The parties agreed that defendant’s commercial burglary conviction qualified as a
misdemeanor shoplifting conviction. (§ 459.5 [defining shoplifting as including entering
a commercial establishment during regular business hours with intent to commit or
committing larceny where value of property taken or intended to be taken does not
exceed $950].) The parties also agreed that, had defendant’s petition been granted at the
January 12, 2015, hearing on the petition, defendant would have been eligible for
immediate release from prison. However, the court denied the petition on the ground
defendant posed an unreasonable risk of danger to public safety. (§ 1170.18, subds. (b),
(c).)
Defendant claims the court erroneously applied the preponderance of the evidence
standard to its unreasonable risk of dangerousness determination. He argues the
prosecution was required to prove his dangerousness to a jury beyond a reasonable doubt
or, at the very least, based on clear and convincing evidence. He also claims the court
1 Unspecified statutory references are to the Penal Code.
2
abused its discretion in finding he posed an unreasonable risk of danger to public safety
under any standard of proof. We find no error or abuse of discretion, and affirm.
II. BACKGROUND
On September 16, 2014, defendant pled guilty to commercial burglary (§ 459), a
felony, and admitted a strike prior. In entering his plea, defendant admitted in court that
he entered a Kmart store in the City of Riverside “with the idea of taking some of their
property.” The guilty plea form that defendant signed does not indicate the
circumstances of the crime, but the People represent that the commercial burglary was
committed on September 3, 2014, when defendant, while on active parole, left a Kmart
store without paying for an ink cartridge worth $24.99.2 On September 16, 2014,
defendant was sentenced to 16 months in prison on the burglary conviction, doubled to
32 months based on the strike prior.
On November 14, 2014, defendant petitioned the court to recall his 32-month
sentence and resentence him to not more than six months in county jail, or time served.
(§§ 19, 459.5, 1170.18, subd. (a).) The People opposed the petition and requested a
hearing to determine whether defendant posed an unreasonable risk of danger to public
safety. At a June 12, 2015, hearing, the court found that defendant posed an
unreasonable risk of danger to public safety and denied the petition.
2 In exchange for defendant’s guilty plea to commercial burglary, the People dismissed two misdemeanor charges, one for theft (Pen. Code, § 490.5) and another for possessing a glass methamphetamine pipe (Health & Saf. Code, § 11364.1).
3
III. DISCUSSION
A. Proposition 47, Overview of Relevant Provisions
In the November 4, 2014, election, the voters enacted Proposition 47, “The Safe
Neighborhoods and Schools Act” (Proposition 47 or the Act), and the Act went into
effect on November 5, 2014. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) As
pertinent, the Act added sections 459.5 and 1170.18 to the Penal Code. (People v.
Rivera, supra, at p. 1091.) Section 459.5 defines “shoplifting” as “entering a commercial
establishment with intent to commit larceny while that establishment is open during
regular business hours, where the value of the property that is taken or intended to be
taken does not exceed nine hundred fifty dollars ($950).” (§ 459.5, subd. (a).)
Shoplifting must be punished as a misdemeanor unless the defendant has one or more
disqualifying prior convictions. (Ibid.)3 Generally, misdemeanors are punishable by
imprisonment in the county jail for not more than six months. (§ 19.)
Under section 1170.18, subdivision (a), a person who is currently serving a
sentence for a felony conviction that would have been a misdemeanor under the Act may
petition the court that entered the judgment of conviction to recall the person’s felony
sentence and resentence the person as if he or she had been convicted of the
misdemeanor. If the court determines that the defendant satisfies the criteria of section
3 For purposes of section 459.5, a prior conviction is a conviction for an offense specified in section 667, subdivision (e)(2)(C), or an offense requiring registration as a sex offender under section 290, subdivision (c). Persons with one or more such prior convictions may be punished pursuant to section 1170, subdivision (h).
4
1170.18, subdivision (a), the court is required to recall the felony sentence and resentence
the defendant to the misdemeanor sentence, “unless the court, in its discretion,
determines that resentencing the petitioner would pose an unreasonable risk of danger to
public safety.” (§ 1170.18, subd. (b).)
B. Defendant Was Not Entitled to a Jury Trial on the Dangerousness Finding, and the
Proper Standard of Proof Was Preponderance of the Evidence
Defendant first claims he had a right to a jury trial on the dangerousness finding,
and that the prosecutor had the burden of proving his dangerousness beyond a reasonable
doubt or, at the very least, by clear and convincing evidence. We disagree.
Other courts have rejected this claim in the context of Proposition 36, the Three
Strikes Reform Act of 2012 (Proposition 36) and its resentencing provision, section
1170.126. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1302-1305
(Kaulick); People v. Flores (2014) 227 Cal.App.4th 1070, 1075-1076.) Like section
1170.18, which requires the court not to recall a defendant’s felony sentence and
resentence the defendant under Proposition 47 if the court finds the defendant would pose
an unreasonable risk of danger to public safety (§ 1170.18, subds. (b), (c)), section
1170.126 includes a similar dangerousness provision (§ 1170.126, subd. (f)). The
reasoning of Kaulick and Flores applies with equal force to dangerousness
determinations under Proposition 47, regardless of whether “‘unreasonable risk of danger
to public safety’” has the same meaning in sections 1170.18 (Proposition 47) and
1170.126 (Proposition 36). (See § 1170.18, subd. (c) [defining “‘unreasonable risk of
5
danger to public safety’” “[a]s used throughout this Code”]; People v. Cordova (June 24,
The court did not exceed the bounds of reason in determining that defendant was
likely to commit a super strike if resentenced under Proposition 47. The court reasonably
determined that defendant’s 1997 robbery, assault, and battery convictions, in
combination with his multiple rule violations in prison and his multiple parole violations
following his July 2011 release from prison, showed he was likely to commit a super
strike. Indeed, defendant personally used a firearm in the 1997 robbery, and personally
inflicted great bodily injury on Mootry, the victim of the 1997 robbery. In sum, the
evidence amply supports the court’s determination that defendant posed an unreasonable
4 The People also presented evidence that defendant was indicted in 1995 on charges that were later dismissed, and was arrested in 2014 but not charged with a crime. At the June 12, 2015, hearing, the court made it clear that it was not considering the evidence of defendant’s 1995 indictment or his 2014 arrest in denying defendant’s resentencing petition on dangerousness grounds.
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risk of danger to public safety, that is, that he was likely to commit a super strike,
namely, murder, attempted murder, or solicitation to commit murder, if resentenced on
his 2014 commercial burglary conviction under Proposition 47.
IV. DISPOSITION
The order denying defendant’s Proposition 47 petition is affirmed.
CERTIFIED FOR PUBLICATION
CODRINGTON J.
We concur:
RAMIREZ P. J.
McKINSTER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant seeking resentencing under Proposition 47 has no constitutional right to a jury trial on the issue of dangerousness, and that the prosecution's burden of proof for such a finding is by a preponderance of the evidence. Furthermore, the court did not abuse its discretion in denying the petition based on the defendant's history of violent crime, prison disciplinary record, and parole violations.
Issues
Does a defendant have a Sixth Amendment right to a jury trial on the issue of dangerousness under Proposition 47?
What is the standard of proof for a trial court's determination of dangerousness under Proposition 47?
Did the trial court abuse its discretion in finding that the defendant posed an unreasonable risk of danger to public safety?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The proper standard of proof on a dangerousness finding is the default standard of proof by a preponderance of the evidence.”
“The court did not exceed the bounds of reason in determining that defendant was likely to commit a super strike if resentenced under Proposition 47.”