Opinion
H041050
02-01-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY MELENDEZ CORDOVA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 185632)
Defendant Johnny Melendez Cordova petitioned for resentencing under the Three Strikes Reform Act of 2012 (enacted by Proposition 36), and the trial court denied him relief on the ground that resentencing would pose an unreasonable risk of danger to public safety. A different panel of this court reversed, concluding the matter should be remanded for the trial court to apply the definition of unreasonable risk of danger contained in the Safe Neighborhood and Schools Act (enacted by Proposition 47 in 2014). (People v. Cordova (2016) 248 Cal.App.4th 543, 547 (Premo, J., dissenting), review granted on August 31, 2016, S236179, and cause transferred to Court of Appeal, Sixth Appellate District, with directions.) After granting review, the Supreme Court decided People v. Valencia (2017) 3 Cal.5th 347, 356, which held that the Proposition 47 definition of unreasonable risk of danger does not apply to Proposition 36 resentencing proceedings. The Supreme Court has now transferred this case to us for reconsideration in light of Valencia. Applying Valencia, and addressing the remaining issues raised by defendant, we conclude that the trial court did not err in denying the petition for resentencing. We will therefore affirm the order.
I. BACKGROUND
In 1973, defendant and an accomplice tried to rob a liquor store using a knife (their attempt was thwarted when the store clerk brandished a revolver he kept behind the counter). The next day, defendant forced his way inside a residence and held two young children and their mother at gunpoint while searching the house for things to steal. He was convicted of assault with a deadly weapon and armed robbery for the home invasion robbery, and convicted of assault with a deadly weapon and attempted armed robbery for the liquor store incident. He was sentenced to five years to life in prison. After being paroled in 1977, he was arrested within two months for being a felon in possession of a firearm. He was convicted of that charge in June 1978 and returned to prison.
Defendant was released in 1980, and the following year was arrested for murder. An eyewitness identified him as the person who stabbed the victim during an argument over a drug sale. From jail, defendant wrote a letter to his then-wife which read, in part, " '[j]ust nine (9) more days, until my preliminary [hearing], and yet so much must be done. Time is a main factor here, and the element of surprise is vital as far as the undesirable are concerned... .' " The letter included code words for the terms "hit," "dead," and "disappear." Four days later, defendant wrote a second coded letter, reminding his wife that time was running short and asking whether a hit had been set up. (The code term for "hit" was "baseball game," and defendant went on in the letter to explain, "I've always been a good home run hitter, but from here I can't play.") The eyewitness refused to testify at the preliminary hearing. As a result, the charge against defendant was dismissed and he was released. In 1983, the witness was murdered. According to a police informant, defendant paid an associate $10,000 to perform the killing.
Defendant was again returned to prison in 1984 after another conviction for being a felon in possession of a firearm. He was paroled in 1986, was in and out of custody several times for parole violations, and then received a two-year prison sentence in 1989 after being convicted of possessing a deadly weapon. In 1991, he received another two-year sentence after convictions for possessing a controlled substance, being under the influence of a controlled substance, and driving under the influence of drugs.
Defendant was stopped by police in 1995 because his car did not have a front license plate. The officer found a switchblade knife in defendant's pocket, and he was charged with possessing a concealed dirk or dagger. While in jail awaiting trial on that charge, defendant wrote a coded letter that was intercepted by law enforcement and which contained information the prosecutor characterized as presenting "the possibility of a grave security risk to the prosecution." The letter was concerning enough to the trial court that it increased defendant's bail to $5,000,000, revoked his visiting privileges, and ordered that he not correspond with anyone but his attorney. Defendant was convicted on the weapon possession charge in 1996. Because he had at least two prior convictions that qualified as strikes (four, in fact), he was sentenced to 25 years to life in prison under the Three Strikes law as it then existed. While in prison he has committed a number of rules violations and used drugs.
In 2013, defendant filed a petition for resentencing under the Three Strikes Reform Act of 2012, which had been enacted by Proposition 36. The prosecution opposed the petition, arguing that although defendant was eligible for resentencing because his most recent conviction was not a serious or violent felony (Pen. Code, § 1170.126, subd. (e)), he should not be resentenced because doing so would pose an unreasonable risk of danger to public safety (Pen. Code, § 1170.126, subd. (f)). After considering documentary evidence submitted by both parties and the arguments of counsel, the trial court denied the petition on the ground that resentencing would pose an unreasonable risk of danger.
II. DISCUSSION
Defendant previously contended on appeal that his Proposition 36 resentencing petition must be decided using the definition of "unreasonable risk of danger to public safety" contained in Proposition 47. He argued that since Proposition 47 states its definition is to be used "throughout this Code" (see Penal Code, § 1170.18, subd. (c)), the definition must be applicable to Proposition 36 because it is part of the Penal Code. In People v. Valencia, supra, 3 Cal.5th 347, 356, the California Supreme Court rejected that argument and held Proposition 47 was not intended to amend the Three Strikes Reform Act and therefore the Proposition 47 definition does not apply to Proposition 36 resentencing proceedings. This case therefore need not be remanded for the trial court to apply the Proposition 47 definition of unreasonable risk of danger.
The definition contained in Proposition 47 is more favorable to defendants because it defines "unreasonable risk of danger to public safety" as a risk that the petitioner will commit a felony described in Penal Code section 667, subdivision (e)(2)(C)(iv), which lists eight types of particularly serious or violent felonies. (See Pen. Code, § 1170.18, subd. (c)). Proposition 36 contains no such limiting definition, giving a court greater latitude to decide what constitutes a risk of danger to the public.
After the Supreme Court transferred the matter to us, the parties submitted supplemental briefing (California Rules of Court, rule 8.200(b)). In his supplemental brief, defendant identifies certain issues that remain unresolved which he argues require reversal of the trial court's decision. He contends that the trial court failed to assign the burden of proof to the prosecution on the issue of whether resentencing posed an unreasonable risk of danger; that that trial court erred in considering unreliable hearsay; and that the determination of unreasonable risk of danger is not supported by the evidence. For the reasons explained, we do not find merit in any of defendant's contentions.
Defendant also asks that we remand the matter for the trial court to assess the risk of danger to public safety as of the present time, rather than as of 2013, when his petition was denied. But he misapprehends the scope of our role as a reviewing court. Our function is to review the record of what was presented to the trial court and determine, based on that information, whether the court erred. (People v. Leonard (2007) 40 Cal.4th 1370, 1393 ["[ W]e review the appellate record for error, without considering matters not presented to the trial court."].) --------
A. BURDEN OF PROOF
A court has discretion to deny an otherwise eligible defendant's petition for resentencing under Proposition 36 if it determines that resentencing would pose an unreasonable risk to public safety. (Pen. Code, § 1170.126, subd. (f).) The facts on which a finding of unreasonable risk is based must be proven by the prosecution by a preponderance of the evidence. (People v. Frierson (2017) 4 Cal.5th 225, 239.) Defendant asserts it is unclear whether the trial court understood that the prosecution had the burden of proof on this issue.
We are not persuaded that the trial court failed to allocate the burden of proof to the prosecution. The judge began the hearing by saying to the prosecutor, "it is your burden, please begin." The prosecutor then indicated he had provided "voluminous" information regarding defendant's criminal history, and that he believed he had given the court everything necessary to show why defendant still presented a danger to the community. After admitting the evidence proffered by the prosecution, the court heard argument from both sides, took the matter under submission for several hours, and then ruled. The record does not support the contention that the trial court improperly allocated the burden of proof. Defendant notes that when announcing the ruling, the judge made a statement which could imply the burden was on the defense to show defendant did not pose an unreasonable risk: "So there's nothing right up until the most recent triggering offense to suggest to this court that the petitioner presents anything but a substantial risk to public safety ... ." But that could also simply mean that, in the trial court's view, all the available evidence indicated defendant posed a risk of danger—in other words, that the prosecution clearly met its burden. Considered in context, the comment does not reflect a misunderstanding of the burden of proof.
B. EVIDENTIARY ISSUES
Defendant contends that his right to due process was violated because the trial court considered unreliable hearsay evidence. But as the Attorney General correctly points out, any evidentiary objections were forfeited because defense counsel expressly agreed at the hearing that the evidence could be admitted. The prosecution submitted 37 exhibits, consisting mostly of police reports, probation reports, and court records related to defendant's prior criminal offenses. When the court inquired whether there were any objections to evidence, defense counsel stated, "I have no objection to the entry of counsel's Exhibits 1 through 37." The trial court accordingly ruled, "All right. They will all be deemed admitted for purposes of this hearing." The doctrine of invited error precludes any challenge to the admission of evidence. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49 [" 'The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal.' "].) But the trial court does not appear to have erred in admitting the evidence regardless. A petition for resentencing under Proposition 36 is a sentencing proceeding, and "a sentencing court may consider a broad range of information in deciding whether to grant probation in a particular case. Due process does not require that a criminal defendant be afforded the same evidentiary protections at sentencing proceedings as exist at trial. [Citation.]" (People v. Lamb (1999) 76 Cal.App.4th 664, 683; see also People v. Sledge (2017) 7 Cal.App.5th 1089, 1097.) The only requirement is that there be a substantial basis for believing the information is reliable (People v Lamb, supra, at p. 683), and defendant does not provide any compelling reason for concluding the evidence here lacked a basis for reliability.
Defendant also argues he was denied due process because of the manner in which the prosecution submitted its evidence. He asserts that the voluminous nature of the prosecution's exhibits, coupled with the absence of any index or other means of navigation, made it difficult to discern objectionable evidence from admissible. Again, since defendant never voiced a concern about the format of the exhibits in the trial court, the objection is forfeited on appeal. Even if we were to overlook the clear forfeiture, we do not perceive a due process issue with the format of the exhibits. While the prosecution did submit over 900 pages in opposition to defendant's petition, it is not as though the defense saw the exhibits for the first time at the hearing—they were filed and served almost three weeks before. In fact, defense counsel filed a detailed written response, which itself included over 200 pages of exhibits (in essentially the same format as those submitted by the prosecution).
C. EVIDENCE SUPPORTING THE UNREASONABLE RISK OF DANGER FINDING
Defendant contends there was insufficient evidence to support the trial court's finding that resentencing him would pose an unreasonable risk of danger to public safety. To decide whether the unreasonable risk of danger determination should be upheld, we employ two deferential standards of review—substantial evidence and abuse of discretion.
We review the facts on which a finding of unreasonable risk is based (which need only be proven by a preponderance of the evidence) for substantial evidence. (People v. Buford (2016) 4 Cal.App.5th 886, 901.) We review the entire record in the light most favorable to the decision to decide whether it contains evidence that is reasonable, credible and of solid value from which a rational trier of fact could reach the conclusion the trial court did. (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) The trial court's ultimate determination regarding the presence of unreasonable risk is discretionary and is therefore reviewed for abuse of discretion. (People v. Buford, supra, 4 Cal.App.5th 886, 901.) A finding of unreasonable risk of danger in this context will be upheld "if it falls within 'the bounds of reason, all of the circumstances being considered.' " (Ibid.) Proposition 36 confers on the trial court broad discretion to determine whether a petitioner would pose an unreasonable risk of danger to public safety. (See People v. Valencia, supra, 3 Cal.5th 347, 375 [more restrictive Proposition 47 definition of unreasonable risk does not apply to Proposition 36 proceedings; electorate did not intend to curtail the broad discretion courts have in deciding which offenders are too dangerous to be eligible for Proposition 36 resentencing].). In making its decision, the trial court may consider the petitioner's criminal history, disciplinary record while incarcerated, and "[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." (Pen. Code, § 1170.126, subd. (g).)
Given those standards, we find sufficient evidence in the record to support the trial court's decision and are satisfied it was not an abuse of discretion. Defendant has an extensive criminal history. As the trial court noted, over a 37-year period, the longest he spent out of custody without committing a new offense was 14 months. While incarcerated, defendant has committed numerous rules violations. And there is additional evidence indicating defendant poses a risk of danger to public safety: After his arrest for stabbing someone to death in 1981, he wrote letters from jail asking others to murder the witness to that crime. An informant told police that in 1983 defendant succeeded in having that witness murdered. In 1996, while awaiting trial on his most recent offense, defendant's conduct in custody caused the court to increase his bail to $5,000,000 and cut off his communication with all but his lawyer.
Defendant argues reliance on the 1981 and 1983 murders is improper because he has not been convicted of any offense related to those incidents, and because the only evidence implicating him is hearsay. But for this sentencing proceeding, the trial court was not prohibited from considering evidence of misconduct even if defendant had not been convicted of a crime because of it. (People v. Arbuckle (1978) 22 Cal.3d 749, 754-755.) And as we have explained, defendant forfeited his evidentiary objections, which lack merit in any event. Even absent a conviction, the trial court was entitled to consider evidence that defendant was involved with the murders in evaluating whether he presents an unreasonable risk. Similarly, defendant's requests for others to perform violent acts on his behalf while he was incarcerated support the finding he would present a safety risk if released, even though he was not convicted of any crimes for that behavior.
Defendant disputes certain findings made by the trial court: that he was armed with a knife during an altercation in prison; that a defense expert's opinion of no unreasonable risk of danger is not credible; and that his drug use alone presents a danger to the public. But even if we were to disregard each of those findings, we would still find no abuse of discretion in determining defendant posed an unreasonable risk of danger based on the other evidence in the record which justifies that decision.
We acknowledge there are aspects of this case that weigh in favor of resentencing. Defendant's armed robbery convictions occurred over 40 years ago, his most recent conviction was for having a knife in his pocket, and his age makes him statistically unlikely to commit new violent crimes if released. On the other hand, defendant has very consistently reoffended throughout his life, and the prosecution presented evidence of his dangerous conduct while incarcerated. The record contains sufficient evidence to support the trial court's conclusion that resentencing defendant would pose an unreasonable risk of danger to public safety.
III. DISPOSITION
The order is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Premo, Acting P. J. /s/_________ Mihara, J.