California Court of Appeals, Fourth District, First Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
APPEAL from an order of the Superior Court of San Diego County No. SF113576, David J. Danielsen, Judge. Affirmed.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
In this case, we hold that the abuse of discretion standard applies when reviewing an appeal from a trial court's denial of a petition for resentencing under Penal Code section 1170.126 based on the trial court's finding that release of the petitioner would present an unreasonable risk of danger to public safety. (Undesignated statutory references are to the Penal Code.) We find no abuse of discretion and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In March 1985, a juvenile court found true the allegation that Luis Ramon Aparicio committed battery with serious bodily injury after he dislocated the victim's nose by pushing the victim's head onto concrete. Aparicio was 15 years old at the time. In August 1986, Aparicio attacked a victim with a knife. In October 1988, Aparicio suffered his first strike conviction for robbery when he and three cohorts robbed two victims of their stereos. During the struggle, one of the assailants stabbed one of the victims. Aparicio was sentenced to 365 days in jail and three years of formal probation, but probation was ultimately revoked and he was sentenced to three years in prison.
In June 1989, Aparicio suffered his second strike conviction after he pleaded guilty to attempted robbery after trying to rob three victims with an ice pick. While fleeing the scene, Aparicio's vehicle struck another vehicle and he was later found to be under the influence of a controlled substance. He received a two-year prison sentence. In 1992, Aparicio received a three-year prison term for possessing PCP and marijuana. In 1996, Aparicio was convicted of battery and resisting a police officer. He received probation, but probation was later revoked. In 1997, Aparicio was convicted of his commitment offense after burglarizing a car. During the reading of his guilty verdict, Aparicio attacked a marshal and attempted to remove his gun. He received a 27-year-to-life prison sentence under the Three Strikes Law.
Aparicio received nine write-ups while incarcerated. In February 1998, he received administrative punishment after pinching a female prison employee on the buttocks and grabbing her thigh. In June 1998, he "head-butted" another inmate. In October 1998, he flooded his cell. In February 1999, he flooded his cell and threw urine at an officer. In December 2000, he obstructed a peace officer by refusing to accept a new cellmate. In 2001, 2005 and 2007, he engaged in mutual combat with other inmates. In November 2012, he stole desserts from the dining hall.
A psychologist examined Aparicio. She found that he suffered from antisocial personality disorder and posed a low-moderate risk of committing a
future violent offense. Nonetheless, she concluded that Aparicio did not pose an unreasonable risk to public safety if released. In November 2013. the trial court denied Aparicio's petition for recall of sentence after reviewing the petition, Aparicio's criminal history, ...