People v. Flores

Filed 7/8/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B250829 (Super. Ct. No. 200635236) Plaintiff and Respondent, (Ventura County)

v.

MARK ANTHONY FLORES,

Defendant and Appellant.

There are limits to the Three Strikes Reform Act of 2012 (The Reform Act). Relief may be denied in the discretion of the sentencing court upon a finding that a reduced sentence would "pose an unreasonable risk of danger to public safety." (Pen Code § 1170.126(f).) 1 Mark Anthony Flores asked the trial court to reduce his third-strike 25-year-to-life sentence and resentence him as a second-strike offender. The trial court denied relief impliedly finding that he was outside the "spirit" of The Reform Act. Appellant mounts a facial challenge to the law. He contends that the phrase "pose an unreasonable risk of danger to public safety" is unconstitutionally vague. In addition, he contends that the trial court erroneously required the People to prove his dangerousness by a preponderance of the evidence instead of beyond a reasonable doubt. Finally, he contends the trial court erroneously refused to remove his shackles during his testimony at the hearing on the petition. We affirm.

1 All statutory references are to the Penal Code.

Original Sentence and Appeal Appellant was convicted by a jury of the unauthorized taking of a vehicle, a nonserious and nonviolent offense. (Veh. Code, § 10851, subd. (a).) He admitted allegations of one prior prison term (§ 667.5, subd. (b)) and two prior serious or violent felonies within the meaning of California's "three strikes" law. (§§ 1170.12, subds. (a)- (d); 667, subds. (b)-(i).) He was sentenced to prison for 25 years to life plus one year for the prior prison term. He appealed, contending that, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the trial court had abused its discretion by refusing to dismiss one of the two prior strikes. We affirmed in an unpublished opinion, People v. Flores (July 21, 2009) B207801. Appellant was outside the "spirit" of Romero. (People v. Williams (1998) 17 Cal.4th 148, 161.) The Reform Act The Reform Act was added by Proposition 36, which was approved by the voters on November 6, 2012. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1285 (Kaulick).) "Under the 'three strikes' law [citation] as it existed prior to Proposition 36, a defendant convicted of two prior serious or violent felonies would be subject to a sentence of 25 years to life upon conviction of a third felony. Under the Act, however, a defendant convicted of two prior serious or violent felonies is subject to the 25–years–to–life sentence only if the third felony is itself a serious or violent felony. If the third felony is not a serious or violent felony, the defendant will receive a sentence as though the defendant had only one prior serious or violent felony conviction, and is therefore a second-strike, rather than a third-strike, offender. The Act also provides a means whereby prisoners currently serving sentences of 25 years to life for a third felony conviction which was not a serious or violent felony may seek court review of their indeterminate sentences and, under certain circumstances, obtain resentencing as if they had only one prior serious or violent felony conviction. According to the specific language of the Act, however, a current inmate is not entitled to resentencing if it would