Saelee

*748 In this case, we make clear that the prosecution is required to admit actual evidence to establish an unreasonable risk of danger to public safety in the second step of Health and Safety Code section 11361.8, subdivision (b), 1 enacted as part of Proposition 64. We further hold that the standard of proof is proof by a preponderance of the evidence. Mere assertions of fact and argument by the prosecution, unsupported by evidence, is insufficient to establish an unreasonable risk of danger to the public, i.e., an unreasonable risk that the petitioner will commit a "super-strike" violent felony offense. Thus, while we disagree with defendant's contention that the clear and convincing evidence standard applies to the risk of dangerousness finding under section 11361.8, subdivision (b), we nevertheless conclude the trial court abused its discretion in rejecting defendant's petition to recall and resentence his conviction as a misdemeanor because in determining that defendant presented an unreasonable risk of danger to the public, the trial *749 court relied only on bald factual assertions and argument by the prosecution unsupported by actual evidence.

We reverse and remand for…