P v. Cordova (6th Dist.) PC 1170.18(c) Definition of "Unreasonable Risk" Applies to PC 1170.126 Retroactively

Mr. Cordova sustained four felony convictions in 1973 which later became "strike" offenses.  Then in 1995, he was convicted for carrying a concealed dirk (or dagger) and, under the old "at least two prior strikes plus any current felony" law, was sentenced to 25 to life.

In 2012, the electorate passed the Reform Act, which changed the aforementioned law to "at least two prior strikes plus a current strike".  The Reform Act also created a statutory vehicle, PC 1170.126, by which eligible prisoners sentenced to life under the old law could petition their trial court for resentencing under the new law.  The trial court is to grant such petitions unless doing so would "pose an unreasonable risk of danger to public safety".  The Reform Act did not define this "unreasonable risk" term, nor did the term appear anywhere else in the California Codes.

Cordova filed his 1170.126 petition and the trial court denied it.  He appealed.

The Sixth District reverses and remands for further proceedings.

At the outset of my comments, I must exclaim, "wow".  This is an impressive opinion that should be read in its entirety (especially by California Supreme Court justices).  Just as certain Federal Circuit Court judges (i.e. Posner & Kozinski) often pen opinions that are embarrassingly more thoughtful and complete than those of their jurisdictions' highest court, so too here does Justice Rushing.

The first issue is whether the "unreasonable risk" definition contained in PC 1170.18, enacted November 5, 2014, as part of Proposition 47, applies to Reform Act petitions.  The opinion holds it does based on the unambiguous language that the definition is to be applied "throughout this Code".  But the opinion does not stop there, it identifies the State's arguments for a contrary result and assiduously (and to the embarassment of the State) examines them.  The result does not cast Kamala Harris or her minions in a good light.

The next issue is whether the 1170.18 definition should apply retroactively to cases not yet final on November 5, 2014.  The opinion holds it does, providing a primer on statutory retroactivity more extensive and intelligent than any treatise or California Supreme Court opinion I've seen.  

The remaining issues involve the application of the Evidence Code to 1170.18 hearings, the burden of persuasion, and equal protection.

Oh, there is a dissent.  It lazily uses the same specious tautologies so effectively exposed as baseless in the opinion to justify the dissenting justice's personal preferences.  It too should be read, for a different reason.