[REVIEW GRANTED BY CAL. SUPREME COURT]
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL fro a judgment of the Superior Court of Merced County, Nos. SUF20408, SUF20409 Mark V. Bacciarini, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
The Three Strikes Reform Act of 2012 (hereafter Proposition 36 or the Act) created a postconviction release proceeding for third strike offenders serving indeterminate life sentences for crimes that are not serious or violent felonies. If such an inmate meets the criteria enumerated in Penal Code section 1170.126, subdivision (e), he or she will be resentenced as a second strike offender unless the court determines such resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f); People v. Yearwood (2013) 213 Cal.App.4th 161, 168 [151 Cal.Rptr.3d 901].)
After the Act went into effect, Randy Lynn Payne (defendant), an inmate serving a term of 25 years to life following conviction of a felony that was not violent (as defined by § 667.5, subd. (c)) or serious (as defined by § 1192.7, subd. (c)), filed a petition to have his sentence recalled and to be resentenced. Following a hearing, the trial court found defendant “present[ed] an unreasonable risk of danger to public safety if released.”
In the published portion of this opinion, we hold the People have the burden of proving, by a preponderance of the evidence, facts on which a finding that resentencing a petitioner would pose an unreasonable risk of danger to public safety reasonably can be based. Those facts are reviewed for substantial evidence. We further hold, however, that the preponderance of the evidence standard does not apply to the trial court’s determination regarding dangerousness, nor does section 1170.126, subdivision (f), create a presumption of resentencing. The ultimate decision — whether resentencing an inmate would pose an unreasonable risk of danger to public safety — instead lies within the sound discretion of the trial court. In the unpublished portion of the opinion, we conclude recently enacted section 1170.18, subdivision (c) does not modify section 1170.126, subdivision (f). Finding no abuse of discretion, we affirm.
FACTS AND PROCEDURAL HISTORY
On February 10, 1996, defendant was observed stealing several cases of motor oil from a convenience store/gas station in Merced. He subsequently led a California Highway Patrol officer in a pursuit on Highway 99. Defendant drove at speeds well over 100 miles per hour, sometimes traveling partly on the center divider and other times traveling on the shoulder. His driving forced other vehicles to move out of his way to avoid collision. As defendant approached the Livingston city limits, he drove onto the shoulder to pass vehicles stopped at a red traffic light. Defendant lost control of the car, flipped over, and struck a power pole. The car had been stolen.
On August 12, 1996, a jury convicted defendant of two felonies: evading arrest while operating a motor vehicle (Veh. Code, § 2800.2) and petty theft with prior theft convictions (§§ 488, 666). Defendant was found to have three prior serious or violent felony convictions within the meaning of the three strikes law. On April 22, 1997, he was sentenced to 25 years to life in prison.
On or about December 21, 2012, defendant filed a petition under section 1170.126. He represented he was statutorily eligible for such relief, and argued he should be resentenced to a second strike term of 48 months in prison and be released from custody.
The People opposed the petition. They pointed to defendant’s 14-year-long record of criminal convictions, which included three strike convictions (one for robbery and two for residential burglary); the high risk of danger to others posed by his commitment offense; and defendant’s admission, to the probation officer, that he had a drug problem. The People asserted defendant’s conduct in prison had been poor, as he had violated prison disciplinary rules on a number of occasions. The People argued that, even after participating in Narcotics Anonymous and Alcoholics Anonymous programs over the years, defendant incurred disciplinary write-ups for “narcotic diversion” — diverting morphine medication he was to swallow — and possession of alcohol, most recently in 2013. The People further argued that, if defendant were released, he would face difficulty earning sufficient income by lawful means, as his prison records revealed his lack of marketable trade skills and lack of education. Based on the foregoing, the People asserted the trial court should find resentencing defendant would pose an unreasonable risk of danger to public safety.
The petition was heard on August 5, 2013. The court considered its own files in the matter, as well as defendant’s records — his “central file” — from California's Department of Corrections and Rehabilitation (CDCR).
Information in defendant’s CDCR records included the probation officer’s report for defendant’s commitment offenses. It showed defendant, who was born in 1963, had an adult criminal conviction record dating back to 1982. Between 1982 and 1996, he incurred nine misdemeanor convictions for crimes that included burglary, petty theft with a prior conviction, and carrying a concealed weapon on his person; and seven cases in which he was convicted of one or more felonies that included multiple burglaries and robbery. Defendant told the probation officer he dropped out of high school; started using PCP when he was 12 years old and then moved on to cocaine, heroin, LSD, methamphetamine, and marijuana; and injected a mixture of cocaine and heroin as his “drug of choice.” He considered himself dependent on drugs, and had been dependent in the past. Defendant also stated he drank three-fifths of a gallon of whiskey a week, and drank wine and beer. CDCR reception center information showed defendant had a history of heart and kidney disease and that he claimed work experience in a walnut processing plant, laying train tracks, and field work.
Defendant’s CDCR records contained several rules violation reports. In 1998, he was found guilty of possession of United States currency. In 1999, he was placed into administrative segregation pending investigation into allegations of narcotics trafficking in the prison’s general population. In 2004, he was found guilty of mutual combat. He admitted punching the other inmate who, defendant said, was only defending himself. Defendant characterized the inmate as “a homeboy” who was irritating him. Staff had to use pepper spray and a baton strike to break up the fight. In 2006, a hypodermic syringe with a needle was found in the cell defendant shared with another inmate. Defendant admitted it was his, and said he found it in the garbage after a building search. In 2008, defendant was found guilty of possession of tobacco. In 2010, defendant was found guilty of circumventing medical procedures by diverting medication. Defendant acknowledged he was required to place his medication into his mouth, swallow it, and then allow the
nurse to determine he had done so. In 2012, a random search of a cell assigned to defendant and another inmate revealed a garbage bag full of inmate-manufactured alcohol (“‘pruno’”). Defendant stated the pruno was his. At the hearing, he pled guilty to possession of inmate-manufactured alcohol and stated, “‘It wasn’t mine, but I took it.’” The most recent rules violation report, dated January 1, 2013, was, again, for circumventing medical procedures by diverting medication. Defendant stood in the pill line for his “‘as needed’” morphine dose, placed the pill in his mouth and drank his water, but did not swallow the pill. Defendant was written up multiple times for failing to report or being late to class or to his work assignment, being out of bounds, not being in his cell during inmate count, violating grooming and cell regulations, and smoking (a violation of state law).
Defendant’s most recent annual review, dated October 31, 2012, showed him in “Close B” custody. His placement score was 19, the mandatory minimum for a prisoner with a life sentence. His records contained numerous good reports from his prison work supervisors. They also contained verification of his participation in Narcotics Anonymous, Alcoholics Anonymous, and a victims’ awareness program over various periods of time. He also received a certificate of proficiency as a sewing machine operator.
Defendant’s central file contained a therapeutic progress report, dated May 23, 2013, by Dr. Mathews, a clinical psychologist at the prison. Mathews related defendant had been able to make “some true and substantial progress” in the four years she had been treating him, and had deepened his commitment to “making something better of himself.” She found he was not as “materially- driven” as in the past, and although he had struggled with substance abuse issues, he had managed to successfully face them and was engaged in an ongoing dialogue with her about them. She believed defendant had “attained a maturity that has allowed him to no longer be the reactive, angry young man he once was.” She believed he was now capable of delaying gratification. She opined he would make a good candidate for resentencing under the Act.
Mathews testified at the hearing. She had been defendant’s primary treating mental health clinician since the spring of 2009. She concurred with defendant’s previous clinician’s diagnoses that defendant had a “mood disorder not
otherwise specified” and polysubstance abuse in institutional remission. Although defendant was prescribed various medications in the past, he had taken no psychotropic medications since Mathews had been treating him. Defendant’s drug addiction involved multiple substances and reportedly dated from the age of about 10 to 11 years old. Mathews was aware defendant was prescribed morphine while on her caseload. She was concerned with morphine use because she believed it contributes to depression.
Mathews related she and defendant had long conversations about “his short fuse” and “his tendency to personalize things.” She thought defendant had done “really well” developing the capacity to look at what was truly being said so as not to personalize comments. The major change Mathews saw in defendant was his ability to delay gratification. She found he did not have to have “some of the material comfort … he used to want and actively hustle to get” before he was incarcerated. Asked by defense counsel if she thought the court should have concerns regarding defendant’s substance abuse if released, Mathews responded: “I think the Court would be wise to concern [itself] with whether or not he would have a stable environment. I think [defendant] is actually capable with very, very small amounts of money of getting back onto his feet because of his abilities and discussions with me about his interest and ideas and education and real estate. [¶] But … I don’t feel good about him going out and not having a structure. My concern would be his just, kind of, floating out there and feeling overwhelmed by society after 17 years of incarceration.” Mathews thought a sober living environment would be very important, and had discussed the possibility with defendant who seemed receptive to the idea. Mathews was of the opinion that anyone who had ever had a problem with substance abuse continued to have a problem, and she saw defendant as continuing to struggle in that respect.
Defendant testified at the hearing. He admitted having a longstanding drug problem, but denied possessing or consuming any medication not prescribed for him during the 17 years he had most recently been in prison, even though he could have obtained illicit drugs had he wanted to. Defendant was prescribed morphine from 2008 to 2013 because of spinal problems. He explained he did not immediately swallow his medication in the January 2013 incident, because his neck was swollen that morning. The nurse who reported him in 2010 and 2013 was a temporary nurse; defendant took his medication three times a day and never had a problem with the regular staff nurses. He denied the pruno was his; he ...