Filed 7/24/17 P. v. Thomas CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

KEITH THOMAS,

Defendant and Appellant.
D070653



(Super. Ct. No. SCD221955 )

APPEAL from an order of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier and Michael P. Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
Keith Thomas brought a petition under Proposition 36, the Three Strikes Reform Act of 2012 (Proposition 36), to recall his sentence under the Three Strikes Law and for resentencing under Proposition 36, specifically Penal Code section 1170.126. Among other things, section 1170.126 allows a court to deny a petition for resentencing under Proposition 36 if it determines "resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).)
In his petition, Thomas argued that the superior court must apply Proposition 47, the Safe Neighborhoods and School Act (Proposition 47) to its resentencing analysis. To this end, Thomas maintained that in considering whether resentencing him would pose an unreasonable risk of danger to public safety, the court had to employ the more specific definition of such a risk provided by Proposition 47. (See § 1170.18, subd. (c).) The superior court did not do so and denied Thomas's petition, finding his resentencing would be an unreasonable risk of danger to public safety under Proposition 36. Thomas argues this was error and urges us to reverse the superior court's order and remand this matter back to superior court to consider his petition again, under the Proposition 47 definition of unreasonable risk of danger to public safety.
While this matter was pending, our high court addressed the very issue presented here. It concluded Proposition 47's definition of "unreasonable risk of danger to public safety" does not apply to Proposition 36 resentencing petitions. (See People v. Valencia (July 3, 2017, S223825) ___ Cal.5th ___ [2017 Cal. LEXIS 4893, **51-52] (Valencia).) As such, we affirm.
DISCUSSION
A jury found Keith Thomas guilty of battery committed by gassing in violation of section 243.9, subdivision (a). The jury also found true several prior convictions, including carrying a concealed weapon (former § 12025, subd. (b)); burglary (§ 459); bringing weapons into a state prison or jail (§ 4574); attempted sale, manufacture, or ownership of illegal weapons (§ 664/[former § 12020]); and seven convictions for criminal threats (§ 422). The court found true three prison priors.
The court sentenced Thomas to prison for three years for the prison priors plus 25 years to life for the battery conviction under the Three Strikes Law.
On November 6, 2012, California voters approved Proposition 36, which amended sections 667 and 1170.12 and added section 1170.126. (See People v. Yearwood (2013) 213 Cal.App.4th 161, 167 (Yearwood).) Section 1170.126 created a postconviction release proceeding "intended to apply exclusively to persons presently serving an indeterminate term of imprisonment pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, whose sentence under this act would not have been an indeterminate life sentence." (§ 1170.126, subd. (a); Yearwood, supra, at p. 170.) However, section 1170.126 provides for an exception that allows a court the discretion to deny resentencing if it determines that "resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).)
On February 27, 2014, Thomas filed a petition to recall his sentence and for resentencing under section 1170.126.
On November 4, 2014, California voters approved Proposition 47. "Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors). Proposition 47 (1) added chapter 33 to the Government Code (§ 7599, et seq.), (2) added sections 459.5, 490.2, and 1170.18 to the Penal Code, and (3) amended Penal Code sections 473, 476a, 496, and 666 and Health and Safety Code sections 11350, 11357, and 11377." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.)
"Proposition 47 also created a new resentencing provision—section 1170.18. Under section 1170.18, a person 'currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition to recall that sentence and request resentencing. (§ 1170.18, subd. (a).) A person who satisfies the statutory criteria shall have his or her sentence recalled and be 'resentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' (Id., subd. (b).)" (People v. Lynall (2015) 233 Cal.App.4th 1102, 1109.) However, unlike Proposition 36, Proposition 47 provides a more specific definition of unreasonable risk of danger to public safety. "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) of Section 667." (§ 1170.18, subd. (c).)
On July 1, 2016, the superior court heard Thomas's recall and resentencing petition. Thomas argued that Proposition 47's more specific "unreasonable risk of danger to public safety" was "incorporated by reference" into Proposition 36 petitions. The superior court disagreed and did not apply the Proposition 47 definition. The court then considered Thomas's petition and determined he posed an unreasonable risk of danger to public safety under Proposition 36 and denied resentencing.
Thomas insists the superior court erred in failing to apply the Proposition 47 definition of "unreasonable risk of danger to public safety." He argues that Proposition 47's more specific definition, by the plain terms of the statute, applies to a petition to recall and for resentencing under Proposition 36. Our high court recently addressed this very issue, concluding Proposition 47's definition of "unreasonable risk of danger to public safety" does not apply to Proposition 36 resentencing petitions. (See Valencia, supra, 2017 Cal. LEXIS at pp. **51-52.) Under the principle of stare decisis, we are bound by the decisions of the Supreme Court. (Auto Equity Sales. Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Thus, for the reasons set forth in Valencia, supra, 2017 Cal. LEXIS 4893, we conclude Thomas's argument lacks merit. Accordingly, we affirm the superior court's order denying Thomas's petition under Proposition 36.
DISPOSITION
The order is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:


O'ROURKE, J.


DATO, J.