California Court of Appeals, First District, Second Division
[REVIEW GRANTED bye CAL. SUPREME COURT]
Superior Court for the of San Mateo County, No. SC43066A Honorable Barbara Mallach Judge.
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Attorney for Defendant and Appellant: Richard Such, under appointment by the Court of Appeal
Richard Such, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Assistant Attorney General, Eric D. Share and Huy T. Luong, Deputy Attorneys General, for Plaintiff and Respondent.
In 2012 the voters adopted Proposition 36, the Three Strikes Reform Act of 2012 (Three Strikes Reform Act), for the purpose of “restor[ing] the original intent of California’s Three Strikes law, ” namely, “imposing life sentences for dangerous criminals” whose most recent offense is classified as either a dangerous or a serious felony. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of proposed law, § 1, p. 105.) The benefits of the measure, in the form of a reduced sentence, can be denied to an otherwise eligible inmate if the court determines that such lenience “would pose an unreasonable risk of danger to public safety.” (Pen. Code, § 1170.126, subd. (f).) We hold that when a trial court declines on this basis to grant an inmate’s petition for resentencing, that decision should be upheld on appeal unless the reviewing court is able to conclude that the decision qualifies as an abuse of the considerable discretion granted by the Three Strikes Reform Act.
Here, the trial court declined to reduce the 25 years to life sentence of defendant Dwain Everett Davis, concluding that his release after resentencing would pose an unreasonable risk of danger to public safety. The cited reasons were defendant’s continued refusal to acknowledge possessing the firearm, his not so latent hostility, and his inadequate plans if released. We conclude that this decision was well within the court’s discretion.
During the pendency of this appeal, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which established a procedure whereby specified classes of felons can petition to have their felony convictions reduced to misdemeanors and be resentenced accordingly. Proposition 47 contains a vastly more restrictive definition of “unreasonable risk of danger to public safety” than the one used in Proposition 36 for “Three Strike” felons. We conclude that the Proposition 47 definition was not intended by the voters to displace the broader definition of the Three Strikes Reform Act already in use.
In light of these conclusions, we affirm the trial court’s order denying defendant’s petition for resentencing.
On December 11, 1998, a San Mateo jury found defendant guilty as charged of being a past-convicted felon in possession of a firearm, itself a
felony under former section 12021, subdivision (a)(1). The trial court (Hon. Barbara J. Mallach) then found true enhancement allegations that defendant had 1991 and 1995 convictions for armed robbery. After denying defendant’s motion to strike one of these priors, Judge Mallach sentenced him to state prison for a Three Strikes law term of 25 years to life. This court affirmed the judgment. (People v. Davis (July 7, 2000, A086052) [nonpub. opn.].)
At the 2012 General Election, the voters adopted the Three Strikes Reform Act as an initiative measure, thereby amending the two Three Strikes statutes (§§ 667, 1170.12) to authorize 25 year to life terms only where the “third strike” conviction is a serious or violent felony. The initiative also added section 1170.126, which establishes the procedure for persons already sentenced under the Three Strikes law to apply for a reduction of a 25 year to life term. The inmate must first “file a petition for a recall of sentence, ... to request resentencing.” (§ 1170.126, subd. (b).) Subdivision (e) of section 1170.126 establishes the criteria to determine whether “[a]n inmate is eligible for resentencing.” “Upon receiving a petition for recall of sentence under this section, the court shall determine whether the petitioner satisfies the criteria in subdivision (e). If the petitioner satisfies the criteria in subdivision (e), the petitioner shall be resentenced [as a second strike offender with a doubled term] pursuant to paragraph (1) of subdivision (e) of Section 667 and paragraph (1) of subdivision (c) of Section 1170.12 unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f), italics added.)
The language we have italicized was deemed sufficiently important that it was reiterated: “In exercising its discretion in subdivision (f), the court may consider: [¶]... [¶] (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)(3).)
“There are... three determinations at issue under Penal Code section 1170.126, subdivision (f): first, the court must determine whether the prisoner is eligible for resentencing; second, the court must determine whether resentencing would pose an unreasonable risk of danger to public safety; and third, if the prisoner is eligible and resentencing would not pose an unreasonable risk of danger, the court must actually resentence the prisoner.” (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1299 [155 Cal.Rptr.3d 856] (Kaulick).) If the petitioner is found eligible, it is the prosecution’s burden to prove, by a preponderance of the evidence, that reducing the petitioner’s 25 -year-to life sentence would pose “an unreasonable risk of danger to public safety.” (§ 1170.126, subds. (f), (g)(3); Kaulick, supra, at p. 1305; accord, People v. Flores (2014) 227 Cal.App.4th 1070, 1075-1076
[174 Cal.Rptr.3d 390].)
Barely two months after the Three Strikes Reform Act was adopted, on January 25, 2013, defendant filed a “Motion for Recalling of Sentence and Notice of Motion to Declare Offense to Be a Simple Felony (Per... section 1170.126), ” set for hearing before Judge Mallach. There, over the prosecution’s vigorous objection, Judge Mallach first ruled that defendant was eligible for resentencing. Judge Mallach then heard two days of testimony from defendant and defendant’s brother on the issue of whether defendant’s resentencing and release would entail an “unreasonable risk of danger to public safety” within the meaning of the Three Strikes Reform Act.
Michael Wilson, defendant’s older brother, testified that he lives in a four bedroom house in San Mateo and is employed as a truck driver. If defendant were released, “I would be able to house him and... I plan on trying to make him a Teamster and getting him in a truck.” Wilson acknowledged on cross-examination that he had not visited defendant in prison for 16 to 17 years, and seldom writes, but has had “periodic” telephone conversations. Only one other family member, Wilson’s daughter, lives in the area. Wilson admitted having a felony conviction (“back in the ‘80s, for drug sales or... conspiracy”) for which he had served time in state prison, being released in 1990. As for defendant’s robberies, Wilson dismissed them because “he was young... and he wasn’t really thinking properly.” And as for defendant’s latest conviction, defendant told Wilson that it was the man arrested with defendant who actually had the gun, but the other man and the police framed defendant.
Defendant testified that after years in prison, he “matured late, ” “I was able to accept what I had done and leave it behind.” He is “very remorseful” and “very apologetic” for "all the turmoil I put everybody else through.” Defendant obtained his GED in prison, received 20 “academic achievement... certificates, ” and has resisted joining a gang. It had been five years since his last disciplinary action, in 2008, for complicity in smuggling marijuana into the prison, and for which he was convicted and received a four-year consecutive sentence. Defendant testified that his involvement was coerced out of fear of being attacked by a gang, which demanded his participation as the price for not letting it become known that defendant had a “sex offense” in his juvenile history. With this one exception, defendant testified he has been discipline-free since 2005.
Defendant’s other disciplinary incidents were for “disrespectful conduct” in 2005; “mutual combat with another inmate” in 2003; “behavior which could lead to violence” in 2002; “failure to stand for mandatory [head] count, ” “disrupting class and not following instructor directions, ” and “disruptive behavior, ” all in 2001 One of the 2001 incidents occurred when defendant was bored in class and told the instructor: “This is a sorry ass fucking class. I want out of here. No one better put their hands on me.” That same year defendant called another instructor “a mother fucking peckerwood, ” which “got [him] kicked out [of] the small engine repair class.” Defendant thought the class was “a waste of time.”
Defendant testified on cross-examination that the gun conviction came through his involvement with a man named Kenney. “Kenney was the one who had the gun, ” but “they arrested me for the gun.” The officer who testified at the trial that he saw defendant throw the gun away was lying.
Defendant admitted that he and Kenney were planning to rob the participants at a drug sale. Defendant also admitted he was carrying a mask for the robbery.
Judge Mallach had before her numerous exhibits submitted by the prosecution regarding “the question of unreasonable risk” if defendant were released after resentencing. The hearing was continued so that defendant’s prison records (including his medical records) could be obtained and considered.
When the hearing resumed, the prosecution submitted additional exhibits impeaching the testimony of defendant’s brother with records showing that he in fact had four felony convictions, and had twice served time in state prison. The prosecutor further advised Judge Mallach that the brother was facing trial on a felony assault charge (“section 245(a)(4), use of force likely to cause great bodily injury”) together with “a separate count of battery.” The prosecutor believed that these charges, plus the fact that the brother was on bail, “are matters which the Court should weigh [in determining] the credibility of Mike Wilson’s statements, specifically as to his plan to set his brother on the right road.”
Defendant testified briefly about the claim of paternal abuse broached in his letter to Judge Mallach (see fn. 7, ante) and an event that recently occurred in prison, when defendant had helped prevent another prisoner from committing suicide. Defendant also testified as to his brother’s deteriorating health and how, if released, he (defendant) would stand by him and assist in his hour of need, even to the point of a possible organ donation.
Wilson retook the stand and told the court that he is suffering from kidney failure, requiring dialysis three times a ...