People v. Garcia CA2/5

Filed 8/29/16 P. v. Garcia CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B267788

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA030813) v.

JOSE GARCIA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Scott M. Gordon, Judge. Affirmed. Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION In 1997, a jury convicted defendant, Jose Garcia, of unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a)) and joyriding (Pen. Code, § 499b).1 The jury also found defendant had previously sustained three prior serious felony convictions. Defendant was sentenced to 25 years to life in state prison pursuant to sections 667, subdivision (e)(2) and 1170.12, subdivision (c)(2). We affirmed the judgment on direct appeal. (People v. Garcia (Feb. 24, 1998, B113434) [nonpub. opn.].) The present appeal is from an order denying defendant’s section 1170.126, subdivision (b) resentencing petition. We affirm the order. II. DISCUSSION A. “Unreasonable Risk of Danger” The trial court found defendant was eligible for resentencing, however, he posed an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).) Defendant seeks a remand for the trial court to apply the more narrow definition of “unreasonable risk of danger to public safety” found in subsequently enacted section 1170.18, subdivision (c). Defendant contends, “A remand is necessary to give the trial court an opportunity to evaluate [defendant’s] suitability for resentencing under the proper legal standard.” We find no reason to remand. The question whether the unreasonable risk standard in section 1170.18, subdivision (f), applies to a section 1170.126 petition is pending before our Supreme Court in numerous cases. We agree with the existing authority. (People v. Esparza (2015) 242 Cal.App.4th 726, 736-737.) Further, there is no evidence the voters intended that 1170.18, subdivision (c) govern a determination made pursuant section 1170.126, subdivision (f). Given the foregoing, we need not address defendant’s arguments that are premised on a contrary analysis. The Attorney General argues that the unreasonable risk of harm to public safety definition in section 1170.18, subdivision (c) does not govern a determination made pursuant section 1170.126, subdivision (f). We