People v. Myers ( 2016 )

Filed 3/17/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Siskiyou)
----
THE PEOPLE, C078277
Plaintiff and Respondent, (Super. Ct. No. SC SC CR F
XX-XXXXXXX)
v.
RONALD LEE MYERS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Siskiyou County, Donald R.
Langford, Judge. Affirmed.
Diane Nichols, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, Peter W.
Thompson, Deputy Attorney General, for Plaintiff and Respondent.
1
Defendant Ronald Lee Myers appeals from denial of his petition to resentence
under the Three Strikes Reform Act of 2012 (Proposition 36) based on a finding that
resentencing him would pose an unreasonable risk of danger to public safety. (Pen.
Code, § 1170.126.)1 He contends the trial court used the wrong standards to determine
whether he posed a risk of danger, the trial court abused its discretion in making such
finding, and he was entitled to have a jury, not a trial judge, make such finding.
Disagreeing, we shall affirm.
PROCEDURAL BACKGROUND
As recounted in our prior unpublished opinion, People v. Myers (Apr. 25, 2000,
C032591) (Myers I), which is part of the record in this case, a jury convicted defendant of
the felony of possession by a felon of ammunition (former § 12316, subd. (b)(1), later
renumbered as § 30305, subd. (a)(1)), and two misdemeanors--assault (§ 240) and
possession of a syringe (Bus. & Prof. Code, § 4140). The trial court found he had served
a prior prison term (§ 667.5, subd. (b)) and had four strikes (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d).) He was sentenced to prison for 25 years to life plus one year,
with concurrent misdemeanor terms. We affirmed.
On March 15, 2014, defendant petitioned to recall his sentence under Proposition
36. The People opposed the petition, conceding defendant was eligible for consideration
for resentencing, but arguing the trial court should exercise its discretion to find that
defendant posed “an unreasonable risk of danger to public safety” (§ 1170.126, subd. (f))
and decline to resentence him. The People in part relied on a summary of defendant’s
criminal record and behavior while in custody.
1 Further undesignated statutory references are to the Penal Code.
2
Certain prison disciplinary records were received into evidence without objection.
Later, the trial court ordered the probation department to prepare a resentencing report.
That report referenced an earlier report, which was later received into evidence.2
The trial court hearing focused on the question of dangerousness.3 Defendant
emphasized a risk assessment performed by the prison authorities that had concluded
defendant was at low risk to reoffend, a conclusion rejected by the probation officer,
purportedly without consideration of appropriate “evidence-based practices.” Defense
counsel conceded defendant was not a model inmate, but attributed that to the “despair
that goes with a life sentence” and the environment at Pelican Bay State Prison, which
included daily threats of violence among inmates. Counsel emphasized that defendant’s
last prison incident was five years old and was minor, involving pushing a food tray, and
did not reflect dangerousness. In contrast, counsel argued defendant’s local jail behavior
had been problem-free. Further, an appropriate assessment should consider the fact that
defendant was 51 years old, and his last violent offense occurred 15 years ago. His last
firearms-related incident occurred 22 years ago. Defendant had access to a tribal support
network if released under supervision in the community. A later report detailed
defendant’s plans as follows: He wanted Social Security benefits and a job with the
Karuk Tribe’s future casino, and planned to contact the tribe for a hotel voucher. He had
a friend in a 12-step program who could be a resource for him.
2 We note the original sentencing judge had retired and was unavailable.
3 Had defendant been armed with a firearm, whether or not an arming enhancement had
been pleaded, he would not have been eligible for resentencing. (See People v. Quinones
(2014) 228 Cal. App. 4th 1040, 1044-1045.) However, the jury acquitted defendant of
possession of a firearm by a felon (former § 12021, subd. (a)(1)) (Myers I, supra, at p. 1)
and the People conceded he was eligible for resentencing.
3
Amy Fernandez, the probation officer, testified she was aware of the prison’s low
risk assessment number for defendant. She had not been able to learn exactly how that
number is derived, but thought it was designed to assess an inmate’s in-prison risk.
Another probation department employee used a risk-assessment protocol designed
specifically to measure out-of-prison risk to evaluate defendant and concluded he was at
high risk of violent reoffense. However, Fernandez was not completely confident in the
accuracy of some of the information in that assessment, so the hearing was continued to
allow her to prepare a new local assessment as well as to try to get more information
about the way the prison assessed risk.
Fernandez’s subsequent report included an updated local risk assessment that
again concluded defendant was at high risk for violent reoffense. She had contacted the
prison system and learned the prison-system’s risk assessment protocol was essentially
the same as the local one, in that it evaluated the risk of releasing someone on parole, and
did not strictly address in-prison risk. She had sent the prison her assessment, and had
sought an explanation for the discrepancy between the very different conclusions
reached. The best she could determine was that the prison reached a lower score due to
“defendant’s length of incarceration coupled with his age,” but she couched this as
speculation on the part of the prison employee with whom she had spoken. She also did
not find defendant’s vague plans--relying on possible tribal assistance and a friend--to be
viable in ameliorating defendant’s risk to public safety.
After some delays, the hearing resumed on December 19, 2014, and Fernandez
testified that, if released with a period of post-release community supervision (PRCS),
defendant should have “some type of an anger management program” but she still felt he
posed a risk to the community. During this hearing, the People conceded the general
force of defense counsel’s “aging out” argument, but maintained defendant individually
presented a risk to the community, in part because he had failed to avail himself of
rehabilitative services (such as counseling) while in prison.
4
The various probation reports reveal the following: Defendant, born in 1963, had
been removed from the home and made a ward at about age nine or 10, and had various
placements during his formative years. Defendant’s father died when he was seven and
his mother died in 1979; his older brother then cared for him. He dropped out of school
(either in the eighth grade or in high school), but had some vocational training in prison.
After two minor convictions, defendant was convicted of three counts of assault with a
deadly weapon (strikes) in 1985, based on his use of a knife to wound three separate
victims. One victim required 65 stitches, and another was stabbed across one eye, had his
ear cut in half, and had a lung punctured. After a parole violation in 1990, defendant was
convicted of unlawful possession of a firearm in 1992, violated parole in 1993, and was
convicted of another strike in 1996, again based on his use of a knife. In that same 1996
case, he was also convicted of battery on a correctional officer (§ 243.1), whom he struck
on the cheek and then tried to choke. While in prison, he again battered a custodial
officer in 2009, by throwing a food tray through a port, striking the officer’s feet. He had
numerous insubordination incidents in prison.
After taking the matter under submission, the trial court convened a final hearing
on January 16, 2015. The court found by a preponderance of the evidence that defendant
would pose an unreasonable risk of danger to public safety if he were resentenced. After
describing defendant’s lengthy criminal record and failure to reform his conduct, the trial
court noted defendant’s “strong propensity for violence and aggression unabated by
rehabilitation and corrective efforts” while on probation or in prison. The trial court did
not give much weight to the fact the prison system deemed defendant to be at low risk of
reoffense, attributing that to his age and length of his incarceration, and did not find those
factors would ameliorate defendant’s innate violent tendencies if freed from the
structured prison environment. Instead, the court found that defendant’s “series of
disciplinary difficulties [in prison] . . . showed a continuation of his angry, impulsive and
potentially violent responses to the types of conflicts and confrontations that attends daily
5
life in any context [or] any setting.” The trial court gave greater weight to the probation
officer’s more dire assessment of defendant’s risk. The facts did not indicate any mental
illness, but rather showed “defendant’s long-standing, deeply imbedded character
tendency toward angry, somewhat impulsive, violent acts” a trait which persisted in part
because of defendant’s lack of insight and failure to take responsibility for his behavior.
Even assuming defendant’s release were followed by PRCS, the court opined that
defendant could not successfully engage such supervision in a way that would
appreciably ameliorate the risk he presented to the community. Defendant had not
presented a viable reentry plan, but had plans that were “somewhat vague and rather
speculative at best and would seem somewhat ominously to involve returning him to
much the same environment where he, in the past, repeatedly failed to avoid further
criminality.”
Accordingly, the trial court denied defendant’s petition for resentencing.
Defendant timely appealed from the denial of his petition.4
DISCUSSION
I
Standards for Determining Risk to Public Safety
Defendant first contends the trial court used the incorrect standards to determine
whether he posed an “unreasonable risk of danger to public safety” as that term is used in
Proposition 36, the Three Strikes Reform Act of 2012. He cites Proposition 47, the Safe
Neighborhoods and Schools Act passed on November 4, 2014, and effective before the
trial court’s January 2015 ruling in this case. (See People v. Rivera (2015) 233
Cal. App. 4th 1085, 1089.) He argues that Proposition 47 defined the phrase
4 On June 22, 2015, we granted appellant’s “motion to construe notice of appeal as an
appeal from an order after judgment affecting appellant’s substantial rights” pursuant to
section 1237, subdivision (b).
6
“ ‘unreasonable risk of danger to public safety’ ” in a narrower way, and applies to
Proposition 36 (§ 1170.18, subd. (c)).
The People of this state recently passed two significant criminal reform measures,
Proposition 36 in 2012, which ameliorated the Three Strikes Law by requiring the third
strike to be a serious or violent felony (see People v. Yearwood (2013) 213 Cal. App. 4th
161, 167-168 (Yearwood)), and Proposition 47 in 2014, which reduced a number of
felony or wobbler offenses to misdemeanors (see People v. Rivera, supra, 233
Cal.App.4th at pp. 1090-1091).
Both initiatives contain procedures for current inmates to petition for resentencing,
under guidelines designed to preclude relief for offenders deemed to present “an
unreasonable risk of danger to public safety.” (§§ 1170.126, subd. (f); 1170.18, subd.
(c).) Proposition 36 did not define this key phrase, although it set forth the types of
evidence the trial court could consider in applying the initiative, which gave trial courts
broad discretion to determine what conduct an offender was likely to engage in that might
threaten public safety. (§ 1170.126, subd. (g); see People v. Garcia (2014) 230
Cal. App. 4th 763, 768-770; People v. Flores (2014) 227 Cal. App. 4th 1070, 1075.) While
Proposition 47 continued to allow the use of the exact same evidence a trial court could
consider (§ 1170.18, subd. (b)), it also defined this phrase to specify that the public safety
risk must be risk that the petitioner will commit a so-called “super-strike” (§ 1170.18,
subd. (c); see § 667, subd. (e)(2)(C)(iv)).
In narrowing the definition of the risk to public safety, Proposition 47 provided
that its definition would apply “throughout this Code.” (§ 1170.18, subd. (c).) Such
language plainly refers to the Penal Code as a whole. (See Marshall v. Pasadena Unified
School Dist. (2004) 119 Cal. App. 4th 1241, 1255 [finding “nothing ambiguous about the
phrase ‘as used in this code’ ”]; People v. Bucchierre (1943) 57 Cal. App. 2d 153, 166
[“The words ‘as in this code provided’ (Penal Code, § 182) refer to the Penal Code”].)
7
Thus, defendant plausibly and straightforwardly contends that Proposition 47
defined with precision the specific risk to public safety that would prevent resentencing,
whether for a Proposition 47 petitioner or a Proposition 36 petitioner. Were we simply to
hold the voters to the language they chose in adopting Proposition 47 and end our
analysis here, we would agree with defendant. However, for reasons we explain, we do
not end here.
We have a duty to construe the language of a statute or initiative by reconciling
and harmonizing its parts, both internally and by considering its interaction with the
larger body of connected laws. (See People v. Pieters (1991) 52 Cal. 3d 894, 898-899;
Lungren v. Deukmejian (1988) 45 Cal. 3d 727, 735.) “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.” (People v. Skinner
(1985) 39 Cal. 3d 765, 775.) In some cases the text and purpose of a measure reveal a
drafting error that must be corrected. (Id. at pp. 775-776.)
In this case, if the plain meaning of the relevant passage in question is followed,
several inconsistencies both within Proposition 47 itself emerge, and several illogical
effects emerge in the application of Proposition 36, which we detail post. Further,
nowhere in any of the ballot materials presented to the voters who adopted Proposition 47
were any of these nuances mentioned. Indeed, other than the single use of the word
“Code,” there was no indication that Proposition 47 would have any effect on Proposition
36 at all. As we explain, all other indications were to the contrary.
In such circumstances, mindful of the healthy trepidation judges must feel when
departing from the plain meaning of an enactment (see Unzueta v. Ocean View School
Dist. (1992) 6 Cal. App. 4th 1689, 1698-1699), we are compelled to conclude Proposition
8
47 contains a drafter’s error.5 The phrase “throughout this Code” must be read to mean
“throughout this act” to avoid illogical and unintended consequences. (See In re
Thierry S. (1977) 19 Cal. 3d 727, 741, fn. 13 [mistaken statutory cross-reference
disregarded to avoid “obvious absurdity”].)
We briefly detail our reasoning.
The People point to seven circumstances which they contend show the plain
meaning of the statute would lead to absurd results. Although we find some of these
circumstances to be unhelpful or only weakly helpful, we agree that they combine to
convincingly demonstrate that a drafter’s error exists in Proposition 47.
First, the People point out that nothing in the title, summary, analysis, or
arguments in the ballot pamphlet encompassing Proposition 47, suggested the measure
would alter the effect or application of Proposition 36. They partly rely on the notion that
such an important change would not be made without comment. (Cf. In re Christian S.
(1994) 7 Cal. 4th 768, 782 [“We are not persuaded the Legislature would have silently, or
at best obscurely, decided so important and controversial a public policy matter”].) Of
course, the text of Proposition 47 was included in full in the ballot pamphlet. (Voter
Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, pp. 70-74.) It is a
longstanding rule that we must presume voters read and understood the text of ballot
initiatives. (See Wright v. Jordan (1923) 192 Cal. 704, 713 [voters “must be assumed to
have voted intelligently upon an amendment to their organic law, the whole text of which
was supplied each of them prior to the election, and which they must be assumed to have
duly considered, regardless of any insufficient recitals in the instructions to voters or the
5 Another appellate court has reached the same conclusion--albeit employing different
reasoning--over a dissent. Our Supreme Court will ultimately resolve the issue. (See
People v. Valencia (2014) 232 Cal. App. 4th 514, review granted Feb. 18, 2015, S223825.)
9
arguments pro and con of its advocates or opponents accompanying the text of the
proposed measure”]; Brosnahan v. Brown (1982) 32 Cal. 3d 236, 252.)
The goal of Proposition 47 was to reduce the cost of housing petty criminals. This
is shown by the argument in favor of Proposition 47, which spoke in terms of prioritizing
serious and violent crime so as to stop wasting prison space “on petty crimes,” stop
“wasting money on warehousing people in prisons for nonviolent petty crimes,” and stop
California’s overcrowded prisons from “incarcerating too many people convicted of low-
level, nonviolent offenses.” (Voter Information Guide, supra, argument in favor of Prop.
47, p. 38.) The rebuttal to argument against Proposition 47 reiterated these themes, and
never suggested Proposition 47 would have any effect on resentencing under Proposition
36. Although the rebuttal lamented that many criminals with serious prior convictions
would be released if the measure passed, there was no claim that any of those released
early would be persons whose present crimes remained felonies. (See id., rebuttal to
argument in favor of Prop. 47, pp. 38-39.) The same point is true of the discussion of
resentencing contained in the argument against Proposition 47. (Id., argument against
Prop. 47, p. 39.) Nowhere in the ballot materials 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 might or would have on Proposition
36. (See id. at pp. 34-39.)
Second, the People contend the two initiatives had very different purposes. In
their view, Proposition 36 was designed “to restore the public’s original understanding of
the Three Strikes law by reserving life sentences for only the most dangerous criminals
and defendants whose current conviction is for a serious or violent crime.” In contrast, so
the People argue, “the main purpose of Proposition 47 was to reprioritize spending and
redirected it from the prison system into crime prevention, support programs in K-12
10
schools, victim services, and mental health and drug treatment.” We agree in general.
However, as the People concede, Proposition 36 also saves money, and Proposition 47
also addresses “aspects of public safety.” Thus, both initiatives result in more lenient
punishment for some offenders, with bulwarks against early release of more serious
offenders, and both reduce the prison population and save money.
Third, the People argue the two initiatives have very different scopes. Proposition
36 benefits some persons with two or more strikes (serious felony convictions), whereas
Proposition 47, generally speaking, benefits some persons who have committed petty
felonies or wobblers that are to be reduced to misdemeanors. Admittedly, however, some
people may be eligible to petition under both initiatives. The People summarize their
contention as follows:
“Although it is possible for an individual to be eligible for relief under both
Proposition 36 and Proposition 47, the group targeted for relief under Proposition
47 as a whole is generally comprised of low-level offenders as opposed to the
more volatile and recidivist serious and violent offenders Proposition 36 was
designed to reach. There is a huge difference, both legally and in the risk to public
safety, between someone with multiple [strikes] whose current offense is a felony,
and someone with no felony criminal history whose current offense is (or would
be, if committed today) a misdemeanor. Because the would-be misdemeanants
who stand to benefit from Proposition 47, as a class, are less dangerous than
recidivist felons with prior strike offenses, it is logical to impose a higher
dangerousness standard for them (§ 1170.18, subd. (c)) than the standard applied
for recidivist felons under Proposition 36.”
We agree with the People that it would be logical to have two standards of
dangerousness for the two classes of offenders seeking resentencing under the respective
propositions. But that does not mean it is absurd to have the same standard of
dangerousness “throughout this Code” as stated by Proposition 47. That would normally
be a judgment within the competence of the electorate to make. If this uniform standard
proves inexpedient, or is found to present an unwanted risk to public safety, the voters--or
the Legislature, by a suitable majority--can change the rules.
11
Fourth, the People point to the close timing of the two measures, passed just two
years apart, and the fact that the “window” for filing a resentencing petition under
Proposition 36 expired just days before the adoption of Proposition 47.6 Their point is
that when Proposition 47 took effect, only two days remained to file a Proposition 36
resentencing petition, absent good cause. The People view the plain application of
Proposition 47 to create a necessary extension of time to file Proposition 36 petitions,
which in their view is absurd. The new definition of unreasonable risk would apply to
petitions, like defendant’s herein, that had not yet been acted on by trial courts, and
would also apply to so-called “late” petitions that were accompanied by a showing of
good cause for the delay. (§ 1170.126, subd. (b).) We agree that it does seem unlikely
that any rational voter would have intended to change the rules for Proposition 36
petitions at the last moment, when nearly all petitions would already have been filed and
most of them had already been adjudicated.
Fifth, the People argue: “The radical reduction of court discretion in Proposition
36 proceedings that would result without notice that the electorate intended to reduce the
discretion it so recently and abundantly granted to the courts to determine a petitioner’s
dangerousness is also unreasonable.” This is partly an iteration of the claim that the
ballot materials were silent on the precise question posed by this case. To the extent the
People contend a revision of a two-year-old initiative is necessarily unreasonable, we
disagree. The voters (by initiative) and the Legislature (by statute) frequently modify
statutes after seeing their operation. Here, the voters were presumptively aware that they
were creating a new definition of “risk” that they wanted to be applicable “throughout
this Code” which would include Proposition 36. Applying that new definition would
6 The window for third-strike prisoners to seek resentencing closed “two years after the
effective date” of Proposition 36 (i.e., November 7, 2012, the day after the election)
except “upon a showing of good cause.” (§ 1170.126, subd. (b).)
12
result in the release of more prisoners, reducing prison overcrowding--the subject of
notoriously protracted litigation (see, e.g., Brown v. Plata (2011) 563 U.S. 493 [179
L.Ed.2d 969])--and thereby saving the taxpayers’ money. We see nothing unreasonable
or absurd about the timing of the two initiatives per se.
In their sixth and seventh points, the most compelling of the series, the People
make two strictly statutory arguments, that parts of Proposition 47 itself preclude the
application of its definition of risk to Proposition 36 petitions. These two points together
show the structure and content of section 1170.18 is inconsistent with the intent to apply
the narrow definition of risk throughout the entire Penal Code. Perhaps most
importantly, section 1170.18, subdivision (n) provides: “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.” Applying the newly narrowed definition of risk
contained in section 1170.18, subdivision (c), would necessarily diminish or abrogate the
finality of judgments in cases subject to Proposition 36, that do not fall within the
purview of Proposition 47. Defendant’s Proposition 36 petition seeks to abrogate the
finality of a three strikes judgment in a case that does not involve a nonserious,
nonviolent property or drug crime addressed by Proposition 47. Further, the wording of
section 1170.18, subdivision (c) is itself inconsistent with the intent to apply it throughout
the entire Penal Code. It refers to “petitioners” which, throughout Proposition 47, is a
term referring to persons petitioning under that act. (See § 1170.18, subds. (a), (b), (c),
(j), (l), & (m).) The narrow definition of risk defines a phrase that appears in only two
sections of the Penal Code, sections 1170.18 (Proposition 47) and 1170.126 (Proposition
36). If the voters had intended to apply the newer Proposition 47 definition to all
Proposition 36 petitions, it is difficult to imagine a more roundabout and illogical means
of doing so.
13
Given consideration of the above points taken together, we conclude Proposition
47 contains a drafter’s error, and the phrase “throughout this Code” must be read to mean
“throughout this act.” We do not reach this conclusion lightly, but in this particular
situation, it is evident that the portion of the act at issue did not mean what it said.
Accordingly, the trial court did not err by using the broader definition to determine
whether defendant posed an unreasonable risk to public safety, and was not required to
find he posed a risk of committing a “super strike” if he were to be resentenced.
II
Abuse of Discretion
Defendant contends that, assuming the trial court applied the correct legal standard
of risk, the trial court abused its discretion. We disagree.
A trial court’s sentencing decision will be upheld on appeal unless it “ ‘falls
outside the bounds of reason’ under the applicable law and the relevant facts [citations].”
(People v. Williams (1998) 17 Cal. 4th 148, 162.) It is the defendant’s burden to
demonstrate an abuse of discretion, not merely that different jurists might rationally
disagree on the appropriate sentencing decision. (See People v. Superior Court (Alvarez)
(1997) 14 Cal. 4th 968, 977-978.) On appeal, defendant describes the evidence in the
record as much as possible in his favor, but does little more than show that perhaps a
different judge may have made a different determination. He does not come close to
carrying his burden to show that this trial judge disregarded relevant evidence, failed to
consider defendant’s individual circumstances, or even came close to exceeding the
bounds of reason.
Without addressing each of defendant’s many subpoints, the record shows the trial
court considered all of the information presented to it, and granted several continuances
to allow the parties to gather more information. In particular, this included more
information about the low-risk assessment by the prison authorities that differed so
markedly from the local high-risk assessment. Ultimately, the trial court gave greater
14
weight to the local assessment, as it was entitled to do. The trial court also understood
defendant could be subject to a period of PRCS if released, which can sometimes help
reduce the risk of reoffense. However, the court found that this would not be effective in
defendant’s particular case, given defendant’s longstanding criminality, defiance of
authority, and vague plans for reintegration into society.
In short, we find no abuse of discretion on this record.
III
Right to Jury Trial
Defendant contends he had a Sixth Amendment right to a jury trial on the question
whether he posed on undue risk to public safety. We disagree.7
Under Proposition 36, a defendant convicted of a felony with two or more prior
strike allegations is subject to a sentence of 25 years to life if the current conviction is a
serious or violent felony but is subject only to a two strike sentence if the current felony
is not serious or violent. (See People v. Yearwood, supra, 213 Cal.App.4th at pp. 167-
168.) Defendant contends that for a defendant who, like himself, is eligible for
resentencing, Proposition 36 establishes the two strike sentence as the “mandatory
minimum sentence” unless future danger to public safety is established. Citing
Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L. Ed. 2d 435], and related authority,
defendant contends he is entitled to a jury trial on the dangerous issue because a finding
of danger effectively increases his punishment from the mandatory minimum.
This Sixth Amendment issue was resolved adversely to defendant in People v.
Superior Court (Kaulick) (2013) 215 Cal. App. 4th 1279, as he concedes. We reject
defendant’s contention for the reasons stated therein. (Kaulick, at pp. 1301-1305.)
7 Although defendant did not request a jury trial, the People do not contend this forfeits
his claim that he was entitled to a jury trial.
15
DISPOSITION
The order denying defendant’s resentencing petition is affirmed.
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Hoch, J.
16