Opinion
C088449
06-04-2020
THE PEOPLE, Plaintiff and Respondent, v. BARNEY WILSEY MCLANE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NCR64393)
Defendant Barney Wilsey McLane appeals following the denial of his Proposition 64 petition to recall and resentence his prior felony conviction. He alleges abuse of discretion in the trial court's conclusion that granting the petition would pose an unreasonable risk of danger to public safety. Finding that the decision was within the court's discretion, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2005 a jury found defendant guilty of cultivating and transporting marijuana. The jury also found true numerous sentencing enhancement allegations, including six prior prison terms and two prior strikes. The trial court sentenced defendant to an aggregate term of 25 years to life in state prison. This court subsequently affirmed that judgment in an unpublished opinion. (People v. McLane (Aug. 15, 2006, C050165) [nonpub. opn.].)
Thirteen years later, defendant petitioned the trial court to redesignate his marijuana convictions under Proposition 64. (Pen. Code, § 11361.8.) The court denied that petition.
Undesignated statutory references are to the Penal Code. --------
In reaching its decision, the trial court outlined the applicable legal standards and reviewed defendant's prison records, which the court summarized as follows: "[W]hile [] defendant had a few disciplinary hearings, he seems to have only minor negative remarks, which would weigh against him in the determination of risk." The court noted defendant's positive progress in education reports and heard testimony from defendant's family, who indicated they would be there to provide assistance and support; they believed defendant "had learned his lesson." The court also noted defendant's participation in meetings akin to Alcoholics Anonymous for nearly three years. The court nevertheless found defendant's criminal history to be "striking."
The court catalogued defendant's lengthy criminal history, which began in 1977 when defendant committed his "first, adult criminal act": forcible entry, a misdemeanor. In 1980 defendant was convicted of rape, false imprisonment, and use of a deadly weapon for holding a rifle to a teacher's head and raping her in the back seat of her car, resulting in his first prison sentence.
Paroled in 1988, defendant was sent to county jail in August 1989 for falsely identifying himself to a peace officer. Defendant returned to prison in 1989 after violating his parole. A few months later, defendant was convicted of false imprisonment and was sent to prison a third time. He then violated his parole and was returned to prison again in April 1993.
In February 1995 defendant was convicted of failing to register as a sex offender. He was again sentenced to prison. Then, between January 1998 and December 1999, defendant violated his parole four times; each time he was returned to prison.
Defendant was once more convicted of failing to register as a sex offender in August 2000 and was sentenced to another five years in prison. Two months later, he was convicted of resisting a peace officer and was sentenced to an additional two years in prison. Defendant was returned to prison in October 2004 for violating his parole. Defendant was then convicted of the drug crimes underlying this case and was sent to prison for the twelfth time.
The trial court observed that "[o]ne can be a danger while doing nothing dangerous because he is incarcerated." The court noted that defendant is 60 years old and has been "incarcerated and reincarcerated" 12 times, resulting in nearly 27 years of his adult life spent in prison, including the past 13 years. "Every time [defendant] was released, he re-offended. When released, the family was accessible to him, and their love and support made no difference."
In sum, "[t]he court is looking at an entire adult life which was nothing other than one unending string of new offenses and parole violations, each occurring very quickly after his release on the previous commitment. The facts of his life before his most current incarceration far outweigh any inferences which may be drawn from the fact that his ongoing prison commitment has had only minor rule infractions and outweighs the fact that family continues to offer him support."
Accordingly, the court denied defendant's petition.
DISCUSSION
Defendant contends the trial court abused its discretion in finding his release would pose an unreasonable risk of danger to public safety. He argues that in reaching its determination, the trial court wrongly focused on defendant's past conduct and "discounted his good prison behavior" and advanced age. We are not persuaded.
Added by Proposition 64, section 11361.8 empowers persons serving sentences for certain marijuana-related offenses to petition to redesignate their convictions to misdemeanors or infractions. (§ 11361.8, subd. (a); People v. Medina (2018) 24 Cal.App.5th 61, 65.) Eligible petitioners are entitled to relief, "unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety." (§ 11361.8, subd. (b).) This means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667, subdivision (e)(2)(C)(iv), the so-called "super-strikes." (§ 1170.18; § 11361.8, subd. (b)(2); People v. Smit (2018) 24 Cal.App.5th 596, 601, fn. 2.) These include--in addition to various sex crimes--any attempted homicide, solicitation to commit murder, assault with a machine gun on a police officer or firefighter, or any serious or violent felony punishable by life imprisonment or death. (§ 667, subd. (e)(2)(C)(iv).)
We review a challenge to a denial of a petition to redesignate for abuse of discretion. (Cf. People v. Jefferson (2016) 1 Cal.App.5th 235, 242 [finding of an "unreasonable risk of danger to public safety" for purposes of Proposition 47 is reviewed for abuse of discretion].)
Here, the trial court acted within its discretion in denying the petition. As the trial court's summary explained, defendant has a lengthy and serious criminal history accompanied by a good--but by no means perfect--prison disciplinary record over the last 13 years. He has educated himself, gone to meetings promoting his sobriety, and avoided violence or serious discipline.
But, defendant also has an extensive and serious criminal history, including raping a woman at gunpoint. The breadth and severity of defendant's criminal history adequately supports the trial court's decision, regardless of his age and good conduct while in prison.
DISPOSITION
The order denying defendant's petition is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Blease, J.