P. v. Berg

Filed 9/12/16 P. v. Berg CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
LEE WILLIAM BERG,
Defendant and Appellant.
B264001
(Los Angeles County
Super. Ct. No. LA0196703)
APPEAL from an order of the Superior Court of Los Angeles County,
William C. Ryan, 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, Assistant Attorney General, Noah P. Hill and David E.
Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________

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Petitioner Lee William Berg is currently serving a “Three Strikes” sentence of 25
years to life for burglary. Following the passage of the Three Strikes Reform Act
(Proposition 36), he petitioned for resentencing under Penal Code section 1170.1261.
The trial court found that petitioner was eligible for resentencing based on current and
past offenses, but denied the petition on the ground that resentencing him would “pose[]
an unreasonable risk of danger to public safety.”
After the trial court denied the petition, the voters adopted the Safe Neighborhoods
and Schools Act (Proposition 47 or section 1170.18). Petitioner now argues on appeal
that Proposition 47’s definition of “unreasonable risk of danger to public safety” applies
to dangerousness determinations under Proposition 36. In the alternative, he contends
that Proposition 36’s definition of “unreasonable risk of danger to public safety” is
unconstitutionally vague and, under any definition of that term, he did not pose such a
risk. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1995, petitioner entered a grocery store and concealed three bottles of liquor
underneath his jacket. After he left without paying for the liquor, employees confronted
him in the parking lot. Petitioner began “fighting” with the employees and was taken into
custody by force. No employees were injured. Petitioner was under the influence of
heroin at the time of the offense.
Petitioner was convicted of second degree burglary (§ 459) and petty theft with a
prior (§ 666). The trial court found that petitioner suffered two prior felony convictions
for burglary and attempted burglary within the meaning of the Three Strikes Law (§§ 667
and 1170.12). The trial court imposed a third strike term of 25 years to life for the
burglary count, and stayed punishment for the petty theft conviction pursuant to section
654.
In March 2013, petitioner filed a petition for resentencing under Proposition 36.
In October 2013, the People opposed the petition, arguing that resentencing petitioner
1 All further statutory references are to the Penal Code.

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would pose an unreasonable risk of danger to public safety based on his extensive
criminal history and “violent and disruptive behavior” in prison. In February 2014,
petitioner filed a response arguing that he had not been convicted of any violent crimes,
his conduct in prison was “good,” and he had been accepted into a residential program
that would assist him with “re-entry to society.”
On September 15, 2014, the court held a hearing and heard evidence and argument
regarding the petition. The People submitted evidence of petitioner’s criminal history
and disciplinary record while incarcerated. Petitioner’s felony convictions prior to his
current incarceration consisted of thefts and burglaries. In 2009, while incarcerated, he
was convicted of possession or manufacture of a weapon (§ 4502, subd. (a)).
During petitioner’s current incarceration of 19 years, he has been found guilty of
14 serious rules violations (“CDC 115’s”),2 including the following. In 1996, he received
a CDC 115 for striking his cellmate “with his fists.” In 1999, he received a CDC 115 for
participating in a fight involving multiple inmates. In 2000, he was issued a CDC 115 for
fighting with another inmate. In 2007, he was found guilty of participating in a fight
involving multiple inmates and being in possession of a sharpened, metal weapon.
And, in 2009, he received a CDC 115 for battery on an inmate with a weapon. The
inmate attacked was treated for injuries “consistent with stab wounds.” This violation
resulted in petitioner’s conviction of possession or manufacture of a weapon (§ 4502,
subd. (a)) and an additional six-year term.
The defense submitted evidence that petitioner had received satisfactory and above
average grades from his work supervisor at the prison laundry, participated in Narcotics
Anonymous classes, and was accepted into a “live in program” that would provide room,
board and “life skills training” upon his release from prison. The defense also presented
expert testimony by Richard Subia, a prison practices expert, and Dr. Hy Malinek, a
clinical and forensic psychologist.
2 “According to the California Code of Regulations, a CDC 115 documents
misconduct believed to be a violation of law which is not minor in nature.” (In re Gray
(2007) 151 Cal.App.4th 379, 389; see also Cal. Code Regs., tit. 15, § 3312, subd. (a)(3).)

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Subia opined that petitioner was unlikely to pose an unreasonable risk of danger to
public safety if released. He noted that petitioner’s criminal history “in the community”
did not involve any violent offenses but only “drug and property related offenses . . .
consistent with those of a drug addict.” Subia interviewed petitioner, who explained that
his prison rule violations for possession of a weapon and battery on an inmate with a
weapon were the result of his being threatened by other “influential” inmates who asked
him to commit these actions. Subia believed petitioner’s explanations were “consistent
with what would normally occur in the prison environment when a drug addict of small
stature . . . enters a prison setting.” However, Subia noted that petitioner “always had the
option of seeking out the assistance and protection of prison authorities.”
Dr. Malinek provided evidence that based on testing using several actuarial
measures, petitioner’s risk of engaging in violence was moderate to high. However,
Dr. Malinek opined that the overall risk that petitioner would commit an act of violence
outside of prison was only low to moderate in light of petitioner’s age of 55 years and
studies showing that age is negatively correlated with recidivism. He concluded that
petitioner did not pose an unreasonable risk of danger to public safety.
On October 31, 2014, the trial court denied the petition after finding that
resentencing petitioner would pose an unreasonable risk of danger to public safety. In
support of this finding, the court noted that petitioner’s disciplinary record in prison
showed he had committed violence against other prisoners, and “[his] scores on a variety
of actuarial measures designate the violence risk in a range of recidivism between
moderate to high.” Petitioner appealed.
CONTENTIONS
Petitioner contends that (1) Proposition 47’s definition of an “unreasonable risk of
danger to public safety” applies to dangerousness determinations under Proposition 36,
(2) Proposition 47’s definition of “unreasonable risk of danger to public safety” applies
retroactively to his petition, (3) Proposition 36’s “unreasonable risk of danger to public
safety” standard is unconstitutionally vague, and (4) under any standard, petitioner did
not pose an unreasonable risk of danger to public safety.

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DISCUSSION
1. Statutory Interpretation
The issues raised by petitioner require us to interpret Proposition 36 and
Proposition 47. “ ‘In interpreting a voter initiative . . . we apply the same principles that
govern statutory construction. [Citation.] Thus, “we turn first to the language of the
statute, giving the words their ordinary meaning.” [Citation.] The statutory language
must also be construed in the context of the statute as a whole and the overall statutory
scheme [in light of the electorate’s intent]. [Citation.] 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.” [Citation.]’ [Citation.] In other words, ‘our
primary purpose is to ascertain and effectuate the intent of the voters who passed the
initiative measure.’ [Citation.]” (People v. Briceno (2004) 34 Cal.4th 451, 459.) When
the language is not ambiguous, the plain meaning of the statutory language controls,
unless it would lead to absurd results the electorate could not have intended. (People v.
Birkett (1992) 21 Cal.4th 226, 231.) Furthermore, although courts may not generally
rewrite a statute’s unambiguous language, a word that has been erroneously used may be
subject to judicial correction in order to best carry out the intent of the adopting body.
(People v. Skinner (1985) 39 Cal.3d 765, 775.)
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 current offense was neither serious nor 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 current conviction is for a felony that 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, pursuant to the provisions that apply when a defendant has one prior conviction

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for a serious or violent felony. [Citations.]” (People v. Johnson (2015) 61 Cal.4th 674,
680681.)
“[Proposition 36] also created a postconviction release proceeding whereby a
prisoner who is serving an indeterminate life sentence imposed pursuant to the three
strikes law for a crime that is not a serious or violent felony and who is not disqualified,
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. (§ 1170.126.)” (People v. Yearwood (2013) 213 Cal.App.4th 161, 168.)
In determining whether the petitioner would pose an unreasonable risk of danger
to public safety, “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.”
(§ 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 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
Proposition 47 was passed by California voters on November 4, 2014, effective
November 5, 2014. (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) The
stated “[p]urpose and [i]ntent” of Proposition 47 include, among other things,
“[r]equir[ing] 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”; “[a]uthoriz[ing] consideration of resentencing for anyone who
is currently serving a sentence for any of the offenses listed herein that are now
misdemeanors”; and “[r]equir[ing] a thorough review of criminal history and risk

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assessment of any individuals before resentencing to ensure that they do not pose a risk to
public safety.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3,
subd. (3), (4) & (5), p. 70.)
Proposition 47 created a new resentencing provision, section 1170.18, under
which “[a] person currently serving a sentence for a conviction, whether by trial or plea,
of a felony or felonies who would have been guilty of a misdemeanor under the act that
added this section . . . had this act been in effect at the time of the offense 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. In exercising its discretion, the court may
consider all of the following: [¶] (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.”
(§ 1170.18, subd. (b).)
In contrast to Proposition 36, which does not define the term “unreasonable risk of
danger to public safety,” Proposition 47 provides that “[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 within the meaning of [section 667,
subd. (e)(2)(C)(iv)].” (§ 1170.18, subd. (c).) Section 667, subdivision (e)(2)(C)(iv) lists
the following felonies, sometimes called “super strike” offenses: “(I) A ‘sexually violent
offense’ . . . . [¶] (II) Oral copulation . . . as defined by Section 288a, sodomy . . . as
defined by Section 286, or sexual penetration . . . as defined by Section 289. [¶] (III) A
lewd or lascivious act . . . in violation of Section 288. [¶] (IV) Any homicide offense,
including any attempted homicide offense . . . . [¶] (V) Solicitation to commit murder

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. . . . [¶] (VI) Assault with a machine gun on a peace officer or firefighter. . . . [¶] (VII)
Possession of a weapon of mass destruction. . . . [¶] (VIII) Any serious and/or violent
felony offense punishable in California by life imprisonment or death.”
4. Proposition 47’s Definition of an “Unreasonable Risk of Danger to Public
Safety” Does Not Apply to Proposition 36
Proposition 36’s resentencing provision, section 1170.126, gave petitioners “two
years” from its enactment on November 7, 2012, to file a petition for resentencing “or at
a later date upon a showing of good cause . . . .” (§ 1170.126, subd. (b).) Here, the trial
court denied the petition for resentencing one week before the closing of that two-year
window. Two days before the window closed, Proposition 47 went into effect.
Petitioner contends that Proposition 47’s narrow definition of “unreasonable risk
of danger to public safety” controls the meaning of that term as used in Proposition 36.
Specifically, petitioner notes that Proposition 47 says, “[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), italics added.)
Petitioner argues 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
Penal Code, including, as relevant here, into section 1170.126, subdivision (f).
Many appellate courts have considered whether Proposition 47’s definition of
“unreasonable risk of danger to public safety” applies to resentencing under Proposition
36, and the issue currently is pending before the California Supreme Court. (See, e.g.,
People v. Valencia (2014) 232 Cal.App.4th 514, review granted February 18, 2015,
S223825; People v. Chaney (2014) 231 Cal.App.4th 1391, review granted February 18,
2015, S223676; People v. Florez (2016) 245 Cal.App.4th 1176, review granted June 8,
2016, S234168; People v. Myers (2016) 245 Cal.App.4th 794, review granted May 25,
2016, S233937; People v. Garcia (2016) 244 Cal.App.4th 224, review granted April 13,
2016, S232679; People v. Lopez (2015) 236 Cal.App.4th 518, review granted July 15,
2015, S227028.) We conclude, consistent with the majority of courts to have considered

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this issue, that Proposition 47’s definition of “unreasonable risk of danger to public
safety” does not apply to Proposition 36.
“ ‘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. [Citation.] . . . Whether the use of [a particular word] is,
in fact, a drafting error can only be determined by reference to the purpose of the section
and the intent of the electorate in adopting it.” (People v. Skinner, supra, 39 Cal.3d at
pp. 775776.)
For the reasons that follow, we conclude that the voters erroneously used the word
“Code” in section 1170.18, subdivision (c), rather than the word “Act,” and that this error
is properly subjected to judicial correction. Specifically, as we now discuss, we believe
the voters intended in section 1170.18, subdivision (c) to refer to Proposition 47, not to
the entire Penal Code. We therefore conclude that the passage of Proposition 47 did not
alter Proposition 36 or section 1170.126.
First, Proposition 47’s ballot materials and statutory language do not indicate that
the definition of “unreasonable risk of danger to public safety” would extend beyond
Proposition 47 itself. To the contrary, subdivision (n) 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
by section 1170.18, subdivision (c), the finality of the underlying judgment may be
“diminish[ed]” even though the case does not “fall[] within the purview of [Proposition
47].” (Id., § 1170.18, sub. (n).)
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, supra, pp. 34-39.) The ballot materials do

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not, for example, say that Proposition 47 will severely restrict the ability of courts to
reject resentencing petitions under Proposition 36. Rather, the ballot materials emphasize
that the resentencing provisions of Proposition 47 will affect only those persons serving
sentences for specified nonserious, nonviolent property or drug crimes. Accordingly,
nothing in Proposition 47’s ballot materials suggests that the initiative will affect
resentencing under Proposition 36.
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, p. 35.)
The wording of section 1170.18, subdivision (c) is also inconsistent with an intent
to apply that subdivision throughout the entire Penal Code. 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), (l), & (m).)
Accordingly, subdivision (c)’s use of the term “petitioner” suggests that the term is
limited to individuals petitioning under that particular act. (Id., § 1170.18, sub. (c).)
Lastly, the timing of Proposition 47 is inconsistent with an intent 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.
On these grounds, we conclude that section 1170.18, subdivision (c) contains a
drafting error – the use of the word “Code” – that must be judicially corrected to read
“Act.” As so read, Proposition 47’s definition of “unreasonable risk of danger to public
safety” does not apply to Proposition 36.

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5. Proposition 47 Does Not Apply Retroactively to Petitioner’s Petition
Even were we to assume that Proposition 47’s definition of “unreasonable risk of
danger to public safety” applies prospectively to Proposition 36 petitions filed after
Proposition 47 was enacted, we nonetheless would conclude it does not apply in this case
because petitioner’s Proposition 36 petition for resentencing was filed and decided before
Proposition 47 went into effect.3
We agree with the majority of courts that have addressed this issue and conclude
that Proposition 47’s definition of “unreasonable risk of danger to public safety” does not
apply retroactively. Section 3 of the Penal Code says, “No part of [the Penal Code] is
retroactive, unless expressly so declared.” The California Supreme Court “ha[s]
described section 3, and its identical counterparts in other codes [citations], as codifying
‘the time-honored principle . . . that in the absence of an express retroactivity provision, a
statute will not be applied retroactively unless it is very clear from extrinsic sources that
the Legislature . . . must have intended a retroactive application.’ ” (People v. Brown
(2012) 54 Cal.4th 314, 319 (Brown), italics added.)
Proposition 47 and the ballot materials are silent as to the initiative’s retroactive
application. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), pp. 3439.) Thus,
there is “no clear and unavoidable implication” of retroactivity that “arises from the
relevant extrinsic sources.” (Brown, supra, 54 Cal.4th at p. 320.)
Furthermore, the rule enunciated in In re Estrada (1965) 63 Cal.2d 740 (Estrada),
that statutes that are amended to reduce punishment for particular crimes are intended to
apply retroactively, does not apply here. In Estrada, the California Supreme Court
stated: “When the Legislature amends a statute so as to lessen the punishment it has
obviously expressly determined that its former penalty was too severe and that a lighter
punishment is proper as punishment for the commission of the prohibited act. It is an
3 Whether Proposition 47 applies retroactively to proceedings under Proposition 36
is also currently pending before the California Supreme Court. (See People v. Chaney,
supra, 231 Cal.App.4th 1391, review granted Feb. 18, 2015, S223676.)

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inevitable inference that the Legislature must have intended that the new statute imposing
the new lighter penalty now deemed to be sufficient should apply to every case to which
it constitutionally could apply . . . [including] acts committed before its passage provided
the judgment convicting the defendant of the act is not final.” (Id. at p. 745.) Therefore,
“where the amendatory statute mitigates punishment and there is no savings clause, the
rule is that the amendment will operate retroactively so that the lighter punishment is
imposed.” (Id. at p. 748.)
Estrada does not apply in this case because applying the definition of
“unreasonable risk of danger to public safety” in Proposition 47 to petitions for
resentencing under Proposition 36 would not reduce punishment for a particular crime.
(See Brown, supra, 54 Cal.4th at p. 325 [rejecting application of Estrada to statute where
the statute “does not represent a judgment about the needs of the criminal law with
respect to a particular criminal offense, and thus does not support an analogous inference
of retroactive intent”].) Rather, it simply changes the lens through which the
dangerousness determinations under Proposition 36 are made.
On these grounds, we hold that the definition of “unreasonable risk of danger to
public safety” in Proposition 47 does not apply retroactively to a petitioner whose
petition for resentencing under Proposition 36 was decided before the effective date of
Proposition 47.
6. Section 1170.126, Subdivision (g) Is Not Unconstitutionally Vague
Subdivision (f) of section 1170.126 provides that the trial court must exercise its
discretion to determine whether “resentencing the petitioner would pose an unreasonable
risk of danger to public safety.” Subdivision (g) of section 1170.126 provides that “[i]n
exercising its discretion in 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

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“(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).)
Petitioner contends that if Proposition 47’s definition of “unreasonable risk of
danger to public safety” is not imported into Proposition 36, then Proposition 36
“violate[s] due process because [it] fail[s] to give notice of what is required for a finding
of dangerousness and invite[s] arbitrary decisions.” Specifically, petitioner argues that
“there is no concrete way for a trial court to estimate a petitioner’s level of risk . . . [¶]
[or] quantum of risk that distinguishes a ‘reasonable’ risk from an ‘unreasonable’ risk.”
(Emphasis original.)4
Whether the term “unreasonable risk of danger to public safety” is
unconstitutionally vague was addressed and decided in People v. Garcia (2014)
230 Cal.App.4th 763, which held that “the meaning of the term ‘unreasonable risk of
danger to public safety’ [in section 1170.126] is clear because it can be objectively
ascertained by reference to the examples of evidence the trial court may consider in
making this determination.” (Id. at p. 770.) We agree with and adopt its holding and
analysis.
As explained in People v. Garcia, “ ‘The constitutional interest implicated in
questions of statutory vagueness is that no person be deprived of “life, liberty, or
property without due process of law,” as assured by both the federal Constitution
[citation] and the California Constitution [citation].’ [Citation.] ‘All presumptions and
intendments favor the validity of a statute and mere doubt does not afford sufficient
4 Although petitioner challenges the categories of evidence set forth in subdivision
(g) of section 1170.126 as unconstitutionally vague, his supporting argument is that the
statute leaves uncertainty as to how to estimate an “unreasonable risk of danger to public
safety.” Accordingly, petitioner, in essence, argues that the term “unreasonable risk of
danger to public safety” is unconstitutionally vague, and not that the categories of
evidence provided in section 1170.126, subdivision (g)—a petitioner’s criminal history,
disciplinary record, and any other relevant evidence—are unclear.

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reason for a judicial declaration of invalidity. Statutes must be upheld unless their
unconstitutionality clearly, positively and unmistakably appears.’ [Citation.] [¶] . . . [¶]
“[With respect to section 1170.126’s use of the term ‘unreasonable risk of danger
to public safety,’] the critical inquiry . . . is not whether the risk is quantifiable, but rather,
whether the risk would be ‘unreasonable.’ (§ 1170.126, subd. (f).) ‘ “The law is replete
with instances in which a person must, at his peril, govern his conduct by such
nonmathematical standards as ‘reasonable,’ ‘prudent,’ ‘necessary and proper,’
‘substantial,’ and the like. Indeed, a wide spectrum of human activities is regulated by
such terms: thus one man may be given a speeding ticket if he overestimates the
‘reasonable or prudent’ speed to drive his car in the circumstances [citation], while
another may be incarcerated in state prison on a conviction of wilful homicide if he
misjudges the ‘reasonable’ amount of force he may use in repelling an assault [citation].
As the Supreme Court stated in Go-Bart Importing Co. v. United States (1931) 282 U.S.
344, 357, ‘There is no formula for the determination of reasonableness.’ Yet standards of
this kind are not impermissively vague, provided their meaning can be objectively
ascertained by reference to common experiences of mankind.” ’ [Citation.]” (People v.
Garcia, supra, 230 Cal.App.4th at pp. 768770.)
We agree with the Garcia court that the term “unreasonable risk of danger to
public safety” as used in section 1170.126 is not unconstitutionally vague.
7. The Trial Court Did Not Abuse Its Discretion in Denying the Petition
Section 1170.126 provides that the trial court must exercise its discretion to
determine whether a petitioner would pose an unreasonable risk of danger to public
safety. (§ 1170.126, subd. (f).) “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.)
Petitioner argues that “[e]ven under the vague standard of Proposition 36, the trial
court’s denial constituted an abuse of discretion.” Petitioner acknowledges that he was

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found guilty of serious rule violations in prison for “acts of violence,” but argues that he
“was following the orders of powerful white inmates who threatened [his] personal safety
if he failed to comply.” He further contends that his expert witnesses, Subia and
Dr. Malinek, both concluded that he did not pose an unreasonable risk of danger to public
safety.
In 2007, petitioner was found guilty of being in possession of a sharpened weapon.
In 2009, petitioner was found guilty of battery on an inmate with a weapon and convicted
of possession or manufacture of a weapon (§ 4502, subd. (a)). The inmate who was
attacked was treated for injuries “consistent with stab wounds.” Although Subia testified
that petitioner told him he was threatened by “influential” inmates who asked him to
commit these actions and that Subia found this explanation believable, it was within the
trial court’s discretion to disbelieve petitioner’s account of events. (See People v. Trinh
(2014) 59 Cal.4th 216, 231 [“In deciding whether the trial court abused its discretion, . . .
we are prohibited from reweighing the evidence; if credible evidence supports a trial
court’s findings, our review is at an end. [Citations.]”].) Even if the trial court believed
that petitioner was influenced by powerful inmates who ordered him to commit these
actions, Subia also testified that petitioner always had the option of seeking the protection
of prison authorities.
Furthermore, although petitioner’s experts, Subia and Dr. Malinek, opined that
petitioner did not pose an unreasonable risk of danger to public safety, Dr. Malinek also
provided evidence that petitioner’s actuarial tests indicated that the risk he would engage
in violence was moderate to high. Given petitioner’s violent conduct in prison and expert
evidence that there was a moderate to high risk he would engage in future acts of
violence, the trial court did not abuse its discretion in concluding that he posed an
unreasonable risk of danger to public safety within the meaning of Proposition 36.

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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J.
We concur:
ALDRICH, J.
LAVIN, J.

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