable doubt standard
Baumer contends that he was entitled to have a jury determine the issue of his current dangerousness. This contention has been rejected by multiple courts. (See People v. Lopez (2015) 236 Cal.App.4th 518, review granted July 15, 2015, S227028; Kaulick, supra, 215 Cal.App.4th 1279.) Baumer nevertheless takes issue with the conclusions reached in those cases, arguing that Proposition 36 implements a mandatory resentencing program. We do not agree. We adopt the reasoning and analysis in Kaulick, and conclude that the resentencing determination, as created by Proposition 36, is a discretionary act that does not have the effect of potentially increasing a defendant's sentence, and is to be undertaken by the trial court. (Kaulick, supra, at pp. 1304-1305.) Given the resentencing scheme created by Proposition 36, Baumer is not entitled to a jury trial on the issue of whether he currently presents an unreasonable risk of danger to public safety.
In a related contention, Baumer contends that the factfinder must make a finding that he currently poses an unreasonable risk of danger to public safety by the beyond a reasonable doubt standard of proof. We disagree with this contention, as well. As explained in many other cases that have addressed this issue, the eligibility and dangerousness determinations under Proposition 36 are subject to a preponderance of the evidence standard. (See People v. Newman (2016) 2 Cal.App.5th 718, 728-732, review granted November 22, 2016, S237491; see also Kaulick, supra, 215 Cal.App.4th at pp. 1301-1305.) We agree with the reasoning set forth in these cases. As noted above, Proposition 36 is not analogous to a sentence enhancement that subjects a defendant to a potentially increased sentence beyond the statutory maximum for the offense. Rather, it constitutes an act of leniency that does not increase a defendant's already properly imposed sentence.
In sum, we follow Kaulick and conclude that there is no requirement that the dangerousness finding be determined by jury or that it be established beyond a reasonable doubt. The trial court therefore did not err in deciding this issue itself, nor did it err in applying a preponderance of the evidence standard to this question. D. Counts 3 and 4
With respect to counts 3 and 4, Baumer contends that the trial court incorrectly concluded that he is ineligible for recall of his sentence on these counts on the ground that he was armed with a deadly weapon during the commission of these offenses. Specifically, he challenges the trial court's findings that the weapon at issue was a "deadly weapon," as well as the finding that he was "armed" with the object. He further argues that in making the determination about his eligibility for resentencing under section 1170.126, subdivision (e), the trial court should have applied the beyond a reasonable doubt standard of proof. Finally, Baumer argues that under the Sixth and Fourteenth Amendments to the federal Constitution, he is entitled to have a jury determine whether he was armed with a deadly weapon during the commission of counts 3 and 4.
As we explain further below, we reject Baumer's contention that he is entitled to have a jury determine whether he was armed with a deadly weapon. We also conclude that we need not decide whether Baumer is correct with respect to his other contentions regarding counts 3 and 4 because, even if we assume that the trial court should have applied the beyond a reasonable doubt standard of proof and that the trial court erred in concluding that Baumer was ineligible for resentencing, any such error did not prejudice Baumer; Baumer cannot demonstrate that he would have obtained a more favorable result in the absence of the presumed errors, given the trial court's determination that resentencing him on counts 1 and 2 would pose an unreasonable risk of danger to the public. There is no reasonable possibility that the trial court would have found the risk of danger to the public from resentencing Baumer on counts 1 and 2 to be different from the risk of danger to the public from resentencing him on counts 3 and 4.
1. Baumer is not entitled to have a jury determine his eligibility for resentencing on counts 3 and 4 under Proposition 36
Baumer contends that he has a Sixth Amendment right to a jury trial on the issue of his eligibility for resentencing on counts 3 and 4 under Proposition 36. He asserts that the trial court violated his right to a jury trial when the judge, and not a jury, found that he was ineligible for resentencing because he was armed with a deadly weapon during commission of these offenses. We disagree with his contention. The determination of eligibility for resentencing under Proposition 36 does not implicate the Sixth Amendment.
As the United States Supreme Court held in Dillon v. United States (2010) 560 U.S. 817, a defendant does not enjoy a Sixth Amendment right to have facts found by a jury beyond a reasonable doubt with respect to issues that limit the ability of the defendant to have his lawful sentence reduced. (Id. at pp. 828-829; see Kaulick, supra, 215 Cal.App.4th at p. 1304.) The United States Supreme Court's decision in Alleyne v. United States (2013) ___ U.S. ___ (Alleyne), on which Baumer relies, does not support his contention that he is entitled to have a jury determine factual issues related to his eligibility for Proposition 36 relief. Alleyne "held that the federal Constitution's Sixth Amendment entitles a defendant to a jury trial, with a beyond-a-reasonable-doubt standard of proof, as to 'any fact that increases the mandatory minimum' sentence for a crime." (People v. Nunez & Satele (2013) 57 Cal.4th 1, 39, fn. 6.) The denial of a Proposition 36 resentencing petition does not increase the mandatory minimum sentence for a crime. Alleyne thus does not require that a jury, and not a judge, make the eligibility determination for a resentencing petition filed under Proposition 36.
We conclude that there is no Sixth Amendment right to have a jury find the facts necessary to determine a defendant's eligibility to have his or her sentence reduced under Proposition 36. (See People v. Guilford (2014) 228 Cal.App.4th 651, 663.)
2. Baumer cannot demonstrate prejudice from any presumed error in the court's determination with respect to his ineligibility for resentencing as to counts 3 and 4
Baumer raises a number of other arguments in an attempt to undermine the trial court's determination that he was ineligible for resentencing under Proposition 36 with respect to counts 3 and 4. Baumer first contends that the object he possessed was not a per se "deadly weapon," like a "firearm, dirk or blackjack," and that therefore it could be considered a "deadly weapon" under People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029) only if he used it in a manner in which it was capable of and likely to produce death or great bodily injury. Baumer argues that, because the object was merely found in his cell and he did not "use" the object in any manner that could cause it to be considered a "deadly weapon," the trial court erred in concluding that he was armed with a "deadly weapon" for purposes of determining his eligibility for Proposition 36 relief.
Baumer concedes that his trial counsel failed to argue that he was not in possession of, let alone armed with, a "deadly weapon," but he asserts that his counsel rendered ineffective assistance by failing to make this argument. As we shall explain, we need not consider the merits of Baumer's argument, nor whether counsel provided ineffective assistance with respect to this argument, because even if we assume that Baumer is correct, he cannot demonstrate prejudice.
Baumer further contends that the trial court erred in determining that he is ineligible for Proposition 36 relief, maintaining that he was not "armed" with the object. According to Baumer, he "was not convicted of anything more than manufacture and possession" of the weapon in question, and he "did not have the sharp instrument available for use offensively or defensively to further any crime as the arming statute and its interpretations require."
Finally, Baumer contends that in determining his eligibility for resentencing under Proposition 36, the trial court should have applied the beyond a reasonable doubt standard of proof for determining the facts underlying his eligibility.
We need not decide the applicable standard of proof for eligibility determinations made under Proposition 36, nor whether the trial court erred in finding that Baumer was armed with a deadly weapon during the commission of counts 3 and 4. Even assuming that the beyond a reasonable doubt standard is the proper evidentiary standard, and assuming further that the trial court failed to apply this standard and erred in finding that Baumer's possession of a weapon amounted to his being armed with a deadly weapon, any error committed by the trial court was harmless under both the Watson and Chapman standards of prejudice review. This is so because we can conclude beyond a reasonable doubt that even if the trial court had found him eligible for resentencing on those counts, the court would have exercised its discretion to determine that resentencing Baumer on counts 3 and 4 "would pose an unreasonable risk of danger to public safety," just as the court determined with respect to counts 1 and 2.
People v. Watson (1956) 46 Cal.2d 818, 836 [state law error standard asks whether there is a reasonable probability that the defendant would have received a more favorable result had the error complained of not occurred]; Chapman v. California (1967) 386 U.S. 18 [federal constitutional error standard requires reversal unless reviewing court concludes that the instructional error was harmless beyond a reasonable doubt].
Again, the trial court could consider Baumer's criminal history, his disciplinary record, any rehabilitation efforts that he had undertaken while incarcerated, and any other evidence that the court determined would be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety. (§ 1170.126, subd. (g).) These factors are not inherently offense-specific. In other words, Baumer's criminal history, disciplinary record, and rehabilitation efforts remain the same, regardless of whether one is considering counts 1 and 2 or counts 3 and 4. With respect to counts 1 and 2, the trial court noted that although Baumer had "made progress to a certain degree," the court was far more concerned with the fact that the court's prior experience with Baumer during trial on the four relevant offenses demonstrated that he "is very manipulative." The court also noted that the nature of all of the offenses for which he was seeking resentencing demonstrated his propensity for violent behavior and posing a threat to others while in prison. Ultimately, the court stated that the court did not believe that Baumer "would . . . continue to maintain his behavior if he were to be released," and that he would therefore pose an unreasonable danger to the public. There is simply nothing in this record that suggests that the court would have reached a different result if the court had been considering all four of the counts, rather than only counts 1 and 2, in assessing Baumer's dangerousness.
We are convinced that the trial court would have determined that resentencing Baumer with respect to counts 3 and 4 would pose an unreasonable risk of danger to public safety, given that the court reached this same conclusion, after assessing the same factors that would be relevant to counts 3 and 4, with respect to counts 1 and 2. Accordingly, we conclude that any presumed error that the trial court committed in failing to apply the beyond a reasonable doubt standard of proof or in determining that Baumer was "armed" with a "deadly weapon" and was therefore ineligible for resentencing under Proposition 36, was harmless.
IV.
DISPOSITION
The order of the trial court is affirmed.
AARON, J. WE CONCUR: MCCONNELL, P. J. DATO, J.