February 5, 2015
THE PEOPLE, Plaintiff and Respondent,
TIMOTHY JAMES RODRIGUEZ, Defendant and Appellant.
[REVIEW GRANTED BY CAL. SUPREME COURT]
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from a judgment of the Superior Court of Madera County. No. MCR04652, Mitchell C. Rigby, Judge.
Sylvia Whatley Beckham, 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, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
The Three Strikes Reform Act of 2012 (hereafter 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, Timothy James Rodriguez (defendant), an inmate serving a term of 25 years to life in prison 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 for resentencing under the Act. The trial court found defendant was “not disqualified from resentencing, ” but declined to resentence him due to the risk of danger to public safety.
In the published portion of this opinion, we hold the court did not err by failing to appoint an expert on the issue of current dangerousness. In the unpublished portion, we conclude the trial court did not use the wrong legal standard, misallocate the burden of proof, or abuse its discretion by denying the petition. We also conclude recently enacted section 1170.18, subdivision (c) does not modify section 1170.126, subdivision (f). We affirm.
FACTS AND PROCEDURAL HISTORY [*]
I, II. [*]
Failure to Obtain Expert Evaluation
Defendant says resentencing him as a second strike offender would have released him on postrelease community supervision. (See § 3451; People v. Tubbs (2014) 230 Cal.App.4th 578, 585-586 [178 Cal.Rptr.3d 678]; People v. Espinoza (2014) 226 Cal.App.4th 635, 637-638 [172 Cal.Rptr.3d 77].) Thus, he argues, the court was confronted with a situation similar to the decision whether to grant parole to a life prisoner (see § 3041); in that context, current psychological evaluations are generally most relevant to an assessment of current dangerousness (see In re Lawrence (2008) 44 Cal.4th 1181, 1223-1224 [82 Cal.Rptr.3d 169. 190 P.3d 535]), and the court here erred by failing to enlist, sua sponte, the assistance of an expert. Defendant says the court abused its discretion by engaging in unfounded speculation concerning, and relying on its own nonexpert estimation of, defendant’s psychological state with respect to whether defendant was still prone to reoffending outside the custodial setting.
Defendant cites Evidence Code section 730 for the proposition an expert may be appointed by a court sua sponte for the purpose of obtaining an impartial expert opinion. (See Mercury Casualty Co. v. Superior Court (1986) 179 Cal.App.3d 1027, 1032 [225 Cal.Rptr. 100].) That statute “does not authorize the appointment of experts after trial in connection with sentencing proceedings.” (People v. Stuckey (2009) 175 Cal.App.4th 898, 905 [96 Cal.Rptr.3d 477]; see id. at p. 913.) Regardless of whether a proceeding under section 1170.126 is likened to a trial or is part of a sentencing proceeding, “a trial court has inherent power, independent of statute, to exercise its discretion and control over all proceedings relating to the litigation before it [citation], ” including “the power to obtain evidence upon which the judgment of the court may rest [citation].” (Johnson v. Banducci (1963) 212 Cal.App.2d 254, 260 [27 Cal.Rptr. 764]; see Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967 [67 Cal.Rptr.2d 16. 941 P.2d 1203].) Thus, it appears a court could appoint an expert, on its own motion, to conduct an evaluation concerning the risk of danger currently posed to public safety by an inmate seeking resentencing under the Act.
However, “[t]he decision on the need for the appointment of an expert lies within the discretion of the trial court and the trial court’s decision will not be set aside absent an abuse of that discretion. [Citations.]” (People v. Gaglione (1994) 26 Cal.App.4th 1291, 1304 [32 Cal.Rptr.2d 169], disapproved on other grounds in People v. Martinez (1995) 11 Cal.4th 434, 452 [45 Cal.Rptr.2d 905, 903 P.2d 1037] & People v. Levesque (1995) 35 Cal.App.4th 530, 539 [41 Cal.Rptr.2d 439]; accord, People v. Vatelli (1971) 15 Cal.App.3d 54, 61 [92 Cal.Rptr. 763]; see In re Eric A. (1999) 73 Cal.App.4th 1390, 1394, fn. 4 [87 Cal.Rptr.2d 401].) Whatever the similarities between the decisions whether to resentence under the Act and to grant parole to an inmate serving a life term, appointment of an expert did not fall outside the bounds of reason in this case. The question before the court was whether resentencing defendant would pose an unreasonable risk of danger to public safety. Given the information already before the court - all of which the court considered - the court reasonably could make the required determination itself, without the input of an expert. As has been stated in the context of a claim the word “unreasonable” is impermissibly vague, “Surely a superior court judge is capable of exercising discretion, justly applying the public safety exception, and determining whether a lesser sentence would pose an unreasonable risk of harm to the public safety. [Citation.]” (People v. Flores (2014) 227 Cal.App.4th 1070, 1075 [174 Cal.Rptr.3d 390].)
The judgment is affirmed.
Levy, Acting P. J., concurred and Pena, J., concurred in part III only.
PENA, J., Dissenting. [*]