Filed 1/22/16 P. v. Martin CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062562
v. (Super.Ct.No. HEF970426)
ROBERT LOUIS MARTIN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge.
Affirmed.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C.
Taylor, and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
1 I
INTRODUCTION
Defendant Robert Louis Martin’s criminal record began in 1965 when he was 14
years old. He has been incarcerated since 1998 for felony possession of .12 grams of
methamphetamine. He turned 65 years old in January 2016.
After the passage of Proposition 36 and Proposition 47, defendant filed separate
petitions under Penal Code sections 1170.126 and 1170.181 for recall of his indeterminate
sentence of 26 years to life. Defendant argues the trial court erred when it found
defendant posed an unreasonable risk of danger to public safety and denied both
petitions. (§§ 1170.126, subds. (f) and (g), 1170.18, subd. (b).) As to the first petition,
he contends the trial court abused its discretion. As to the second petition, he argues
dangerousness must be proved beyond a reasonable doubt and the trial court employed
the wrong criteria for evaluating dangerousness.
Our review of the record concludes that a preponderance of the evidence amply
supported the trial court’s exercise of its discretion. It is unnecessary to prove
dangerousness beyond a reasonable doubt. Absent any statutory indication, the burden of
proof is by a preponderance of the evidence, not beyond a reasonable doubt. The trial
court’s determination was not irrational or arbitrary according to the standard of a
reasonable person. Defendant’s criminal and prison history demonstrates that he has not
1 All further statutory references are to the Penal Code unless stated otherwise.
2 been rehabilitated. Furthermore, defendant has not rebutted the presumption that the trial
court appropriately applied the relevant law. We affirm the judgment.
II
BACKGROUND
A. Defendant’s 1998 Commitment Offense and Initial Appeal
Defendant’s 1998 commitment offense involved possession of .12 grams of
methamphetamine. In 1997, defendant was involved in an altercation with his family
members and neighbors. Beforehand, another of the people involved gave him the
methamphetamine and asked him to dispose of it. (People v. Martin (2001) 25 Cal.4th
1180, 1182-1183.) “Ultimately, defendant wound up outside in the alley behind the
house, facing a group of adults, [composed] of family members and neighbors[,] as he
screamed and swung a metal pipe around himself in an arc, as one would swing a
baseball bat. Defendant also picked up and threw rocks at the group, hitting a neighbor,
Naomi Biggs, in the leg. Nicole Trip testified that as she tried to go past defendant to
enter the house to call police, [] defendant stepped in her direction and took a ‘full swing’
at her with the pipe. She ‘jump[ed] back’ and the pipe missed her by three or four feet.
Defendant did not actually hit anyone with the pipe during the episode.” (Id. at p. 1183.)
After police arrested defendant, they searched his pants pockets and discovered a ‘bindle’
containing .12 grams of methamphetamine. He claimed the drug was not his. (Ibid.)
A jury convicted defendant of three offenses: felony assault with a deadly weapon
(§ 245, subd. (a)(l) [swinging the pipe at victim Nicole Trip]); possession of
3 methamphetamine (Health & Saf. Code, § 11377, subd. (a)); and misdemeanor battery
(§ 242 [(hitting Naomi Biggs with rocks)].) The court found true the enhancement
allegations that defendant had not remained free of convictions for five years after
serving a prison term (§ 667.5, subd. (b)) and had previously been convicted of three
serious and violent felonies. (§§ 667, subds. (c) & (e), 1170.12, subd. (c); People v.
Martin, supra, 25 Cal.4th at pp. 1183-1184.)
At sentencing on December 19, 1998, the court expressly declined to exercise its
discretion under section 1385 to strike any of the prior convictions. Defendant was
sentenced to two concurrent prison terms of 25 years to life for both of the felony
convictions; one concurrent term of six months in county jail for the misdemeanor battery
conviction; and a one-year consecutive prison term for not having remained free of
imprisonment or felony convictions for five years. (People v. Martin, supra, 25 Cal.4th
at p. 1184.)
After this court reversed defendant’s conviction of assault with a deadly weapon
for insufficiency of evidence and vacated the 25-year-to-life indeterminate term for that
offense, the California Supreme Court affirmed the judgment. (People v. Martin, supra,
25 Cal.4th at pp. 1184, 1193.) Consequently, defendant is serving a sentence of 26 years
to life based on his felony conviction for possession of .12 grams of methamphetamine.
Defendant has now been incarcerated for about 17 years.
B. The Denial of Defendant’s Section 1170.126 Petition
After passage of Proposition 36, the Three Strikes Reform Act of 2012 (the
4 Reform Act), section 1170.126 provides a resentencing option to “persons presently
serving an indeterminate term of imprisonment pursuant to” the Three Strikes Law.
(Reform Act, § 6.)
On December 3, 2012, defendant filed a petition for recall of sentence. On May
31, 2013, the trial court determined that he was eligible to petition for recall but denied
his petition on the grounds that he posed an unreasonable risk of danger to public safety.
Defendant appealed, and this court reversed the judgment in an unpublished opinion, on
the grounds that defendant was denied his constitutional and statutory rights by not
receiving an opportunity to appear personally at the dangerousness hearing, and that he
received ineffective assistance of counsel when his counsel failed to communicate with
him before the hearing. (People v. Martin (July 21, 2014, E058888) [nonpub. opn.] at pp.
9-10.)
On remand, defendant personally appeared at the second petition hearing on
December 17, 2014. The trial court again determined that defendant posed an
unreasonable risk of danger to public safety and denied his petition. Defendant filed a
notice of appeal challenging the second denial of his section 1170.126 petition.
C. Defendant’s Petition for Recall of Sentence Filed Under Section 1170.18
In November 2014, the enactment of Proposition 47, The Safe Neighborhoods and
Schools Act (the Safe Act), mandated “misdemeanors instead of felonies for nonserious,
nonviolent crimes like petty theft and drug possession, unless the defendant has prior
convictions for specified violent or serious crimes.” (Safe Act, § 3, subd. (3).) In
5 addition, the Safe Act authorized “consideration of resentencing for anyone who is
currently serving a sentence for any of the offenses listed herein that are now
misdemeanors.” (Safe Act, § 3, subd. (4).) The Safe Act added section 1170.18 (Safe
Act, § 14), which provides a resentencing option to “person[s] currently serving a
sentence for a conviction, whether by trial or plea, of a felony or felonies who would
have been guilty of a misdemeanor under the act that added this section (‘this act’) had
this act been in effect at the time of the offense . . . .” (§ 1170.18, subd. (a).)
Defendant filed a petition for resentencing under section 1170.18 to convert his
felony conviction for possession to a misdemeanor. On March 13, 2015, the trial court
denied his petition on the grounds that defendant posed an unreasonable risk of danger to
public safety. Defendant filed a notice of appeal challenging the denial of his section
1170.18 petition.
III
DISCUSSION
Defendant claims the trial court erred by determining that he poses an
unreasonable risk of danger to public safety under sections 1170.126 and 1170.18. He
specifically argues that his criminal history and prison records do not demonstrate that he
currently poses an unreasonable risk of danger to the public. However, the evidence of
defendant’s behavior, both in and out of custody, supports the trial court’s dangerousness
determination.
6 A. Standard of Review
In his opening brief, defendant concedes the relevant standard of review applied to
a ruling of dangerousness on a section 1170.126 petition is abuse of discretion. However,
in his supplemental opening brief, defendant argues the court’s dangerousness
determination on a section 1170.18 petition must be based on a finding beyond a
reasonable doubt, rather than by a preponderance of the evidence. We hold both petitions
are subject to review for abuse of discretion.
In Sentencing California Crimes, the authors describe the standard of review for
section 1170.126 and section 1170.18 petitions. The denial of resentencing based on
dangerousness is reviewed for an abuse of discretion. The plain language of both section
1170.126, subdivisions (f) and (g), and section 1170.18, subdivision (b), calls for an
exercise of the sentencing court’s discretion: “‘Discretion is the power to make the
decision, one way or the other.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367,
375.) “Where, as here, a discretionary power is statutorily vested in the trial court, its
exercise of that discretion ‘must not be disturbed on appeal except on a showing that the
court exercised its discretion in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see People v. Williams (1998) 17 Cal.4th
148, 162 [abuse-of-discretion review asks whether ruling in question falls outside bounds
of reason under applicable law and relevant facts]; Couzens et al., Sentencing Cal.
Crimes (The Rutter Group 2015) §§ 20.68 and 25.10.)
7 Section 1170.18 does not state what standard of proof should be employed.
However, the only sentence adjustment possible is a reduction. According to the
resentencing statute itself, “[u]nder no circumstances may resentencing under this section
result in the imposition of a term longer than the original sentence.” (§ 1170.18, subd.
(e).) The resentencing does not violate the constitutional guarantee against sentence
increases without a jury’s finding. (People v. Bradford (2014) 227 Cal.App.4th 1322,
1336.) Because there was no possibility that defendant could receive a sentence greater
than he already received, the proper standard of proof was preponderance of the
evidence: “[It] is the general rule in California that once a defendant is eligible for an
increased penalty, the trial court, in exercising its discretion to impose that penalty, may
rely on factors established by a preponderance of the evidence. (In re Coley (2012) 55
Cal.4th 524, 557.) As dangerousness is such a factor, preponderance of the evidence is
the appropriate standard.” (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th
1279, 1305 (Kaulick).)
In Kaulick, the court held the prosecution’s burden is to establish dangerousness
by a preponderance of the evidence, and not by proof beyond a reasonable doubt: “[A]
court’s discretionary decision to decline to modify the sentence in his favor can be based
on any . . . appropriate factor (i.e., dangerousness), and such factor need not be
established by proof beyond a reasonable doubt to a jury.” (Kaulick, supra, 215
Cal.App.4th at p. 1303.) The United States Supreme Court has held that most factors
used to increase penalty must be submitted to the jury and proved beyond a reasonable
8 doubt, but in the context of Proposition 36 (and Proposition 47), “dangerousness is not a
factor which enhances the sentence imposed when a defendant is resentenced under the
Act; instead, dangerousness is a hurdle which must be crossed in order for a defendant to
be resentenced at all. If the court finds that resentencing a prisoner would pose an
unreasonable risk of danger, the court does not resentence the prisoner, and the petitioner
simply finishes out the term to which he or she was originally sentenced.” (Kaulick, at p.
1303.) Any facts found at such a proceeding, such as dangerousness, do not implicate the
Sixth Amendment. (Id. at pp. 1304-1305.) The trial court, in exercising its discretion,
may rely on factors establishing the defendant’s dangerousness based on a preponderance
of the evidence. (Id. at p. 1305.)
Defendant argues the reasoning of Kaulick should not apply to Proposition 47
determinations, because section 1170.18 involves an entirely different judicial
mechanism than does section 1170.126 in that section 1170.18 changes the classification
of the crimes, whereas section 1170.126 permits the reduction of third strikes to second
strikes. Nevertheless, both statutes require the continued imprisonment of an inmate for a
crime that would no longer require lengthy imprisonment if the inmate were sentenced
today. This is permissible because the petitioning inmate may obtain rensentencing if he
satisfies the necessary conditions of sections 1170.126 or 1170.18. There is no legal
justification for requiring a disqualifying factor under section 1170.18 to be proved
beyond a reasonable doubt.
9 B. Propositions 36 and 47 and the Meaning of Dangerousness
1. Proposition 36, the Reform Act
Under the Reform Act, a life sentence for a third strike offender is reserved for
cases where the new felony is also serious or violent. (People v. Yearwood (2013) 213
Cal.App.4th 161, 167-168.) In all other cases, the recidivist will now be sentenced as a
second strike offender. (Id. at p. 168; see §§ 667, 1170.12.)
The Reform Act also created a procedure for “persons presently serving an
indeterminate term of imprisonment” to petition for recall of the sentence and for
resentencing as a second striker, when the third strike offense is not a serious or violent
felony. (See § 1170.126, subds. (a), (b).) Once a prisoner has met the requirements for
eligibility for resentencing under section 1170.126, subdivision (e), the prisoner “shall be
resentenced . . . unless the court, in its discretion, determines that resentencing the
petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.I26,
subd. (f).) Subdivision (g) describes the facts the court may consider: “(1) The
petitioner’s criminal conviction history, including the type of crimes committed, the
extent of injury to victims, the length of prior prison commitments, and the remoteness of
the crimes; [¶] (2) The petitioner's disciplinary record and record of rehabilitation while
incarcerated; and [¶] (3) Any other evidence the court, within its discretion, determines to
be relevant in deciding whether a new sentence would result in an unreasonable risk of
danger to public safety.” (§ 1170.126, subd. (g).)
10 2. The Safe Act
The Safe Act, just like the Reform Act, created a procedure for inmates to petition
for recall of the sentence and for resentencing as a misdemeanant if their felony
conviction would have been a misdemeanor under the new law. (See § 1170.18, subd.
(a).) Once an inmate has met the requirements for eligibility for resentencing under
section 1170.18, subdivision (a), the prisoner’s felony sentence “shall be recalled and the
petitioner 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.” (§ 1170.18, subd. (b).) In “exercising its discretion,” the court considers the
same factors as set forth in section 1170.126, subdivision (g).
Although section 1170.126 did not define the meaning of “unreasonable risk of
danger to public safety,” section 1170.18, subdivision (c), defines the phrase to mean “an
unreasonable risk that the petitioner will commit a new violent felony within the meaning
of” Penal Code section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (c).) Section
667, subdivision (e)(2)(C)(iv), enumerates several serious or violent felony convictions
that are commonly referred to as “super strikes,” and include, among other things,
sexually violent offenses, any homicide offense, and “any serious and/or violent felony
offense punishable in California by life imprisonment or death.”
C. The Hearing on Defendant’s Petition Under Section 1170.126
At the hearing on December 17, 2014, the prosecution introduced into evidence a
copy of defendant’s prison history, a certified copy of his criminal history, and a packet
11 of police reports. Defendant submitted letters of support from his family and friends and
a packet of educational certificates and other certificates of recognition, as well as
medical documents.
1. Criminal History
Defendant’s criminal history began in 1965 when he was 14 years old. From 1965
until 1979, he had a record of about 40 criminal incidents. In July 1979, he was arrested
for raping a woman in a public bathroom. He agreed to a negotiated plea to one count of
assault with a deadly weapon, and was sentenced to three years in prison. Four more
incidents occurred in 1979 and 1980. In March 1981, defendant was arrested for raping a
woman whom he forced into an alley while she was waiting for a bus. He later
threatened to kill her and her husband if she told anyone. In May 1981, defendant was
arrested for armed robbery and eventually sentenced to five years in prison. More
incidents followed in 1983, including when defendant was arrested for shooting the
owner of a bar as he fled through the rear exit of the bar. In 1987, defendant reportedly
forced a woman to copulate him orally, then kicked and punched her in the face, chest,
and back, causing her to sustain a broken nose, broken jawbone, swelling, and bruising.
In June 1990, defendant was arrested after he repeatedly beat his 12-year-old son
with a belt while yelling “I’ll kill you, I’ll kill you!” In August 1990, police were
dispatched to investigate an attempted rape. The victim told officers that she was with
defendant and his wife at their apartment when defendant grabbed her by the neck from
behind, knocked her to the ground, struck her several times, and tried to remove her
12 blouse before she fled. Defendant admitted using force but he and his wife claimed it
was to throw the victim out of their home.
Between 1990 and 1997, defendant was involved in multiple incidents—including
assault, battery, and domestic violence—resulting in contact with the Hemet Police
Department. In 1992, defendant was convicted of possession of a controlled substance
and sentenced to one year in jail. In December 1993, defendant was convicted of willful
infliction of corporal injury of his girlfriend and sentenced to 90 days in jail after he
choked her, dragged her around the apartment by her neck, and held a butcher knife to
her throat. During the police investigation, defendant kicked the back window out of the
police car and bent the door frame. In August 1996, defendant was investigated for
harassing two girls on multiple occasions and attempting to lure them into his car.
Finally, in 1998, he was sentenced to an indeterminate life sentence for the instant
offense.
2. Prison History
In prison, defendant was cited repeatedly for rules violations between 2000 and
2009. In 2000, defendant refused to sign for an envelope and punched his cellmate in the
mouth. In 2001, defendant was argumentative and disruptive during class. Defendant
also refused to obey the orders of prison staff and return to his seat until additional staff
forced him to comply. Defendant disobeyed direct orders and later refused to participate
in the mandatory standing count. Defendant was involved in a fight with two other
inmates and tried to strike one inmate when he attempted to comply with orders. The
13 officer used pepper spray against defendant who was uninjured. The other inmate
sustained several injuries.
In 2002, defendant disobeyed prison staff’s orders and repeatedly appeared outside
of a classroom, leering at a female instructor, which made the instructor “uncomfortable
and concerned for [her] safety.” In 2004, defendant failed to report to his assignment
after a yard recall and delayed lockup, later becoming belligerent and argumentative after
refusing to participate in a class assignment.
In 2005, defendant disobeyed prison staff when requested to move away from a
cell door, telling the prison guard, “Fuck you.” “You stupid Motherfucker!” “Quit being
a Bitch!” Defendant was disrespectful of the prison staff and cited for growing a beard in
violation of grooming standards.
In 2006, he became argumentative and upset when he was told to return to his
assigned housing unit. In 2007, defendant insulted an inmate of another race and was
threatened by a group of inmates. Defendant was placed in administrative segregation
after he was found to present an immediate threat to the safety of himself or others and a
danger to institution security.
In 2008, defendant refused to be housed with a known Crip gang member.
Defendant refused to follow emergency procedures by entering his assigned class room
during an active alarm. In 2009, defendant obstructed the view of his bed with a sheet in
violation of the rules, and later refused to stand during a mandatory count.
14 3. The Trial Court’s Ruling
At the hearing, the trial court commented that defendant’s criminal history was
extensive and voluminous, and that he had a continuous string of arrests and convictions
until he was sentenced to life in prison in 1998. The court observed there was a common
theme of weapons and of violence against women. Many of defendant’s arrests were
negotiated into lesser convictions for disposition. Defendant’s history included “1085ls;
245s; burglaries; auto theft; theft from person; 415s; DUIs; knives; guns; bats; 245
kidnapping charges; 245 rape charges; 211 DUI; 211 245; 415; 148s; both resisting and
false ID; 288 arrests; drug arrests; domestic violence arrests . . . [and] there’s more with
his family, his wife; knives; vandalisms . . . there seems to be a common thread
throughout his life that makes him a risk of being dangerous.” Additionally, the trial
court counted 27 incidents in prison
Defendant argued that he had earned various certificates of achievement while in
prison, including an office services program certificate in 2002; a similar certificate in
2003; a typing course certificate in 2003; an office procedures program certificate and a
business life industry program certificate in 2004; a word processing course certificate in
2005; a school-to-work program certificate, a math-and-literacy course certificate, and an
adult base education program certificate in 2009; a softball league championship award
certificate in 2010; a work ethic award in 2011; a certificate of recognition for being an
umpire in softball in 2011 and 2012; a literacy class certificate in 2012; an office
procedures certificate in 2014; a GED course completion, a computer literacy class, and a
15 Windows Office certificate in 2014. Defendant also cited his medical records, and told
the court that he wears a brace on his back and walks with a cane due to “hypertrophic
spurring.” The trial court noted defendant’s condition appeared to be arthritis.
Defendant denied that he had ever beaten his children—except hitting his son
using a belt with a metal buckle. Defendant tried to explain his background and his past
behavior and how he had changed. Upon release, defendant planned to live with his
mother in Inglewood and preferred to enroll in a reentry supervision program. He had
focused on computer literacy courses in prison.
The court denied defendant’s petition. Defendant contends the trial court abused
its discretion by determining that he posed an unreasonable risk of danger to public
safety.
4. Conclusion
Defendant challenges the court’s reliance on some hearsay evidence. However,
defendant also admits his 1979 conviction for rape, his 1981 robbery conviction, his 1983
and 1987 convictions for assault, his 1993 domestic violence misdemeanor, and his 1997
conviction for drug possession. Therefore, the trial court did not rely solely upon “mere
uncorroborated hearsay” evidence. (Dyer v Watson (1953) 121 Cal.App.2d 84, 92.)
Instead, we hold substantial evidence amply supported the trial court’s finding of
dangerousness. (People v. Cluff (2001) 87 Cal.App.4th 991, 998.) The trial court
considered defendant’s “criminal history, disciplinary record while incarcerated, and . . .
other relevant evidence,” to determine whether he posed “‘an unreasonable risk of danger
16 to public safety.’ (§ 1170.126, subd. (f).)” (People v. Yearwood, supra, 213 Cal.App.4th
at p. 176.) Defendant was a career criminal with a history of predatory and violent
behavior and drug use. In prison, he continued to be antisocial, uncooperative, and
aggressive. A preponderance of the evidence supported the trial court’s finding that he
posed an unreasonable risk of danger to public safety. Even accounting for the mitigating
factors, the trial court did not act in an arbitrary or capricious manner when it determined
that defendant’s criminal and prison history outweighed any mitigating evidence and
properly exercised its discretion to deny defendant’s petition.
D. The Hearing on Defendant’s Petition Under Section 1170.18
At the section 1170.18 petition hearing on March 12 and 13, 2015, the parties
submitted much of the same evidence presented at the December 2014 hearing under
section 1170.126. The prosecutor provided evidence of defendant’s criminal and prison
history, and documents and police reports of various charged and uncharged crimes.
Defendant again submitted letters of family support, medical records, and certificates of
course completion and recognition.
The victim testified about defendant’s 1979 rape offense. She was on her lunch
break in a park near where she worked when defendant called her into a women’s
restroom. He blocked her exit, pulled out a hunting knife, and warned her, “‘Don’t
scream or anything like that, or I’ll kill you.’” He removed her clothes and raped her.
Another person testified about a New Year’s Eve party in 1983. The witness was
the owner of a Los Angeles nightclub. When defendant grabbed the arm of a woman and
17 pulled her away from her dance partner, the two men began yelling and pushing each
other. Defendant wielded a small knife. The nightclub owner grabbed his baseball bat
and told defendant to get out. They fought until the owner’s .45-caliber handgun slipped
out of his holster and defendant retrieved it. As the owner fled into the alley, defendant
fired the owner’s gun twice and struck him in the upper thigh.
Defendant also testified at the hearing that he has a lumbar spine injury requiring
pain medicine. Defendant wore a back brace to the hearing and explained that he
occasionally needs a wheelchair. Defendant testified that he took computer classes in
prison to increase his employment prospects upon release. He disputed the 1979 rape and
claimed it was consensual but the victim was angry because he did not pay her.
The trial court explained that it read all of the “voluminous” exhibits before the
hearing, including the exhibits from the December 2014 hearing. The court observed that
from 1965 until his life sentence in 1998, defendant continued to commit violent crime
“except when he was incarcerated.” Within a year of defendant being released from
incarceration, he harassed two teenage girls, attempting to get them into his car. The
court found defendant was not credible when he discussed the rape incident. The court
commented that defendant’s numerous prison incident reports were “excessive.”
Defendant also lied about his affiliation with the Bloods gang when he entered prison in
1998. The court observed that the medical evidence did not show defendant was wholly
disabled. The court acknowledged the mitigating factors: defendant’s age, his mild
disability, his computer classes and GED, and the years he has already served for a minor
18 conviction after the appellate court dismissed the underlying violent assault.
The court again recognized that from 1965, when defendant was 14, he
continuously committed violent crimes except for when he was incarcerated. His crimes
involved “deadly weapons, guns, knives . . . [and] [a]s far as the victims are concerned,
they were shot, beaten, raped, psychological injuries, fractures.” Even if no conviction
resulted, defendant’s crimes were “the super strike type of crimes . . . [r]ape, attempted
murder, kidnapping, and most involved violence against women. . . .” In prison, he had
many incident reports.
The court ruled that releasing defendant would pose an unreasonable risk that he
would commit a new violent crime, including a “sexually violent crime, maybe a murder
or attempted murder, or a molestation of someone under the age of 18.” Because
defendant had three prior strikes, he might commit a serious or violent felony offense that
would result in a life sentence.
E. The “Unreasonable Risk of Danger” Standard as Defined in Section 1170.18
Defendant argues the trial court misinterpreted the meaning of “unreasonable risk
of danger,” as defined by 1170.18, subdivision (c), by evaluating whether he had the
potential to commit an additional serious or violent felony offense, which would result in
a life sentence because he is a second strike offender. Defendant also contends the court
erroneously believed that the misdemeanor offense of molesting a child under the age of
18 could disqualify him from resentencing.
Defendant has failed to rebut the presumption that the trial court understood the
19 relevant law and appropriately applied it. Contrary to defendant’s contentions, the court
properly evaluated whether defendant posed an unreasonable risk of danger to public
safety. Under section 1170.18, subdivision (c), “unreasonable risk of danger to public
safety” means an unreasonable risk that the petitioner will commit a new violent felony
within the meaning of section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (c).)
Among other so-called “super strikes,” which include several sexually violent or
egregious offenses, that subsection includes “[a]ny serious and/or violent felony offense
punishable in California by life imprisonment or death.” (§ 667, subd.
(e)(2)(C)(iv)(VIII).)2
Defendant has three strike priors. (People v. Martin, supra, 25 Cal.4th at pp.
1183-1184.) Therefore any commission of another serious or violent felony offense
would result in a life sentence under the terms of the Three Strikes Law. (§ 667, subd.
(e)(2)(A).) For the purposes of section 667, subdivision (e)(2)(C)(iv)(VIII), any serious
or violent felony offense committed by a second strike offender would result in a life
sentence. Because defendant has three strike priors, the trial court correctly considered
the likelihood to reoffend because defendant has three strike priors, and any future
serious or violent felony conviction would result in a life sentence.
2 We note that the California Supreme Court has granted a hearing in almost every published appellate case which addresses “dangerousness,” beginning with People v. Valencia (2014) 232 Cal.App.4th 514, and ending most recently with People v. Delapena (2015) 238 Cal.App.4th 1414.
20 Defendant protests that this interpretation would mean that a defendant with two
strikes who commits a third felony which is neither violent nor serious would never be
able to avail himself of resentencing. However, an inmate’s propensity to commit an
additional felony that is neither violent nor serious would not be sufficient to disqualify
him from resentencing under section 1170.18. Only the inmate’s propensity to commit
another serious or violent felony as defined by sections 667.5, subdivision (c), and
1192.7, subdivision (c), would be relevant to determining dangerousness under section
1170.18. The likelihood that an inmate with two strike priors would commit any other
nonserious or nonviolent felony would be irrelevant to the dangerousness determination
under section 1170.18.
Furthermore, defendant misrepresents the trial court’s comments when he argues
the trial court determined he posed a risk of dangerousness because he may have had a
propensity to commit the misdemeanor offense of molesting a child. (§ 647.6, subd.
(a)(1).) What the trial court actually said was, even though defendant is “in custody on a
minor crime, and he’s already served 18 years, that there is an unreasonable risk that he
will commit a new violent crime under 1170.18(a) and 667(c) (e) (4) [sic], that is a
sexually violent crime, maybe a murder or attempt murder, or a molestation of someone
under the age of 18.” The court did not mention misdemeanor child molestation.
“The general rule is that a trial court is presumed to have been aware of, and
followed the applicable law.” (People v. Mosley (1997) 53 Cal.App.4th 489, 496, citing
Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443; Evid. Code, §
21 664.) The reviewing court presumes the trial court’s decision is correct. (Mosley, at p.
496.) An order is presumed correct and error must be affirmatively shown. (Ibid.) The
appellate court cannot presume error where the record does not establish on its face that
the trial court misunderstood the scope of its discretion. (See People v. White Eagle
(1996) 48 Cal.App.4th 1511, 1521-1523; People v. Davis (1996) 50 Cal.App.4th 168,
170-173.) Here, the record does not establish on its face that the court believed it could
deny defendant’s petition if it found that defendant had the propensity to commit any
misdemeanor. Absent any indication to the contrary, defendant has not rebutted the
presumption that the trial court understood and followed the relevant law in determining
whether he posed an unreasonable risk of danger to public safety. (Mosley, at p. 496.)
Just like with the section 1170.126 petition, the evidence amply supported the trial
court’s finding that defendant continued to pose an unreasonable risk to public safety.
Defendant did not establish he has been rehabilitated. From age 14 in 1965 until his life
sentence in 1998, defendant continuously committed violent crimes except for when he
was incarcerated. Many of defendant’s crimes were serious and violent, “the super strike
type of crimes . . . [r]ape, attempted murder, kidnapping, and most involved violence
against women, whether it was his wife or women that he picked up off the streets.” The
numerous prison incidents were “excessive.” Defendant still refuses to accept culpability
for the 1979 rape conviction.
The trial court’s determination was hardly so irrational or arbitrary that no
reasonable person could agree with it. Defendant exhibited little remorse and accepted
22 no responsibility for his crimes. Considering all the evidence of defendant’s violent
criminal history, his lengthy disciplinary history in prison, and his failure to accept
culpability, the trial court unquestionably properly exercised its discretion to deny
defendant’s section 1170.18 petition. Even without considering defendant’s propensity to
commit serious or violent felony offenses, the evidence presented at the petition hearing
overwhelmingly demonstrated that he posed an unreasonable risk of danger to public
safety within the meaning of section 1170.18.
IV
DISPOSTIION
The trial court did not abuse its discretion in denying defendant’s section 1170.126
and 1170.18 petitions. It properly analyzed defendant’s potential for dangerousness.
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
McKINSTER J.