P. v. Perez

Filed 1/31/17 P. v. Perez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
RAYMOND GARCIA PEREZ,
Defendant and Appellant.
F070534
(Super. Ct. No. SC065759A)
OPINION
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Michael G. Bush,
Judge.
Michael Satris, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G.
Herndon and Paul E. O’Connor, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Gomes, Acting P.J., Detjen, J. and Smith, J.

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Appellant Raymond Garcia Perez appeals from the trial court’s denial of his
petition for resentencing pursuant to Penal Code section 1170.126.1 He contends the
court abused its discretion in denying his petition because: (1) it failed to state reasons;
and (2) it applied the wrong standard in determining whether he posed a danger to the
community if resentenced. We affirm.
FACTS
In 1996, a jury convicted Perez of driving under the influence of alcohol with
priors (Veh. Code, §§ 23152, subd. (a), 23175) and driving under the influence with a
blood alcohol content of .08 or greater (Veh. Code, § 23152, subd. (b)). Perez also pled
guilty to driving while his driving privilege was suspended (Veh. Code, § 14601.5,
subd. (a)), and allegations that Perez had four prior convictions within the meaning of the
Three Strikes Law (§ 667, subds. (b)-(i)) were found true.
On June 18, 1996, Perez was sentenced to an indeterminate term of 25 years to
life.
On August 16, 2013, Perez filed a petition for resentencing pursuant to section
1170.126.
On August 15, 2014, the district attorney filed an opposition to the petition.
On September 9 and 10, 2014, the court held a hearing on the petition.
On October 31, 2014, the court denied the petition through a minute order that did
not contain a statement of reasons for the decision.2
1 All further statutory references are to the Penal Code, unless otherwise indicated.
2 We have omitted a recitation of the evidence presented at the hearing; the facts
underlying the court’s decision are not germane to issues Perez raises.

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DISCUSSION
The Failure to State Reasons
Introduction
The Three Strikes Reform Act of 2012 (Proposition 36 or the Act) created a
postconviction release proceeding for third strike offenders serving indeterminate life
sentences for crimes that are not serious or violent felonies. In order to be eligible for
resentencing as a second strike offender under the Act, the inmate petitioner must satisfy
the three criteria set out in subdivision (e) of section 1170.126.3 (People v. Superior
Court (Martinez ) (2014) 225 Cal.App.4th 979, 989.) If the inmate satisfies all three
criteria, as did Perez, he or she “shall be resentenced [as a second strike offender] unless
the court, in its discretion, determines that resentencing the [inmate] would pose an
unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f); People v. Yearwood
(2013) 213 Cal.App.4th 161, 168.) In exercising this discretion, “the court may consider:
[¶] (1) The [inmate’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 [inmate’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
3 Section 1170.126, subdivision (e) provides: “An inmate is eligible for resentencing
if: [¶] (1) The inmate is serving an indeterminate term of life imprisonment imposed
pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section
1170.12 for a conviction of a felony or felonies that are not defined as serious and/or
violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.
[¶] (2) The inmate's current sentence was not imposed for any of the offenses appearing
in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of
Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of
subdivision (c) of Section 1170.12. [¶] (3) The inmate has no prior convictions for any
of the offenses appearing in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (c) of Section 1170.12.

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an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (g).) The Act does
not require the court to state reasons for its decision to grant or deny a petition for
resentencing.
Analysis
Perez contends that, under the Act, petitioners have a legitimate expectation they
will be resentenced and that expectation can only be defeated by a judicial determination
of unreasonable danger. He additionally contends that resentencing a petitioner under the
Act “to a second-strike term ‘is the rule rather than the exception,’ ” i.e., that there is a
presumption that resentencing will be granted. Perez further contends that because the
denial of a petition under the Act involves the deprivation of a liberty interest, the state
and federal constitutions (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7) require
certain procedural protections, including a statement of supporting reasons, for the denial.
We disagree.
In People v. Edwards (1976) 18 Cal.3d 796, the defendant contended that a
sentencing judge must, in all instances, state his reasons for denying probation when the
denial is contrary to a recommendation therefor. (Id. at p. 798.) In rejecting this
contention, the Supreme Court stated,
“[A] properly administered probation program not only serves
society in effecting desirable rehabilitative goals [citation], but also insures
that important rights are not denied to any person convicted of a crime.
“Although we have required a statement of reasons for denial of an
application for parole release [citation], the circumstances which made it
fundamentally unfair to fail to state reasons for the denial in that context do
not, for the reasons which next follow, pertain in the instant case. Adult
Authority hearings which deal with parole matters are administrative in
nature and afford far fewer procedural safeguards than in the case of
judicial proceedings for the determination of punishment for criminal
conduct after a finding of guilt. [Citation.] Because of the very absence of
such procedural safeguards, including the lack of counsel and a fully
documented record, the opportunity for an inmate to challenge arbitrary or
capricious action by the Adult Authority may well be severely infringed.

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Without a statement of reasons for the denial of an application for parole,
for instance, it is unlikely that an inmate can state a prima facie case
necessary to gain even a review of claimed arbitrary action by the Adult
Authority. [Citation.]
“A denial of probation, on the other hand, is a judicial act rendered
with the full panoply of procedural protections. The court is provided with
a report of the probation officer containing information of the defendant’s
background, his prior involvements, if any, with law enforcement agencies,
his propensities and dispositions, his future plans if probation is granted,
and the judge is required to verify that he has read and considered such
report which often contains communications both favorable and
unfavorable to defendant. The defendant is afforded an opportunity to
present probation counselors with out-of-court character testimony and
explanations of guilt, and he is afforded the benefit of counsel at all stages
of the proceedings if he so desires, including the presence of an attorney at
the probation and sentencing hearing. The judgment of the court is
appealable and a complete record of proceedings is provided for appellate
review. Unlike the situation following the denial of an application for
parole there is thus an unconditional right of review which is not dependent
upon reasons stated by the trial court for the denial of a grant of probation.
We are unable to discern that merely by reason of an absence of such a
statement an unfairness which offends procedural due process concepts
results. Fundamental fairness to the defendant is otherwise assured in
entertaining a direct appeal on a full judicial record.” (Id. at pp. 802-803.)
Here, Perez was provided a full panoply of procedural protections with respect to
his petition for resentencing—he was represented by counsel, he was provided a hearing
on his petition where he could present evidence and cross examine witnesses against him,
the court was provided with an abbreviated probation report and copies of reports relating
to his past offenses, and he had the benefit of an appeal on a full judicial record that
allows for a review of the trial court’s decision.
Perez contends Edwards is not controlling because it involved a case in which
denial of probation was presumed because it could not be granted absent a finding of
unusual circumstances, whereas in the instant case there is an expectation or presumption
that resentencing will occur. According to Perez, this creates a greater need for the court
“to state the facts and reasons that overcame this presumption and supported the requisite

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finding of unreasonable risk[.]” He also contends that a petitioner under the Act is
afforded something less than “a full panoply” of procedural safeguards because they are
not entitled to a probation report (People v. Franco (2014) 232 Cal.App.4th 831). Perez
further contends that despite the procedural safeguards afforded a petitioner under the
Act, there is no way to determine whether in denying the petition the court applied the
correct standard of “unreasonable danger to public safety,” which is contained in
Proposition 47, because of the court’s failure to state reasons. (See post.) We reject
these contentions.
Although Edwards involved a case where the defendant was ineligible for a grant
of probation without a finding of unusual circumstances, this circumstance was not
germane to or mentioned by the court in its analysis. Further, although Proposition 36
petitioners are not entitled to a probation report, they are entitled to other important
procedural safeguards, they can apprise the court of any relevant information that would
have been included in the probation report during the hearing on the petition, and, in any
event, the court here was provided with a current probation report for Perez as well as
several other reports relating to his past offenses.
Moreover, there is no expectation or presumption that a petitioner under the Act
will be sentenced to a second strike sentence. This contention by Perez is based on the
“shall”/“unless” formulation employed in subdivision (f) of section 1170.126. We have
previously rejected such a contention (People v. Buford (2016) 4 Cal.App.5th 886, 901-
903, review granted January 11, 2017, S238790) and Perez offers no compelling reason
to depart from that holding.4 The Act does not create an expectation or presumption that
under its provisions a petitioner under the Act would be resentenced as a second striker.
4 Perez points to an article written by “two leading authorities” on both the original
Three Strikes “regimen” and its reform by the Act in which they assert that the intent of
Proposition 36 is that inmates will be entitled to resentencing in all but the rarest cases
involving true risk to public safety. This material does not help Perez because it finds no
support in either the language of section 1170.126 itself or in the ballot materials related

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Furthermore, as discussed in the next section, the standard “unreasonable danger
to public safety” contained in Proposition 47 is not the standard the court should apply in
ruling on a petition for resentencing under the Act. Therefore, a statement of reasons is
unnecessary to determine if the court applied the correct standard in ruling on a petition
for resentencing under the Act. Accordingly, we further conclude that the court was not
required to state its reasons for denying Perez’s Proposition 36 petition for resentencing.
The “Unreasonable Risk to Public Safety” Standard
On November 4, 2014, voters enacted Proposition 47, the Safe Neighborhoods and
Schools Act (Proposition 47). It went into effect the next day. (Cal. Const., art. II, § 10,
subd. (a).) Insofar as is pertinent here, Proposition 47 renders misdemeanors certain
drug- and theft-related offenses that previously were felonies or “wobblers,” unless they
were committed by certain ineligible defendants. Proposition 47 also created a new
resentencing provision—section 1170.18— by which a person currently serving a felony
sentence for an offense that is now a misdemeanor may petition for a recall of that
sentence and request resentencing in accordance with the offense statutes as added or
amended by Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in
subdivision (a) of section 1170.18 shall have his or her sentence recalled and be
“resentenced to a misdemeanor … unless the court, in its discretion, determines that
to Proposition 36. For instance, although the “Argument in Favor of Proposition 36”
stated the measure had been “carefully crafted … so that truly dangerous criminals”
would receive no benefits from the Act (Voter Information Guide, Gen. Elec. (Nov. 6,
2012) argument in favor of Prop. 36, p. 52), it did not suggest dangerousness would
properly be found only in rare cases. Thus, the authors’ intent is not a reliable indicator
of what voters intended. (See People v. Garcia (2002) 28 Cal.4th 1166, 1175-1176,
fn. 5; California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d
692, 699–701; Carleson v. Superior Court (1972) 27 Cal.App.3d 1, 9, fn. 11; see also
People v. Rizo (2000) 22 Cal.4th 681, 685.) Rather, the statutory language and ballot
materials suggest voters intended resentencing would be denied in any case in which it
would pose an unreasonable risk of danger to public safety, and they entrusted to their
local judges the discretion to make that determination.

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resentencing the petitioner would pose an unreasonable risk of danger to public safety.”
(Id. subd. (b).)
Perez argues section 1170.18, subdivision (c) now limits a trial court’s discretion
to deny resentencing under the Act to those cases in which resentencing the defendant
would pose an unreasonable risk he or she will commit a new “super strike” offense.
Again, we have previously rejected such a contention (People v. Buford, supra,
4 Cal.App.5th at pp. 903-913) and Perez offers no compelling reason to depart from that
holding.
Since there is no merit to either of Perez’s appellate contentions, we also conclude
that the court did not abuse its discretion when it denied his petition for resentencing
pursuant to the Act.
DISPOSITION
The order is affirmed.

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