People v. Myers

200 Cal. Rptr. 3d 19, 245 Cal. App. 4th 794, 2016 Cal. App. LEXIS 202
CourtCalifornia Court of Appeal, 3rd District
DecidedMarch 17, 2016
DocketC078277
StatusPublished
Cited by3 cases

This text of 200 Cal. Rptr. 3d 19 (People v. Myers) is published on Counsel Stack Legal Research, covering California Court of Appeal, 3rd District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Myers, 200 Cal. Rptr. 3d 19, 245 Cal. App. 4th 794, 2016 Cal. App. LEXIS 202 (Cal. Ct. App. 2016).

Opinion

Duarte, J.

*796Defendant Ronald Lee Myers appeals from denial of his petition to resentence under the Three Strikes Reform Act of 2012 (Proposition 36) based on a finding that resentencing him would pose an unreasonable risk of danger to public safety. (Pen. Code, § 1170.126.)1 He contends the trial court used the wrong standards to determine whether he posed a risk of danger, the trial court abused its discretion in making such finding, and he was entitled to have a jury, not a trial judge, make such finding. Disagreeing, we shall affirm.

PROCEDURAL BACKGROUND

As recounted in our prior unpublished opinion, People v. Myers (Apr. 25, 2000, C032591) (Myers I ), which is part of the record in this case, a jury convicted defendant of the felony of possession by a felon of ammunition (former § 12316, subd. (b)(1), later renumbered as § 30305, subd. (a)(1)), and two misdemeanors-assault (§ 240) and possession of a syringe (Bus. & Prof. Code, § 4140 ). The trial court found he had served a prior prison term (§ 667.5, subd. (b)) and had four strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) He was sentenced to prison for 25 years to life plus one year, with concurrent misdemeanor terms. We affirmed.

On March 15, 2014, defendant petitioned to recall his sentence under Proposition 36. The People opposed the petition, conceding defendant was eligible for consideration for resentencing, but arguing the trial court should exercise its discretion to find that defendant posed "an unreasonable risk of danger to public safety" (§§ 1170.126, subd. (f)) and decline to resentence him. The People in part relied on a summary of defendant's criminal record and behavior while in custody.

*797Certain prison disciplinary records were received into evidence without objection. Later, the trial court ordered the probation department to prepare a resentencing *21report. That report referenced an earlier report, which was later received into evidence.2

The trial court hearing focused on the question of dangerousness.3 Defendant emphasized a risk assessment performed by the prison authorities that had concluded defendant was at low risk to reoffend, a conclusion rejected by the probation officer, purportedly without consideration of appropriate "evidence-based practices." Defense counsel conceded defendant was not a model inmate, but attributed that to the "despair that goes with a life sentence" and the environment at Pelican Bay State Prison, which included daily threats of violence among inmates. Counsel emphasized that defendant's last prison incident was five years old and was minor, involving pushing a food tray, and did not reflect dangerousness. In contrast, counsel argued defendant's local jail behavior had been problem-free. Further, an appropriate assessment should consider the fact that defendant was 51 years old, and his last violent offense occurred 15 years ago. His last firearms-related incident occurred 22 years ago. Defendant had access to a tribal support network if released under supervision in the community. A later report detailed defendant's plans as follows: He wanted Social Security benefits and a job with the Karuk Tribe's future casino, and planned to contact the tribe for a hotel voucher. He had a friend in a 12-step program who could be a resource for him.

Amy Fernandez, the probation officer, testified she was aware of the prison's low risk assessment number for defendant. She had not been able to learn exactly how that number is derived, but thought it was designed to assess an inmate's in-prison risk. Another probation department employee used a risk-assessment protocol designed specifically to measure out-of-prison risk to evaluate defendant and concluded he was at high risk of violent reoffense. However, Fernandez was not completely confident in the accuracy of some of the information in that assessment, so the hearing was continued to allow her to prepare a new local assessment as well as to try to get more information about the way the prison assessed risk.

Fernandez's subsequent report included an updated local risk assessment that again concluded defendant was at high risk for violent reoffense. She had contacted the prison system and learned the prison-system's risk assessment *798protocol was essentially the same as the local one, in that it evaluated the risk of releasing someone on parole, and did not strictly address in-prison risk. She had sent the prison her assessment, and had sought an explanation for the discrepancy between the very different conclusions reached. The best she could determine was that the prison reached a lower score due to "defendant's length of incarceration coupled with his age," but she couched this as speculation on the part of the prison employee with whom she had spoken. She also did not find defendant's vague plans-relying on possible tribal assistance and a friend-to be viable in ameliorating defendant's risk to public safety. *22After some delays, the hearing resumed on December 19, 2014, and Fernandez testified that, if released with a period of post-release community supervision (PRCS), defendant should have "some type of an anger management program" but she still felt he posed a risk to the community. During this hearing, the People conceded the general force of defense counsel's "aging out" argument, but maintained defendant individually presented a risk to the community, in part because he had failed to avail himself of rehabilitative services (such as counseling) while in prison.

The various probation reports reveal the following: Defendant, born in 1963, had been removed from the home and made a ward at about age nine or 10, and had various placements during his formative years. Defendant's father died when he was seven and his mother died in 1979; his older brother then cared for him. He dropped out of school (either in the eighth grade or in high school), but had some vocational training in prison. After two minor convictions, defendant was convicted of three counts of assault with a deadly weapon (strikes) in 1985, based on his use of a knife to wound three separate victims. One victim required 65 stitches, and another was stabbed across one eye, had his ear cut in half, and had a lung punctured. After a parole violation in 1990, defendant was convicted of unlawful possession of a firearm in 1992, violated parole in 1993, and was convicted of another strike in 1996, again based on his use of a knife. In that same 1996 case, he was also convicted of battery on a correctional officer (§ 243.1), whom he struck on the cheek and then tried to choke. While in prison, he again battered a custodial officer in 2009, by throwing a food tray through a port, striking the officer's feet. He had numerous insubordination incidents in prison.

After taking the matter under submission, the trial court convened a final hearing on January 16, 2015. The court found by a preponderance of the evidence that defendant would pose an unreasonable risk of danger to public safety if he were resentenced.

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Cite This Page — Counsel Stack

Bluebook (online)
200 Cal. Rptr. 3d 19, 245 Cal. App. 4th 794, 2016 Cal. App. LEXIS 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-myers-calctapp3d-2016.