P. v. Rocha

Filed 5/5/17 P. v. Rocha CA2/3
Opinion following order vacating prior opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE MANUEL ROCHA,
Defendant and Appellant.
B263350
(Los Angeles County
Super. Ct. No. LA028064)
APPEAL from order of the Superior Court of Los Angeles
County, Honorable William C. Ryan, Judge. Affirmed.
Law Offices of Charles Carbone, Charles F. A. Carbone and
Rebecca N. Rabkin for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Noah P. Hill and Viet H. Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.

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_________________________
INTRODUCTION
Jose Manuel Rocha appeals from an order denying his
petition for recall of his indeterminate life sentence and
resentencing in accordance with the Three Strikes Reform Act,
commonly referred to as Proposition 36. The trial court found
Rocha was eligible for resentencing, but denied his petition based
on a discretionary determination that Rocha posed an
“unreasonable risk of danger to public safety.” (Pen. Code,
§ 1170.126, subd. (f).)1 Proposition 36 does not specifically define
the meaning of the quoted phrase.
Prior to the trial court ruling on Rocha’s petition, the
electorate approved the Safe Neighborhoods and Schools Act,
commonly referred to as Proposition 47. Proposition 47
specifically defines the phrase “unreasonable risk of danger to
public safety” to mean an unreasonable risk that the petitioner
will commit a new violent felony within the meaning of certain
enumerated Penal Code provisions. (§ 1170.18, subd. (c).) On
appeal, Rocha contends Proposition 47’s specific definition applies
to petitions filed under Proposition 36, and that the trial court
erred in failing to exercise its discretion in accordance with this
standard. We disagree, and conclude Propositions 47’s definition
applies only to petitions filed under Proposition 47. We also
conclude the trial court reasonably exercised its discretion in
accordance with the standard applicable to Proposition 36.
We affirm.
1 All future undesignated statutory references are to the
Penal Code.

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FACTS AND PROCEDUREAL BACKGROUND
On January 8, 1998, a jury convicted Rocha of selling,
transporting or offering to sell a controlled substance and
possessing a controlled substance for sale. He admitted suffering
two prior convictions for first degree burglary, both serious
felonies under the Three Strikes Law. On February 4, 1998, the
court sentenced Rocha to 25 years to life in state prison.
On April 26, 2013, Rocha filed a petition for recall and
resentencing pursuant to Proposition 36, the Three Strikes
Reform Act. On July 26, 2013, the trial court found Rocha made
a prima facie showing of eligibility and issued an order to show
cause why the petition should not be granted. The People
opposed the petition, alleging Rocha was unsuitable for
resentencing because his release would pose an unreasonable
risk of danger to public safety. The People based their opposition
on Rocha’s criminal history and disciplinary record while
incarcerated.
On January 12, 2015, and February 5, 2015, the court held
a suitability hearing on Rocha’s petition for resentencing. Rocha
maintained his criminal history was remote and consisted solely
of nonviolent property crimes driven by his drug addiction. The
trial court agreed Rocha’s prior offenses were largely nonviolent
and that his convictions were remote, noting the commitment
offense was more than 14 years old and the other convictions
were more than 26 years old. Nevertheless, the court found
Rocha’s criminal history showed a “tendency to revert back to
crime when in the community,” observing his “felony convictions
carried a substantial prison term, meaning that he spent much of
the time that separated his convictions in prison rather than in
the community.”

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The evidence also showed Rocha received five serious rules
violations reports during his 18 years of incarceration. These
included possession of artwork containing a gang-related symbol
in 2014; possession of gang-related contraband, specifically a
letter or “kite” discussing Mexican Mafia activities in 2013;
possession of inmate-manufactured alcohol in 2004; possession of
heroin for sale in 2003; and participation in a riot in 2001. Rocha
also was validated as an associate of the Mexican Mafia in 2008,
based on an address book and letters evidencing the association,
and he was revalidated in 2014, based on his possession of
artwork containing a gang-related symbol and the kite. At the
hearing, the People and Rocha presented opposing opinions from
their respective gang-validation experts as to whether Rocha
posed an unreasonable risk to public safety.
While in custody, Rocha earned a General Educational
Development certificate and an associate’s degree in business
management; he trained in landscape gardening and welding
vocational programs; and he participated in self-help programs,
including Alcoholics Anonymous (AA) and Narcotics Anonymous
(NA). If released, Rocha testified he would reside either with his
daughter or in transitional housing. He also said he would
continue to participate in AA and NA. With respect to job
opportunities, Rocha referred to a lifelong friend who had offered
to train him at her mortgage company. He also suggested he
could reinstate the x-ray technician license he held before he was
incarcerated.
The trial court denied the petition, concluding Rocha would
pose an unreasonable risk of danger to the public if resentenced.
With respect to the applicable legal standard, the court observed
that Proposition 36 (section 1170.126) does not define

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“unreasonable risk of danger to public safety,” and, though
Proposition 47 (section 1170.18, subdivision (c)) specifically
defined the phrase, the court held that definition was not
applicable to a Proposition 36 petition. Citing Rocha’s criminal
history, institutional misconduct, limited rehabilitative
programming, gang validation, and undeveloped post-release
plans, the court found Rocha posed an unreasonable risk of
danger to public safety.
DISCUSSION
1. Statutory Interpretation Principles
Rocha contends the trial court abused its discretion by
failing to assess his Proposition 36 recall petition applying the
specific definition of “unreasonable risk of danger to public
safety” set forth in Proposition 47. The contention requires this
court to interpret Penal Code provisions enacted by voter
initiatives which are subject to the same rules of construction
that govern statutory interpretation. (People v. Rizo (2000)
22 Cal.4th 681, 685.) Thus, “ ‘[w]e turn first to the words of the
statute themselves, recognizing that “they generally provide the
most reliable indicator of legislative intent.” ’ ” (People v. Leal
(2004) 33 Cal.4th 999, 1007.) “When the language is ambiguous,
‘we refer to other indicia of the voters’ intent, particularly the
analyses and arguments contained in the official ballot
pamphlet.’ ” (Rizo, at p. 685.)
2. Proposition 36
Prior to its amendment by Proposition 36, the Three
Strikes law required that a defendant who had two or more prior
convictions of violent or serious felonies receive a third strike
sentence of a minimum of 25 years to life for any current felony
conviction, even if the “third strike” was neither serious nor

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violent. (Former §§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b),
(c)(2)(A).) Proposition 36 amended the Three Strikes law with
respect to defendants whose “third strike” felony is neither
serious nor violent. In that circumstance, unless an exception
applies, the defendant is to receive a second strike sentence of
twice the term otherwise provided for the current felony. (People
v. Johnson (2015) 61 Cal.4th 674, 680, 681.)
Proposition 36 also created a post-conviction release
proceeding whereby a qualified prisoner, serving a three strikes
sentence for a felony that is neither serious nor violent may have
his or her sentence recalled and be sentenced as a second strike
offender unless the court determines that resentencing would
pose an unreasonable risk of danger to public safety. (People v.
Yearwood (2013) 213 Cal.App.4th 161, 168.)
Proposition 36 does not define the phrase “unreasonable
risk of danger to public safety.” It does, however, enumerate a
list of factors “the court may consider” in making this
determination: “(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.” (§ 1170.126,
subd. (g).)
Proposition 36 became effective on November 7, 2012. (See
People v. Brown (2014) 230 Cal.App.4th 1502, 1507.) Under
section 1170.126, a petition for resentencing must be filed within

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two years of Proposition 36’s enactment “or at a later date upon a
showing of good cause . . . .” (§ 1170.126, subd. (b).)
3. Proposition 47
California voters enacted Proposition 47 on November 4,
2014. It went into effect the next day. (Cal. Const., art. II, § 10,
subd. (a).) Proposition 47 reduced certain selected felonies to
misdemeanors. Like Proposition 36, it created a new
resentencing provision whereby a person convicted of and serving
a sentence for a felony or felonies which were now misdemeanors
under Proposition 47 may petition for a recall of sentence and
request resentencing. (§ 1170.18, subd. (a).) “If the petitioner
satisfies the criteria in subdivision (a), the petitioner’s felony
sentence shall be recalled and the petitioner resentenced to a
misdemeanor . . . 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).)
Like Proposition 36, Proposition 47 enumerates the same
list of factors that the court may consider in making its
discretionary risk of danger determination—i.e., “(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. [¶] (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.” (Cf. §§ 1170.18, subd. (b), 1170.126,
subd. (g).)

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In contrast to Proposition 36, Proposition 47 defines the
phrase “unreasonable risk of danger to public safety.”
Specifically, section 1170.18, subdivision (c) states, “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).) The enumerated offenses are
commonly referred to as “super strikes.”
4. Proposition 47’s Definition of an “Unreasonable Risk
of Danger to Public Safety” Does Not Apply to
Proposition 36
Rocha contends Proposition 47’s specific definition of
“unreasonable risk of danger to public safety” controls the
meaning of that phrase as used in Proposition 36.2 He argues
this conclusion is compelled by the words of the statute, which
state, “[a]s used throughout this Code, ‘unreasonable risk of
danger to public safety’ means an unreasonable risk that the
petitioner will commit a new violent felony.” (§ 1170.18, subd.
(c).) Rocha maintains that by using the phrase “[a]s used
throughout this Code,” Proposition 47 imports its definition of
“unreasonable risk of danger to public safety” into the entire
2 This issue is currently pending before the Supreme Court.
(People v. Valencia (2014) 232 Cal.App.4th 514, review granted
Feb. 18, 2015, S223825; People v. Guzman (2015) 235 Cal.App.4th
847, review granted June 17, 2015, S226410, briefing deferred
pursuant to rule 8.520 Cal. Rules of Court; People v. Davis (2015)
234 Cal.App.4th 1001, review granted June 10, 2015, S225603,
briefing deferred pursuant to rule 8.520 Cal. Rules of Court.)

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Penal Code, including, as relevant here, Proposition 36
(§ 1170.126, subd. (f)).
The People argue Proposition 47’s reference to “this Code”
is ambiguous, and they cite two apparent inconsistencies within
the text of section 1170.18 to make the case. First, they note the
definition in section 1170.18, subdivision (c) is limited to “an
unreasonable risk that the petitioner will commit” a super strike.
(§ 1170.18, subd. (c), italics added.) The People argue “the
petitioner” can only mean a person who files a petition under
section 1170.18, subdivision (a), as the statute does not refer to
any other kind of petition. Additionally, the People emphasize
that the consequence of applying Proposition 47’s dangerousness
definition throughout the Penal Code would conflict with the
express directive set forth in section 1170.18, subdivision (n).
That provision states, “Nothing in this and related sections is
intended to diminish or abrogate the finality of judgments in any
case not falling within the purview of this act.” (§ 1170.18, subd.
(n), italics added.) If a court ruling on a Proposition 36 petition
must grant the petition unless it finds an unreasonable risk the
petitioner will commit a super strike under the restrictive
definition provided in section 1170.18, subdivision (c), the People
maintain the finality of the underlying judgment will be
“diminish[ed]” even though the case does not “[fall] within the
purview of [Proposition 47].” (§ 1170.18, subd. (n).)
Though we disagree with the People’s premise that section
1170.18, subdivision (c)’s reference to “this Code” is ambiguous,
we find the apparent inconsistencies identified by the People do
indicate the electorate may have erroneously used the word

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“Code,” where it intended to use the word “act.”3 Although courts
are reluctant to simply rewrite an initiative, there is precedent
for “correcting” initiative language in appropriate circumstances.
Our Supreme Court explained the principle in People v. Skinner:
“ ‘We 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. . . .
Whether the use of [a particular word] is, in fact, a drafting error
3 As for the reference to “this Code,” other statutes using
similar language have been construed as unambiguously
referring to the entire code in which such statutes appeared. For
instance, in Marshall v. Pasadena Unified School Dist. (2004)
119 Cal.App.4th 1241, the court considered a provision in the
Public Contract Code defining the term “emergency” “ ‘as used in
this code.’ ” (Marshall, at p. 1255, italics omitted.) The Marshall
court found there was “nothing ambiguous about the phrase ‘as
used in this code.’ ” (Ibid.) In enacting the subject section, “the
Legislature did not merely define the term ‘emergency’ for a
particular chapter, article or division of the Public Contract
Code—rather, it defined the term ‘emergency’ for the entire
Public Contract Code.” (Marshall, at p. 1255.) Thus, the
Marshall court reasoned, “[i]t logically follows the definition . . .
must be read into [all other sections using that term].” (Ibid.; see
also People v. Bucchierre (1943) 57 Cal.App.2d 153, 166
[concluding phrase “ ‘as in this code provided’ ” used in section
182, referred to the Penal Code]; cf. People v. Vasquez (1992)
7 Cal.App.4th 763, 766-767 [concluding phrase “ ‘as used in this
title’ ” in former section 12001.1 limited statute’s definition of
“ ‘firearm’ ” to sentence enhancements under Part 4, Title 2 of the
Penal Code].)

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can only be determined by reference to the purpose of the section
and the intent of the electorate in adopting it.” (People v. Skinner
(1985) 39 Cal.3d 765, 775-776.) For the reasons that follow, we
conclude the use of the word “Code” rather than “act” in section
1170.18, subdivision (c) was a drafting error properly subject to
judicial correction.
Read as a whole, section 1170.18’s language offers the first
indication that the drafters and electorate erroneously used “this
Code” in subdivision (c) where they intended to refer to “this act.”
As discussed, subdivision (c) refers to “the petitioner,” a term that
is used throughout Proposition 47 to refer to persons petitioning
under “this section” or “this act.” (See § 1170.18, subds. (a), (b),
(c), (j), (1), & (m).) More compelling is subdivision (n)’s
pronouncement that “Nothing in this and related sections is
intended to diminish or abrogate the finality of judgments in any
case not falling within the purview of this act.” (Italics added.)
Unless subdivision (c)’s “unreasonable risk of danger” definition
is limited to “this act,” the finality of judgments rendered under
Proposition 36 would most certainly be diminished. Taken
together, these provisions strongly indicate the drafters and
electorate intended subdivision (c)’s dangerousness definition to
be applied only with respect to petitions brought under
Proposition 47.
Likewise, the official title and summary, legal analysis, and
arguments for and against Proposition 47 nowhere suggest that
Proposition 47 will have an impact on Proposition 36. (Voter
Information Guide, Gen. Elec. (Nov. 4, 2014), Prop. 36, Analysis
by Legislative Analyst, pp. 34-39.) The ballot materials do not,
for example, say that Proposition 47 will severely restrict the
ability of courts to reject resentencing petitions under Proposition

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36. Rather, the ballot materials emphasize that Proposition 47’s
resentencing provisions will affect only those persons serving
sentences for specified nonserious, nonviolent property or drug
crimes.
Furthermore, Propositions 36 and 47 have different
purposes. Proposition 36 is designed to reduce penalties for
individuals with two or more prior serious or violent felony
convictions, whose current conviction is also a felony. By
contrast, Proposition 47 is intended to reduce penalties for low-
level offenders who have committed “certain nonserious and
nonviolent property and drug offenses.” (Voter Information
Guide, supra, Prop. 36, Analysis by Legislative Analyst, Proposal,
p. 35.) As discussed with respect to the ballot materials, the
purpose of Proposition 47 belies the notion that voters intended it
to affect inmates convicted of crimes other than those property or
drug crimes specified in Proposition 47.
Lastly, Proposition 47’s timing is inconsistent with an
intention to affect Proposition 36 petitions. Proposition 36
required defendants to file petitions within two years from its
enactment absent a showing of good cause for a late petition.
(§ 1170.126, subd. (b).) Proposition 47 was enacted with only two
days remaining in the two-year period for filing Proposition 36
petitions. A rational voter would not have understood
Proposition 47 to change the rules for Proposition 36 petitions
when the period for filing such petitions had almost expired.
For the foregoing reasons, we conclude section 1170.18,
subdivision (c) contains a drafting error—the use of the word
“Code”—that must be judicially corrected to read “act.” Read as
such, Proposition 47’s definition of “unreasonable risk of danger
to public safety” does not apply to Proposition 36.

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5. The Trial Court Reasonably Exercised Its Discretion
to Deny the Petition
Proposition 36 vests the trial court with discretion to deny
a statutorily-eligible petition if the court “determines that
resentencing the petitioner would pose an unreasonable risk of
danger to public safety.” (§ 1170.126, subd. (f).) In exercising
that discretion, “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).)
“Where . . . a discretionary power is statutorily vested in
the trial court, its exercise of that discretion ‘must not be
disturbed on appeal except on a showing that the court exercised
its discretion in an arbitrary, capricious or patently absurd
manner that resulted in a manifest miscarriage of justice.
[Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th
1060, 1124-1125.) Factual findings underlying the court’s
exercise of discretion are subject to review for substantial
evidence. (See People v. Cluff (2001) 87 Cal.App.4th 991, 998
[trial court abuses its discretion when factual findings critical to
decision find no support in record].) Thus, “[w]e review the whole
record in a light most favorable to the [order] to determine
whether it contains substantial evidence, i.e., evidence that is
credible and of solid value” upon which the court could base its
conclusions. (In re Ryan D. (2002) 100 Cal.App.4th 854, 859.)

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“Taken together, these precepts establish that 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 (2004) 33 Cal.4th 367, 377.)
The evidence relating to the statutory factors set forth in
section 1170.126, subdivision (g) supports the trial court’s finding
that Rocha posed an unreasonable danger to public safety if
resentenced. Beginning with Rocha’s criminal history, the
evidence showed Rocha had a sustained juvenile petition for
battery, two convictions for first degree burglary, a misdemeanor
violation for possession of marijuana, and finally the commitment
offense for offering to sell heroin. The trial court acknowledged
that Rocha’s prior offenses were remote, but reasoned that the
remoteness was hardly dispositive since Rocha had consistently
reverted to crime shortly after release and, thus, spent much of
the time preceding the commitment offense in custody.
The trial court also considered Rocha’s disciplinary history
and rehabilitative programming in prison. Rocha’s disciplinary
history included five serious rule violations since his
incarceration for the commitment offense. The court found two of
these violations especially probative of Rocha’s current risk of
danger because they occurred after he filed his petition for
resentencing and related to his affiliation with the Mexican
Mafia.4 Additionally, Rocha had a serious rule violation for
4 The violations consisted of possessing a gang-related letter,
or “kite,” discussing Mexican Mafia activities and possession of
artwork containing gang-related symbols. Though Rocha
testified that the kite belonged to his cellmate and that he was
unaware of the gang-related symbols in the artwork, the trial
court found his testimony was not credible.

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possessing 45 “hits” of heroin, an amount indicating he engaged
in selling the drug. The court acknowledged that Rocha had
taken positive steps in his programming, such as participating in
educational programs, Alcoholics Anonymous, Narcotics
Anonymous and the Crime Impact Program, but found his gains
in those programs were outweighed by elements of his
disciplinary history that demonstrated he still posed a danger to
public safety.
Finally, the trial court considered evidence concerning
Rocha’s validated association with the Mexican Mafia. Rocha
was initially validated as a Mexican Mafia associate in 2008 and
he was revalidated in 2014. He admitted to being in a gang while
in the community, but claimed he left “gang life” in 1988 or 1989.
Rocha testified that he did not plan to engage in gang activity if
released. The court rejected this testimony, relying on the
evidence supporting Rocha’s gang validation and testimony by
the People’s gang validation expert.
The California Department of Corrections and
Rehabilitation (CDCR) initially validated Rocha based on (1) an
address book he kept containing the names and addresses of
validated Mexican Mafia associates and a Mexican Mafia “mail
drop”; (2) a statement he made identifying another inmate who
was a Mexican Mafia associate; and (3) a letter he wrote to an
associate in the community asking her to pass a message to a
third party “mail drop” after his address book was discovered. He
was revalidated in 2013 after corrections officers discovered a
gang-related letter and artwork containing gang-related symbols
in his possession. While Rocha’s gang expert and the People’s
gang expert disagreed about the implications of being a Mexican
Mafia “associate,” both agreed that Rocha was properly validated

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under the CDCR standards in place at the time. Further, the
People’s gang expert opined that Rocha’s 2013 rule violations
indicated he was still “ ‘aiding and working with’ ” the Mexican
Mafia and that, if released, this evidence showed he would likely
be compelled to advance the gang’s interests in the community.
Based on the Mexican Mafia’s mode of operation, and Rocha’s
validated association with the gang, the People’s expert opined
that Rocha “ ‘will pose an unreasonable risk of danger to the
public.’ ” In view of the gang evidence, coupled with Rocha’s
history of committing offenses shortly after returning to the
community and his disciplinary history while incarcerated, we
cannot say it was arbitrary, capricious or patently absurd for the
court to accept and adopt that conclusion.
Rocha contends the foregoing evidence was insufficient to
support the court’s unsuitability determination because none of it
demonstrated a propensity for violence. Contrary to Rocha’s
premise, we need not decide whether the evidence, when viewed
in the light most favorable to the trial court’s ruling, would
support a finding that Rocha posed an unreasonable risk of
violence, because Proposition 36 affords the trial court discretion
to deny the petition where the court finds resentencing poses an
“unreasonable risk of danger to public safety.” (§ 1170.126, subd.
(f), italics added.)
It is true that apart from a sustained juvenile petition for
battery, none of Rocha’s criminal offenses or established gang-
related conduct involved acts of violence. However, section
1170.126, subdivision (f) does not say a petitioner shall be
resentenced unless the court determines resentencing would pose
an unreasonable risk of violence; rather, the statute speaks in
terms of danger to public safety. That a crime can constitute a

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danger to public safety without being violent is not a novel
concept. (See, e.g., People v. Hughes (2002) 27 Cal.4th 287, 355
[“ ‘ “ ‘Burglary laws are based primarily upon a recognition of the
dangers to personal safety created by the usual burglary
situation—the danger that the intruder will harm the occupants
in attempting to perpetrate the intended crime or to escape and
the danger that the occupants will in anger or panic react
violently to the invasion, thereby inviting more violence.’ ” ’ ”];
People v. Villalobos (2006) 145 Cal.App.4th 310, 317 [same].)
Indeed, the concept is codified in the Three Strikes law, which
includes in its definition of a “serious felony” nonviolent offenses
such as first degree burglary and furnishing drugs to a minor.
(§ 1192.7, subds. (c)(18) & (24).) Likewise, Proposition 36
disqualifies persons convicted of certain narcotics offenses from
eligibility for resentencing. (See §§ 1170.126, subd. (e)(2); 667,
subd. (e)(2)(C)(i); 1170.12, subd. (c)(2)(C)(i).) Moreover, although
the ballot materials concerning Proposition 36 focused on violent
criminals, section 7 of the Three Strikes Reform Act provides:
“This act is an exercise of the public power of the people of the
State of California for the protection of the health, safety, and
welfare of the people of the State of California, and shall be
liberally construed to effectuate those purposes.” (Voter
Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 7,
p. 110.) Thus, to condition resentencing denials upon the
likelihood of future violence, as Rocha’s premise entails, would
run contrary to the language of section 1170.126, subdivision (f)

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and the voters’ intent. The trial court did not abuse its
discretion.5
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.*
We concur:
EDMON, P. J.
LAVIN, J.
5 Rocha also contends the trial court improperly discounted
his rehabilitative programming, which was severely curtailed by
his placement in the secure housing unit under gang validation
standards that were later amended. We are not persuaded.
Rocha’s rehabilitative programming was but one element
considered by the court and we cannot find, based on this record,
that more robust rehabilitative participation would have resulted
in a more favorable ruling in view of the salient gang evidence
underpinning the court’s ruling.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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