Buford

Introduction, part I of the Discussion, the Disposition, and the Concurring Opinion are certified for publication.

SEE CONCURRING OPINION

INTRODUCTION

Victor Leon Buford (defendant), an inmate serving a term of 25 years to life in prison following conviction of a felony that was not violent (as defined by Pen. Code, § 667.5, subd. (c)) or serious (as defined by Pen. Code, § 1192.7, subd. (c)), filed a petition pursuant to the Three Strikes Reform Act of 2012 (hereafter Proposition 36 or the Act) to have his sentence recalled and to be resentenced.1 (§ 1170.126, subd. (b).) Following a hearing, the trial court concluded resentencing would pose an unreasonable risk of danger to public safety and denied the petition. In the published portion of this opinion, we hold the People have the burden of proving, by a preponderance of the evidence, facts on which a finding that resentencing a petitioner would pose an unreasonable risk of danger to public safety reasonably can be based. Those facts are reviewed for substantial evidence. We further hold, the preponderance of the evidence standard does not apply to the trial court’s determination regarding dangerousness, nor does section…

INTRODUCTION

Victor Leon Buford (defendant), an inmate serving a term of 25 years to life in prison following conviction of a felony that was not violent (as defined by Pen. Code, § 667.5, subd. (c)) or serious (as defined by Pen. Code, § 1192.7, subd. (c)), filed a petition pursuant to the Three Strikes Reform Act of 2012 (hereafter Proposition 36 or the Act) to have his sentence recalled and to be resentenced. 1 (§ 1170.126, subd. (b).) Following a hearing, the trial court concluded resentencing would pose an unreasonable risk of danger to public safety and denied the petition.

In the published portion of this opinion, we hold the People have the burden of proving, by a preponderance of the evidence, facts on which a finding that resentencing a petitioner would pose an unreasonable risk of danger to public safety reasonably can be based. Those facts are reviewed for substantial evidence. We further hold the preponderance of the evidence standard does not apply to the trial court’s determination regarding dangerousness, nor does section 1170.126, subdivision (1), create a presumption in favor of resentencing. The ultimate decision—whether resentencing an inmate would…

Concurring.—I concur in the judgment and the majority opinion with the exception of part ID. I agree defendant Victor Leon Buford may not take advantage of Proposition 47’s 1 newly enacted definition of “ ‘unreasonable risk of danger to public safety’ ” as provided in Penal Code section 1170.18, subdivision (c) (section 1170.18(c)). I do so not because there is any ambiguity in the language used in section 1170.18(c) or the notion that the statute does not mean what it says, i.e., that the new definition applies ‘“throughout this Code.” {Ibid.) Rather, in my view, there is no indication the electorate, in enacting section 1170.18(c), intended it to apply retroactively to resentencing determinations under Proposition 36, the Three Strikes Reform Act of 2012 (the Act).

*915 I. After November 4, 2014, the definition of “ ‘unreasonable risk of danger’ ” in section 1170.18(c) applies throughout the Penal Code

Section 1170.18(c) provides: “As 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)…