Order modifying dissent no change in judgment by the court



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Filed 7/12/16

CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT


THE PEOPLE,
Plaintiff and Respondent,
v.
JOHNNY MELENDEZ CORDOVA,
Defendant and Appellant.


H041050

(Santa Clara County

Super. Ct. No. 185632)

ORDER MODIFYING DISSENT

NO CHANGE IN JUDGMENT


BY THE COURT:
It is ordered that the dissenting opinion filed herein on June 24, 2016, be modified in the following particulars:
On page 70, first paragraph, after the first full sentence, the following sentence is added: “[I] recognize the basic principle of statutory and constitutional construction which 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.” (People v. Skinner (1985) 39 Cal.3d 765, 775.)
On page 70, first paragraph, the following citation is deleted: (See People v
. Florez, previously published at 245 Cal.App.4th 1176, review granted and opinion superseded June 8, 2016, S234168.)

There is no change in judgment.

Dated:

Premo, J.


Rushing, P.J. Márquez, J.

Filed 6/24/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


SIXTH APPELLATE DISTRICT



THE PEOPLE,
Plaintiff and Respondent,
v.
JOHNNY MELENDEZ CORDOVA,
Defendant and Appellant.


H041050

(Santa Clara County

Super. Ct. No. 185632)

Defendant Johnny Melendez Cordova is serving a sentence of 25 years to life under the “Three Strikes” law. He petitioned the trial court for resentencing under Penal Code section 1170.126 (§ 1170.126), which is part of the Three Strikes Reform Act of 2012, also known as Proposition 36 (Reform Act). That act entitled him to a reduction in his sentence unless such a reduction would “pose an unreasonable risk of danger to public safety.” (Pen. Code, § 1170.126, subd. (f) (§ 1170.126(f).) The trial court found this condition to be present and denied his petition on that ground. While this appeal from that ruling was pending, voters adopted the Safe Neighborhoods and Schools Act, also known as Proposition 47 (Safe Neighborhoods Act), which substantially narrowed the definition of “unreasonable risk of danger to public safety” as that phrase was “used throughout this Code.” (Pen. Code, § 1170.18, subd. (c) (§ 1170.18(c)).) We conclude that the new definition applies, in accordance with its plain terms, to determinations of dangerousness under the Reform Act, and that notwithstanding the presumption against statutory retroactivity, it applies to petitions that had already been adjudicated when it was adopted. Accordingly, we will reverse with directions to conduct a new hearing on defendant’s petition in which section 1170.18(c)’s definition of dangerousness will govern the determination whether resentencing will pose an unreasonable risk of danger to public safety. This disposition renders moot defendant’s challenge to the sufficiency of the evidence to sustain the trial court’s ruling under the prior standard. We reject defendant’s contentions that (1) conditioning relief on non-dangerousness violates his right to equal protection of the laws; (2) failing to prove dangerousness to a jury beyond a reasonable doubt violates his constitutional right to jury trial; and (3) a “strong presumption” favors resentencing. We emphasize, however, that the state bears the burden of proving that resentencing would create an unreasonable risk of danger as defined in section 1170.18(c).


BACKGROUND


  1. Defendant’s Strikes.

In May 1973, at the age of 19, defendant was charged with a number of felonies arising from two incidents on successive days. One incident involved a home invasion robbery in which, according to the police report, defendant held a woman and her children at gunpoint while threatening violence against them. According to a later decision by this court, defendant eventually accumulated four convictions for serious or violent felonies—commonly known as strikes—for purposes of the Three Strikes law, Penal Code sections 667 and 1192.7. (People v. Cordova (Nov. 25, 1998, H015896) [nonpub. opn.] [at pp. 16-17].)1

  1. Three Strikes Law.

Two decades after defendant sustained the foregoing convictions, voters and the Legislature, respectively, adopted the Three Strikes law.2 (Former Pen. Code, § 667 [Stats. 1994, ch. 12, § 1]; former Pen. Code, § 1170.12 [Prop. 184, as approved by voters, Gen. Elec. (Nov. 8, 1994)].) From its enactment until 2012, it provided that a defendant with a prior strike who was convicted of any subsequent felony would receive what came to be known as a “second strike” sentence, i.e., imprisonment for “twice the term otherwise provided as punishment.” (Pen. Code, § 667, subd. (e)(1), as adopted by Stats. 1994, ch. 12, § 1; id., § 1170.12, subd. (c)(1), as adopted by Prop 184.) One with two strikes who suffered a subsequent felony conviction would receive a “third strike” sentence of 25 years to life. (Former Pen. Code, §§ 667, subds. (e)(1), (e)(2)(A)(ii), as adopted by Stats. 1994, ch. 12, § 1]; former Pen. Code, § 1170.12, subds. (c)(1), (c)(2)(A)(ii), as adopted by Prop 184.)


  1. Defendant’s Third-Strike Conviction.

In December 1995 defendant was arrested on a charge of carrying a concealed dirk or dagger, a violation of former Penal Code section 12020, subdivision (a). (See now Pen. Code, § 21310.) In July 1996 a jury found him guilty of that offense. The offense was (and still is) a “wobbler,” i.e., it could be prosecuted either as a misdemeanor or a felony; if punished as a felony, it would ordinarily carry a maximum penalty of three years’ imprisonment. (Former Pen. Code, § 12020, subd. (a), as adopted by Stats.1994, ch. 23, § 4, p. 132; former Pen. Code, § 18, as adopted by Stats. 1976, ch. 1139, § 98, p. 5089; see now Pen. Code, §§ 21310, 1170, subd. (h).) As a third-striker, however, defendant was sentenced to prison for 25 years to life.3 This court affirmed the conviction and sentence. (People v. Cordova
, supra, H015896 [p. 17].)

  1. Reform Act.

Defendant was serving the above sentence on November 6, 2012, when voters adopted the Reform Act. It has two chief components: “the first part is prospective only, reducing the sentence to be imposed in future three strike cases where the third strike is not a serious or violent felony (Pen. Code, §§ 667, 1170.12); the second part is retrospective, providing similar, but not identical, relief for prisoners already serving third strike sentences in cases where the third strike was not a serious or violent felony (Pen. Code, § 1170.126).” (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1292 (Kaulick).) More specifically, the prospective provisions make new non-strike felonies generally punishable by a maximum sentence of double the base term—a former second-strike sentence—regardless of the number of strike priors. (Pen. Code, §§ 1170.12, subd. (c)(2)(C), 667, subd. (e)(2)(C).) The retrospective provision, section 1170.126(f), entitles third-strikers who would be eligible for reduced sentencing if their convictions were new to petition for recall of sentence.

Section 1170.26(f) directs that a petitioner who satisfies the criteria for eligibility “shall be resentenced” as a second-striker “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 thus granted, the court may consider: “(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; [¶] (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.” (Id., subd. (g).) However, the act contains no definition of “unreasonable risk of danger to public safety,” a phrase which, at the time of its adoption, appeared nowhere else in the Penal Code.4



  1. Petition and Appeal.

On August 22, 2013, defendant filed a petition for resentencing under section 1170.126(f). The court found that he satisfied the criteria for eligibility—a point the state does not contest—and appointed counsel to represent him. A clinical psychologist conducted a mental health examination and found no evidence that defendant, then 60 years old, would pose an unreasonable risk of danger to public safety if released. However, the prosecutor presented over 950 pages of records reflecting an extensive history of criminal conduct beginning at the age of 13. These materials alluded to a number of uncharged crimes involving incipient or actual violence, including two homicides in which defendant was reportedly implicated.5 In all, between 1973 and 1995, defendant was convicted of 17 misdemeanors and 12 felonies. The prosecutor also cited an extensive disciplinary history in prison, although the only incidents that appeared to involve violence were (1) a reported threat by defendant in 2004 against an inmate he reportedly believed was a child molester—an incident attributed by both inmates to a misunderstanding; (2) a four-inmate fight in 2006, the origins of which officers were unable to establish, but in which one of the inmates was apparently armed with a razor blade6; and (3) a beating of defendant in 2006 by a cellmate for unknown reasons. Evidence was also adduced of in-prison employment, with favorable reports by a supervisor, as well as participation in various rehabilitative and educational programs. The evidence showed a history of drug use up to a few months before the hearing on the petition.7

The trial court denied the petition on May 19, 2014, finding “nothing right up until the most recent triggering offense to suggest to this Court that the petitioner presents anything but a substantial risk to public safety.” Defendant took this timely appeal.



  1. Proposition 47.

While the appeal was pending, on November 4, 2014, the electorate enacted the Safe Neighborhoods Act. It reclassified certain drug and theft related felonies as misdemeanors and, mirroring the Reform Act, provided for recall of sentences already being served for the reclassified offenses. The resentencing provision, Penal Code section 1170.18 (§ 1170.18), echoes section 1170.126 in directing that the petitioner “shall be . . . resentenced . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (Id., subd. (b) (§ 1170.18(b).) But it goes on, as the Reform Act had not, to define this phrase: “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.” (§ 1170.18(c), italics added.) The cross-referenced section sets forth a limited list of “violent felony” offenses, sometimes known as “super strikes.” (See Couzens, et al., Prop47FAQs.pdf (November 2015),


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