P. v. Hanson

Filed 9/15/15 P. v. Hanson CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
DENNIS RAY HANSON,
Defendant and Appellant.
F069169
(Super. Ct. No. 138089)
OPINION
THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Marie Sovey
Silveira, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff
and Respondent.
-ooOoo-
* Before Kane, Acting P.J., Detjen, J. and Franson, J.

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2.
INTRODUCTION
The Three Strikes Reform Act of 2012 (Proposition 36) permits third strike
offenders serving indeterminate life sentences for crimes that are not serious or violent
felonies to petition for resentencing. (Pen. Code,1 § 1170.126 et seq.) If a petitioning
offender satisfies the statute‟s eligibility criteria, they are resentenced as a second strike
offender “unless the court, in its discretion, determines that resentencing the petitioner
would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)
Following the enactment of Proposition 36, defendant filed a petition for
resentencing. The court found defendant posed an unreasonable risk to public safety,
however, and denied the petition. On appeal, defendant contends (1) Proposition 36
violates defendant‟s equal protection rights, (2) the People were required to prove
defendant‟s current dangerousness beyond a reasonable doubt, (3) the court erred by
permitting victim impact testimony, (4) the court improperly relied on the People‟s
written opposition to defendant‟s petition, (5) there was insufficient evidence to support
the court‟s finding of dangerousness, and (6) the definition of “„unreasonable risk of
danger to public safety‟” included in section 1170.18, subdivision (c), applies to
Proposition 36. We affirm.
FACTS
On May 26, 1998, following a bench trial, defendant was found guilty of felony
corporal injury of a cohabitant (§ 273.5). As defendant had prior strikes for assault with a
deadly weapon and false imprisonment with use of a weapon, he was sentenced to a term
of 28 years to life in prison as a third strike offender.2 On June 18, 2013, following the
passage of Proposition 36, defendant filed a petition seeking resentencing under that law.
1 Unless otherwise indicated, all statutory references are to the Penal Code.
2 Defendant was sentenced to 25 years to life for the third strike offense, plus three
one-year prior prison term enhancements.

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3.
On August 30, 2013, the People filed an opposition to defendant‟s petition. The
People stated defendant‟s most recent conviction occurred after he punched his girlfriend,
threatened to kill her, and struck her 80-year-old mother. The opposition also included
the details of defendant‟s prior criminal history, which spanned from 1973 to 1998 and
included two additional convictions for corporal injury to a cohabitant, two convictions
for driving under the influence, two convictions for assault with a deadly weapon, three
convictions for battery, and convictions for false imprisonment, resisting arrest, theft, and
grand theft.
The People also attached a number of exhibits outlining defendant‟s disciplinary
history while incarcerated, which detailed at least four incidents involving the verbal
abuse and intimidation of female staff, most recently in 2012, two incidents of physical
violence involving another inmate, most recently in 2009, and several other instances of
verbal abuse and insubordination towards staff.
A hearing on defendant‟s petition was held on January 8, 2014, and March 17,
2014. At the hearing, the victim of defendant‟s most recent offense, Cynthia Codoni,
testified that during her time with defendant, he constantly threatened to kill her,
threatened to kill her mother, broke her ribs and ruptured her eardrum. Defendant then
testified on his own behalf, stating his disciplinary problems while incarcerated were due
to his attitude and “just having bad days sometimes.” He stated he knew it was time to
let go of his anger and attitude issues. His son testified that, if defendant were released,
he would take him in.
After the conclusion of the hearing, the court found that defendant posed an
unreasonable risk of danger to public safety and denied the petition for resentencing. In
support of this finding, the court cited defendant‟s near-continuous history of violent
crime when not incarcerated, his pattern of verbally abusive and physically violent
behavior while incarcerated, and his lack of remorse and insight as dispositive factors.
This appeal followed.

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4.
DISCUSSION
I. The Provisions of Proposition 36 Do Not Violate Defendant’s Equal Protection
Rights.
Under Proposition 36, offenders sentenced prior to the effective date of the law are
eligible for retroactive application of Proposition 36‟s revised sentencing calculations,
but only if the court determines the inmate does not pose an unreasonable risk of danger
to public safety. Offenders sentenced after the effective date of the law, however, are
automatically and unconditionally subject to the revised sentencing procedures. On
appeal, defendant argues this differing treatment between offenders sentenced prior to the
effective date of Proposition 36 and offenders sentenced after that date violates his right
to equal protection under the law. We disagree.
As we noted in People v. Yearwood (2013) 213 Cal.App.4th 161, 179, “the
distinction drawn between felony offenders sentenced before, and those offenders who
are sentenced after [Proposition 36‟s] effective date, does not violate [an] appellant‟s
state or federal equal protection rights.” A law may treat members of different classes in
different ways if it is rationally related to a legitimate government interest and the
distinctions are not based on suspect classifications. (People v. Turnage (2012) 55
Cal.4th 62, 74-75.) Prisoners are not a suspect class. (See People v. Cruz (2012) 207
Cal.App.4th 664, 676, fn. 11.) Further, the state has a legitimate interest in ensuring “that
penal laws will maintain their desired deterrent effect by carrying out the original
prescribed punishment as written.” (In re Kapperman (1974) 11 Cal.3d 542, 546; see
People v. Floyd (2003) 31 Cal.4th 179, 191.) Accordingly, treating prisoners sentenced
before to the effective date of Proposition 36 and offenders sentenced after that date
differently is rationally related to a legitimate state interest, and defendant‟s equal
protection argument must fail.

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5.
II. Dangerousness Need Not be Proven Beyond a Reasonable Doubt.
Defendant also contends that the People were required to prove his dangerousness
beyond a reasonable doubt. We disagree.
Under section 1170.126, subdivision (f), the determination of a petitioner‟s
dangerousness is left to the discretion of the trial court. “[A] court‟s discretionary
decision to decline to modify the sentence in [a petitioner‟s] favor can be based on any
otherwise appropriate factor (i.e., dangerousness), and such factor need not be established
by proof beyond a reasonable doubt to a jury.” (People v. Superior Court (2013) 215
Cal.App.4th 1279, 1303 (Kaulick).) Instead, “once a defendant is eligible for an
increased penalty, the trial court, in exercising its discretion to impose that penalty, may
rely on factors established by a preponderance of the evidence.” (Id. at p. 1305.)
Given the foregoing, we conclude the court‟s decision to deny a petition for recall
of sentence is reviewed only for an abuse of discretion, and need not be supported by a
proof beyond a reasonable doubt, or even by a preponderance of the evidence. That is
not to say, however, that the trial court‟s decision need not be supported by evidence. As
noted in Kaulick, the burden of proof falls with the People, and the facts relied on by the
court must be established by a preponderance of the evidence. (Kaulick, supra, 215
Cal.App.4th at p. 1305.) Put differently, while the court‟s decision need not be
established by a preponderance of the evidence, the facts relied upon by the court must be
established by a preponderance of the evidence. Defendant‟s claim that dangerousness
must be proven beyond a reasonable doubt is without merit.
III. The Victim Impact Statement was Properly Heard.
Next, defendant contends the court erred by considering the victim impact
statement of Cynthia Codoni. We disagree.
Proposition 36 provides that “[a] resentencing hearing ordered under this act shall
constitute a „post-conviction release proceeding‟ under paragraph (7) of subdivision (b)
of Section 28 of Article I of the California Constitution (Marsy‟s Law).” (§ 1170.126,

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subd. (m).) Under Marsy‟s Law, crime victims are entitled to “reasonable notice of all ...
parole or other post-conviction release proceedings, and to be present at all such
proceedings.” Marsy‟s Law also provides victims a right to be heard at any proceedings
involving post-conviction release decisions. (Cal. Const., art. I, § 28, subd. (b)(8).)
Here, because Proposition 36 explicitly defines a resentencing hearing as a post-
conviction release proceeding and Marsy‟s Law explicitly entitles a victim to be heard at
any proceedings involving post-conviction release decisions, we find that the victim in
this case had a right to make a victim impact statement before the court. To hold
otherwise would permit a victim to be heard at the resentencing hearing held after the
dangerousness determination, but not during the dangerousness determination that
determines an inmate‟s eligibility for resentencing. However, “as a practical matter, it
would make little sense to permit the crime victim to be heard on the issue of which
second strike term to impose, but not permit the victim to be heard on the issue of
whether resentencing the defendant at all would present a risk of dangerousness.”
(Kaulick, supra, 215 Cal.App.4th at p. 1300.) Accordingly, we conclude victims have a
right to be heard at the hearings regarding both dangerousness and resentencing.
IV. The Court Properly Considered the People’s Written Opposition.
Next, defendant argues the court erred by considering the contents of the People‟s
opposition to defendant‟s petition for recall of sentence, as that opposition was never
entered into evidence. We disagree.
When determining whether the inmate poses an unreasonable risk of danger to
public safety, the court may consider the inmate‟s criminal conviction history,
disciplinary record and rehabilitation records while incarcerated, and “[a]ny other
evidence the court, within its discretion, determines to be relevant ....” (§ 1170.126, subd.
(g)(3).)
In the instant case, while it appears as though the People‟s written opposition was
never expressly admitted into evidence, such an opposition has clear relevance to

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resentencing proceedings, and the contents dealt primarily with the details of defendant‟s
criminal conviction history and disciplinary record.3 Given the court‟s broad discretion
to consider relevant evidence under the statute, as well as plain statutory language
permitting the court to consider an inmates criminal and disciplinary records, we simply
cannot conclude the court erred by considering the People‟s written opposition when
making its dangerousness determination.
Further, “It is well established, ... that when a document has been considered by
the court and the parties as being in evidence, the fact that no formal offer in evidence
was made will not exclude it from consideration as part of the record on appeal.
[Citations.] „Where documents are not formally introduced, but it is apparent that the
court and the offering party understood that they were in evidence, they must be so
considered.‟” (Reed v. Reed (1954) 128 Cal.App.2d 786, 790-791.) This is true in
criminal as well as civil proceedings. (Miller v. Superior Court (2002) 101 Cal.App.4th
728, 742-743.)
Defendant alleges this rule violates his right to due process, as “the judge cannot
receive information from sources outside the evidence.” (Guadalupe A. v. Superior
Court (1991) 234 Cal.App.3d 100, 108-109.) This argument misses the point. As noted
above, when documents are not formally introduced, but it is apparent that the court and
the offering party understood them to be in evidence, then the documents are in evidence,
and are no longer considered information from sources outside of the evidence.
Accordingly, defendant‟s argument must fail.
V. Sufficient Evidence Supported the Court’s Finding of Dangerousness.
As noted above, under Proposition 36, statutorily eligible petitioners “shall be
resentenced … unless the court, in its discretion, determines that resentencing the
3 The People did not move to admit the written opposition and attached exhibits into
evidence, but did submit for decision based on the “written opposition and the exhibits
attached thereto.”

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8.
petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126,
subd. (f).) In exercising its 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.” (§ 1170.26, subd. (g).)
We review a trial court‟s determination that an inmate poses an unreasonable risk
of danger to public safety for an abuse of discretion. (People v. Davis (2015) 234
Cal.App.4th 1001, 1017.) “[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.)
Here, the record shows that defendant was engaged in a nearly continuous course
of serious and frequently violent criminal conduct from 1973—when defendant was 18
years old—to 1998—the year in which his current incarceration began. The record
further shows that, during his current incarceration, defendant has repeatedly engaged in
abusive behavior towards staff—particularly female staff, which echoes defendant‟s
criminal history of domestic violence. Defendant also has instances of physical violence
in his disciplinary record.
While defendant points to poor health and advanced age as reasons mitigating his
present dangerousness, his disciplinary record shows verbally abusive behavior as
recently as a year prior to the hearing on his petition for resentencing, and physically
violent behavior as recently as 2009. Defendant‟s verbally abusive behavior is most
troubling, as two instances from the year prior to his petition involved the abuse of
female staff, and defendant‟s criminal history includes three separate convictions for
corporal injury to a cohabitant. Given the combination of defendant‟s extensive and

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9.
serious history of violent crime, as well as his inability to refrain from abusive and
intimidating behavior towards women while incarcerated, we cannot conclude the trial
court abused its discretion by finding defendant posed an unreasonable risk of danger to
public safety.
We also reject defendant‟s argument that the court‟s references to defendant‟s
verbal assaults on prison staff improperly punished him for exercising his right to free
speech. As a preliminary matter, we note that the court‟s finding was not based solely on
defendant‟s history of verbally abusive behavior, but rather was based on that behavior,
as well as defendant‟s prolific history of violence, both before and during his
incarceration. Further, a prison inmate‟s rights, including his right to free speech, may be
restricted if “reasonably related to legitimate penological interests.” (§ 2600, subd. (a).)
Finally, to the extent defendant suggests his verbal outbursts do not relate to the question
of dangerousness, we must again disagree. It cannot seriously be asserted that, given his
criminal history, defendant‟s verbally abusive behavior towards women was irrelevant to
the question of his current dangerousness.
VI. Proposition 47’s Definition of “Unreasonable Risk of Danger to Public Safety”
Does Not Apply to Appellant’s Petition.
On November 4, 2014, voters enacted the Safe Neighborhoods and Schools Act
(Proposition 47). Under Proposition 47, certain offenses that were previously sentenced
as felonies or “wobblers” were reduced to misdemeanors, and individuals serving felony
sentences for those offenses were permitted to petition for resentencing. (§ 1170.18,
subd. (a).) Assuming the petitioning inmate meets the statutory eligibility requirements,
the trial court must resentence the inmate in accordance with Proposition 47 “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).)
Unlike Proposition 36, Proposition 47 specifically defines “unreasonable risk of
danger to public safety.” That definition reads as follows: “As used throughout this

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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).)
Section 667, subdivision (e)(2)(C)(iv) enumerates eight felonies or classes of
felonies:
“The defendant suffered a prior serious and/or violent felony conviction, as
defined in subdivision (d) of this section, for any of the following felonies:
“(I) A „sexually violent offense‟ as defined in subdivision (b) of Section
6600 of the Welfare and Institutions Code.
“(II) Oral copulation with a child who is under 14 years of age, and who is
more than 10 years younger than he or she as defined by Section 288a,
sodomy with another person who is under 14 years of age and more than 10
years younger than he or she as defined by Section 286, or sexual
penetration with another person who is under 14 years of age, and who is
more than 10 years younger than he or she, as defined by Section 289.
“(III) A lewd or lascivious act involving a child under 14 years of age, in
violation of Section 288.
“(IV) Any homicide offense, including any attempted homicide offense,
defined in Sections 187 to 191.5, inclusive.
“(V) Solicitation to commit murder as defined in Section 653f.
“(VI) Assault with a machine gun on a peace officer or firefighter, as
defined in paragraph (3) of subdivision (d) of Section 245.
“(VII) Possession of a weapon of mass destruction, as defined in paragraph
(1) of subdivision (a) of Section 11418.
“(VIII) Any serious and/or violent felony offense punishable in California
by life imprisonment or death.” (§ 667, subd. (e).)

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On appeal, defendant asserts that this definition of “unreasonable risk of danger to
the public safety” also applies to petitions for resentencing under Proposition 36. We
disagree.4
“„“When statutory language is clear and unambiguous, there is no need for
construction and courts should not indulge in it.” [Citation.]‟” (People v. Hendrix (1997)
16 Cal.4th 508, 512.) However, “the language of a statute should not be given a literal
meaning if doing so would result in absurd consequences that the [voters] did not intend.”
(In re Michele D. (2002) 29 Cal.4th 600, 606.)
Here, it appears clear that the phrase “[a]s used throughout this Code,” employed
in section 1170.18, subdivision (c), refers to the entire Penal Code, not merely the
provisions contained in Proposition 47. (See People v. Bucchierre (1943) 57 Cal.App.2d
153, 164-166; see also Marshall v. Pasadena Unified School Dist. (2004) 119
Cal.App.4th 1241, 1254-1255; People v. Vasquez (1992) 7 Cal.App.4th 763, 766.) We
conclude, however, that such an interpretation would lead to consequences the voters did
not intend when they enacted Proposition 47.
By its provisions, Proposition 47 reduces the sentences of inmates serving felony
sentences for specified offenses that are now classified as misdemeanors. Nowhere in the
ballot materials on Proposition 47 were voters informed the law would also modify the
resentencing provisions of Proposition 36, which concerns recidivist inmates serving
sentences for felony offenses that remain classified as felonies.
The official title and summary, legal analysis, and arguments for and against
Proposition 47 are all silent on what effect, if any, Proposition 47 would have on
Proposition 36. As we cannot conclude the voters intended an effect of which they were
unaware, we decline to conclude the voters intended for Proposition 47‟s definition of
4 This issue is currently pending review by the Supreme Court. (See People v.
Valencia (2014) 232 Cal.App.4th 514, review granted Feb. 18, 2015, S223825; People v.
Payne (2014) 232 Cal.App.4th 579, review granted Mar. 25, 2015, S223856.)

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“unreasonable risk of danger to public safety” to apply to section 1170.126, subdivision
(f), of Proposition 36.
Further, while we are aware “[i]t is an established rule of statutory construction ...
that when statutes are in pari materia similar phrases appearing in each should be given
like meanings” we are not persuaded that Propositions 36 and 47 are in pari materia.
(People v. Caudillo (1978) 21 Cal.3d 562, 585, overruled on another ground in People v.
Martinez (1999) 20 Cal.4th 225, 229, 237, fn. 6.) “„[S]tatutes are considered to be in pari
materia when they relate to the same person or thing, to the same class of person[s or]
things, or have the same purpose or object.”‟ (Walker v. Superior Court (1988) 47 Cal.3d
112, 124, fn. 4, quoting 2A Sutherland, Statutory Construction (Sands, 4th ed. 1984)
§ 51.03, p. 467.)
Here, Proposition 47 deals with individuals sentenced as felons for crimes that are
now misdemeanors, while Proposition 36 deals with inmates with at least two violent or
serious felonies who are currently serving indeterminate life sentences for a third felony
conviction. These laws deal with very different levels of punishment, and very different
severity of offenses. Even if the statutes are in pari materia, however, canons of statutory
instruction are not dispositive, and serve as “mere[] aids to ascertaining probable
legislative intent.” (Stone v. Superior Court (1982) 31 Cal.3d 503, 521, fn. 10.)
Given our review of Proposition 47, we must conclude that voters intended the law to
apply to the sentencing and resentencing of the misdemeanor offenses enumerated within
that law, and not to the previously enacted provisions of Proposition 36. Accordingly,
defendant is not entitled to resentencing under Proposition 36 to the definition of
“unreasonable risk of danger to public safety” contained in Proposition 47.
DISPOSITION
The order is affirmed.

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