Opinion
G053659
09-21-2017
THE PEOPLE, Plaintiff and Respondent, v. GEORGE CHAVEZ, Defendant and Appellant.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 99CF1593) OPINION Appeal from an order of the Superior Court of Orange County, John Conley, Judge. Affirmed. James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
George Chavez was convicted of possessing a controlled substance in jail and was sentenced to 25 years to life imprisonment under the Three Strikes Law. He filed a petition under Proposition 36, the Three Strikes Reform Act (Pen. Code, § 1170.126, all further statutory references are to the Penal Code) for resentencing. On appeal, he maintains the court abused its discretion in denying his petition due to insufficiency of the evidence. While the appeal was pending, our Supreme Court issued the opinion People v. Valencia (2017) 3 Cal.5th 347 (Valencia), holding Proposition 36 was not amended by provisions contained in Proposition 47. The opinion is relevant here because the trial court in this case applied Proposition 47's definitions to Chavez's Proposition 36 resentencing proceedings. "An abuse of discretion is shown when the trial court applies the wrong legal standard. [Citation.]" (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 (Costco).) After reviewing the record, we conclude the court's legal error does not require reversal in this case. Chavez benefitted from the court's use of Proposition 47 definitions and substantial evidence supports the court's denial of Chavez's Proposition 36 petition. The order is affirmed.
After the Valencia opinion was filed, we invited the parties to file supplemental briefing on the impact of that decision on this case.
FACTS
Chavez's third strike sentence originated from his commission of a drug offense in 1999, while he was incarcerated. He arranged to have a letter mailed to him that contained heroin. When Chavez received an envelope marked "Legal Mail" a deputy opened the letter in Chavez's presence pursuant to standard jail procedures. The deputy discovered a dark spot between two pages glued together. Chavez reached through the cell bars to wrestle the papers away from the deputy in an attempt to destroy the heroin by flushing the papers down the toilet. The deputy ultimately retrieved the papers and discovered more dark spots, which were found to contain usable amounts of heroin.
A jury convicted Chavez of possessing a controlled substance while in custody (§ 4573.6). In a bifurcated proceeding, the trial court found true the allegations that Chavez had previously been convicted of two serious or violent felonies (§ 667, subds. (d)-(e)(2)), and served three prior prison terms (§ 667.5, subd. (b)). The court sentenced Chavez to 25 years to life in prison under the Three Strikes Law.
Fourteen years later, in December 2013, Chavez filed a petition for resentencing under section 1170.126. The hearing lasted two days. In June 2016, the trial court denied the petition because it found now 58-year-old Chavez posed an unreasonable risk of danger to public safety.
At the hearing, the court considered documentary evidence and expert witness testimony. It was undisputed Chavez had two prior strike convictions 30 years ago. In 1980, he was convicted of robbery and was sentenced to three years in prison. In 1987, he was convicted of assault with a deadly weapon and grand theft of a car with a finding he personally used a knife during the offense. He received a seven year prison sentence for these offenses. Chavez also had three prison priors (§ 667.5, subd. (b)), and the current offense represented his fifth state prison sentence.
As noted in the prosecution's opposition to the petition, "[Chavez] is a habitual offender . . . involved in misdemeanor or felony conduct" since 1975. The prosecution noted there was criminal activity in "1975, twice in 1976, twice in 1977, 1978, twice in 1979, 1980, twice in 1982, 1983, 1985, twice in 1986, twice in 1987, three times in 1991, [five] times in 1992, twice in 1993, four times in 1994, and twice in 1998." In 1998 and 1999, Chavez was involved in 36 minor disciplinary incidents and 11 major incidents while in jail.
In support of his petition, Chavez submitted a written report prepared by Richard J. Subia, a corrections and public safety expert. For 26 years Subia worked in the California Department of Corrections and Rehabilitation, in job positions including prison warden, correctional administrator for the central region of California, and director of the division of adult institutions. Subia explained several reasons supported his opinion Chavez did not pose an unreasonable risk of danger to public safety. After giving a detailed account of his years of experience and training, Subia discussed the offense leading to the current incarceration. Based on Subia's review of numerous documents, including letters, confidential disclosure forms, and photographs, he concluded Chavez associated with a gang life style. As a result, he was segregated from others in prison and placed in "Indeterminate Security Housing Unit (SHU) Status for his validation as an [a]ssociate/[m]ember, of the Security Threat Group (STG-1) Mexican Mafia (EME) prison gang." Subia explained that in 1990, Chavez "was originally validated" as an EME associate, which was later "updated in 1996 on a prior CDCR commitment." In 2003, his status was revised to "inactive" but several months later updated to "active" EME associate. In 2013, Chavez's gang status was upgraded to be an EME member in good standing. Subia indicated Chavez's gang status was reviewed consistently throughout his incarceration and for the past 13 years "he was on segregation status." In 2015, a review board decided to release Chavez from SHU based on disciplinary free behavior and changed his gang status to "inactive." Chavez was placed with the general prison population.
Subia also discussed his interview with Chavez. He learned about Chavez's family history and that, according to Chavez, his home life was good. He dropped out of school in the ninth grade and obtained a GED in juvenile camp. Chavez began experimenting with drugs when he was 17 years old and was using heroin on a daily basis by the time he was 18 years old. Chavez admitted he was arrested on several occasions as a juvenile and as an adult. He stated his drug problem was a factor in almost all of his crimes.
Chavez discussed his involvement with the gang "Varrio Cypress" since he was 13 or 14 years old. When housed in Folsom Prison in 1990 he "hung[] around" with men affiliated with EME, and based on his continual contact, he was "validated" as an EME associate. He also discussed the three disciplinary infractions since his incarceration on the most recent drug offense. He explained the first violation was for possessing razor blades in 2001. He stated he used them to cut paper, not to make weapons. The other two infractions related to his participation in a hunger strike, to protest certain policies in the SHU. Chavez stated the protests were a catalyst for several major changes at the prison. He had not received another rule violation for the past 15 years in prison.
Due to his placement in SHU, Chavez had limited access to programs. He took a math class and, since his transfer to the general population, he had attended more classes and worked in support services. Chavez experienced some health issues. In 2005, he was diagnosed as having a benign brain tumor, which had effected his hearing and vision. It also caused seizures. Chavez was taking medication that was helping his symptoms. Chavez discussed his plans if released from prison. His brother and sister offered him a place to live. He had a job offer with a pest control company. Chavez stated he would like to attend a transition program that offered a 12-step program. He understood he would need a support network.
Based on all of the above, Subia opined, "[Chavez] is a 59-year-old inmate who has been incarcerated the majority of his adult life. While there is a documented history of drug use, including his commitment offense, there are no in-custody offenses related to the use or possession of controlled substances. This is unusual based on his severe addition to drugs in the community." Subia explained that to understand drug addiction in prison, one must understand the role drugs play there. Drugs are more expensive in prison, and they reach inmates in various ways. Most of the prison drug trade is controlled by gangs, and gang-related drug activity is the primary cause of prison violence. Drug addicts in prison have difficulty breaking their habit, and Chavez was housed in SHU, which had no access to treatment programs. Subia concluded, "[His] indoctrination into the gang lifestyle in prison was predictable." He noted there was nothing in Chavez's history suggesting he carried out criminal activity for EME. He had not been involved in any illegal or violent incidents as a member or associate. To the contrary, Chavez's record contains a note, previously possessed by an EME member, indicating Chavez was not a legitimate member and should be assaulted.
In addition, Subia noted Chavez was transferred out of SHU via the step-down program. This program had five steps to promote positive behavior, and usually it took an inmate four years to complete. Chavez was able to bypass the first four steps and was moved to step five (a move to the general prison population), indicating the prison staff also believed Chavez was not currently an unreasonable risk of danger to public safety. Subia noted Chavez's lack of participation in rehabilitative programs was because of his housing not his disinterest. He opined Chavez had a good support network if he was released.
The prosecution's expert, Sheriff's Department Detective Christopher Brandon, testified membership in the EME was for life. He discussed the founding of EME in 1958, its history, organization, and membership. EME's criminal activity, both in and out of prison, include murder, contract murder, prostitution, robbery, burglary, witness intimidation, domestic terrorism, and drug sales. He explained EME operates inside and outside of the prison, which explained why EME considered dropouts a threat to their organization's security.
Brandon explained that unless the member has "dropped out" or cooperates with law enforcement the individual is still active in the organization. Brandon noted Chavez was initiated into the organization through EME's leader, Peter Ojeda. In prison, Chavez frequently had written contact with Ojeda. One message indicated Chavez was a leader or "shot-caller" in EME. Another message stated Chavez "excused" another inmate, which again showed he was a member of the organization. Brandon opined that releasing an active member of the EME would pose a danger to the community because that member would continue criminal activity for the organization.
During oral argument, the prosecutor stated Chavez had been involved in gangs since he was 13 years old, and there was "overwhelming" evidence he associated with EME. He repeated Brandon's conclusion that Chavez posed an unreasonable risk of danger because he will always be in EME. Defense counsel argued the commitment offense was not a serious crime and Chavez had not committed a violent crime in over 30 years. He discussed several reasons why Subia was a more qualified expert on the issue of dangerousness than Brandon. Whereas Brandon did not know what the discipline or departmental review board was, Subia knew the board concluded there was no verifiable information proving Chavez was involved in EME in the past four years and declared him "inactive." Defense counsel, relying on a case filed by a different panel at this court, argued the Proposition 47 definition of dangerousness should apply to Chavez's Proposition 36 petition. The trial court agreed the decision was controlling and applied Proposition 47's definitions.
People v. Valdez (2016) 246 Cal.App.4th 1410, review granted July 13, 2016, S235048, ordered transferred to appellate court with directions to vacate the decision and reconsider the cause due to defendant's death. --------
The court denied Chavez's petition primarily based on Chavez's long standing association with EME, finding this membership meant he posed an unreasonable risk of danger to public safety. The trial court began its ruling by first reciting the evidence in Chavez's favor. It noted that during Chavez's 15 years in custody he resided in Pelican Bay's segregated unit for possessing a small amount of heroin, which appeared disproportionate and Chavez would not be considered "a Three-Striker today." The court stated there were only two disciplinary reports, but the positive significance of that fact was mitigated by evidence Chavez was confined to his cell for 23 hours a day. Similarly, the evidence Chavez lived in a highly restrictive environment dampened defense counsel's argument there were no new law violations. The court noted another factor in Chavez's favor was a "well done reentry plan." Chavez had family support and a place to live. The court also commended Chavez for voluntarily taking education classes.
The court noted defense counsel placed a lot of weight on the Departmental Review Board's assessment in March 2015 that Chavez had no identifying gang behavior in the last four years. It stated, "That's kind of putting the blinders on. Forget his 20-year career in the state prisons and just look at the last four years." The count found significant Chavez's affiliation with EME lasted more than 20 years. Chavez was a recognized member starting in 1990 and was known as a "shot-caller." The court found relevant Chavez's own expert's testimony and evidence showing he was "upgraded" in 2013 to an EME member in good standing.
The court stated prison officials may have made a mistake placing Chavez in the SHU, however, he had the right to appeal this classification. The court stated, "So the Department of Corrections has changed its tune based on the dictates of the federal settlement, but for 15 years, they called him dangerous. The court found more persuasive the prosecution's expert testimony that a person cannot simply walk away from EME.
Moreover, the court clarified the issue to be decided was not whether Chavez was in the EME, but whether he posed a danger of committing violent felonies. It looked to matters relevant in a parole hearing and noted this was Chavez's fifth prison sentence and the prior strike offences were both violent. The court recited comments made by the trial judge (Judge Daniel Didier) when Chavez was sentenced on his most recent offense. Judge Didier refused to strike a prior conviction and sentenced Chavez to 25 years to life. At the time, Judge Didier noted the crime involved planning and sophistication because Chavez knew the heroin was being mailed to him and he attempted to flush the pages to avoid prosecution. In addition, Judge Didier concluded Chavez was not remorseful and was "'less than forthright in his account of the incident.'" Judge Didier concluded Chavez's criminal activity was "'continuing and chronic. He is a habitual offender with little respect for the law or the orders of the court.'" Finally, the trial court in this case noted that according to a prior probation report, Chavez had never been employed other than as an occasional laborer for a friend and reported he felt more "'comfortable in a criminal lifestyle.'"
The trial judge concluded, "So forgetting the Mexican Mafia issue, if this were just a regular parole hearing, the comments of the sentencing judge in the prior record present very dim prospects." It noted the probation report from 2000 indicated Chavez started being a gang member when he was 13 years old, and became a drug addict at age 15. A supplemental probation report indicated Chavez was using up to $500 of heroin per week. The court recognized Chavez's inability to seek treatment for his severe drug addiction while in prison was not his fault, "but on the other hand, it hasn't occurred [and there was] no reason to think that there [was] any change." The court summarized, Chavez was still an addict, he had spent the majority of his adult life incarcerated, he lacked job skills, and he corresponded with Ojeda, a leader of the Orange County EME. The court found persuasive Brandon's opinion that once you are in the EME you never leave. It concluded that although defense counsel did an excellent job presenting a lot of evidence in Chavez's favor, it was going to make the dangerousness finding. The court also stated it would deny the petition without prejudice to filing another one in a few years. It indicated if there were additional years of "perfect behavior" and no gang activity it might rule differently.
Defense counsel indicated this type of delayed ruling was not an option, but that the court could make its ruling tentative and schedule a future hearing in a few years for the final ruling. The court trailed the matter to research the issue further. At the next hearing, the trial court determined it would "'provisionally deny the petition with leave to file a renewed petition after two years'" from the date the order was filed.
DISCUSSION
I. Applicable Law
In the Valencia opinion, our Supreme Court discussed the scope and purpose of Propositions 36 and 47. "As we [have] noted [in other opinions], '[p]rior to its amendment by the [Three Strikes Reform] Act, the Three Strikes law required that a defendant who had two or more prior convictions of violent or serious felonies receive a third strike sentence of a minimum of 25 years to life for any current felony conviction, even if the current offense was neither serious nor violent. [Citations.]' [Citation.] We explained that Proposition 36 'amended the Three Strikes law with respect to defendants whose current conviction is for a felony that is neither serious nor violent. In that circumstance, unless an exception applies, the defendant is to receive a second strike sentence of twice the term otherwise provided for the current felony, pursuant to the provisions that apply when a defendant has one prior conviction for a serious or violent felony.' [Citation.] As noted above, Proposition 36 excluded from its reforms third strikes involving large quantities of controlled substances, specified sex offenses, and offenses committed when the defendant was armed or intended to cause great bodily harm. It also excluded defendants with prior convictions for super strikes. [Citation.]" (Valencia, supra, 3 Cal.5th at pp. 353-354.)
"Most pertinent here is Proposition 36's resentencing provision, which 'provides a procedure by which some prisoners already serving third strike sentences may seek resentencing in accordance with the new sentencing rules. (§ 1170.126.)' [Citation.] An inmate who is serving a third strike sentence that would have yielded a second strike sentence under Proposition 36's new sentencing rules 'shall be resentenced' as second strike offender '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).)" (Valencia, supra, 3 Cal.5th at p. 354.)
"In exercising its discretion to deny resentencing, the court has broad discretion to consider: (1) the inmate's 'criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes'; (2) his or her 'disciplinary record and record of rehabilitation while incarcerated'; and (3) '[a]ny 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)(1)-(3).) Thus, as the Legislative Analyst explained in the Voter Information Guide, '[i]n determining whether an offender poses [an unreasonable risk of danger to public safety], the court could consider any evidence it determines is relevant, such as the offender's criminal history, behavior in prison, and participation in rehabilitation programs.' [Citation.]" (Valencia, supra, 3 Cal.5th at p. 354.)
"Following the enactment of Proposition 36, Courts of Appeal have rejected arguments that the phrase 'unreasonable risk of danger to public safety,' as used in section 1170.126, subdivision (f), is unconstitutionally vague. (See, e.g., People v. Garcia (2014) 230 Cal.App.4th 763, 769-770; People v. Flores (2014) 227 Cal.App.4th 1070, 1075 ['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'].)" (Valencia, supra, 3 Cal.5th at pp. 354-355.)
"Proposition 47 reclassified as misdemeanors certain drug—and theft-related offenses that previously were felonies or wobblers. [Citations.] Proposition 47 also added a provision allowing felony offenders 'serving a sentence for a conviction' for offenses now reclassified as misdemeanors to petition to have their sentences recalled and to be resentenced. [Citations.]" (Valencia, supra, 3 Cal.5th at p. 355.) If the court decides the petitioner meets certain criteria, it may reclassify the offense as a misdemeanor and resentence the petitioner "unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.18, subd. (b).)
Like Proposition 36, Proposition 47 provides the court exercising its discretion "may consider: (1) the petitioner's 'criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes'; (2) his or her 'disciplinary record and record of rehabilitation while incarcerated'; and (3) '[a]ny other evidence' the court deems relevant. (§ 1170.18, subd. (b)(1)-(3).) [¶] Significantly, however, in contrast to Proposition 36, Proposition 47 limits the trial court's discretion to deny resentencing by defining the phrase 'unreasonable risk of danger to public safety' narrowly. In connection with resentencing under Proposition 47, '"unreasonable risk of danger to public safety" means an unreasonable risk that the petitioner will commit a [super strike].' [Citation.] Thus, under Proposition 47 a resentencing court may not deny a petition for reclassification and resentencing for certain theft and drug possession felonies to misdemeanors for an otherwise eligible petitioner unless it finds that the resentencing would pose an unreasonable risk that the petitioner will commit a super strike." (Valencia, supra, 3 Cal.5th at pp. 355-356.) II. Abuse of Discretion
For the past several years, defense counsel have advocated for, and many courts have adopted, the narrower dangerousness definition contained in Proposition 47, when considering Proposition 36 petitions. Such was the case here. The trial court denied the petition using Proposition 47's definition, i.e., denial based on evidence resentencing created an unreasonable risk Chavez would commit a super strike.
However, the Supreme Court has determined Proposition 47 did not amend the sentencing criteria for eligible third strike offenders. It concluded, "The parties agree that the application of Proposition 47's definition of an 'unreasonable risk of danger to public safety' to the resentencing proceedings of three strike inmates would ease the burden for recidivist serious or violent offenders to have their life sentences vacated, and render them more likely to be released. If Proposition 47 had truly intended to amend the Three Strikes Reform Act to allow additional three strike inmates who, by definition, have records for multiple serious or violent felonies to be resentenced, one would expect its drafters to have mentioned or referred to such a purpose and intention in the measure's preamble. They did not. [¶] Moreover, such an amendment necessarily would suggest disfavor with the broad discretion that Proposition 36, two years earlier, had given resentencing courts to determine which offenders are too dangerous to the public to be eligible for resentencing." (Valencia, supra, 3 Cal.5th at pp. 373-374.)
In addition, the Supreme Court determined if Proposition 47 was intended to curtail the trial court's discretion, they would expect the initiative to mention the Three Strikes Law or Proposition 36. (Valencia, supra, 3 Cal.5th at p. 354.) "Instead, Proposition 47 explicitly assured voters that the sentences of persons convicted of dangerous crimes and various sex crimes would not change." (Ibid.) It noted there was no reason to infer it was the voter's intent to amend Proposition 36 when they approved Proposition 47. (Ibid.)
We therefore conclude the court applied an incorrect discretionary standard. Rather than limiting its consideration of the evidence in determining whether Chavez would likely commit a super strike, it could have applied a broader discretion. There is ample case authority holding, "An abuse of discretion is shown when the trial court applies the wrong legal standard. [Citation.]" (Costco, supra, 47 Cal.4th at p. 733.) But in this case reversal is not warranted. The court's legal error was in Chavez's favor. He benefitted from the court's decision to narrow the scope of its discretion. The criteria the court applied in determining whether resentencing would pose an unreasonable risk Chavez will commit a super strike certainly satisfies the broader scope of discretion outlined in Proposition 36. The court's determination rendered him ineligible for resentencing under either definition of dangerousness. III. Sufficiency of the Evidence
The remaining issue is whether the court abused its discretion because there was insufficient evidence to support the court's conclusion Chavez posed a continuing risk to public safety. We note the trial court relied on facts that were not in dispute. Chavez had a well-documented history of drug abuse that started when he was a young teenager. It was not unreasonable for the court to question whether Chavez's move out of SHU and few years of good behavior conclusively proved he left EME or would be able to live a crime free life. What appears to have tipped the scales for the trial judge was Chavez's unresolved and lengthy drug addiction, his high level of criminal sophistication for over 20 years, lack of job skills, and current ties to a gang actively involved in drug-related crimes. Chavez's extensive criminal history demonstrated his marked inability to remain free from custody without reoffending, or at least violating the terms of his release, for any appreciable period of time. The court reasonably could conclude it was too soon to tell if his historical pattern of reoffending was still predictive of current dangerousness years later, even in light of his age and recent medical ailments. Although he has family support, a place to live, and a low-income job offer, he had yet to acquire vocational skills or drug treatment. Chavez admitted most of his crimes were due to his unresolved drug addiction. He also reported being "comfortable in a criminal lifestyle" and there was evidence of continued association with EME outside of prison had tempting benefits. In light of the current standard for discretionary assessments of dangerousness under section 1170.126, we cannot say the trial court's ruling is "so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.)
DISPOSITION
The order denying Chavez's Penal Code section 1170.126, subdivision (b), resentencing petition is affirmed.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. FYBEL, J.