Opinion
H042549
11-30-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT R. DEETS, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed herein on November 30, 2017, be modified as follows:
1. On page one, replace the third sentence with:
Defendant alternatively contends that in order to find an unreasonable risk of danger to public safety under Penal Code section 1170.126, the court was required to find that he posed an unreasonable risk of committing a new crime that would qualify for a third-strike sentence under the Three Strikes Reform Act.
2. On page eight, replace the first sentence of the first full paragraph with:
Defendant argues that the term "unreasonable risk of danger to public safety" in section 1170.126, subdivision (f) means either: an unreasonable risk that a petitioner will commit a new violent felony within the meaning of section 667, subdivision (e)(2)(C)(iv) (the definition contained in section 1170.18, subdivision (c) in the Safe Neighborhoods and Schools Act of 2014); or an unreasonable risk that defendant will commit a new crime that would qualify for a third-strike sentence under the Three Strikes Reform Act.
3. On page 10, replace the heading for Part II.B.2 with:
Unreasonable Risk of Danger Does Not Mean a Third Strike Offense
4. On page 10, replace the first sentence of Part II.B.2 with:
Defendant alternatively contends a trial court must resentence a petitioning defendant under section 1170.126 unless the court determines that there is an unreasonable risk that he or she may commit a new crime that would qualify for a third-strike sentence under the Three Strikes Reform Act if released.
5. On page 10, replace the first sentence of the second full paragraph with:
There is no indication in the text of section 1170.126 that an "unreasonable risk of danger to public safety" is limited as defendant contends.
6. On page 10, replace the fourth sentence of the second full paragraph with:
Had the voters intended to limit a trial court's discretion to considering only the risk that a petitioning defendant will commit a new crime that would qualify for a third-strike sentence under the Three Strikes Reform Act, it is reasonable to expect that the voters would have made that intent explicit.
There is no change in the judgment.
The petition for rehearing is denied. Dated: __________
/s/_________
BAMATTRE-MANOUKIAN, A.P.J.
/s/_________
MIHARA, J.
/s/_________
GROVER, J.
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. 209986)
The trial court denied defendant Robert R. Deets's petition to recall his indeterminate third strike sentence under Penal Code section 1170.126 (part of the Three Strikes Reform Act of 2012, enacted by the voters as Proposition 36), finding that defendant posed an unreasonable risk of danger to public safety. Defendant argues the definition of "unreasonable risk of danger to public safety" in Penal Code section 1170.18 (part of the Safe Neighborhoods and Schools Act of 2014, enacted by the voters as Proposition 47) applies to the Penal Code section 1170.126 risk of danger inquiry. Defendant alternatively contends that in order to find an unreasonable risk of danger to public safety under Penal Code section 1170.126, the court was required to find that he posed an unreasonable risk of committing a serious or violent felony. And defendant argues that under any standard of dangerousness, the trial court abused its discretion by ignoring, misunderstanding, and misstating evidence when it denied his petition. For the reasons stated here, we will affirm the denial of defendant's resentencing petition.
I. BACKGROUND
Defendant is currently serving a third strike sentence of 25 years to life, imposed in 1999 after he was convicted by a jury of reckless driving while evading a peace officer (Veh. Code, § 2800.2, subd. (a)). Defendant filed a petition under Penal Code section 1170.126 in 2013 to recall his third strike sentence. The court determined that defendant's current and prior convictions met the resentencing eligibility criteria in Penal Code section 1170.126, subdivision (e). (Unspecified statutory references are to the Penal Code.) The court appointed counsel and heard testimony from a defense expert at a hearing in 2013. Defendant withdrew his initial petition in 2014. He filed a "renewed petition" the same year, and the trial court again appointed counsel and again took testimony, this time from defendant and a second defense expert. In ultimately denying the petition, the trial court considered the testimony from both petition proceedings.
A. DEFENDANT'S CRIMINAL AND DISCIPLINARY HISTORY
The trial court considered documentary evidence filed by the prosecution detailing defendant's criminal history. Between 1982 and his third strike sentence in 1999, defendant was convicted of seven felonies and multiple misdemeanors. The following factual information is derived from a probation report prepared for defendant's 1999 sentencing.
Before being convicted of his first strike, defendant was convicted of multiple felonies and repeatedly failed to comply with the terms of his supervised release. Those convictions include receiving stolen property (§ 496) in 1985, arising from an incident where defendant escaped from jail, stole a car, and tried to run away from the arresting officer. About a year after being released from prison for that offense, defendant stole a purse, was convicted of grand theft (§§ 484, 487), and was sentenced to two years in state prison. Defendant was released on parole a year later, but was returned to prison after three months for a parole violation.
Sixteen months after finishing his grand theft sentence, defendant committed his first strike: Defendant drove to a fast food restaurant, brandished a gun in front of a store manager, and left with cash from the restaurant. Defendant was convicted of robbery (§§ 211, 212.5), and sentenced to seven years in prison. (§§ 1192.7, subd. (c)(19), 667.5, subd. (c)(9).)
Defendant committed his second strike the same month as the robbery that led to his first strike conviction (it appears he was not arrested for the robbery until after committing the second strike). During flight from an attempted traffic stop, defendant pointed a revolver at the pursuing officers. When the car crashed, defendant fled on foot. He later entered a residence and was shot by the homeowner. Defendant was convicted of driving with willful and wanton disregard for the safety others while evading a peace officer (Veh. Code, § 2800.2) and exhibiting a deadly weapon with the intent to resist arrest (§§ 417.8; 1192.7, subd. (c)(23).) Defendant was sentenced to four years in prison, concurrent to his sentence on the first strike.
The precise factual basis for defendant's second strike conviction is unclear from the record, as the only basis comes from the 1999 probation report. That report states "defendant was a passenger in a motor vehicle, whose driver decided to evade . . . police," and also states defendant was "convicted of violations of [section] 417.8 . . . and [Vehicle Code section] 2800.2."
Defendant committed the felony that became his third strike in 1998, three months after he was released on parole. During an attempted traffic stop by a police officer, defendant accelerated his car to over 60 miles per hour in a residential zone and eventually crashed into a parked car. Defendant's blood later tested positive for amphetamine, methamphetamine, and morphine. Defendant fled, injured an officer who was chasing him, and was eventually subdued and arrested. Defendant was convicted of reckless driving while evading a peace officer. (Veh. Code, § 2800.2, subd. (a).) Under the three strikes law then in effect, defendant was sentenced to a term of 25 years to life for the felony conviction due to his two prior strike convictions.
While serving his indeterminate sentence, defendant committed over a dozen disciplinary violations, some involving violence and controlled substances. The more serious of those violations include fighting with another inmate in 2006; conspiring to commit battery in 2006; conspiring to commit battery on an inmate with a weapon in 2010; and refusing to take a drug test in 2013.
B. SECTION 1170.126 HEARINGS
1. Testimony of Dr. Rahn Minagawa
Dr. Rahn Minagawa testified on defendant's behalf as an expert "in the field of forensic psychology, specifically in substance abuse, institutionalism, and risk assessment." Dr. Minagawa had interviewed defendant one time. He had also reviewed documentary evidence, including defendant's criminal record and correspondence between defendant and his family.
Dr. Minagawa testified that defendant started drinking and using marijuana when he was 11 years old, began using heroin and methamphetamine when he was 19 years old, and continued to use alcohol and heroin in prison. Dr. Minagawa noted defendant's records showed he sought drug treatment while in prison but was denied all services because of his lengthy sentence.
Dr. Minagawa acknowledged defendant admitted using heroin two months before their 2013 interview. But Dr. Minagawa also noted defendant had decreased his drug use while incarcerated. He classified defendant as being in " 'early partial remission,' " meaning defendant was "still using drugs[,] just not at the level that we would consider to be dependent." He acknowledged the risk that someone in early partial remission might relapse upon release from prison unless the person was under some sort of supervision.
Dr. Minagawa described several factors supporting his opinion that defendant would not pose an unreasonable risk of danger to public safety if released. He noted individuals tend to stop committing new crimes as they reach 50 years old, and defendant was over 50 years old. Defendant also had the support of his family, and vocational skills that would help him find work upon release. Though Dr. Minagawa believed defendant should be released, he stressed defendant should be released into a controlled setting such as Postrelease Community Supervision (PRCS). (§ 3450, subd. (a).)
2. Testimony of Dr. Richard Subia
Dr. Richard Subia testified for defendant as an expert regarding gangs, risk assessment, and California Department of Corrections and Rehabilitation rules and procedures. He based his testimony on one interview with defendant as well as his review of defendant's behavioral, program, and prison records.
Dr. Subia testified about barriers to defendant's access to rehabilitative programs while incarcerated. As someone serving a life term, defendant was a low priority for substance abuse programs. Defendant's frequent transfers to different prisons made it difficult to obtain treatment because he lost his place on each institution's waiting list each time he was transferred. A further barrier to treatment occurred in 2006 or 2007, when the state cut funding for rehabilitation programs such that services were only provided to inmates within 36 months of release. Those budget cuts remained in place until 2013, when inmates serving longer sentences were allowed back into drug treatment programs.
Regarding drug use in prison, Dr. Subia testified he did not "see [defendant] turning towards the utilization of controlled substances or alcohol in the last 10 years or so other than" when he refused the drug test in 2013. Dr. Subia testified that defendant told him he refused the drug test because he had taken a pain pill for back pain and was concerned that he would test positive for a controlled substance.
Regarding defendant's disciplinary record in prison, Dr. Subia opined that defendant acted as a "passive inmate" who was probably "taken advantage of by more predatory type[s] of inmates" in the 2006 conspiracy to commit a battery incident. Dr. Subia testified, based on his review of prison records, that defendant was asked to pass a note to another inmate and that defendant did not know the note contained a threatening message. But Dr. Subia acknowledged in response to a question by the trial court that he had not been aware of defendant's recorded statement: "I may have said you guys need to get that guy off the yard."
Dr. Subia opined that defendant would not pose an unreasonable risk of danger to public safety. He explained defendant had reduced his drug use in jail. Dr. Subia also found defendant's age significant, stating he was at an age where inmates usually "age out" of committing new crimes. Though Dr. Subia believed defendant would not pose an unreasonable risk of danger, he believed that defendant should be required to participate in a substance abuse program upon his release.
3. Defendant's Testimony
Defendant testified on his own behalf. He admitted using heroin at various points during his present incarceration. Defendant clarified that when he told Dr. Minagawa in 2013 he had used heroin two months before, he was referring to morphine pills and "codeine threes" he took without a prescription for back pain. Defendant explained he refused the drug test because he had taken those pills. He noted that following his refusal to take the drug test, he was required to take monthly drug tests for a year and had no positive tests. Before taking the pills in 2013, defendant had last used heroin in 2008. Defendant acknowledged that while he told Dr. Subia about his drug use generally, he "didn't get into any dates or anything."
Defendant testified that he was unable to obtain any drug treatment services while in prison because the classes offered by the prison system were only offered in the evening, and defendant's indeterminate sentence precluded him from leaving his cell in the evening. Despite the lack of official support, defendant testified he quit using heroin in 2008 on his own, and stated he had completed a 12-step program through the mail.
Defendant believed that because he was older, he would be able to comply with any conditions of release. He was motivated to stay out of prison so that he could focus on caring for his elderly mother and his sister (who was battling cancer). If released, he planned to live with his sister until he could move into a residential substance abuse program. He agreed that a drug treatment program was crucial to his successful transition out of prison.
4. Trial Court's Ruling
Based on defendant's previous poor performance on parole, his continued drug use in prison, and his failure to demonstrate that he had overcome his addiction, the court found that he posed an unreasonable risk of danger to public safety and denied the petition for resentencing. (We discuss the trial court's findings in more detail in Part II.C.1.)
II. DISCUSSION
Defendant argues the trial court erred in denying his section 1170.126 petition by using an unlawfully broad definition of "unreasonable risk of danger to public safety." He also argues the trial court failed to consider evidence favorable to defendant and relied on factual findings not supported by the record.
A. RESENTENCING UNDER SECTION 1170.126
Before 2012, a defendant with two prior strike convictions was subject to an indeterminate third strike sentence upon conviction for any felony. (People v. Conley (2016) 63 Cal.4th 646, 652 (Conley).) Under the Three Strikes Reform Act of 2012, a defendant convicted of a felony who has two prior strike convictions is subject to an indeterminate third strike sentence only if the new conviction is for a felony that is itself serious or violent under sections 1192.7, subdivision (c) or section 667.5, subdivision (c), respectively. (§ 667, subd. (e)(2)(A), (e)(2)(C); Conley, at p. 653.) If the present conviction is not for a serious or violent felony, the defendant is sentenced to "twice the term otherwise provided as punishment for the current felony conviction." (§ 667, subd. (e)(1), (e)(2)(C).)
Section 1170.126 provides the opportunity to petition for resentencing to prisoners sentenced before the Three Strikes Reform Act to indeterminate third strike sentences for felonies that were neither serious nor violent. A petitioning defendant must demonstrate eligibility for resentencing by showing that his or her third strike sentence was imposed for a felony that was not serious or violent; that his or her current sentence was not for an offense listed in section 667, subdivision (e)(2)(C) or section 1170.12, subdivision (c)(2)(C); and that he or she has no prior convictions for the offenses listed in section 667, subdivision (e)(2)(C)(iv) or section 1170.12, subdivision (c)(2)(C)(iv). (§ 1170.126, subd. (e)(1)-(e)(3).) Once a petitioning defendant demonstrates eligibility, the trial court must resentence the defendant "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).) In exercising its discretion, the court may consider the petitioning defendant'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"; the defendant's "disciplinary record and record of rehabilitation"; and any other evidence the court finds relevant. (§ 1170.126, subd. (g), (g)(1)-(g)(3).)
B. DEFINING "UNREASONABLE RISK OF DANGER TO PUBLIC SAFETY"
Defendant argues that the term "unreasonable risk of danger to public safety" in section 1170.126, subdivision (f) means either: an unreasonable risk that a petitioner will commit a new violent felony within the meaning of section 667, subdivision (e)(2)(C)(iv) (the definition contained in section 1170.18, subdivision (c) in the Safe Neighborhoods and Schools Act of 2014); or an unreasonable risk that defendant will commit a new serious or violent felony. Statutory interpretation is a question of law to which we apply our independent judgment (People v. Arroyo (2016) 62 Cal.4th 589, 593 (Arroyo)), with proper deference to any interpretation of the same language by our Supreme Court. As we now explain, the definition of "unreasonable risk of danger to public safety" is broader than defendant's proffered definitions.
1. Section 1170.18 Definition Does Not Apply (People v. Valencia)
After defendant's appeal was fully briefed, the California Supreme Court in People v. Valencia (2017) 3 Cal.5th 347 (Valencia) rejected the argument about section 1170.18 that defendant makes here. Valencia involved an appeal from the denial of a section 1170.126 resentencing petition where the trial court had found that Valencia posed an unreasonable risk of danger to public safety. (Valencia, at pp. 352-353.) Valencia argued that a definition of "unreasonable risk of danger" from section 1170.18 applied to section 1170.126 resentencing petitions. (Ibid.)
The Valencia court explained that the Safe Neighborhoods and Schools Act of 2014 reduced certain drug- and theft-related crimes from felonies to misdemeanors, and created a procedure (codified in section 1170.18) by which individuals previously convicted of felonies could petition to have certain convictions reclassified as misdemeanors. (Valencia, supra, 3 Cal.5th at pp. 355-356.) Under section 1170.18, a trial court may deny reclassification if the petitioner poses an "unreasonable risk of danger to public safety." (§ 1170.18, subd. (b).) The Valencia court noted that—unlike section 1170.126 from Proposition 36—section 1170.18 from Proposition 47 specifically defines the phrase "unreasonable risk of danger to public safety." Section 1170.18, subdivision (c) defines that phrase as " 'an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667, subdivision (e)(2)(C)(iv)." (Valencia, at p. 360, quoting § 1170.18, subd. (c).) By its terms, Proposition 47 purported to apply that definition " 'throughout this [Penal] Code.' " (Valencia, at p. 360.)
The Supreme Court acknowledged that section 1170.18 states its definition of unreasonable risk of danger to public safety is to be " 'used throughout this [Penal] Code,' " of which the Three Strikes Reform Act of 2012 and section 1170.126 are a part. (Valencia, supra, 3 Cal.5th at p. 360.) But the court determined that section 1170.18 was ambiguous as applied to section 1170.126. (Valencia, at pp. 360-364.) The Supreme Court reviewed Proposition 47's uncodified preamble and relevant sections of the applicable voter information guide, noting that there was no indication that section 1170.18 was intended to amend section 1170.126. (Id. at pp. 362-365.) Because it found the relevant language ambiguous and did not find any indication of voter intent to amend section 1170.126, the court concluded in Valencia that section 1170.18's definition of unreasonable risk of danger did not amend section 1170.126. (Valencia, at p. 375.)
2. Unreasonable Risk of Danger Does Not Mean a Serious/Violent Felony
Defendant alternatively contends a trial court must resentence a petitioning defendant under section 1170.126 unless the court determines that there is an unreasonable risk that he or she may commit a serious or violent felony if released. In interpreting the language of a voter initiative such as Proposition 36, we look first to its language, giving words their ordinary meaning, with the goal of effectuating the voters' intent. (Arroyo, supra, 62 Cal.4th at p. 593.)
There is no indication in the text of section 1170.126 that an "unreasonable risk of danger to public safety" is limited to the likelihood that the petitioner will commit a serious or violent felony. As the Supreme Court observed in Valencia, trial courts in section 1170.126 resentencing proceedings have broad discretion to consider whether a petitioner poses an unreasonable risk of danger. (Valencia, supra, 3 Cal.5th at p. 354.) The voters demonstrated their knowledge of serious and violent felonies by expressly using those terms in other subdivisions of section 1170.126. (See, e.g., § 1170.126, subd. (e)(1) [noting that eligibility for resentencing requires a showing that a defendant is serving an indeterminate third strike sentence for a "felony or felonies that are not defined as serious and/or violent felonies"].) Had the voters intended to limit a trial court's discretion to considering only the risk that a petitioning defendant will commit a serious or violent felony, it is reasonable to expect that the voters would have made that intent explicit. (See Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1118 [" '[W]hen the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded' "].)
In his reply brief, defendant argues for the first time that because he "would not be subject to a third-strike for a range of felonious conduct after Proposition 36, including evasion of arrest, it follows that Proposition 36 cannot justify continued service of a third-strike life sentence merely because of the risk that he might engage in just such conduct." Defendant forfeited that argument by failing to raise it until his reply brief. (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500 ["This court will not consider points raised for the first time in a reply brief for the obvious reason that opposing counsel has not been given the opportunity to address those points"].) And the argument is without merit because, as we have already discussed, the language of section 1170.126 does not support defendant's interpretation.
C. FINDING OF UNREASONABLE RISK OF DANGER TO PUBLIC SAFETY
We review a trial court's decision that a petitioning defendant poses an unreasonable risk of danger to public safety for abuse of discretion. (People v. Buford (2016) 4 Cal.App.5th 886, 901, review granted Jan. 11, 2017, S238790 (Buford).) Defendant argues that under any definition of dangerousness, the trial court abused its discretion by finding he posed an unreasonable risk of danger to public safety.
1. Trial Court's Findings
The trial court expressed two interrelated bases for its decision that defendant posed an unreasonable risk of danger to public safety: defendant's history of recidivism upon release from previous periods of incarceration, and defendant's failure to demonstrate that he had overcome his addiction.
Reviewing his criminal history, the court noted that defendant had never been deterred by the prospect of up to a year of incarceration for parole violations, had consistently reoffended despite knowing he would receive a lengthier prison sentence as a recidivist, and had "never passively submitted to authorities to face the consequences of his conduct." The trial court pointed to defendant's "multiple flights to avoid capture, the escape, stealing a car," and "running into a stranger's home to get away."
As for rehabilitative treatment, the trial court noted that when defendant was incarcerated in the 1980's, he did not participate in a substance abuse program. Defendant apparently entered a three-week methadone detox program in 1994 while serving the sentence for his first two strikes. When defendant was released from prison into a sober living environment in 1998, he left after only two weeks. During his indeterminate sentence, defendant did not participate in any substance abuse rehabilitative programs until 2013 when he was transferred to county jail pending resolution of his section 1170.126 petition. The court acknowledged that since his transfer to county jail, defendant had actively participated in rehabilitative programming, including weekly Alcoholics Anonymous meetings and two recovery programs. Defendant had also obtained his G.E.D.
The court discussed Dr. Subia's testimony about barriers to rehabilitative services in prison and found that Dr. Subia did not "actually correlate those factors to the defendant's custody status" during any period of his incarceration. The court noted that defendant had not been in the secure housing unit for almost 10 of the 14 years of his present sentence, and stated that defendant "entered with a classification score of 25 and he has not gone down."
A classification score is used by the Department of Corrections and Rehabilitation in "determining the proper level of custody and place of confinement as well as for planning and budgeting considerations." (Stoneham v. Rushen (1982) 137 Cal.App.3d 729, 731.) The only other testimony about defendant's classification score came directly from defendant in response to a question from the court. Defendant indicated his present classification score was 40.
The trial court concluded that defendant had not shown "any demonstrated motivation or ability" to refrain from drug use if he were to be released. The court explained that a finding that defendant posed an unreasonable risk of danger to public safety "is not limited to the risks that defendant would commit a violent assault on someone, it is enough if he engages in conduct and commits crimes that place[] others at a serious risk of physical harm." The trial court determined that releasing defendant onto PRCS did not adequately mitigate his risk of danger because the only consequence would be "10 days of incarceration if he walks away from a program or fails to participate in drug rehabilitation fully." The court noted defendant would still face "a double prison term for any felonies that he might commit, but it is the potential that he might repeat the past criminal behavior that is precisely the concern." The trial court concluded that defendant posed an unreasonable risk of danger to public safety, and denied the petition.
2. The Trial Court Considered All of the Statutory Criteria
Defendant argues that the trial court abused its discretion by basing "its entire decision" on his substance abuse instead of considering favorable evidence related to his criminal history and prison disciplinary record. But the trial court considered all three factors listed in section 1170.126, subdivision (g). The court discussed defendant's criminal history and his prison disciplinary record, which was extensive. (§ 1170.126, subd. (g)(1), (g)(2).) And the trial court's discussion of defendant's substance abuse history falls within the catch-all third factor, "[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)(3).)
a. Defendant's Criminal History
Defendant contends the trial court erred by relying too heavily on his "history 20 and more years ago," and argues that the court should have placed greater focus on his more recent conduct. But the court had to start its analysis somewhere, and the time period preceding defendant's third strike sentence is highly probative because it was the most recent evidence available demonstrating how defendant acted when not incarcerated. As the trial court explained, that history did not anticipate a successful reentry into society. Between turning 18 in 1982 and being sentenced to an indeterminate term in 1999, defendant had an extensive criminal record. Among other offenses during that period, defendant robbed a fast food restaurant, brandished a firearm at a police officer to evade arrest, and led the police on multiple high-speed chases. And he consistently failed to comply with the conditions of supervised release after earlier periods of incarceration.
b. Dr. Minagawa's Testimony
Defendant argues the trial court "missed the significance of Dr. Minagawa's testimony that [defendant's] drug use in prison was not 'out-of-control' as it had been in the decades before 1999." Defendant notes that Dr. Minagawa based his opinion that defendant would not be an unreasonable risk of danger to public safety on his self-driven reduction in drug use during the later years of his incarceration.
The trial court was not required to accept Dr. Minagawa's conclusion on the ultimate issue of the petition (i.e., the risk of danger determination), and other testimony by Dr. Minagawa supported the trial court's decision. Dr. Minagawa testified that defendant admitted using drugs off and on throughout his time in prison, and that he had used narcotics in 2013. And Dr. Minagawa made clear that while he thought defendant should be released, he believed defendant would need continued drug treatment to ensure that he did not relapse. The foregoing testimony supports a finding by the trial court that while defendant had reduced his drug use, he had not reached a point of recovery that would eliminate an unreasonable risk of danger to public safety. Rather than missing the significance of the testimony, it appears the trial court assessed the facts and reached a conclusion supported by those facts, even though it differed from Dr. Minagawa's conclusion.
c. Dr. Subia's Testimony
Defendant challenges the trial court's findings about the evidence upon which Dr. Subia based his opinion. Defendant argues the trial court erred in concluding that Dr. Subia was "clearly unaware of the continued use of narcotic substances that Dr. Minagawa reported." Contrary to defendant's argument, evidence in the record supports the trial court's statement. While the trial court acknowledged that Dr. Subia knew generally about defendant's drug use in prison, the record supported a finding that Dr. Subia was not aware of the full extent of defendant's continued use of controlled substances in jail. For example, defendant testified that while he told Dr. Subia about his drug use generally, he "didn't get into any dates or anything." And defendant admitted to the court that he had last used heroin in prison in 2008, which was inconsistent with Dr. Subia's testimony in 2015 that he did not "see [defendant] turning towards the utilization of controlled substances or alcohol in the last 10 years or so other than the one time that he refused a urinalysis."
d. Defendant's Age
Dr. Minagawa opined that defendant's criminal behavior was related to his drug use. He also stated generally that as individuals get older they stop offending as frequently, in part because they realize the importance of treating their addiction. Dr. Subia similarly found defendant's age significant because "there is an age that we would look at where the inmates usually age out" of committing crimes. In denying the petition, the trial court made no express findings about the effect of defendant's age on whether he posed an unreasonable risk of danger to public safety.
Defendant argues the trial court did not adequately take his age (52 in 2015) into account when deciding the petition. Relying on Camp v. Ortega (1962) 209 Cal.App.2d 275 (Camp), defendant further contends that because the experts' testimony regarding the connection between aging and reduced criminal behavior was uncontroverted, the trial court should have accepted it.
Camp involved a dispute over the value of personal property Ortega had unlawfully converted after locking Camp out of a commercial property he had been renting. (Camp, supra, 209 Cal.App.2d at pp. 277, 280.) Camp and an expert testified regarding the value of the property, but the trial court awarded damages in an amount less than the estimates provided by Camp and his expert. (Id. at pp. 279-281.) Camp argued on appeal that the trial court erred by not awarding damages within the range of testimony. (Id. at p. 281.) The Court of Appeal acknowledged the general rule that "the unimpeached and uncontradicted testimony of a witness, not inherently improbable, cannot be arbitrarily disregarded and should be accepted as true by the trier of fact." (Ibid.) But an equally well-established principle is that "the trier of fact, as the exclusive judge of the credit and weight to be given to the testimony of a witness, may reject such testimony even though uncontradicted and unimpeached when [the judge] does not act arbitrarily but does so upon sound and relevant considerations." (Id. at p. 283.) Finding reasons to doubt the credibility of both Camp and his expert, the Court of Appeal concluded that the trial court did not err in giving some "credit and weight" to the testimony by finding the property had some value, "while disbelieving that the property was worth the full value claimed." (Id. at p. 285.)
Like the trial court in Camp, the trial court here had reasons to give less credit to the experts' statements about the effect of defendant's age on his propensity to commit crime. The experts' testimony about defendant did not involve objectively definable facts like the value of property; the testimony instead offered a general proposition that people become less likely to offend as they get older. And Dr. Minagawa confirmed that the proposition was not true in all cases when asked on cross-examination whether "there are still people who after the age of 50 commit crimes?" Because the trial court did not expressly reject the expert testimony about age, we infer that the court credited the expert testimony about the general proposition that older individuals commit fewer crimes but found that defendant nonetheless posed an unreasonable risk of danger to public safety.
Defendant compares his case to In re Stoneroad (2013) 215 Cal.App.4th 596 (Stoneroad). Stoneroad was denied parole from an indeterminate sentence, and challenged that denial by petition for writ of habeas corpus. (Id. at p. 601.) In granting Stoneroad's petition, the Court of Appeal noted that Stoneroad was a "model prisoner," "had paid his restitution in full," and was determined to " 'start living up to [his] responsibilities.' " (Id. at pp. 605, 623.) Though Stoneroad's propensity for crime had been driven by alcohol abuse, he had not had a drink in over 20 years of imprisonment. (Id. at pp. 608, 612.) In a paragraph which the Stoneroad court itself recognized to be "obiter dictum," the court quoted a study from the Stanford Criminal Justice Center for the proposition that " 'as a general matter, people age out of crime.' " (Id. at pp. 632, 634, fn. 21.) But unlike Stoneroad, defendant continued using controlled substances during his prison commitment, and his prison disciplinary record demonstrates that he was not a model prisoner. Defendant has not demonstrated an abuse of discretion in the trial court not expressly addressing how his age affected his risk of danger to public safety.
3. Any Misstatements of Fact Were Harmless
Defendant argues the trial court abused its discretion by making factual findings that were unsupported or contradicted by the record. An abuse of discretion occurs when substantial evidence does not support the trial court's decision. (Buford, supra, 4 Cal.App.5th at p. 901, rev. granted.) A trial court's misapprehension of facts is state law error subject to harmless error analysis. (See People v. Avalos (1984) 37 Cal.3d 216, 233 (Avalos) [reviewing for harmless error whether trial court improperly relied on aggravating factors both to aggravate sentences and to run sentences consecutive]; People v. Watson (1956) 46 Cal.2d 818, 836-837.)
Defendant contends the trial court inaccurately stated that defendant's classification score when he entered prison to serve his indeterminate third strike sentence was 25, and that his score had not decreased since he entered prison. Defendant argues, based on a citation to a website, that as an inmate serving an indeterminate sentence he would have entered prison with a classification score of 50. Defendant's trial counsel did not object to the trial court's statement about defendant's classification score. And on appeal defendant did not request judicial notice of the information he cites. The argument is forfeited for failure to object below, and for failure to provide meaningful analysis supported by facts in the record on appeal. (People v. Saunders (1993) 5 Cal.4th 580, 589-590 [" ' "An appellate court will ordinarily not consider procedural defects or erroneous rulings . . . where an objection could have been, but was not, presented to the lower court by some appropriate method." ' "]; In re S.C. (2006) 138 Cal.App.4th 396, 408 ["To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error"].)
Defendant also argues that the trial court misunderstood the maximum penalty for the PRCS program. The trial court suggested that the maximum term of confinement was 10 days, whereas (contrary to defendant's argument that the maximum penalty is 12 months) section 3455 specifies that the maximum term of confinement when an individual is returned to PRCS after a violation is 180 days in county jail. (§ 3455, subd. (d); accord People v. Gutierrez (2016) 245 Cal.App.4th 393, 404.)
PRCS is similar to parole. Individuals released from prison on PRCS must satisfy conditions of release, and are subject to 10-day "flash incarcerations" in county jail for violating those conditions. (§§ 3453, subd. (q), 3454, subd. (c).) If flash incarceration is ineffective, local authorities can petition the trial court to either revoke and terminate PRCS, or return the individual to PRCS with modified conditions that can include a term of confinement in county jail. (§ 3455, subd. (a).)
The trial court's misstatement of the maximum penalty for PRCS violations does not compel reversal unless defendant can demonstrate it is reasonably probable that he would have received a more favorable result but for the error. (Avalos, supra, 37 Cal.3d at p. 233.) The trial court accurately noted that defendant had "never previously been deterred by the fear of up to a year" of imprisonment for a parole violation. Given that the court found defendant undeterred by a penalty twice the length of that allowed by PRCS, it is not reasonably probable that the court would have granted defendant's petition had it been aware of the correct PRCS penalty structure.
Defendant further challenges the trial court's finding that Dr. Subia had not adequately correlated his general testimony about the barriers to rehabilitative programs with defendant's actual incarceration history. Dr. Subia testified that many prisons have limited rehabilitative programming, that it is more difficult for inmates serving indeterminate sentences to participate in that programming, and that inmates' names go to the bottom of program waiting lists each time they are transferred. Defendant's testimony corroborated those barriers to participating in officially-sanctioned rehabilitative programs. The trial court erred in finding a lack of connection between Dr. Subia's testimony and defendant's incarceration history. But we find the trial court's error on this point was harmless. (Avalos, supra, 37 Cal.3d at p. 233.) That defendant did not have greater access to rehabilitative programs in prison does not preclude the trial court's finding that he posed an unreasonable risk of danger to public safety. The trial court noted that defendant's prior performance upon release from prison showed he had a high propensity for recidivism. And defendant's continued use of controlled substances in prison—including the misuse of narcotic prescription medicine in 2013—supports the decision that defendant would pose an unreasonable risk of danger to public safety. We do not see a reasonable probability of a more favorable result to defendant had the trial court applied Dr. Subia's testimony differently.
Defendant argues that the factual errors he identifies compel reversal because they are "like the issue in People v. Esparza" (2015) 242 Cal.App.4th 726 (Esparza). (Esparza was abrogated on another ground by People v. Cordova (2016) 248 Cal.App.4th 543, and Cordova was implicitly overruled by Valencia, supra, 3 Cal.5th at pp. 374-375.) But Esparza reversed the trial court for improperly placing the burden of proof on the petitioning defendant in a section 1170.126 petition proceeding, not because the trial court misapprehended the facts of the case. (Esparza, at pp. 742-743.) Esparza does not assist defendant. --------
III. DISPOSITION
The order denying defendant's petition for resentencing is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Bamattre-Manoukian, Acting P. J. /s/_________ Mihara, J.