P. v. Ford

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Filed 6/24/15 P. v. Ford CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
SAMMIE LEE FORD,
Defendant and Appellant.
A138848
(Sonoma County
Super. Ct. No. SCR32085)
Sammie Lee Ford is currently serving two indeterminate 25 year to life sentences
as a three-strike offender. He appeals from an order denying his petition to be
resentenced as a two-strike offender under Proposition 36, the “Three Strikes Reform Act
of 2012” that amended Penal Code sections 667 and 1170.12, and added Penal Code
section 1170.126 (Prop 36). (See People v. Yearwood (2012) 213 Cal.App.4th 161,
167.)1 Ford is eligible for resentencing under Prop 36, but the court denied his request
because it found that he represents a “danger to public safety” within the meaning of Prop
36. (§ 1170.126, subd. (f) [eligible 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”].)
Ford contests this ruling on multiple grounds, arguing among other things that the
court applied the wrong burden of proof and standards in making its determination,
including failure to apply the definition of “unreasonable risk of danger to public safety”
1 Unless otherwise indicated, further statutory references are to the Penal Code.

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contained in Proposition 47 that was approved by the voters in November 2014.
(§ 1170.18, subd. (c).) These arguments lack merit.
A unique development in Ford’s case is that the trial court file pertaining to his
burglary convictions was destroyed, and when it was reconstructed it did not include his
unsuccessful motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero) in connection with his sentencing as a third-striker. He asked the court to
consider the arguments made in his Romero motion in passing on his petition for
resentencing under Prop 36. At the hearing on resentencing, the court said that it
reviewed the case file in ruling on Ford’s petition, but the file did not contain the Romero
motion, so the court did not have all potentially relevant information when it made its
determination.
We conclude that this error was harmless, and that the court did not abuse its
discretion when it denied Ford’s resentencing petition. Accordingly, we affirm.
I. BACKGROUND
A. Ford’s Criminal Record
In 1987, at age 13, Ford was arrested for driving a stolen vehicle, and was placed
in a juvenile detention camp. In 1989, he was released from camp and returned to his
mother’s custody.
In 1990, he was arrested in a stolen vehicle. The victim reported that Ford put a
gun to his head and said, “Don’t move, give me the keys and get out of the car.” He was
found to have committed armed robbery, and was committed to the Youth Authority for a
maximum of five years.
In 1992, after being paroled from the Youth Authority, he committed a robbery
and was sentenced to state prison.
In 1993, he was convicted of voluntary manslaughter for participating in a gang-
related shooting along with Taumu James and Michael Bourgeois.
In 1995, he violated parole on the 1992 robbery.
In 1997, he again violated parole on that offense.

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In 1998, seven months after being discharged from parole for the 1992 robbery, he
was convicted of driving under the influence.
In 2002, he was convicted of burglarizing a jewelry store in West Covina on
March 4, 2001. He, James, and Bourgeois made off with jewelry valued between
$400,000 and $500,000. They were apprehended, the jewelry was recovered, and they
were released from custody.
On March 12, 2001, eight days after the West Covina heist, Ford committed the
crimes for which he was sentenced in this case. He, James, Bourgeois, and another
accomplice burglarized two jewelry stores in Petaluma, stealing about $15,000 in
jewelry.
We affirmed the judgment for the Petaluma burglaries, which sentenced him to
two concurrent terms of 25 years to life, plus two years and four months for the West
Covina offense. (People v. Ford (June 24, 2004, A101999) [nonpub. opn.].)2
B. Ford’s Prison Record
In 2003, Ford engaged in mutual combat with another inmate, disobeyed an order,
and committed a library infraction.
In 2004, he delayed lockup.
In 2005, he disobeyed an order.
In 2006, he disobeyed an order.
In 2008, he tested positive for marijuana.
In 2009, marijuana and a cell phone were found in his cell. The wires on the TV
in the cell had been altered to charge the phone.
2 We grant: (1) the People’s request for judicial notice of our prior opinion in the
case; (2) Ford’s request to augment the record to include: People’s Exhibit 1 at the
resentencing hearing, Ford’s rap sheet; People’s Exhibit 2 at the hearing, Department of
Corrections and Rehabilitation records of Ford’s incarceration; the reporter’s transcript of
Ford’s 2003 sentencing hearing; Ford’s 2003 Romero motion and exhibits; a 2013
Sonoma County Superior Court employee’s declaration regarding the destruction and
reconstitution of the case file; and the docket in the case; and (3) Ford’s request for
judicial notice of the text of Proposition 47 and its accompanying ballot materials.

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In 2012, he had another cell phone, hidden in a jar of peanut butter.
The prison records show that Ford completed educational programs that included
instruction in electrical work, fiber optic cables, welding, and office machine repair.
C. Probation Department’s Recommendation
The probation department filed a report recommending that the court deny Ford’s
resentencing petition. The department believed that Ford had been “righteously
sentenced” as a three-strike offender, and that while his prison record was only
“moderately worrisome,” the department was “especially troubled that it appears Mr.
Ford may have utilized his extensive training in electronics while in custody to his
advantage, having been found twice with a cell phone in his cell, including an occasion
where the phone was being charged via wire tampering with the television. However . . .
it is the defendant’s prior record and commitment offenses that are truly telling as to the
danger the defendant poses.”
The department continued: “The defendant’s prior record clearly demonstrates a
high level of violent behavior. His commitment offenses, while admittedly limited to
commercial burglaries, are still extremely troubling, given the sophistication and
planning as well as the targeted businesses—these were not petty thefts or low level
felonious behavior, but highly coordinated criminal acts intended to yield high dollar
amounts. [¶] While we are cognizant of the intentions of Proposition 36, we believe Mr.
Ford represents the small percentage of inmates eligible for resentencing whose petition
should be denied . . . .”
D. The Hearing on the Petition
Ford addressed the court at the hearing on the resentencing petition, and the
matter was submitted on the parties’ briefs, the probation department report, the case file,
the People’s exhibits, and arguments at the hearing. Defense counsel noted that the
police reports and plea transcript in the manslaughter case, which were attached to Ford’s
Romero motion, showed that Ford was not the shooter, and that he was released from
custody on the case after entry of his plea. The prosecutor observed that the police
reports showed Ford was in the car from which the shots were fired, “bullets were fired

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throughout a neighborhood over several houses,” more than one gun was used, and Ford
told the other participants they should get rid of the guns.
The court recalled the trial and convictions in this case, and acknowledged that
Ford did not use a gun in the manslaughter. After recounting Ford’s criminal record and
prison citations, the court found that Ford “is simply not willing to accept that there are
rules of society that have to be followed.” The court determined the People had proven
by a preponderance of the evidence that Ford would pose an unreasonable risk of danger
to public safety if he were resentenced, and denied the petition.
II. DISCUSSION
A. Appealability and Lack of Notice to the Victims
When this appeal was filed, there was some question as to whether the order
denying the petition was appealable. Our Supreme Court has since effectively confirmed
that it was. (Teal v. Superior Court (2014) 60 Cal.4th 595, 597 [“the trial court’s denial
of the petition for recall is an appealable order”].)
The People argue that this appeal should be dismissed because there is no record
that Ford’s victims were given notice of the hearing on the petition. (Cal. Const., art.
I, § 28, subd. (b)(7); § 1170.126, subd. (m); People v. Superior Court (Kaulick) (2013)
215 Cal.App.4th 1279, 1300 [victim has the rights to notice and to be heard at a
dangerousness hearing] (Kaulick).) However, as Ford points out, no law requires the
defendant to provide the notice, the lack of notice did not deprive the court of jurisdiction
to proceed on the petition (see People v. Superior Court (Thompson) (1984) 154
Cal.App.3d 319, 321–322), and the victims were not prejudiced because the petition was
denied.
There are no grounds for dismissal of the appeal.
B. Burden of Proof
Ford contends that the People were required to prove he is dangerous by proof
beyond a reasonable doubt, rather than by a preponderance of the evidence, because the
court’s determination “increased the maximum available sentence.” (See Apprendi v.
New Jersey (2000) 530 U.S. 466, 490; Blakely v. Washington (2004) 542 U.S. 296, 303.)

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Ford reasons the dangerousness finding increased his maximum available sentence
because the mandatory nature of eligibility under Prop 36 resentencing made him a two-
strike, rather than a three-strike, offender.
This argument was persuasively rejected in Kaulick. There, the court concluded
that “[t]he maximum sentence to which Kaulick, and those similarly situated to him, is
subject was, and shall always be, the indeterminate life term to which he was originally
sentenced” (Kaulick, supra, 215 Cal.App.4th at p. 1303), and that “dangerousness is not a
factor which enhances the sentence imposed when a defendant is resentenced under [Prop
36]; instead, dangerousness is a hurdle which must be crossed in order for a defendant to
be resentenced at all” (ibid.). Moreover, Dillon v. United States (2010) 560 U.S. 817,
828, established that “a defendant’s Sixth Amendment right to have essential facts found
by a jury beyond a reasonable doubt do not apply to limits on downward sentence
modifications due to intervening laws,” such as exercises of lenity like Prop 36.
(Kaulick, supra, at p. 1304.) We agree with this analysis. (See also People v. Flores
(2014) 227 Cal.App.4th 1070, 1075–1076 [concurring with Kaulick]; People v. Losa
(2014) 232 Cal.App.4th 789, 792–793 [right to equal protection does not require proof
beyond a reasonable doubt].)
C. Alleged Application of Incorrect Standards
Ford contends that the order denying his resentencing petition must be reversed
because the court applied the wrong standards to deny it.
(1) Risk of Recidivism Versus Risk of Future Violence
Ford contends that the court’s finding that he is unable to “play by the rules”
erroneously focused on his potential for recidivism in general, rather than his potential for
violence. Ford notes that he has not been violent since his fight in prison in 2003, and
contends that he could not be found to “pose an unreasonable risk of danger to public
safety” under section 1170.126, subdivision (f) if potential for violence is the only valid
consideration.
We are not persuaded by Ford’s narrow interpretation of Prop 36. If the risk of
violence was Prop 36’s only concern, then presumably it would not have made persons

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serving time for certain drug offenses ineligible for resentencing. (§ 1170.126, subd.
(e)(2); § 1170.12, subd. (c)(2)(C); Health & Saf. Code, § 11370.4.) Prop 36 does not
refer to “violence,” it refers to “safety,” which connotes freedom from a wider range of
harms. Crimes that by their nature are not necessarily violent nonetheless threaten public
safety. (See, e.g., People v. Hughes (2002) 27 Cal.4th 287, 355 [burglary laws reflect a
concern for personal safety].) We therefore conclude that “public safety” within the
meaning of the statute is not confined to freedom from violence, and that the court
properly considered Ford’s overall potential for recidivism when it denied his petition.
(2) Scope of the Court’s Discretion
Ford argues that the court had only very limited discretion to determine that he
would be an unreasonable danger to public safety if he were resentenced. This argument
is based on two theories. First, under precedents interpreting section 190.5, subdivision
(b), the juvenile life-without-parole statute (LWOP), the “shall/unless” language of
section 1170.126, subdivision (f) that “the petitioner shall be resentenced . . . unless the
court . . . determines [otherwise]” creates a presumption in favor of resentencing that
circumscribes the court’s discretion to disallow it. Second, under precedents reviewing
Romero motions, denial of resentencing petitions under section 1170.126 is only allowed
in “ ‘extraordinary’ cases.” Neither theory holds up.
Section 190.5, subdivision (b) provides that the punishment for a 16- or 17-year
old convicted of special-circumstances murder “shall be confinement in the state prison
for life without the possibility of parole or, at the discretion of the court, 25 years to life.”
People v. Guinn (1994) 28 Cal.App.4th 1130, 1142, reasoned that LWOP under this
language was “generally mandatory” and “the presumptive punishment,” and the statute
“concomitantly circumscribed [the court’s discretion] to that extent.” This reasoning was
disapproved in People v. Gutierrez (2014) 58 Cal.4th 1354, 1371, shortly after
completion of the first round of briefing in Ford’s appeal. The Gutierrez court concluded
the statute did not establish a presumption in favor of an LWOP sentence, but rather
allowed “select[ion] [of] one of the two penalties . . . with no presumption in favor of one

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or the other.” (Ibid.) We read 1170.126 the same way, and conclude that it establishes
no presumption that resentencing will be granted.
The Romero authorities on which Ford relies are also inapposite. The Three
Strikes Law “was intended to restrict court’s discretion in sentencing repeat offenders.”
(Romero, supra, 13 Cal.4th at p. 528.) The law “not only establishe[d] a sentencing norm
. . . the law create[d] a strong presumption that any sentence that conforms to these
sentencing norms is both rational and proper.” (People v. Carmony (2004) 33 Cal.4th
367, 378.) Accordingly, “stringent standards” were set for striking or vacating strikes.
(Id. at p. 377.) The discretion to do so could be exercised only in “extraordinary”
circumstances (id. at p. 378), when the defendant could be “deemed outside the scheme’s
spirit” (id. at p. 377).
We discern no similar intent to limit the court’s discretion to deny resentencing
under Prop 36. Section 1170.126, subdivision (g) provides that in determining whether a
petitioner poses an unreasonable danger under subdivision (f), “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.” Identifying the relevant considerations
so broadly evidences an intent to grant courts very wide discretion in deciding whether
resentencing an offender would unreasonably endanger public safety.
Ford’s arguments for more limited discretion are mistaken.
(3) Whether Proposition 47 Applies
Prop 36 was approved on November 6, 2012 (Kaulick, supra, 215 Cal.App.4th at
p. 1285), and became effective on November 7, 2012 (Cal. Const., art. II, § 10, subd. (a)).
It provides that petitions for resentencing may be filed “within two years after the
effective date of the act . . . or at a later date upon a showing of good cause . . . .”
(§ 1170.126, subd. (b).) On November 4, 2014, the voters approved Proposition 47 (Prop

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47), and it became effective on November 5, 2014, two days before expiration of the two-
year period to file for resentencing under Prop 36.
The people enacted Prop 47, in part, “to ensure that prison spending is focused on
violent and serious offenses.” (Prop 47, § 2.) “[P]eople convicted of murder, rape, and
child molestation will not benefit from this act.” (Prop 47, § 3, subd. (1).) Prop 47
“[r]equire[s] misdemeanors instead of felonies for nonserious, nonviolent crimes like
petty theft and drug possession, unless the defendant has prior convictions for specified
violent or serious crimes.” (Prop 47, § 3, subd. (3).)
Under Prop 47 prisoners serving felony sentences could apply to have their
convictions reduced to misdemeanors, “unless,” as also provided in Prop 36, “the court in
its discretion, determines that resentencing the petitioner would pose an unreasonable risk
of danger to public safety.” (§ 1170.18, subd. (b).) Prop 47 then repeats Prop 36’s
language setting forth the broad range of considerations the court can take into account in
making this determination. (§ 1170.18, subds. (b)(1) – (b)(3).) However, it then adds
the following qualification: “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, subd. (c) (italics added).) Those felonies
are: specified sex offenses, any homicide offense, solicitation to commit murder, assault
with a machine gun on a peace officer or firefighter, possession of a weapon of mass
destruction, and any serious or violent felony punishable by life imprisonment or death.
(§ 667, subd. (e)(2)(C)(iv).)
In supplemental briefing, Ford contends that Prop 47’s definition of “unreasonable
risk of danger to public safety” (§ 1170.18, subd. (c)) applies to those terms as used in
Prop 36 (§ 1170.126, subds. (f), (g)).3 He contends that the order denying his petition
must be reversed and the petition granted because there is no substantial evidence from
3 Our Supreme Court has granted review in cases presenting this issue. (E.g.
People v. Payne (2014) 232 Cal.App.4th 579, rev. granted Mar. 25, 2015.)

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which to find that he is a threat to commit any of the specific offenses listed in section
667, subdivision (e)(2)(C)(iv). He argues that, at the least, a new hearing on the petition
is required in order to consider his threat to public safety under the Prop 47 standard.
“In interpreting a voter initiative . . . we apply the same principles that govern
statutory construction.” (People v. Rizo (2000) 22 Cal.4th 681, 685.) “ ‘The fundamental
purpose of statutory construction is to ascertain the intent of the lawmakers so as to
effectuate the purpose of the law.’ ” (Horwich v. Superior Court (1999) 21 Cal.4th 272,
276.) Although the text of a statute may be the best indicator of legislative intent, “we
may reject a literal construction that is contrary to the legislative intent apparent in the
statute or that would lead to absurd results.” (Simpson Strong-Tie Co., Inc. v. Gore
(2010) 49 Cal.4th 12, 27.) Ultimately “intent prevails over the letter of the law and the
letter will be read in accordance with the spirit of the enactment.” (In re Michele D.
(2002) 29 Cal.4th 600, 606.)
As we have said, Prop 36 gives courts very wide discretion to consider public
safety in deciding whether sentences for three strike offenders can be reduced. That
discretion afforded courts in Prop 36 would be eviscerated if the words “[a]s used
throughout this Code” in section 1170.18 were applied to alter the definition of
“unreasonable risk of danger to public safety” in section 1170.126. Prop 36’s broad
inquiry would be reduced to an examination of the potential for commission of only a
handful of specified extremely serious crimes. Nothing in the Legislative Analyst’s
description or the ballot arguments concerning Prop 47 indicate it would have that drastic
effect on resentencing under Prop 36. Nor would the substance of Prop 47, which
appeared to deal only with low-level offenders guilty of relatively minor drug and
property crimes, have suggested to the voters that it was intended to have any effect on
the treatment of three-strike felons under Prop 36. It would be anomalous to conclude
that Prop 47 was intended to affect resentencing under Prop 36 when it was approved
only three days before Prop 36’s deadline to petition for resentencing.
Moreover, applying Prop 47’s definition of an “unreasonable risk of danger to
public safety” to resentencing under Prop 36 would lead to absurd results. Unlike the

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prisoners affected by Prop 47, the prisoners eligible for resentencing under Prop 36 are
third strikers serving sentences for felonies that cannot be reduced to misdemeanors.
While there may be a certain logic to limit the range of offenses that may create a risk of
danger to public safety for those whose most recent convictions are for crimes now
classified as misdemeanors, that logic disappears when the Prop 47 standard is applied to
third strike felons. For example, if a felon’s potential threat to public safety is considered
in light of the limiting language in section 1170.18, subdivision (c) as amended by Prop
47, a propensity to commit spousal rape (§ 262) could disqualify an inmate from
resentencing under Prop 36 but a propensity to commit statutory rape could not (§ 261.5).
(See § 1170.18, subd. (c) [including § 262 but omitting § 261.5].) Neither could a
propensity to commit such serious crimes as inducing sexual acts by fear, human
trafficking, providing a child under the age of sixteen for sexual acts, abduction for
prostitution, arson, or shooting at an inhabited dwelling. (§ 1170.18, subd. (c) [omitting
§§ 246, 266c, 266f, 266j, 267, 450].) Prop 36 contains no specification of the range of
potential crimes that may bar resentencing, and it makes no sense to apply Prop 47’s
limited list of offenses when considering whether resentencing could pose a threat to
public safety under Prop 36.
For these reasons, we conclude that, despite its wording, section 1170.18 was not
intended to and did not qualify determinations made under section 1170.126, and that
Prop 47 is of no benefit to Ford.
D. Failure to Consider Ford’s Romero Motion
Ford has lodged a declaration from the superior court clerk, stating that his case
file was destroyed in March 2012. The file was “reconstructed in part” with copies of
documents from the District Attorney’s office, but did “not contain all the filed
documents that were in the original court file.” As we have indicated, in support of
Ford’s petition for resentencing under Prop 36, his counsel asked the court to consider his
unsuccessful Romero motion that was before the court when he was originally sentenced
in the case. In passing on the resentencing petition, the court said it reviewed the case
file, but the reconstituted file apparently did not include the 2003 Romero motion. We

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will assume that this omission deprived Ford of his right to due process, but conclude that
the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386
U.S. 18, 24.)
Ford maintains that the following facts, cited in the Romero motion, were material
to his resentencing petition:
“When Mr. Ford was apprehended in a rental car following the Los Angeles
County burglary, no jewelry or burglary tools were located in the vehicle. . . . Rather,
jewelry was located in the vehicle driven by another co-defendant. . . . Ford was arrested
without incident shortly after the burglary.”
“When Mr. Ford was apprehended by police following the Sonoma County
commercial burglary, again no jewelry or burglary tools were located in his vehicle. . . .
The police did find jewelry in the second rental car driven by Michael Bourgeois. . . .
Unlike his co-defendant, Mr. Ford was not speeding. . . .
“During the 1992 robbery, Mr. Ford and a co-defendant took a vehicle from the
immediate possession of its owner. Mr. Ford did not use a weapon to accomplish the
taking, and the victim was not injured. . . . Mr. Ford’s co-defendant drove the vehicle
following the theft.”
“With regard to the 1992 voluntary manslaughter incident, it was Taumu James’
idea to perpetrate the crime, not Mr. Ford’s. . . . Mr. Ford did not discharge a firearm or
use any other weapon during the incident.
“There is minimal evidence linking Mr. Ford to the 1992 voluntary manslaughter
incident other than statements placing him in the car as a passenger. There were no
witnesses.
“Mr. Ford’s negotiated plea in the voluntary manslaughter case, which he made
prior to the enactment of the Three Strikes Law, was a ‘package agreement’ requiring all
four defendants to accept the district attorney’s offer.”
Counsel here is grasping at straws. It is clear from our prior opinion in the case
that the Petaluma burglaries were coordinated affairs in which Ford was an active
participant. He had rented one of the two getaway cars and was driving it when he was

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arrested. Windows had been broken at one of the stores, and Ford had glass fragments on
his shoes. Surveillance photos showed a man resembling Ford at the scene. Ford
overstates it when he says that no burglary tools were found in his car. Items recovered
in the car included flashlights, a pillow case, and a ski cap with eye and mouth holes cut
out. Whether the jewelry and tools were found in the other car was, in any event,
immaterial.
The Romero motion acknowledged that the circumstances of the West Covina
burglary were very similar to those in Petaluma, involving two rental cars and three of the
same individuals. That Ford’s rental car did not contain any of the jewelry or burglary
tools was, again, insignificant.
The facts that the 1992 robbery involved theft of a vehicle without injury to the
victim, and that Ford did not use a weapon to commit the offense or drive the vehicle
away, were also inconsequential.
The police reports for the manslaughter offense attached to the Romero motion
showed that it was a very violent crime, where 45 shell casings were recovered, and
bullets hit a number of homes as well as the victim. Ford was not charged with being the
shooter, but reportedly advised his cohorts to get rid of the guns that were used. The
mitigated circumstances of the offense Ford cites did not outweigh his no contest plea.
At the hearing on the resentencing petition, the court recognized that Ford did not use a
gun in the manslaughter case.
Ford writes: “[T]he prosecution highlighted in its May 8, 2013 sentencing brief
that [he] utilized a firearm in the robbery he committed as a juvenile. . . . Thus, the court
was aware that [he] had used a firearm during the 1990 robbery . . . and was also aware
that a firearm had been used by [his] cohort during the 1992 voluntary manslaughter. . . .
Given that the presentence reports did not provide any details whatsoever regarding the
1992 robbery . . . and that the court was aware that firearms had been used during some
of [his] prior offenses, it is certainly conceivable that the court presumed [he] used a
firearm during the 1992 robbery. A review of the Romero motion and exhibits, as
explicitly requested by [his] trial counsel . . . would have revealed that [he] did not use a

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weapon to accomplish the 1992 robbery, and the victim was uninjured.” But nothing in
the record indicated that the court jumped to any conclusion that the force or fear in the
1992 robbery involved use of a gun, and it is entirely speculative to believe the court was
under any misconception concerning that crime.
There was no prospect that the outcome of the resentencing petition would have
been different if the court had taken the unsuccessful Romero motion into account.
E. Scope of Review and Decision on the Merits
We agree with Ford that factual findings made in connection with resentencing
petitions are subject to review for substantial evidence. Ford’s record of criminal
offenses and prison infractions provided substantial evidence to support the court’s
finding “that he is simply not willing to accept that there are rules of society that have to
be followed.”
The broad discretion given to the court in ruling on these petitions dictates that the
ultimate decision be reviewed only for abuse of that discretion. “[A] trial court does not
abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (People v. Carmony, supra, 33 Cal.4th at p. 377.) One
reasonable way to view the evidence, well argued for Ford in the trial court and on
appeal, is that he is a peaceable, fully-reformed former gang member who no longer
presents any significant danger to society. Another reasonable way to view his record is
that of an incorrigible miscreant, who has consistently violated criminal laws and prison
rules. The choice between these reasonable alternatives was for the trial court to make,
and cannot be reversed under abuse of discretion review.
Ford contends that the court erroneously failed to consider various relevant facts
when it denied his petition. He cites the remoteness of his first two strikes, his age (39)
when the petition was heard, and his expressions of remorse for his crimes. But these
matters were all broached in either Ford’s resentencing brief, the probation department’s
resentencing report, or Ford’s remarks to the court at the resentencing hearing, and there
is no reason to believe that the court ignored any of them.

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Ford argues that the court failed to consider his “excellent rehabilitative record in
prison,” including in particular the drop in his classification score, which governs the
level of security a prisoner requires (In re Jenkins (2010) 50 Cal.4th 1167, 1175), from
over 70 in 2003 to 23 in 2012. The 23 score qualifies Ford for placement in a Level II
facility (Cal. Code Regs., tit. 15, § 3375.1, subd. (a)(2), which he represents is the least
secure placement available to a life inmate. But the court took Ford’s prison record into
account when it rendered its decision, noting that “we have a citation or rule violations in
2003, 2005, 2006, 2009, 2012. So there’s a series of incidents there.” The excellence of
Ford’s prison record is debatable, and the court did not abuse its discretion when it took a
negative view of it.
Ford contends that the court “erred in failing to consider the fiscal consequences
of the continued indeterminate incarceration of a 39-year old inmate.” However, section
1170.126 does not identify this as a relevant consideration, and even if it was, nothing in
the record suggests that the court was unmindful of it.
Ford’s arguments about the court failing to consider various factors potentially
favorable to him are, at bottom, an unavailing attempt to have us reweigh the evidence.
Ford contends that the court “failed to articulate a rational nexus between [his]
criminal and prison records and its finding of current dangerousness.” But the rational
nexus is obvious. The court could reasonably conclude that someone who committed
criminal offenses in 1987, 1990, 1992, 1998, and 2001, and prison infractions in 2003,
2004, 2005, 2006, 2008, 2009, and 2012 was a danger to public safety in 2013, when the
resentencing petition was heard.
III. DISPOSITION
The order denying the petition for resentencing is affirmed.

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_________________________
Siggins, J.
We concur:
_________________________
McGuiness, P.J.
_________________________
Jenkins, J.

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