PEOPLE v. VALENCIA

Appellant’s Petition for Review

Cal.January 16, 2015

8223825 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, VS. DAVID J. VALENCIA, Defendant and Appellant. CasgPrEME COURT FILED JAN 16 2015 Frank A. McGuire Clerk Deputy Fifth District Court OfAppeal, Case No. F067946 Tuolumne County Superior Court No. CRF30714 The Honorable Eleanor Provost, Judge PETITION FOR REVIEW STEPHANIE L. GUNTHER (State Bar No. 233790) 841 MohawkStreet, Suite # 260 Bakersfield, CA 93309 Telephone: (661) 428-3720 Fax: (661) 829-5077 stephanielgunther@gmail.com TABLE OF CONTENTS PETITION FOR REVIEW......cccescesssssssesssesesesesesessssescscsesceessssscsavssssssesssesscseseeueeaeacasaeasees 1 ISSUES PRESENTEDwoo. eececeesessssssecsesssesescsnssesssssssesesscsesacassesssseascecasatacseaceaavacacaens2 NECESSITY FOR REVIEW........cccssssssssssssssesssesesessssssssscsesesssasavsscsssensavscscseacareusasacaeneavacs3 STATEMENT OF THE CASE...ceceeessesssescsessssesescscssscsescscscssssscsssussssessaceeeatevenesaeassecess5 STATEMENTOF FACTS...cc cccscsesessssessseresesesessesesesescssssssscscsssesssrsscasseseecseceasarsnusasanssens6 ARGUMENT........cccccccsccssssessccssessesseseseensssesessesessssscsesescsesessssseusssevscsccnaseneneseeesasasacaeensacaneas9 I. THIS COURT SHOULD GRANT REVIEW IN THIS CASE TO DETERMINE IF THE CLEAR AND UNAMBIGUOUS LANGUAGEIN SECTION 1170.18 “AS USED THROUGHOUTTHIS CODE, “UNREASONABLERISK OF DANGER TO PUBLIC SAFETY” MEANS AN UNREASONABLERISK THAT THE PETITIONER WILL COMMIT A NEW VIOLENT FELONY WITHIN THE MEANING OF CLAUSE(IV) OF SUBPARAGRAPH(C) OF PARAGRAPH(2) OF SUBDIVISION (E) OF SECTION 667” APPLIES TO PETITIONS UNDER THEACT...9 a. Additional Background...ccsesssssssesssessssesscsesscssssssscssssssasscsesceasscesssesseeseresacaees9 b. It was Error to Engage in Construction of Voters Intent Becausethe Statute is Clear and Unambiguous..............ccccccscsssccscssccccessescesseenssees 13 c. The Court Erred in Constructing the Statute Because the Statute was not in Conflict with the Voters’ Intent....0.....0..ccceccsssssscesessescseeeceseees 15 d. The Court of Appeal Erred in Construing the “Liberal Construction Clause”.......cccccscsssscscsesssssssssssssssesscsecessescsscaecsesesarsatscsesessess 17 e. Proposition 47 Does Not Alter the Act, but Merely Definesit, Consistent with the Original Intent of the Act........ccccccssccscsccsscesssescscessesseeesees 18 f. The Voters were Well Aware of and Intended a Liberal Application of Section 1170.126 unless to do so Would Pose an Unreasonable Risk ofDanger To Public Safety as Defined in Section 1170.18.......c.ccccesesesecsesees22 Il. TO HOLD THAT THE DEFINITION OF UNREASONABLERISK OF DANGER TO PUBLIC SAFETY DOES NOT APPLY TO PETITIONS FOR RESENTENCING UNDER THE ACT WOULD BE A VIOLATION OF PETITIONER’S DUE PROCESSRIGHTS, EQUAL PROTECTION AND RIGHT TO BE FREE OF CRUEL AND UNUSUAL PUNISHMENTAS GUARANTEEDBYTHE FOURTEENTH AND EIGHTH AMENDMENTSOF THE UNITED STATES CONSTITUTION...25 CONCLUSION......cceccccssscssscseseseseeesssesesesssesessenssssssesseaesesesecscsssascsssusssscssevsvavarecaeeceasens30 OPINION OF THE FIFTH DISTRICT COURT OF APPEAL.............ATTACHMENT A WORD COUNT- CERTIFICATE OF COMPLIANCE I, Stephanie L. Gunther, certify that the following PETITION FOR REVIEW uses13- point Times New Roman font in Word, and contains 7,904 words, fewer than the maximum permitted byrule. STEPHAME L. GUNTHER ii TABLE OF AUTHORITIES FEDERAL CASES Reves v. Ernst & Young (1993) 507 U.S. 170....ccccssscsssccsssssssssecsscsstscscessacesessescesessess 17, 18 STATE CASES Bachell v. City of Waterloo (Iowa 1972) 200 N. W. 2d. 548.......ccccsscscsssscssssescsscsscsscasenes 13 Beckman v. Thompson (1992) 4 Cal.App.4th 481o..ccccccccccscccscssscssssessccsecscsscssssessstavece26 Delaney v. Superior Court (1990) 50 Cal.3d 785.....cccccccscsssssscsssssssscssssessscseesssesccscsssceses 14 Hodges v. Superior Court (1999) 21 Cal.4th 109...ccsccsssscsscsessscssssessscssssseccecseseenes 11 Holder v. Superior Court (1969) 269 Cal.App.2d 314.....cccccscssccseccseccscssscsesescsscsescecsessees27 In re Hawthorn (2005) 35 Cal.4" 40 ..cccsccccsssssssscssessssesesssecsessssssssssussssessssssscsssssesssssessssecess29 In re Lance W. (1985) 37 Cal.3d 873......cccccsssssscsssessssscscsscesscassceescnseassecsecsacsesaceseesscsusasssese 14 Johnston v. Sanchez (1981) 121 Cal.App.3d 368......cccccccccsssssssssscsssssscssscssescscsesaceesssseseee27 Kuykendall v. State Board ofEqualization (1994) 22 Cal.App.4th 1194.00.26, 27 Lungren v. Deukmejian (1988) 45 Cal.3d 727....cccccscscsscscsesscssctscscseescssesssesscseeece 14, 15, 16 Negrette v. California State Lottery Commission (1994) 21 Cal.App.4th 1739........c00-27 Peoplev. Blakely (2014) 225 Cal. App. 4°° 1042......cccccsssscssssecssesssecssessesssessseesecssesecasevens 10 People v. Briceno (2004) 34 Cal.4th 451 .....ccccscsscssscsssececescsssssscssscsessescscsssssacsececsesauevene 14 People v.Hendrix (1997) 16 Cal.4th 508, 512...c.ccccccscsssccscccssesesessssessscecsessssesecscsereecs 13 People v. Jernigan (2014) 227 Cal. App. 4° 1198......ccsecsecsssssecsesssesscsesssessessecsscsssevessven 10 People. v. Osuna (225 Cal. App. 4° 1020 ..c..scssscessssscsssesssesecssuecssesssvesssecssessseesse:2, 9, 15, 16 People v. Rizo (2000) 22 Cal.4" 681 ..cccccscsccsssssssessescsssssessesssucsssecssecssrecsussssecssussstsevessuseen 14 People v. Sandoval (2007) 41 Cal.4™ 825.....ccccssccsssssssssessessecsessssssscsssssssssssssssenees28, 29, 30 People v. Superior Court (Pearson) (2010) 48 Cal. 4 564.....ccccsccsssessssssossssesssesees 2, 13, 14 People v. Yearwood (2013) 213 Cal.App.4" 16 .e..cccscceccscsscsesscssessseessssccsssesssescssecsecsssesena 10 Re-open Rambla, Inc. v. Board ofSupervisors (1995) 39 Cal.App.4th 1499.0...27 White v. Davis (1975) 13 Cal.3d 757 ...ccccccccccccccccsssssescscssescscsecevacnevsvavacnenseusavsceusaasavacessees 14 STATUTES Ca. Rules of Court, rule 8.500.0.00..0.....0.ccceessscsssesesessevensssessnsnsssesnesuessessrssssssssssssssceeceeceeces 5 Penn, COdE § 69... csscsccccctscssstesessseetsssssecsscscssescscscscscsescsssssssscscscecevecececusnvauessvsususeveneusavavavananags9 Pern. Code § 207.02...ccc eceesseesenensesscasenenenssacsevessneustesausnvsssscssssssceescesssesscseessaceseseeees 6, 9 Pern. Code § 273.5 rccsccsssssssssssssssssssesssecssssecsscscecsscscessscsevsasecsssecsesacsevaaeacauneeaessseusgaveseans3,9 Pern. Code § 422.000. ssssssssessssescsscesessssssssensssavssssssesssesssssceecesesscscesesscsssacsasesececesecsesavee5,9 Pen. Code § 647... ceccccscesessesesesesesssscussccsevsvevsveevavesasaevagassoesucauassasasassessvassssaseasarssssesses9 Pet, COdE § 667 cecccccsccssesssscsesescsssssscsesecscsseccsssesessssescssusvacsessvaveavevevsevevevesusevessaseseespassim Per. Code § 1170126... cccsscessesssesssesssssctsscsssssssscscecscsescccessessssecevsvavevesesseavevsuseeasenspassim Pen. Code § 1170.18... ccsssssseesssesesenseetsssesssesssescsssssscsssssessescsseessesescecsnsnsesavavavanspassim Veh. Code § 23152eessessssesevsscesrseeseesesesssssssesussssssssssssasacescsceesssseescssesesacassseseavecs9 ill CONSTITUTIONS US. Const, 8 Amend....cccccccsccsssssscssssssesssssssssassssescetecesesececceseseees2, 4, 5, 25, 26, 27, 29, 30 U.S. Const., 14° Amend....cccccccssscsssssssssssessecsssssesessssssssssscessssesseceeceseeseececeeceseececesec, 3, 25, 30 OTHER Voter Information Guide, Gen. Elec. (Nov. 6, 2012), text of proposed law............... 12, 21 Voter Information Guide, Gen. Elec. (Nov. 4, 2014), text of proposedlaw ........ 10, 12, 22 Voter Information Guide, Gen. Elec. (Nov. 6, 2012), official title and summary....... 18, 24 Voter Information Guide, Gen. Elec. (Nov. 4, 2014), official title and summary............. 10 Voter Information Guide, Gen. Elec. (Nov. 6, 2012), argument and rebuttal for and AGAINSt PrOP. 36.......c.cesccessssccessesenesesesesesessstsesesesssscscscsessssscsesssvatsesscecacacacaesesesusvsseussesacacsees 10 Voter Information Guide, Gen. Elec. (Nov. 4, 2014), argumentand rebuttal for and AVAINSt POP. 47.0... esses scsecessesssesssssssesesssssscsssescscscevsvsvscesacssaussusecssacatacsesesesssscssserersasevanes 10 Californians Against Prop. 47 ..........-cccccsessesecessseeseseceee 11 Editorial Board, California’s Continuing Prison Crisis (August 10, 2013) New York Times [as of January 9, 2015)....ccccccsscsssessscescsssssscsccssccsssecesscseese. 11,12 Stanford Law School- Three Strikes Project, “Progress Report: Three Strikes Reform (Proposition 36), 1000 Prisoners Released (2013).......ccccccssssscsssssesescsssssssesesssesesesecereseeees 13 iV IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, vs. DAVID J. VALENCIA, Defendant and Appellant. Case No. Fifth District Court Of Appeal, Case No. F067946 Tuolumne County Superior Court No. CRF30714 The Honorable Eleanor Provost, Judge PETITION FOR REVIEW STEPHANIE L. GUNTHER (State Bar No. 233790) 841 MohawkStreet, Suite # 260 Bakersfield, CA 93309 Telephone: (661) 428-3720 Fax: (661) 829-5077 stephanielgunther@gmail.com PETITION FOR REVIEW TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURTOF THE STATE OF CALIFORNIA: Petitioner, DAVID J. VALENCIApetitions this court for review following the decision of the Court of Appeal, Fifth Appellant District, filed in that court on December 16, 2014. A copy ofthe decision of the Court of Appeal is attached hereto as AttachmentA. ISSUES PRESENTED 1. Doesthe definition of “unreasonable risk of danger to public safety” in Penal Code!section 1170.18, and enacted in 2014 by the passage of Proposition 47, apply to petitions for resentencing under Section 1170.126 enacted by the Three Strikes Reform Act of 20127 2. Ifthe definition of “unreasonable risk of danger to public safety” applies to petitions for resentencing under the Act, should the definition apply retroactively to petitions denied before the passage of Proposition 47? 3. Ifthe definition of “unreasonable risk of danger to public safety” provided in Section 1170.18 does not apply to petitions for resentencing under the Act, does that deny appellant equal protection of the law, due process or the 1. Unless otherwise specified, all further references are to the Penal Code. 2. Hereafter referred to as the Act. right to be free of cruel and unusual punishmentas guaranteed by the Eighth and Fourteenth Amendmentsofthe United States Constitution? NECESSITY FOR REVIEW In People v. Superior Court (Pearson), this Court reiterated the long standing principal of statutory construction, [w]hen courts interpret an initiative, if the language is not ambiguous,courts presumethe voters intended the meaning apparent from that language, and courts maynotadd to the statute or rewrite it to conform to some assumedintent not apparentfrom that language. (People v. Superior Court (Pearson) (2010) 48 Cal. 4" 564, 571 .) Here the Court of Appeal, while recognizing that principal of statutory construction, nevertheless engaged in further construction and in effect rewrote the statute “to conform to some assumedintent not apparent from that language.” ([bid.) “*When statutory language is clear and unambiguous, there is no need for construction and courts should notindulge in it.” [Citation.]’ [Citation.]” (People v. Hendrix (1997) 16 Cal.4th 508, 512.) Onits face, “[a]s used throughout this Code,” as employed in section 1170.18, subdivision (c), clearly and unambiguously refers to the Penal Code, not merely section 1170.18 or the other provisions contained in Proposition 47, (Attachment A., p.27.) The Court ofAppeal reasonedthat the literal language of the statute does notprevail (fit conflicts with the lawmaker’s intent. (Jbid. relying on Peoplev. Osuna (2014) 225 Cal.App.4" 1020.) The Court of Appeal erred in holding that in enacting Proposition 47 the voters’ intendedto apply the definition of 3 unreasonable risk of dangerto public safety only to resentencing petitions under Section 1170.18 (Proposition 47), when the languageclearly states that the definition of unreasonable risk of danger to public safety is to be used “throughout this Code.” (§ 1170.18.) Judge Pena’ concurring opinion described the error precisely: The majority payslip service to the plain meaningrule and then ignores it. While acknowledging the language used is unambiguous, it nonetheless engages in statutory construction to determine whether the electorate really intended to say whatit actually enacted. The end result is a rewriting of the statute so that it comports with the majority’s view of whatthe voters really intended. The majority has rewritten section 1170.18(c) so that it now states: “As used in this section only, ‘unreasonable risk of danger to public safety’ means ....” The majority does so without providing a compelling reason to do so and without showingthe plain language used has a “‘meaning [that] is “repugnantto the general purview ofthe act.’”’” (People v. Leal, supra, 33 Cal.4th at p. 1008.) Because the Act had not previously defined the phrase “unreasonable risk of danger to public safety,” the definition in section 1170.18(c) cannot be repugnantor contradictory to the Act, nor does the majority claim the definition is repugnantto the general purview of Proposition 47. For these reasons, I respectfully disagree with the majority on this part of the opinion. (Attachment A., p. 41-42.) Furthermore, the Court ofAppeal foundthatif the definition of unreasonable risk ofdanger to public safety in Section 1170.18 were to apply to petitions for resentencing under the Act, it would cause “insurmountable equal protection issues.” (AttachmentA., p. 37, fn. 25.) Recently, the Third District Court of Appeal held section 1170.18, subdivision (c)’s definition of ‘unreasonable risk of danger to public safety’” does not apply retroactively to defendants whose petitions for resentencing under the Act were decided before the effective date of Proposition 47. (People v. Chaney (Dec. 1, 2014, C073949) CalApp4th=,_—s--_~—— [2014 D.A.R.. 15934, 15935-15936].) Chaney did not decide whether Proposition 47’s definition applies prospectively to such petitions. (Chaney, supra, at p.___, fn. 3 [2014 D.A.R. 15934, 15936, fn. 3].) Were weto conclude section 1170.18, subdivision (c) modifies section 1170.126, subdivision (f), we would agree with Chaneythat it does not do so retroactively. We believe, however, that a finding of nonretroactivity inexorably leadsto the possibility of prospective- only application, and that prospective-only application of Proposition 47’s definition to resentencing petitions under the Act wouldraise serious, perhaps insurmountable, equal protection issues. ([bid.) Based upon these considerations, this case presents important questions of law that could impact hundredsif not thousandsofpetitions for resentencing under the Act, and would have a huge impact onthe fiscal considerations that were the impetusfor the Act in the first place. Mr. David J. Valencia respectfully requests that this court grant review to decide the questions presented herein. (Cal. Rules of Court, rule 8.500, subd. (b)(1).) STATEMENT OF THE CASE On October 5, 2009, felony Information, CRF30714, was filed alleging corporal injury upon a spouse or cohabitant in violation of Penal Code section 273.5, subdivision (a). (CT p. 14.) It was further alleged that appellant had suffered the following prior strike convictions: 1. CASC Tuolumnecase number CR1380, August 27, 1996, criminal threats in violation of Penal Code section 422: and 2. CASC Man Mateo case number SC035610a, kidnappingin violation of Penal Codesection 207. (CT p. 14.) On December2, 2009, appellant was found guilty of count 1, and admitted the following prior “strikes.” (CT pp. 38-39.) On January 6, 2010, appellant was sentenced to 25 years to life. (CT pp. 84-85, 88.) On appeal, the Fifth District Court of Appeal affirmed the judgment. (CTp. 113.) On April 15, 2013, appellantfiled a petition to recall his sentence pursuant to Penal Codesection 1170.126. (CT pp. 127-135.) On August 9, 2013,thetrial court denied the petition. (RT p. 502.) The Court of Appeal affirmed thetrial court’s denial of appellant’s petition for resentencing. (Attachment A.) Hefiled a petition for rehearing on January 7, 2015 which was denied on January 8, 2015.° STATEMENTOF FACTS Carrie Koble and appellant were married on September 1, 2010. (Vol. II RT p. 288-289.) On the day they were married, she was arrested for a DUI. (Vol. IT RT p. 311.) On September 13, 2010, she starting drinking in the morning and admittedly had “too muchto drink.” (RT p. 300.) That day, Peterson saw appellant and Kobel yelling back and forth at each other. (RT p. 101.) Jackson heard the argument as well. (Vol. 1 RT p. 180.) Jackson saw physicalaltercation between appellant and Koble. (Vol. I RT p. 3. Appellant will file a separate request for judicial notice of the docket ofthe Court of Appeal. 184.) Appellant was swinging at Koble, “essentially just body shots in rapid succession.” (Vol. I RT p. 184.) The majority of the punches missed because Kobel wasbacking off. (Vol. I RT p. 185.) “[T]he last couple were the onesthat tagged her.” (/d.) Deputy Newmanarrived and spoke with Kobel. (Vol. I RT p. 224.) Koble told Newman that appellant hit her head and back. (Vol. 1 RT p. 230.) Newman noticed that Kobelhad a laceration on the top ofher head. (Vol. 1 RT pp. 225- 226.) Nurse practitioner, Klein, treated Koble at Sonora Regional Medical Center. (Vol. I RT p. 161.) Klein stapled the laceration on Kobel’s scalp. (Vol. I RT p. 163.) The injury wasa straightline, 1.6 centimeter in length, with minimal swelling and bleeding. (Vol. I RT pp. 163-164.) It was a simple, superficial laceration. (Vol. I RT p. 165.) Attrial, Kendall Longtestified that in July 2000, she wasin a dating relationship with appellant. (Vol. II RT p. 212.) Appellant hit Long “full force” in between her temple and ear. (Vol. II RT p. 215.) Long described the blow as the most pain she had ever experienced besides childbirth. (Vol. II RT p. 216.) She sustained a ruptured eardrum and impaired hearing for a period of time. (Vol. IT RT p. 217.) Evidence in support of appellant’s petition to be resentenced Appellant’s parents, David and Mary Valencia, are very committed to helping appellant obtain psychological, drug and alcohol counseling if he were to be released from custody. (CT p. 140.) On August 9, 2013, at the hearing on appellant’s petition pursuant to Penal Code section 1170.126, appellant’s mother testified that she noticed a recent change in appellant, particularly because he is no longer under the influence of alcohol. (Vol. II RT p. 474.) Appellant apologized to her for being such a disappointment. (Id.) If he were released from prison he would be welcometo stay with her and appellant’s father. (Id.) Appellant received a certificate of achievement for completing the “Grant Methe Serenity Workbook”for alcoholics anonymous. (CT p. 186.) Appellant’s score on the CDCR California Static Risk assessment was one, whichis very low. (Vol. II RT p. 470.) Appellant has had no disciplinary problems duringthis entire period of incarceration. (Vol. IE RT pp. 466, 477.) During a prior prison commitment he had one “write up” for making alcohol. (Vol. II RT p. 477.) He attended AA meetings weekly. (Vol. II RT p. 478.) Since being sentenced, he spent twenty eight months in classification and there were nota lot of Opportunities for programsavailable there. (Vol. II RT p. 478.) Appellant was housed in protective custody because he was asked to stab someoneandrefused to get involved in any violence. (Vol. II RT p. 480.) If appellant were released from custody he would like to go into a program like Delancy Street or Salvation Army. (Vol. IT RT p. 482.) Othercriminal record Appellant’s criminal record consists of twelve misdemeanorconvictions between 1987 and 2007 andthree nonserious and nonviolent felonies, including a violation of Vehicle Code section 23152, subdivision (a) in 1996, Penal Code section 69 in 1996 andsection 273.5 in 2000. (CT p. 190) In addition, appellant has two “strike” convictions consisting of kidnappingin violation of Penal Code section 207, from 1995, and criminalthreats, in violation of Penal Code section 422, from 1996. (CT p. 38-39; Vol. II RT p. 435.) Since 2000, he has not had any felony convictions but was as on summary probation for a misdemeanor public intoxication, in violation of Penal Code section 647, subdivision (f) when he was sentenced on January 6, 2010. (Vol. II RT p. 435.) ARGUMENT I. THIS COURT SHOULD GRANT REVIEWIN THIS CASE TO DETERMINE IF THE CLEAR AND UNAMBIGUOUS LANGUAGE IN SECTION’ 1170.18 “AS USED THROUGHOUT THIS CODE, “UNREASONABLE RISK OF DANGER TO PUBLIC SAFETY” MEANS~ AN UNREASONABLE RISK THAT THE PETITIONER WILL COMMIT A NEW VIOLENT FELONY WITHIN THE MEANING OF CLAUSE (IV) OF SUBPARAGRAPH(C) OF PARAGRAPH (2) OF SUBDIVISION (E) OF SECTION 667” APPLIES TO PETITIONS UNDER THE ACT a. Additional Background The Courts of Appeal have been misguidedin accepting as a foregone conclusionthe false predicate belief that “enhancing public safety was a key purpose of the Act.” (People v. Yearwood (2013) 213 Cal.App.4" 161, (emphasis added); see also People v. Jernigan (2014) 227 Cal. App. 4" 1198, 1206; People v. Osuna, supra, 225 Cal. App. 4" at p. 1036; People v. Blakely (2014) 225 Cal. App. 4" 1042, 1054.) This is simply incorrect andintellectually dishonest. In 2012, the purpose of the Act wasto save the taxpayers money,fix the prison overcrowding problem,and “restore the original intent of the three Strikes laws.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), text of proposed law.)* 4. Petitioner will make a separate motion for this Court to take judicial notice of the following items: 8. 9. 1. Voter Information Guide, Gen. Elec. (Nov. 6, 2012), text ofproposed law 2. 3. Voter Information Guide, Gen. Elec. (Nov. 6, 2012), official title and Voter Information Guide, Gen. Elec. (Nov. 4, 2014), text of proposed law summary Voter Information Guide, Gen. Elec. (Nov. 4, 2014), official title and summary Voter Information Guide, Gen. Elec. (Nov. 6, 2012), argument and rebuttal for and against Prop. 36 Voter Information Guide, Gen. Elec. (Nov. 4, 2014), argument andrebuttal for and against Prop. 47 Californians Against Prop. 47 http://www.votenoprop47.org 11. Shawn Gaynor, California represents the worst of current U.S. economic crisis (July 13, 2012) California Public Press < http://sfpublicpress.org/news/2012-07/krugman-california-represents-the- worst-of-current-us-economic-crisis> 12. Editorial Board, California’s Continuing Prison Crisis (August 10, 2013) New York Times 10 Public safety has always been a major consideration in drafting the legislation to meet those purposes, but was never the purposein andofitself. Just months before the election the California Public Press printed an article entitled, “California represents the worst of current U.S. economiccrisis.” (Shawn Gaynor, California represents the worst of current U.S. economiccrisis (July 13, 2012) California Public Press [as of January 8, 2015].) This article recognized California’s budget problems and observedthat although “state and municipal governments continueto slash spending,”(.. . ) “more than 9 billion in increased tax revenue will be before the voters in thefall.” (Ibid.) In 2012, the voter’s intent at the polling place wasclearly to save thestate money. In addition California’s prison system had beencrisis for a long time before the passage of Proposition 36. “In 2011 the United States Supreme Court found that overcrowding had gotten so bad . . that inmates’ health and safety were unconstitutionally compromised.” (Editorial Board, California’s Continuing Prison Crisis (August 10, 2013) New York Times [as of January 9, 2015] 13. Stanford Law School- Three Strikes Project, “Progress Report: Three Strikes Reform (Proposition 36), 1000 Prisoners Released (2013) 11 prison-crisis.html?_r=0> [as of January 9, 2015].) In addition to the prison overcrowding problem, exit polls showed that the passage of Proposition 36 was largely motivated by voters who believed the Three Strikes Laws in California were “too harsh.” ([bid.) It goes without saying that the voters wanted to ensure public safety. The public safety considerations would be met by requiring “murderers, rapists, and child molesters”to serve their full term “even if they are convicted of a new minor third strike crime.” (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of proposed laws, p. 105.) Furthermore, the voters intended to protect public safety by also disqualifying from the lesser sentence those whose current offense involveda seriousor violent offense, or an offense involving drugsor firearms or certain sex offenses. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) official title and summary, p. 48.) The voters’ intent in passing the Act was to save the state money,fix the prison problem andto “restore the original intent of California’s Three Strikes law.” (Voter Information Guide, Gen. Elec. (Nov.6, 2012) text of proposed laws, p. 105.) Whenthe voters passed Proposition 47 in 2014, they were informedthat the definition of unreasonable risk of danger to public safety would be “used throughout this Code.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), text ofproposed law, p. 74.) The Court of Appeal recognized that the voters were fully informed what would happenifthey passed this law, but believed that voters 12 did not really know aboutit because it was “[h]idden in the lengthy, fairly abstruse text of the proposed law,as presented in the official ballot pamphlet — and nowherecalled to voters’ attention.” (Attachment A., p. 25.) Clearly the Court of Appeal is concerned with protecting the voters from themselves.’ The Court of Appealfears that a liberal application of the resentencing provisions of the Act would put the public in danger. It is not the courts place to rewrite the laws, but to simply enforce them. (See People v. Superior Court (Pearson), supra, 48 Cal. 4" at p. 571.) “As has been rightly said, the best way to insure repeal of a bad law is to enforce it strictly.” (Bachell v. City of Waterloo (Iowa 1972) 200 N. W.2d. 548.) b. It was Error to Engage in Construction of Voters Intent Because the Statute is Clear and Unambiguous The Court of Appeal erred in engaging in construction as to the voters’ intent even though it recognized that the language of the statute was clear and unambiguous, “http://www.votenoprop47.org) The Redland Daily Facts observedreiterated the Alliance’s opinion: This deceptive proposition also rewrites our laws to make it easier for violent Three Strikes inmatesto gain early release. The Alliance for a Safer California says, “The Three Strikes reform law (Proposition 36) allowed certain Three Strikes prisonersto petition for early release, as long as they did not pose ‘an unreasonablerisk of danger to public safety.” Prop 47 would rewrite California law, including the Three Strikes Reform law,to give the term “unreasonable risk of danger to public safety” a very narrow definition. Under the Prop 47 definition, only an inmate likely to commit murder, rape, or a handful of other rare crimes(like possession of a weapon of massdestruction) can be kept behind bars as a dangerto public safety. If Prop 47 passes, violent Three Strikes inmates who commit robbery, assault with a deadly weapon,felony child abuse,arson, kidnapping, spousal abuse, child abduction, carjacking, and scores of other serious felonies will no longer be defined as “dangerous” under California law. (Our Readers Say: Police, sheriffs say no to Prop 47 (October 24, 2014) Redland Daily Facts [as of Dec. 16, 2014].) Lookingat the information conveyedto voters, however, this clearly was nottheir intent and so an author’s desireis of no import. (Cf. People v. Garcia (2002) 28 Cal.4th 1166, 1175-1 176, fn. 5; People v. Bradley (2012) 208 Cal.App.4th 64, 83; Kaufman & Broad Communities, Inc. v. PerformancePlastering, Inc. (2005) 133 Cal.App.4th 26, 30.) Wearealso mindful“it has long been settled that‘[t]he enacting body is deemed to be aware ofexisting laws andjudicial constructionsin effect at the time legislation is enacted’ [citation], ‘and to have enacted or amended a statute in light thereof” [citation]. ‘This principle applies to legislation enacted by initiative. [Citation.]’ [Citation.]” (People v. Superior Court (Cervantes), supra, 225 Cal.App.4th at p. 1015; accord, In re Lance W. (1985) 37 Cal.3d 873, 890, fn. 11.) Thus, we presume voters were aware “unreasonablerisk of dangerto public safety,” as used in section 1170. 126, subdivision(f), had been judicially construed as not being impermissibly vague, but as nevertheless having no fixed definition. (People v. Garcia (2014) 230 Cal.App.4th 763, 769-770, petn. for review pending,petn. filed Nov. 18, 2014; People v. Flores (2014) 227 Cal.App.4th 1070, 1075.) Because nowherein the ballot materials for Proposition 47 34. wasit called to voters’ attention the definition of the phrase contained in section 1170.18, subdivision (c) would apply to resentencing proceedings under the Act, we simply cannot concludevoters intended Proposition 47 to alter the Actin that respect. Voters are not asked or presumedtobe able to discern all potential effects of a proposed initiative measure;this is why they are provided with voter information guides containing notonly the actual text of such a measure, but also a neutral explanation and analysis by the Legislative Analyst and arguments in support of andin Opposition to the measure. As we have already observed, none of those materials so muchas hinted that Proposition 47 could havethe slightest effect on resentencing under the Act. (Cf. Marshall v. Pasadena Unified School Dist., supra, 119 Cal.App.4th at pp. 1255-1256 [legislative history of enactmentincluded information bill would add definition ofparticular term to Public Contract Code].)?4 Weare asked to infer an intent to extend section 1 170.18, subdivision (c)’s definition to proceedings undersection 1170.126 because the phrase in question only appearsin those sections of the Penal Code. We cannot do so. The only resentencing mentioned in the Proposition 47 ballot materials was resentencing for inmates whose current offenses would be reduced to misdemeanors, not those who wouldstill warrant secondstrikefelony terms. There is a hugedifference, both legally andin public safety risked, between someone with multiple prior serious and/or violent felony convictions whosecurrent offenseis (or would be, if committed today) a misdemeanor, and someone whosecurrent offense is a felony. Accordingly, treating the two groupsdifferently for resentencing purposes doesnotlead to absurd results, but rather is eminently logical. 24 For the same reasons, wereject any suggestion the definition contained in section 1170.18, subdivision (c) was intendedto clarify the true meaning of “unreasonable risk of dangerto public safety” as used in section 1170.126, subdivision (f). (Cf. Re-Open Rambla, Inc. v. Board ofSupervisors (1995) 39 Cal.App.4th 1499, 1511; In re Connie M. (1986) 176 Cal.App.3d 1225, 1238.) 35. Werecognize “[i]t is an established rule of Statutory construction ... that when statutes are in pari materia similar phrases appearing in each should be given like meanings. [Citations.]” (People v. Caudillo(1978) 21 Cal.3d 562, 585, overruled on another ground in People v. Martinez (1999) 20 Cal.4th 225, 229, 237, fn. 6 & disapproved on another ground in People v. Escobar (1992) 3 Cal.4th 740, 749-751 & fn. 5; see Robbins v. Omnibus R. Co. (1867) 32 Cal. 472, 474.) We question whether Proposition 47 and the Act aretruly in pari materia: That phrase means “[o]n the same subject; relating to the same matter” (Black’s Law Dict. (9th ed. 2009) p. 862), and the two measures(albeit with some overlap) address different levels of offenses and offenders. In any event, “canonsofstatutory construction are merely aids to ascertaining probablelegislative intent” (Stone v. Superior Court (1982) 31 Cal.3d 503, 521, fn. 10); they are “mere guides and will not be applied so as to defeat the underlying legislative intent otherwise determined [citation]” (Dyna-Med, Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at p. 1391). The Act wasintendedto reform the three strikes law while keeping intact that scheme’s core commitmentto public safety. Allowingtrial courts broad discretion to determine whether resentencingan eligible petitioner under the Act “would pose an unreasonablerisk of dangerto public safety” (§ 1170.126, subd. (f)) clearly furthers the Act’s purpose. Whatever the wisdom of Proposition 47’s policy of near-universal resentencing where misdemeanants are concerned — and “[i]t is not for us to gainsay the wisdom ofthis legislative choice” (Bernard v. Foley (2006) 39 Cal.4th 794, 813) — constraining that discretion so that all but the worstfelony offenders are released manifestly does not, nor does it comport with voters’ intentin enacting either measure. Accordingly, Proposition 47 has no effect on defendant’s petition for resentencing under the Act. Defendantis not entitled to a remandso thetrial court can redetermine defendant’s entitlement to resentencing underthe Act utilizing the definition of 36. “unreasonable risk of danger to public safety’” contained in section 1170.18, subdivision (c).?5 DISPOSITION The judgmentis affirmed. DETIJEN,J. I CONCUR: LEVY,Acting P.J. 25 Recently, the Third District Court of Appeal held section 1 170.18, subdivision (c)’s definition of “‘unreasonable risk of danger to public safety’” does not apply retroactively to defendants whosepetitions for resentencing under the Act were decided beforethe effective date of Proposition 47. (People v. Chaney (Dec. 1, 2014, C073949)__—sCal.App.4th_,_- [2014 D.A.R. 15934, 15935-15936].) Chaney did not decide whether Proposition 47’s definition applies prospectively to such petitions. (Chaney, supra, atp.___, fn. 3 [2014 D.A.R. 15934, 15936, fn. 3].) Were we to concludesection 1170.18, subdivision (c) modifies section 1170.126, subdivision (f), we would agree with Chaney that it does not do so retroactively. We believe, however,that a finding of nonretroactivity inexorably leads to the possibility of prospective-only application, and that prospective-only application of Proposition 47’s definition to resentencing petitions under the Act would raise serious, perhaps insurmountable, equal protection issues. “Mindful ofthe serious constitutional questions that might arise were we to accepta literal construction ofthe statutory language, and of our obligation whereverpossible both to carry outthe intentofthe electorate and to construe statutes so as to preservetheir constitutionality [citations]” (People v. Skinner (1985) 39 Cal.3d 765, 769), werest our holding on the reasoning set outin our opinion, ante. 37, PENA,J., I concur in the judgment and the majority opinion with the exception ofpart II. I agree defendant maynottake advantage of Proposition 47°51 newly enacted definition of “unreasonablerisk of dangerto public safety,” as provided in Penal Codesection 1170.18, subdivision (c) (1170.18(c)). I do so not because there is any ambiguity in the language used in section 1 170.18(c) or the notion that the Statute does not mean whatit Says, i.e., that the new definition applies “throughout this Code.” Rather, in my view, there is no indication the electorate, in enacting section 1170.1 8(c), intendedit to apply retroactively to resentencing determinations underProposition 36, the Three Strikes Reform Act of 2012 (the Act). I. After November4, 2014, the definition of “unreasonable risk of danger”inSection 1170.18(c) applies throughout the Penal Code Section 1170.18(c) provides: “As used throughout this Code, ‘unreasonable risk of dangerto public safety’ meansan unreasonablerisk that the petitioner will commit a new violent felony within the meaning ofclause(iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.” This section and subdivision were enacted on November4, 2014, when California voters passed Proposition 47, long past the time of defendant’s resentencing hearing. Unlessthe legislation was designedor intended to apply retroactively, the definition in section 1170.18(c) cannot apply to defendant. This is the only inquiry we must maketo resolve the issue of whetherthe definition in section 1170.18(c) applies to defendant. However, the majority has opted to determine whether the new definition applies to any resentencing provisions underthe Act, past, present, or future. I respectfully disagree with the majority’s analysis and conclusion on this broader issue.yority y The Safe Neighborhood and Schools Act (Prop. 47, as approved by voters, Gen.Elec.(Nov.4, 2014)). te “*Whenconstruinga statute, we must “ascertain the intent ofthe Legislature so as to effectuate the purposeofthe law.”[Citations.] ‘TW]le begin with the wordsofa statute and give these wordstheir ordinary meaning.’ [Citation.] ‘If the statutory languageis clear and unambiguous, then we need go nofurther.’ [Citation.] If, however, the language supports more than one reasonable construction, we may consider‘a variety of extrinsic aids, including the ostensible objects to be achieved,the evils to be remedied,the legislative history, public policy, contemporaneous administrative construction, and the Statutory schemeofwhich thestatute is apart.’ [Citation.] Using these extrinsic aids, we ‘select the construction that comports most closely with the apparentintent of the Legislature, with a view to promotingrather than defeating the general purposeofthe statute, and avoid an interpretation that would lead to absurd consequences.’ [Citation.]” (People v. Sinohui (2002) 28 Cal.4th 205, 211-212.) Where the statutory languageis so clear and unambiguous, there is no need for statutory construction orto resort to legislative materials or other outside sources. (Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366, 1371.) Absent ambiguity,it is presumed the voters intend the meaning apparent on the face of an initiative measure, and the courts may notaddto thestatute or rewrite it to conform to a presumedintent not apparentin its language. (People v. ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 301.) In determining whether the wordsenactedhere are unambiguous, we do not write on a blank slate. For example, in Marshall v. Pasadena Unified School Dist. (2004) 119 Cal.App.4th 1241, 1255, the court stated there “is nothing ambiguousabout the phrase ‘as usedin this code.’” It held the definition of “Emergency, as used in this code” applied to the entire Public Contract Code, and it was notlimited to a particular chapter, article, or division of that code. Also, in People v. Bucchierre (1943) 57 Cal.App.2d 153, 166, the court held: “The words ‘as in this code provided’ (Penal Code, § 182) refer to the Penal Code.” In a similar vein, the court in People v. Leal (2004) 33 Cal.4th 999, 1007-1008, applied the plain meaning rule as follows: “The statutory languageofthe provision defining ‘duress’ in each of the rapestatutes is clear and unambiguous. Thedefinition of ‘duress’ in both the rape and spousalrape statutes begins with the phrase, ‘As used in this section, “duress” means....’ (§§ 261, subd. (b), 262, subd. (c).) This clear languagebelies anylegislative intent to apply the definitions of ‘duress’ in the rape and spousalrapestatutes to any other sexual offenses. “Starting from the premise that in 1990 the Legislature incorporated into the rape statute a definition of ‘duress’ that already wasin use for other sexual offenses, defendant argues that the Legislature must have intended its 1993 amendmentofthe definition of ‘duress’ in the rape statute, and the incorporation of this new definition into the spousal rapestatute, to apply as well to other sexual offenses that use the term ‘duress.’ Defendant observes: ‘Thelegislative history does not suggest any rationale for why the Legislature would wantits 1993 amendmentofthe definition of “duress” to apply only to rape so that it would have one meaning when the rape statutes use the phrase “force, violence, duress, menace,or fear of immediate and unlawful bodily injury” but another, much more expansive meaning whentheidentical phrase is usedin the statutes defining sodomy, lewd acts on a child, oral copulation and foreign objectrape.’ “But the Legislature was not requiredto set forth its reasons for providing a different definition of ‘duress’ for rape and spousal rape than has been usedin other sexualoffenses;it is clear that it did so. ‘When “statutory languageis ... clear and unambiguousthere is no need for construction, and courts should notindulgein it.’” [Citations.] The plain meaning of wordsin a statute may be disregarded only whenthat meaning is “‘repugnantto the general purview oftheact,’ or for some other compelling reason ....” [Citations.]’ [Citation.] As wesaid in an analogoussituation: ‘It is our task to construe, not to amend,thestatute. “In the constructionof a statute ... the office of the judge is simply to ascertain and declare whatis in termsor in substance contained therein, not to insert what has been omitted or omit what has been inserted....” [Citation.] We may not, under the guise of construction, rewrite the law or give the wordsan effect different from the plain and direct import ofthe terms used.’ [Citation.]” The majority payslip service to the plain meaning rule and then ignoresit. While acknowledging the language used is unambiguous,it nonetheless engages in statutory construction to determine whether the electorate really intended to say whatit actually enacted, The endresult is a rewriting ofthe statute so thatit comports with the majority’s view of whatthevotersreally intended. The majority has rewritten section 1170.18(c) so that it now states: “As usedin this section only, ‘unreasonable risk of dangerto public safety’ means....” The majority does so without providing a compelling reason to do so and without showing the plain language used has a ““meaning [that] is “‘repugnant to the general purview ofthe act.’”’” (People v. Leal, supra, 33 Cal.4th at p. 1008.) Because the Act had notpreviously defined the phrase “unreasonablerisk of dangerto public safety,” the definition in section 1170.18(c) cannot be repugnant or contradictory to the Act, nor does the majority claim the definition is repugnantto the general purview of Proposition 47. For these reasons,I respectfully disagree with the majority on this part of the opinion. II. Section 1170.18(c) has no application to defendant’s resentencing under the Act I do concurinthe result becausethereis nothing in Proposition 47 to indicate the definition enacted undersection 1170.18(c) is to be applied retroactively to defendant under the Act. I begin myanalysis with section 3 of the Penal Code, which provides that “[n]o part ofit is retroactive, unless expressly so declared.” “Whethera statute operates prospectively orretroactively is, at least in the first instance, a matter of legislative intent. Whenthe Legislature has not madeits intent on the matterclear,” section 3 provides the default rule. (People v. Brown (2012) 54 Cal.4th 314, 3 19.) Proposition 47 is silent on the question of whetherit applies retroactively to proceedings underthe Act. The analysis of Proposition 47 bythe legislative analyst and the arguments for and against Proposition 47 are also silent on this question. (Voter Information Guide, Gen.Elec. (Nov.4, 2014) pp. 34-39.) Because the statute contains no express declaration that section 1170,18(c) applies retroactively to proceedings under the Act, and there is no clearly implied intentofretroactivity in the legislative history, the default rule applies. Defendantrelies on People v. Sandoval (2007) 41 Cal.4th 825 to support his position the new definition should be applied retroactively to caseslike his, which are currently pending appealfrom a denial of resentencing under the Act. However, the Sandovalcase presented muchdifferent considerationsfrom those presenthere. There, the court granted review for the following reasons: “[T]o determine whether defendant’s Sixth Amendmentrights as defined inCunningham v. California (2007) 549 U.S. 270 ... were violated by theimposition of an upperterm sentence and, if so, the remedy to which [he or]sheis entitled. In Cunningham,the United States Supreme Court disagreedwith this court’s decision in People v. Black (2005) 35 Cal.4th 1238 ... andheld that California’s determinate sentencing law ... violates a defendant’sfederal constitutional right to a jury trial under the Sixth and Fourteenth Amendmentsto the United States Constitution by assigningto thetrialjudge,rather than to the jury, the authority to find the facts that render adefendanteligible for an upper term sentence. We concludethat defendant’s Sixth Amendment right to a jury trial was violated and, although harmless error analysis applies to such violations,the error in thepresent case was not harmless beyond a reasonable doubt and the case mustbe remandedfor resentencing. For the reasons explained below, we alsoconclude that upon remand,thetrial court may exerciseits discretion toimpose anyofthe three termsavailable for defendant’s offense.” (Peoplev. Sandoval, supra, 41 Cal.4th at pp. 831-832.) In the interim between Peoplev, Black, supra, 35 Cal.4th 1238 and People v. Sandoval, supra, 41 Cal.4th 825, the Legislature amended the determinate sentencing law to cure its constitutional defect as found in Cunningham v. California, supra, 549 U.S, 270. Although the Legislature failed to provide for retroactive application, the Sandoval court decided it was responsible for fashioning “a constitutional procedure for resentencing in cases in which Cunningham requires a reversal of an upper term sentence.” (People v. Sandoval, supra,at p. 846.) The court explained: “If we assumethat the new legislation does not apply directly tocases pending on appealthat are remandedfor resentencing, our task indeciding the appropriate sentencing procedureto be applied by a trial courton remandis somewhat analogous to what we faced in In re Hawthorne[(2005)] 35 Cal.4th 40. There,the Legislature enacted a statute intended to implementthe UnitedStates Supreme Court’s decision in Atkinsv. Virginia(2002) 536 U.S. 304, which held that the federal Constitution prohibitsexecution of the mentally retarded. (See In re Hawthorne, supra, 35Cal.4th at p. 44.) The legislation, however, did not provide for cases inwhich the death penalty already had been imposed. (In re Hawthorne,supra, 35 Cal.4th at p. 45.) In sucha situation, ‘[t]he task thus falls to thiscourt to formulate appropriate proceduresfor resolving postconviction claims.’ (Jbid.) “In Hawthorne, we adopted proceduresfor postconviction claimsthat tracked the statute ‘as closely as logic and practicality permit,’ in order‘to maintain consistency with our own [state’s] legislation ... and to avoiddue process and equal protection implications.’ (Jn re Hawthorne, supra,35 Cal.4th at p. 47.) Likewise, in the present case, we direct thatsentencing proceedingsto be heldin casesthat are remanded because thesentence imposed was determined to be erroneous under Cunningham,supra, 549 U.S. 270, are to be conducted in a manner consistent with theamendmentsto the [determinate sentencing law] adoptedby the Legislature.” (People v. Sandoval, supra, 41 Cal.4th at p. 846.) In this case, there is no constitutional violation in the mannerthetrial court conducted its sentencing determination. Thus,there is no occasion to remandthis case, and weinstead affirm thetrial court’s determination. Defendanthas identified no due process or equal protection concerns that might invalidate Proposition 47 or the Act if he is denied retroactive application? | perceive none. Although defendant has notrelied upon Jn re Estrada (1965) 63 Cal.2d 740 to argue retroactive application, the People havecited it as distinguishable from this case. I discuss the Estradacase out of an abundance of caution. In Estrada, the court stated: ~Whenthe Legislature amendsa statute so as to lessen the punishmentithas obviously expressly determined that its former penalty was too severeand that a lighter punishmentis proper as punishment for the commissionof the prohibited act. It is an inevitable inference that the Legislature musthave intended that the newstatute imposing the newlighter penalty now Defendant did notraise any due process or equalprotection arguments relating to theretroactivity issue in his supplemental briefing. deemedto be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed beforeits passage providedthe judgmentconvicting the defendantoftheactis not final. This intent seems obvious, because to hold otherwise would be to concludethat the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories ofpenology.” (/n re Estrada, supra, 63 Cal.2d at p. 745.) One mayargue that under the Estrada case, unless there is a “savings clause” providing for prospective application, a statute lessening punishmentis presumed to apply to all cases not yet reduced to a final judgmentonthe statute’s effective date. Un re Estrada, supra, 63 Cal.2d at pp. 744-745, 747-748.) However, the Estrada case has been revisited by our Supreme Court on several occasions. In People v. Brown, supra, 54 Cal.4th at page 324 the court stated: “Estrada is today properly understood, not as weakening or modifying the default rule of Prospective operation codified in [Penal Code] section 3, but rather as informing the rule’s application in a specific context by articulating the reasonable presumption that a legislative act mitigating the punishment for a particular criminal offense is intended to apply to all nonfinal judgments.” “The holding in Estrada was founded onthe premisethat‘“[a] legislative mitigation of the penaltyfor a particular crime represents a legislative judgmentthat the lesser penalty or the different treatmentis sufficient to meet the legitimate ends of the criminal law,” (id. at p. 325.) In Brown, the court did not apply the Estrada rule because “a statute increasing the rate at which prisoners may earn credits for good behavior does not represent a judgment about the needsof the criminal law with respectto a particular criminal offense, and thus does not support an analogous inferenceofretroactiveintent.” (People v, Brown, supra,at p. 325.) Similarly here, Estrada does not control because applying the definition of “unreasonablerisk to public safety” in Proposition 47 to petitions for resentencing under the Act does not reduce punishmentfor a particular crime. Instead, the downward modification of a sentence authorized by the Act is dependent not just on the current offense but on any numberofunlimited factors related to the individual offender, includingcriminal conviction history, disciplinary and rehabilitation records, and “[aJny other evidencethe court, withinits discretion, determinesto be relevant in deciding whether a new sentence wouldresult in an unreasonable risk of danger to public safety.” (Pen. Code, § 1170.126, subd. (g)(3).) Becausesection 1170.18(c)’s definition of “unreasonablerisk of dangerto public safety” does not apply retroactively to the Act, the sentencing court applied the correct standard in exercisingits discretion to not resentence defendant.2 Since defendant has failed to show an abuse ofthatdiscretion, I concur in the majority’s affirmance of the judgment. PENA,J. 3Recently in People v. Chaney (Oct. 29, 2014 C073949) __ Cal.App.4th the Third District Court of Appeal heldthe definition of “unreasonable risk of dangerto public safety” as provided in section 1170.18(c) does not apply retroactively. I agree. DECLARATIONOF SERVICE BY MAIL I declare that I am a citizen of the United States and a resident of the County of Kern, California; I am over the age of eighteen years; my business addressis the Law Offices of Stephanie L. Gunther, 841 MohawkStreet, Bakersfield, California, 93309; and I am nota party to the cause: PEOPLE V. VALENCIA case number F067946/ CRF30714. On January 13, 2015, I served a copy ofthe attached PETITION FOR REVIEW insaid cause by placing a true copy thereof enclosed in a sealed envelope with first-class postage thereon fully prepaid, in the United States mail at Bakersfield, California, addressed as follows: Superior Court of California Tuolumne County 60 N. Washington Street Sonora, CA 95379 Attn: Hon. Eleanor Provost, Judge Departmentof Justice Office of the Attorney General P.O. Box 944255 Sacramento, CA 94244 Fifth District Court of Appeal 2424 Ventura Street Fresno, California, 93721 David Valencia, AB9906 Corcoran State Prison P.O. Box 8800 Corcoran, CA 93212 Tuolumne County District Attorney423 N. WashingtonStreet Sonora, CA 95370 Law Office of Mark Anthony Raimondo1712 19" Street, Suite 101Bakersfield, CA 93301 I declare under penalty of perjury under the lawsofthe State of California that the foregoingis true and correct and that this, Declaration was executed on January 13, 2015, at Bakersfield, California. \ \ . \\ Declarant