People v. Kimble CA3

DISCUSSION

Defendant first argues he had a right to a jury trial based on proof beyond a reasonable doubt of his dangerousness. As explained in Kaulick, “[t]his argument presumes that a finding of dangerousness is a factor which justifies enhancing a defendant’s sentence beyond a statutorily presumed second strike sentence” and “that, once the trial court concluded that he was eligible for resentencing under the Act, he was subject only to a second strike sentence, unless the prosecution established dangerousness.” (Kaulick, supra, 215 Cal.App.4th at pp. 1301, 1302.) “The statutory language, however, is not amenable to [the defendant]’s interpretation. Penal Code section 1170.126, subdivision (f) does not state that a petitioner eligible for resentencing has his sentence immediately recalled and is

3 resentenced to either a second strike term (if not dangerous) or a third strike indeterminate term (if dangerousness is established). Instead, the statute provides that he ‘shall be resentenced’ to a second strike sentence ‘unless the court . . . determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.’ In other words, dangerousness is…