In 2000, Mr, Valdez was sentenced to 25 years-to-life upon convictions for possession of heroin and being a felon in possession of a gun. This was under the old "two strikes and any subsequent felony" law. Valdez's early days in prison were eventful; he was caught using drugs and carrying shanks. But he had mellowed out with age. He had been sober for 12 years, was now in his sixties, and was suffering from end stage liver disease.
March of 2013, Valdez filed a PC 1170.126 petition to be resentenced pursuant to the 2012 change in the "strike" laws. The state opposed his petition, arguing his was ineligible for 1170.126 relief because he was armed when he committed his 2000 crimes. The trial court disagreed. Valdez was inside his house when he was arrested for the heroin, while the gun was found outside in a car Valdez shared with his wife. Because Valdez did not have ready access to the gun at the relevant time, the court found he was not armed, and thus eligible for 1170.126 relief.
However, the court court denied relief because it found that resentencing Valdez would pose an "unreasonable risk of danger to public safety". Valdez appealed.
In a 2-1 decision, the Fourth District reverses and remands the case for the trial court to apply the definition of "unreasonable risk of danger to public safety" contained with PC 1170.18, that section having been added after the trial court's denial.
The majority opinion is, IMEO, exemplary in both style and substance. The state first asserts that the trial court erred in finding Valdez was not armed during his crimes. The opinion properly points out the state failed to previously challenge this asserted error via a writ petition, the proper procedural vehicle. Even if the state had, they would not have won, states the opinion, giving an excellent and useful description of the applicable standard of review (it is not enough to argue the evidence supported a finding Valdez was armed, it must demonstrate the evidence was insufficient to support any contrary finding).
Next the opinion addresses the phrase "unreasonable risk of danger to public safety" standing apart from the definition in 1170.18. Interestingly, it firsts examines the Constitutional issue of whether the phrase is void for vagueness. The recent United States Supreme Court decision of Johnson v. United States held the federal sentencing language "conduct that presents a serious potential risk of physical injury to another" was void for vagueness because it failed to provide notice of what conduct it encompassed and invited arbitrary enforcement by judges. The majority dips its toe into this Constitutional pool, indicating the phrase may very well fail Constitutional muster. But it then withdraws and (quite cleverly) points out that by defining the phrase via PC 1170.18,, (or in other words, choosing not to rewrite unambiguous statutory language) the Constitutional question can be avoided. Because the trial court did not apply the 1170.18 definition at Valdez's hearing, the case must be remanded to have the trial court decide the petition using the proper definition.
Finally the majority rejects Valdez's assertion that he is entitled to a jury trial on the issue of whether he poses the "unreasonable risk" discussed above, despite a rather ingenuous argument: that a finding of eligibility ratchets the maximum sentence down to that authorized by Proposition 36's 2012 revisions. Thus any subsequent finding of "unreasonable risk" can be viewed as elevating the maximum sentence, a move that requires a jury finding. It is a good try, but the majority rejects the argument instead framing the relief available in a 1170.126 petition as a reduction in a sentence that remains legal, at or below the statutory maximum.
Finally the dissent pens a couple of etiolated paragraphs that accomplish little other than stating the result the justice would have preferred along with some attenuated string citations to give it some company.
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