California Court of Appeals, Fourth District, Third Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
Appeal from postjudgment orders of the Superior Court of Orange County No. 98NF2403, Nancy Wieben Stock, Judge.
[Copyrighted Material Omitted]
John L. Dodd, 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 Carlton and Warren Williams, Deputy Attorneys General, for Plaintiff and Respondent.
In 1999 defendant and appellant Derrick Lee Sledge was sentenced under the “Three Strikes” law (Pen. Code §§ 667, subds. (b)-(i), 1170.12) to a term of 25 years to life in state prison for crimes he committed in 1998. After passage of the Three Strikes Reform Act of 2012 (Reform Act), defendant filed a petition to recall that sentence and for resentencing pursuant to section 1170.126.
The court, in its discretion, determined resentencing defendant would pose an unreasonable risk of danger to public safety, and therefore denied both the petition and a subsequent motion for reconsideration. Defendant contends the court abused its discretion by erroneously failing to consider certain facts and by improperly considering other facts. We find no abuse of discretion and affirm.
FACTS AND PROCEDURAL HISTORY
1. Defendant’s Commitment Offenses
In 1998, defendant went into a bank and attempted to cash a check for $453.12 drawn on the account of Sara Delgadillo. Ms. Delgadillo had not
signed the check or given defendant permission to cash it. The bank teller learned the checking account had been flagged, and the branch manager called the police. Defendant told police he had received the check from a man for whom he had performed some house painting and yard cleaning.
A jury convicted defendant of possession of a fictitious instrument (§ 476), check forgery (§ 470, subd. (a)), and second degree burglary (§§ 459 & 460, subd. (b)). The court found true the additional allegations defendant had previously suffered three serious or violent convictions, two for residential burglary and one for assault with a deadly weapon. The court sentenced defendant to a term of 25 years to life. The judgment was affirmed on appeal. (People v. Sledge (Feb. 27, 2001, D036483) [nonpub. opn.] (Sledge I).)
2. Defendant’s Prior Offenses
Apart from his commitment offenses, defendant has a lengthy criminal conviction history. Defendant first entered the criminal justice system in 1979, when he suffered a misdemeanor juvenile adjudication for petty theft (§ 484, subd. (a)) after stealing a pair of pants from a store. He was 16 years old.
In 1980, when defendant was 17 years old, he suffered a felony juvenile adjudication for forcible rape (§ 261, subd. (a)(2)). The victim was a woman in whose home defendant had been placed following the petty theft adjudication. She was awakened by defendant’s hand around her neck. He covered her mouth, pulled up her dress and forced intercourse upon her for two or three minutes.
In 1981, when defendant was 18 years old, he was convicted of residential burglary (§§ 459 & 460, subd. (a)). Defendant and two male accomplices entered an occupied residence around 10:30 p.m. Defendant planned to take stereo equipment, but instead took a watch and a wallet and fled after the occupant woke up. He was sentenced to two years in the California Youth Authority (CYA).
In 1983, when defendant was still on parole for the 1981 offense, he was convicted of receiving stolen property (§ 496). Defendant was stopped driving a vehicle with two male passengers. A large quantity of stolen electronic equipment was stacked on the back seat. He was sentenced to two years in prison.
In 1985, while still on parole for the 1983 offense, defendant pled no contest to residential burglary (§§ 459 & 460, subd. (a)) and assault with a deadly weapon (§ 245, subd. (a)(1)), and he admitted personal use of a firearm (§ 12022.5). According to the arrest report, defendant entered the victim’s residence by prying iron bars from a rear window. When the victims came home and noticed the front door was unlocked, defendant opened the door, pointed a gun at them, and ordered them inside. As they attempted to flee he fired one round over their heads and said he would blow their heads off. Defendant then pulled the victims inside, robbed them, and placed them in a bedroom closet which he nailed shut. Defendant was sentenced to eleven years in prison, was paroled in 1990, and after he violated his parole in 1993 was returned to finish his term.
3. Defendant’s Record of Discipline and Rehabilitation While Incarcerated
Defendant has a record of minor rules violations in the Orange County jail. These involved using newspaper and books to cover his cell vent, and possession of contraband (extra issue and newspapers) in his cell.
Defendant also has a record of rules violations in state prison. Most were minor, such as delaying lock-up, covering a cell window, and possessing contraband. However, two were more serious and involved violent behavior. The first occurred in 1999, when defendant was involved in a fight with another inmate. They appeared to be exchanging punches, but none of the punches made contact and neither sustained any injuries. Defendant claimed he was defending himself. Even so, he was found guilty of engaging in behavior that could lead to violence, forfeited 30 days of credits, and was counseled and reprimanded.
The second occurred in 2006, when defendant participated in a prison riot between black and white inmates. Defendant claimed he was not involved in the riot. Nevertheless, he was ultimately found guilty of participating and given a 90-day term in the segregated housing unit.
On the other hand, defendant has a laudable record of education and self-improvement while incarcerated. He has completed more than 70 religious courses, earned an associate in arts degree, and completed 11 other educational/vocational courses, including vocational dry cleaning, stress management, language, arts, reading, writing, anger management, job acquisition, and an “Alternative to Violence Project.”
Defendant has finished 12 comprehensive sessions of the “Fathers of Children United Stand” self-development program, which included topics like self-control, overcoming fear, positive thinking, functions of leadership, importance of education, self-motivation, critical thinking, and practical life skills. In addition, defendant has completed the “Transcommunality and Peace Studies Class, ” affiliated with the “Barrios Unidos Prison Project of Santa Cruz, California.”
Defendant has been praised for being “an excellent student, ” having “good work/study habits, ” and being “a pleasant individual.” Supervisors have commended his work. He has been applauded for having an “exceptional” attitude toward supervisors and staff. He has participated in group activities, including playing softball and refereeing tennis, and been admired for his sportsmanship and dedication to his team.
Defendant has also attempted to better those around him and become a leader to his peers. He has taken a course designed to reduce the spread of HIV throughout his prison facility. He was elected by his peers to the position of “Black Representative for F-Wing” where he is “the spokesperson for the entire inmate population at this facility.”
4. Defendant’s Mental Health and Substance Abuse History
Defendant has a well documented history of mental health problems, which date back to his traumatic childhood. These problems have resulted in two suicide attempts during his incarceration. He tried to hang himself in 1999, and he cut his wrists with a razor in 2000.
In 2002, during an annual unit classification committee review, defendant requested single cell housing due to his psychiatric problems. The committee instructed defendant to discuss the issue with his psychiatric practitioner.
In September 2005, during defendant’s annual unit classification committee review, the committee noted the psychiatric interdisciplinary treatment team had prescribed defendant a single cell due to his mental health. The committee assigned him to a single cell for 60 days and referred him to psychiatric services.
In November 2005, the interdisciplinary treatment team recommended housing defendant in a single cell as long as he is in California’s Department of Corrections and Rehabilitation (CDCR) system due to chronic mental health problems that are quite resistant to treatment. The unit classification committee reviewed this recommendation and assigned defendant to a single cell for mental health reasons, but only through October 31, 2006.
In 2007, defendant declined to appear before the unit classification committee for his annual review. The committee decided defendant would retain single cell status based on the 2005 recommendation that he remain in a single cell as long as he is in the CDCR system. The committee also noted defendant had been referred to mental health for a reassessment of single cell status.
In August 2011, the mental health interdisciplinary treatment team recommended that defendant remain in a single cell for 12 more months due to his mental health condition.
In January 2012, clinician and psychologist E.W. Hewchuck evaluated defendant’s mental health suicide risk. He estimated defendant’s chronic risk moderate, and his acute risk low. Hewchuck reported all other mental health indicators were within normal limits, but noted defendant was diagnosed with “Major Depressive Disorder, Recurrent, Severe With Psychotic Features.”
In December 2012, Hewchuck again evaluated defendant’s mental health. Hewchuck estimated defendant’s chronic and acute suicide risk low and noted defendant was then housed in general population. Other than moderate stress and depression and being unable to sleep due to back pain, all of defendant’s other mental health factors were within normal limits.
Defendant also has a well documented substance abuse history. He reportedly has been sporadically addicted to cocaine throughout his adult life, not using while incarcerated but quickly returning to it when released into the community.
Defendant’s addiction caused his wife to leave him in 1997, and he then “became a full time functional homeless person by choice, and a rock head never to go around my upstanding friends.” He had been homeless for approximately a year and was addicted to cocaine at the time of his arrest in this case. He also admitted cocaine use in connection with his 1981 and 1985 convictions.
A letter from Dr. Charles Hinkin, Professor of psychiatry and behavioral sciences at the University of California at Los Angeles, filed in support of defendant’s motion for reconsideration states if defendant’s “drug use arose as an attempt to self-medicate his psychiatric problems, then the successful resolution of his emotional problems removes the reason why he started abusing drugs in the first place. This suggests that he will be less likely to return to drug use should he be released from prison.”
Hinkin also notes, “The fact that he has 15 years of sobriety under his belt is of tremendous prognostic favorability. But there is no guarantee. That
said, ... as he gets older the severity of his drug use will decline and the chances that any continuing drug use would result in criminal behavior would concomitantly decrease.... The steps he has taken to address his emotional problems and to better himself while in prison, coupled with the epidemiological facts, ... all converge on the conclusion that [he] has a favorable prognosis for avoiding relapse.”
5. Defendant’s Petition and the People’s Response
In February 2013, defendant filed his petition for recall of sentence in propria persona. It included a declaration in which he acknowledged his drug problem contributed to his criminal behavior, and expressed regret that his inability to tackle his problems led to a life sentence.
Defendant also declared “I deeply am sorry and regret all the hardship and pain I’ve caused my family, my past and current victims.” And, defendant expressed disappointment with the criminal justice system and regret “that he wasn’t given a full and fair opportunity to compel to the ...