P. v. Lopez

Filed 3/2/17 P. v. Lopez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JOE LOPEZ,
Defendant and Appellant.
B266011
(Los Angeles County
Super. Ct. No. MA016657)
APPEAL from an order of the Superior Court of Los Angeles County.
Willicam C. Ryan, Judge. Affirmed.
Barbara A. Smith, 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, Steven D.
Matthews and Corey J. Robins, Deputy Attorneys General, for Plaintiff and
Respondent.
___________________________________________________

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Joe Lopez (defendant) appeals from the trial court’s post-judgment
order denying his petition for recall of sentence and resentencing pursuant to
Penal Code1 section 1170.126, also known as Proposition 36 and the Three
Strikes Reform Act. Defendant contends (1) the trial court committed
reversible error in failing to apply the definition of “unreasonable risk of
danger to public safety” found in section 1170.18, also known as Proposition
47; (2) his trial counsel’s failure to argue that the Proposition 47 definition
was applicable constituted ineffective assistance of counsel; and (3) the trial
court abused its discretion in determining that he was a risk under the
definition found in Proposition 36. We affirm the trial court’s order.
Proposition 47’s definition of unreasonable risk of danger does not apply to
Proposition 36 petitions, and defense counsel was not deficient in failing to
argue that it did. The trial court did not abuse its discretion in denying
defendant’s petition because he posed an unreasonable risk of danger to
public safety.
BACKGROUND
In 1995, defendant was sentenced to 18 years four months in state
prison for robbery. In 1998, defendant was convicted of possessing heroin in
prison in violation of section 4573.6. The sentencing court determined that
defendant had suffered four prior felony convictions within the meaning of
the Three Strikes law (§§ 667, subds. (b)—(i); 1170.12) and sentenced
defendant to a term of 25 years to life for the heroin possession offense. In
January 2013, defendant filed his petition to recall his 1998 third strike
sentence pursuant to Proposition 36.
1 All further unspecified statutory references are to the Penal Code.

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DISCUSSION
I. Proposition 47
While defendant’s Proposition 36 petition was pending in the lower
court, California voters passed Proposition 47, which changed specified
narcotics and theft-related offenses from felony offenses to misdemeanors.2
Defendant contends the trial court abused its discretion in failing to apply
Proposition 47’s definition of “unreasonable risk of danger to public safety” to
its analysis of his Proposition 36 petition. He further contends his counsel
was ineffective for not making this argument to the court.
A. Background
In November 2012, California voters passed Proposition 36, which
modified the Three Strikes law to permit 25-year-to-life sentences in most
cases only when the third or subsequent felony conviction is for a serious or
violent felony. The proposition permits defendants previously sentenced to
25 years to life for a nonserious, nonviolent third felony conviction to petition
for recall of their sentences. An eligible defendant is entitled to resentencing
unless the court “in its discretion, determines that resentencing the
[defendant] would pose an unreasonable risk of danger to public safety.”
(§ 1170.126, subd. (f).) Proposition 36 does not provide a further definition of
“unreasonable risk of danger to public safety.” It simply provides that the
court, in exercising its discretion, may consider the defendant’s criminal
history, his disciplinary and rehabilitation record while incarcerated and any
other relevant evidence. (§ 1170.126, subd. (g).)
In November 2014, California voters passed Proposition 47 which
changed specified narcotics and theft-related offenses from felony offenses to
2 Possession of heroin in state prison in violation of section 4573.6 is not
one of those offenses.

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misdemeanors. That proposition also provides that an eligible defendant is
entitled to resentencing unless the court “in its discretion, determines that
resentencing the [defendant] would pose an unreasonable risk of danger to
public safety.” (§ 1170.18, subd. (b).) Proposition 47, however, specifies 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 clause (iv) of subparagraph (C) of paragraph (2)
of subdivision (e) of Section 667.” (§ 1170.18, subd. (c).)
Soon after the passage of Proposition 47, courts began considering
whether the proposition’s definition of “unreasonable risk of danger to public
safety” applied to Proposition 36 petitions. This issue is now pending before
the California Supreme Court. (People v. Chaney (2014) 231 Cal.App.4th
1391, review granted Feb. 18, 2015, S223676; People v. Valencia (2014) 232
Cal.App.4th 514, review granted Feb. 18, 2015, S223825.)
B. Analysis
We conclude that Proposition 47’s narrower definition of “unreasonable
risk of danger to public safety” does not apply to an evaluation of a petition
filed under Proposition 36. (See People v. Esparza (2015) 242 Cal.App.4th
726, 736-737 (Esparza), abrogated by People v. Cordova (2016) 248
Cal.App.4th 543, 552, fn. 8, review granted Aug. 31, 2016, S236179.)
As the court in Esparza explained: “Plainly, if considered solely as a
matter of grammatical construction, Proposition 47’s definition of
‘unreasonable risk of danger to public safety’ undoubtedly is tied to the words
‘As used throughout this Code.’ However, such a literal construction is not to
be adopted if it conflicts with the voters’ intent shown in the official ballot
pamphlet. [Citations.] Nothing in the official ballot pamphlet for Proposition
47 hints at any impact on the procedure for resentencing three strike

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inmates.” (Esparza, supra, 242 Cal.App.4th at p. 736.) Defendant has not
shown such an intent.
In addition, the timing of Proposition 47’s enactment is inconsistent
with an intent to apply its definition of risk to Proposition 36. Proposition 36
gave defendants two years from its enactment to file their petitions for
resentencing.3 (§ 1170.126, subd. (b).) Proposition 47 was enacted two days
before that deadline. (§ 1170.18.) Nearly all Proposition 36 petitions would
have been filed, and many adjudicated by the time Proposition 47 passed. It
is unlikely that any rational voter would have intended to change the rules
for Proposition 36 at such a late date.
II. Ineffective Assistance of Counsel
Defendant’s counsel did not file any supplemental pleadings asking the
court to apply Proposition 47’s definition of risk to defendant’s pending
Proposition 36 petition or directing the court’s attention to the California
Supreme Court’s grant of review in Chaney and Valencia. There is nothing to
indicate that counsel argued for such an application at the June 2015
suitability hearing.
Defense counsel’s failure to argue that Proposition 47’s definition of
risk applied to Proposition 36 did not constitute ineffective assistance of
counsel. In order to establish such a claim, defendant must show that his
counsel’s performance fell below an objective standard of reasonableness, and
that, but for counsel’s error, a different result would have been reasonably
probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694;
People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
3 Petitions may be filed after two years, but only upon a showing of good
cause. (§ 1170,126. subd. (b).)

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As we have just explained, Proposition 47’s definition of risk does not
apply to Proposition 36 petitions. A defense counsel is not required to make
unmeritorious arguments on a defendant’s behalf. (See People v. Ochoa
(1998) 19 Cal.4th 353, 432 [counsel is not deficient for failing to make a
meritless motion to exclude].) Clearly, there is no reasonable probability of a
different outcome if counsel makes such an unmeritorious argument.
Defendant’s claim fails.
III. Denial of Defendant’s Proposition 36 Petition
Defendant contends that even under Proposition 36’s unmodified
definition of risk, the trial court abused its discretion in finding that he posed
a serious risk of danger to public safety. Defendant asserts the trial court did
not “establish the nexus” between past behavior and current dangerousness.
A. Law
Proposition 36 leaves the determination of a defendant’s risk of danger
to the court’s discretion. (Esparza, supra, 242 Cal.App.4th at p. 735.) The
proposition specifies that, in determining if a defendant poses an
unreasonable risk of danger, 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.” (§ 1176.126, subd. (g).)
A defendant’s dangerousness need not be established by proof beyond a
reasonable doubt to a jury. (People v. Superior Court (Kaulick) (2013) 215

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Cal.App.4th 1279, 1303.) The proper standard of proof is a preponderance of
the evidence. (Id. at p. 1305.)
We review the trial court’s decision under the deferential abuse of
discretion standard. The court’s ruling will not be reversed on appeal unless
defendant demonstrates that the court exercised its discretion in “‘an
arbitrary, capricious or patently absurd manner that resulted in a manifest
miscarriage of justice. [Citations.]’” (People v. Rodrigues (1994) 8 Cal.4th
1060, 1124-1125.)
B. Ruling
The trial court issued a 15-page memorandum of decision explaining its
ruling on defendant’s petition. The court discussed the details of defendant’s
lengthy criminal history, which dates back to 1978, and of defendant’s
behavior while in prison for the commitment offense. The court also
considered defendant’s drug addiction; his lack of participation in substance
abuse prevention, vocational, school or work programs; and his inadequate
post-release plans. In addition, the court considered a number of mitigating
factors, including defendant’s age, health and classification score.
Defendant was convicted of possession of a controlled substance in 1978
or 1979, 1980 and 1983. In 1986, he was convicted of robbery; a co-
perpetrator in the robbery had a firearm. He was committed to the
California Rehabilitation Center and ultimately discharged in 1992. That
same year, he was again convicted of possession of a controlled substance. In
1993, while on probation, he was convicted of second degree burglary of a
school. He was released on parole and violated his parole several times. In
1995, while on parole, defendant was convicted of three counts of robbery,
being a felon in possession of a firearm and evading a peace officer. While in
prison in 1998, he was convicted of the current offense of possession of heroin

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in prison. Defendant’s wife brought him 2.5 grams of heroin in balloons,
which defendant swallowed. Prison officials were required to obtain a court
order for a laxative to force defendant to pass the balloons.
Defendant received nine disciplinary serious rules violations (RVR’s)
between 2000 and 2012. Four RVR’s were drug related: two for drug
possession, one for possession of drug paraphernalia and one for distribution
of drugs. The 2006 RVR for distribution of drugs involved defendant’s
swallowing seven balloons of heroin weighing 13.5 grams. Four additional
RVR’s were for failure to obey a direct order. One RVR was for battery with a
weapon on a fellow inmate.
The court also considered defendant’s general lack of preparation for
his post-release life. Defendant did not have any satisfactory or better
performance in work, school or vocational training. He did not provide the
court with any post-release plans.
The court recognized that defendant had a drug addiction, but also
found that when he “has been given the opportunity to address his drug
addiction, he has consistently reoffended.” As the court noted, defendant
“sustained a conviction for possession of heroin in state prison, despite being
in a controlled environment with programs available to assist him with his
drug addiction.” After receiving a life sentence for this conviction, defendant
“was found with heroin in his possession again seven years later.” The court
pointed out that defendant had not engaged in any self-help or programming
while in prison to overcome his drug addiction. The court found defendant
had not shown that he had learned to control his drug addiction.
Turning to mitigating factors, the court recognized that defendant’s
age, 56, was an age by which criminality normally has “drastically” declined.
The court also acknowledged that defendant had “some medical ailments” but

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had not provided the court with any supporting evidence concerning his
specific medical conditions. Thus, this was a weak mitigating factor at best.
The court also noted that defendant entered prison with a classification score
of 90, which increased to 126 by 2007 and declined to 106 by May 2012. The
decline in score was attributable to defendant’s lack of RVR’s. It would have
declined more rapidly if he had achieved satisfactory ratings in work, school
or vocational training.
The court found an “undeniable link between [defendant’s] history of
substance abuse and criminal behavior.” In summary, the court found that
defendant’s “extensive criminal record, prison misconduct, lack of any
rehabilitative programming, lack of re-entry plans, and other relevant factors
support a finding that resentencing [defendant], at this time, would pose an
unreasonable risk of danger to public safety.”
C. Analysis
According to defendant, the trial court failed to consider that the entire
sentencing landscape has altered dramatically since defendant received his
third strike sentence and so erroneously relied on an outdated definition of
risk which included property crimes. He further contends the court cited
inapplicable and inappropriate parole cases.
1. Definition of risk
Defendant maintains that Proposition 36 requires a risk of danger to
the public’s physical safety, not merely of danger to property. He claims the
trial court was stuck in the “bad old days, when 25 years to life was just fine,
for stealing a slice of pizza.”
The trial court stated, correctly, that the “concept of public safety does
not contemplate merely the absence of violent acts, it also includes the
absence of property crimes. (See People v. Nasalga (1996) 12 Cal.4th 784, 790

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[‘“the Legislature believes that it is in the best interest for public safety to
enhance the penalties for the crimes of vehicle theft and receiving stolen
vehicles.”’].)”4 California law recognizes a wide variety of property crimes,
ranging from petty theft and shoplifting to robbery and carjacking. Some
property crimes such as robbery, carjacking, and residential burglary carry
the risk of violence. Even after the sentencing reforms of the past decade,
robbery remains a violent felony which as a third strike conviction triggers a
25-year-to-life sentence. (§§ 1170.12, subd. (c)(2)(C), 667.5. subd.(c)(9).)
Thus, the armed robberies committed by defendant in the past are a far cry
from snatching a slice of pizza.
Defendant claims the trial court’s citation to Nasalga was a “tacit”
acknowledgement that defendant was not likely to be violent if released. We
do not understand the trial court’s references to Nasalga and property crimes
as being a prediction that defendant would commit only nonviolent property
crimes in the future. As the trial court pointed out, defendant’s prior robbery
convictions involved the use of a firearm and his burglary involved extensive
property damage to a school. Thus, the fact of his prior convictions do show
that defendant was willing to use violence to obtain property, even if he did
not ultimately inflict violence.
2. Parole
Defendant contends the trial court relied inappropriately on parole
review cases in deciding his petition.
Some reference to parole review cases is appropriate in Proposition 36
cases. “A trial court’s decision to refuse to resentence a prisoner, based on a
finding of dangerousness, is somewhat akin to a decision denying an inmate
4 The Court is quoting from In re Pedro T. (1994) 8 Cal.4th 1041, a case
which considered a temporary increase in punishment for vehicle-related
theft. (People v. Nasalga, supra, 12 Cal.4th at p. 790.)

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parole.” (Kaulick, supra, 215 Cal.App.4th at p. 1306, fn. 29.) Thus, parole
review cases may, to some extent, help inform the trial court’s resentencing
decision under Proposition 36. (See Esparza, supra, 242 Cal.App.4th at pp.
745-746 [discussing In re Shaputis (2008) 44 Cal.4th 1241 and In re
Lawrence (2008) 44 Cal.4th 1181, both parole cases].)
Defendant complains generally that parole decisions apply a different
standard of proof and require a more deferential standard of review than do
Proposition 36 resentencing decisions. The trial court clearly set out the
appropriate standard of proof and standard of review for Proposition 36
decisions in its memorandum of decision. He points to nothing suggesting
that the trial court incorrectly applied the lower and less deferential
standards for parole hearings to its Proposition 36 decision.
Defendant complains of only two specific cases cited by the trial court,
In re Rozzo (2009) 172 Cal.App.4th 40 and In re Bettencourt (2007) 156
Cal.App.4th 780. Defendant argues that Rozzo was a “racist torture
murderer” and Bettencourt was a “crazy and evil” murderer, while he is
simply a small-time robber. The court cited those cases for the general
proposition that “rules violations in prison constitute powerful evidence of an
inmate’s current willingness to engage in serious rule-breaking and are
probative of recidivist tendencies and the danger to public safety.” This
general rule is not dependent on the inmate’s prior crimes or character.5
5 The specific danger to public safety posed by an inmate does depend on
the nature of the inmate’s past crimes and of the rules he broke in prison, but
the record shows that the trial court did look at the particulars of defendant’s
crimes and rules violations. Nothing in the record remotely suggests the trial
court viewed defendant as the equivalent of a dangerous murderer.

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3. Nexus
Defendant characterizes himself as an aging addict and contends there
is no rational nexus between his past crimes and what he is likely to do if
released pursuant to Proposition 36. He contends the trial court abused its
discretion in finding there is such a nexus.
The court correctly recognized that a history of recidivism and even an
inability to refrain from re-offending while in the community or incarcerated
were not sufficient, standing alone, to prove current dangerousness. The trial
court found, however, that his lack of participation in substance abuse
programs or any vocational programs while in prison, together with his
inadequate plans for re-entry into society, provided a link between his
criminal past and current dangerousness.
Defendant has a long history of drug abuse and addiction and has been
unable or unwilling to control or overcome his addiction, which was so severe
that on two occasions he swallowed a large quantity of heroin with no regard
for his own safety. As the trial court found, even assuming that defendant
had refrained from using drugs since his last drug-related RVR in 2006, more
is required to overcome addiction: “Addicts in recovery must also learn to
avoid the triggers that lead to relapse and avoid situations and behaviors
that place them at risk.” Since defendant has not been involved in any
substance abuse programs while in prison, there is no basis to conclude that
he has learned appropriate behaviors. He remains at risk for a relapse into
drug abuse if released, a risk that is heightened by his lack of post-release
plans. A relapse would increase his risk of theft-related crimes to pay for his
drugs.
The trial court correctly considered all the evidence relevant to a
determination of defendant’s risk of danger, including mitigating factors such

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as age and health. The court did not abuse its discretion in finding that
defendant would pose an unreasonable risk of danger to public safety if
resentenced under Proposition 36.
DISPOSITION
The court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
GOODMAN, J.*
We concur:
ASHMANN-GERST, Acting P.J.
HOFFSTADT, J.
* Retired 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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