Opinion
H043681
10-25-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ROBERT MIZNER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Benito County Super. Ct. No. CR-08-01656)
Defendant Anthony Robert Mizner appeals from an order denying his petition for resentencing of his conviction for possession of methamphetamine (Health and Saf. Code, § 11377, subd. (a)) as a misdemeanor under Penal Code section 1170.18. Defendant was sentenced as a third strike offender to a prison term of 27 years to life, which consisted of a 25-year to life term imposed under the Three Strikes law plus two years for prior prison term enhancements (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise specified.
Section 1170.18 was added to the Penal Code by Proposition 47, known as "the Safe Neighborhoods and Schools Act." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 1, 14, pp. 70, 73-74.) Proposition 47 reduced certain crimes, previously felonies or so-called wobblers, to misdemeanors, except if committed by certain ineligible defendants. (See People v. Morales (2016) 63 Cal.4th 399, 404 (Morales).) At the time defendant's petition was filed, and at the time the trial court ruled on it, section 1170.18 permitted eligible persons, who were "currently serving a sentence for a conviction" of a felony that would have been a misdemeanor if Proposition 47 had "been in effect at the time of the offense," to "petition for a recall of sentence . . . to request resentencing in accordance with" the specified sections that were "amended or added by" the proposition. (Voter Information Guide, Gen. Elec., supra, § 14, pp. 73-74; see Morales, supra, at p. 404.) "If the offense committed by an eligible defendant would have been a misdemeanor under the Act, resentencing is required 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).)" (People v. Gonzales (2017) 2 Cal.5th 858, 863.)
On appeal, defendant asserts that the trial court erred in placing the burden of proof on him and that the trial court abused its discretion in finding that resentencing him posed an unreasonable risk of danger that he would commit a homicide. We find no error or abuse of discretion and affirm the order denying defendant's petition for resentencing.
At oral argument, respondent withdrew the argument set forth in section D of the respondent's brief.
I
Evidence
Various exhibits were attached to defendant's petition and to the People's opposition papers. The evidence included but was not limited to documents relevant to the procedural history of the case, probation reports, prison classification reviews and reclassification score sheets, rules violation reports (RVR), prison "general chronos" (Form CDC 128-B) and "Custodial Counseling Chronos" (Form CDC 128-A), and experts' written reports.
A probation report that was filed on September 5, 2013 for the hearing on defendant's earlier, separate petition for resentencing under section 1170.126, which was enacted as part of 2012's Proposition 36, entitled the Three Strikes Reform Act of 2012. (Voter Information Guide (Nov. 6, 2012) text of Prop. 36, § 6, pp. 109-110.) That report set forth defendant's extensive criminal history, which began when he was declared a ward of the court as a juvenile. His adult criminal record included numerous convictions, including a multitude of felonies and misdemeanors. Defendant had violated probation or parole many times, and he had been repeatedly incarcerated.
Section 1170.126 established a procedure permitting persons who had been sentenced as a third strike offender under the former Three Strikes law for a felony that was neither serious nor violent to petition for resentencing under the amended Three Strikes law. This section required the trial court to grant the petition of an eligible petitioner who met the statutory criteria "unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety" but it did not define the phrase "unreasonable risk of danger to public safety." On July 3, 2017, the California Supreme Court held, in People v. Valencia (2017) 3 Cal.5th 347 (Valencia), that Proposition 47 did not amend the Three Strikes Reform Act" (Valencia, supra, at p. 352) and that, consequently, "Proposition 47's definition of 'unreasonable risk of danger to public safety' does not apply to resentencing proceedings under the Three Strikes Reform Act." (Id. at p. 377.) This court had found the same and affirmed the trial court's order denying defendant's petition for resentencing under section 1170.126 (People v. Mizner (Dec. 21, 2016, H040421) [nonpub. opn.]), review granted March 29, 2017, S239837, and briefing deferred pending decision in People v. Chaney S223676, and Valencia S223825, which were consolidated for all purposes.
Defendant's adult felony convictions, which span the period of 1977 to 2008, included two burglary convictions (former § 459), convictions of receiving stolen property (former § 496), seven convictions of arson (former section 451, subd. (c)), an assault conviction (former § 245, subd. (a)(1)), a witness intimidation conviction (§ 136.1, subd. (c)(1)), and a conviction of possession of methamphetamine (former Health & Saf. Code, § 11377, subd. (a)). His adult misdemeanor convictions apparently included multiple violations of section 488 (petty theft), violation of former section 459 (burglary), violation of former section 417 (drawing, exhibiting or using a firearm or deadly weapon), violation of former section 137, subd. (b) (inducing false testimony), multiple violations of former section 594 (vandalism), multiple convictions of former section 496 (receiving stolen property), violation of former Health and Safety Code section 11350 (unlawful possession of controlled substance), violations of former section 4600 (destroying or injuring jail or prison property), violation of former section 457.1, subdivision (h) (failure to register as a convicted arsonist), and violation of former Vehicle Code section 14601.1 (driving while license suspended or revoked).
In 1992, defendant was convicted of seven counts of arson and a count of burglary and sentenced to a six-year prison term. (Former §§ 451, subd. (c), 459.) The 2013 probation report described those arson offenses as "particularly egregious" because they affected the entire community. According to the report, in 1991 defendant "set fire to a series of businesses in downtown Hollister, which resulted in tremendous financial loss to numerous victims." Defendant was found in possession of property stolen from a victim's shop. The written report of Dr. Steven Barron, one of the defense experts, disclosed that defendant stated during his interview that he used methamphetamine prior to committing those crimes, he was " 'looking for money' so he could purchase amphetamine" to " 'get high,' " he decided to break into a flower shop, and he started a fire to cover up the break-in.
After defendant had served time in prison for the 1991 offenses and before he committed new felony offenses in 1999, he was returned to custody for violations of parole in 1994, 1995, 1997, and 1998. During the period of 1995 to July 1999, defendant was also convicted of four misdemeanors.
On July 2, 1999, he was placed on court probation for a year and a jail term was imposed for a misdemeanor conviction. On July 30, 1999, defendant became irate with a friend of his mother and assaulted her while she was driving him to county jail. Defendant kicked the victim with his left leg on the right side of her head by her ear, which caused her head to hit the steering wheel. The victim sustained "a one-inch laceration on the right side of the bridge of her nose." "Her nose was swollen and both of her eyes were turning black."
Dr. Barron's written report quoted a 1999 probation report revealing that defendant had become angry with the assault victim because he was running late to turn himself in for commitment. The 1999 probation report reportedly stated that defendant had called his mother from jail on the evening of the assault and that defendant had threatened, "If [the assault victim] pressed charges, she had better get the fuck off the face of the world." Defendant had told Dr. Barron that "he was 'really high at the time . . . ' " and that he "had not slept for 'a probably a week' prior to the crime and was 'very irritable.' "
In 2000, defendant was convicted of aggravated assault (former § 245, subd. (a)(1)) and witness intimidation (§ 136.1, subd. (c)(1)). While in prison in 2001, defendant was found guilty of a serious rule violation for battery on an inmate in violation of the rule of conduct proscribing the use of force and violence (see Cal. Code Regs., tit. 15, § 3005). According to the RVR, in February 2001, correctional officers saw defendant and other inmates striking another inmate in "the facial and upper body area with their fists." Despite verbal orders to get down, the targeted inmate was "knocked to the floor as the three suspects continued to batter" him. The inmates responded to the orders only after being pepper sprayed.
In their appellate brief, the People ask this court to take judicial notice of this court's opinion of People v. Mizner (March 18, 2002, H021026) [nonpub. opn.]), but they did not file any motion (Cal. Rules of Court, rules 8.252, 8.366(a)). On our own motion, we do so. (See Evid. Code, § 452, subd. (d); 459; see also People v. Woodell (1998) 17 Cal.4th 448, 458.) Our opinion indicated that the evidence had showed that defendant was supposed to be at the jail by 8:00 p.m., that defendant told the driver to " 'not to stop at any stoplights and speed up, go as fast as the car can go,' " and that defendant became angry when she disobeyed his directive. As the result of defendant kicking the driver in the head, she was "bleeding sufficient to block vision out of her one good eye"; defendant was aware that she "had a false right eye." But evidence of those circumstances surrounding the assault, was not presented to the trial court ruling on defendant's petition for resentencing. As explained in In re Zeth S. (2003) 31 Cal.4th 396, 405, "[i]t has long been the general rule and understanding that 'an appeal reviews the correctness of a judgment [or order] as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.' [Citation.]"
In 2003, defendant was resentenced on his most recent convictions, impliedly under the Three Strikes law, to 10 years in prison for those crimes, after "it was determined that his prior arson convictions only counted as one (1) strike."
A 2006 counseling chrono indicated that defendant failed to report to his substance abuse program on multiple dates in April 2006.
While on parole, defendant committed a new crime, and he pleaded guilty to being in possession of methamphetamine on or about July 23, 2008 (former Health & Saf. Code, § 11377, subd. (a)). Defendant was apparently placed on probation. Not long after, defendant violated probation by, among other things, using methamphetamine.
A presentence probation report filed in July 2009 stated that defendant "has a horrendous criminal record," which it described. According to that report, defendant had served "four prior prisons terms for unrelated convictions and he was on active parole when he was arrested . . . ." The report indicated that defendant had been using methamphetamine daily prior to being taken into custody for violating probation and that defendant had admitted that he was addicted to methamphetamine. It stated: "From 1984-1990, [defendant] used cocaine daily. From 1991-1994, [defendant] used methamphetamine and while on parole, he incurred fifteen . . . violations for positive drug tests."
Probation was revoked, and defendant was sentenced as a third strike offender. During defendant's current incarceration, he received a counseling chrono, dated September 29, 2010, for failing to follow directions (Cal. Code Regs., tit. 15, § 3041(d)) in that he failed to turn in his homework assignment as instructed on September 9, 2010. The chrono stated that defendant had failed to complete any of his assignments since August 25, 2010.
In 2012, defendant was found guilty of refusing a urine test (Cal. Code Regs., tit. 15, § 3290(d)). Dr. Barron's report indicated that the sample provided by defendant was tap water, but defendant denied tampering with the sample.
The 2013 probation report concluded that defendant posed an unreasonable risk to the community based on "the seriousness and gravity of his previous offenses, his lengthy criminal record, and his lack of progress at rehabilitation." It stated that defendant had proven that he was capable of violence, his efforts at rehabilitation while incarcerated had been "minimal," and there was "no indication that his behavior or mindset ha[d] changed since he was last sentenced to prison." Defendant did not "appear to have completed any certificates in recent years or to be taking advantage of the resources the CDCR ha[d] to offer." In addition, defendant had an elderly mother and his support network appeared to be "minimal." According to Dr. Barron's written report, defendant reported his mother was in declining health.
Dr. Barron, a forensic psychologist, was retained by the defense to perform a risk evaluation of defendant, and he testified as an expert on defendant's behalf. Dr. Barron met with defendant for approximately three hours at San Quentin State Prison, during which time he interviewed defendant and administered psychological tests. Dr. Barron reviewed defendant's prison central file and "extensive records" supplied by defense counsel. Based on all the information he had, Dr. Barron concluded that defendant was not an unreasonable risk of danger to public safety as defined by Proposition 47.
Defendant had a CDCR classification score of 19. A classification score reflected the inmate's risk to security and determined an inmate's custody placement. Dr. Barron explained that a score of 19 was the lowest classification score a life prisoner could receive. Dr. Barron stated that defendant's score would have been "a zero" based on his institutional behavior if not for the mandated minimum score for life prisoners. In his opinion, defendant's "institutional behavior did not demonstrate significant problems."
Dr. Barron believed that defendant had indicated "genuine remorse" for his prior criminal activity, but he did not know whether defendant had ever apologized to any of his crime victims. As to one victim, defendant claimed that he tried to apologize to her but she would not speak to him and that he told a mutual friend to tell her that he was sorry.
In Dr. Barron's opinion, defendant would be amenable to drug treatment. Defendant had spoken positively of the treatment that he had briefly received before his current incarceration, and he had spoken "in a realistic manner" about "coming to terms with his substance use problem."
Defendant had taken the "Inventory of Offender Risk Needs and Strength Instrument" (IORNS), which is a "self-administered" questionnaire. It considered static, historic risk factors, dynamic risk factors, and protective factors. According to Dr. Barron, a person who is serving a life sentence under a recidivist statute is likely to have a high score based on his past, and defendant did receive a "high" score on the "static risk index." Dr. Barron's report indicated that defendant was in the 89th percentile with respect to the static risk index.
Within the "dynamic need index," defendant had "elevated scores" in three areas: (1) alcohol and drug problems, (2) intra/interpersonal problems, and (3) negative social influences. Dr. Barron stated that defendant had no friends in the community who did not have a criminal history and had not used substances and that defendant had some self-esteem issues, which were all related to his history of substance use. According to Dr. Barron, when individuals are released from incarceration and return to their former environment, they return to associating with the same people, which increases the level of risk. Dr. Barron's report indicated that defendant was in the 98th percentile for intra/interpersonal problems and in the 93rd percentile for alcohol/drug problems.
Dr. Barron believed that defendant's dynamic problem areas revealed by IORNS could be treated in the community. Since defendant had stated a desire to stop using drugs and alcohol, defendant would be placed in a facility providing a sober living environment, where he would develop coping skills and live with others committed to not using drugs and alcohol. Dr. Barron indicated that he would be more concerned if defendant had high scores on criminal orientation or on the psychopathy scale.
Dr. Barron also administered the "Level of Service/Case Management Inventory" (LS/CMI), which examined risks, both static, historical factors and dynamic factors, to estimate recidivism rates. His written report stated that the LS/CMI assessment was "predictive of risk of future violence." The higher the score, the higher the risk. On three subcomponents of the assessment, specifically criminal history, companions, and leisure/recreation, defendant received a "high" score.
Dr. Barron's report indicated that an inmate received a high score on the criminal history subcomponent of the LS/CMI if he (1) had three or more convictions, (2) had at least one period of incarceration, (3) had been charged with a new crime while on probation or parole, and (4) had been punished at least once for a prison rules violation. At the hearing on the petition for resentencing, Dr. Barron acknowledged that the LS/CMI did not consider whether an inmate's criminal history included more than three prior convictions, more than one period of incarceration, more than one or two crimes committed while on probation or parole, or multiple violations of prison rules. Dr. Barron confirmed that an inmate whose criminal history was worse in any of those respects did not receive a higher score.
Dr. Barron's report further indicated that defendant had received a high score on the companions subcomponent of the LS/CMI assessment because he had few friends without criminal records in the community. Dr. Barron testified that defendant had received a "high" score with respect to the leisure/recreation subcomponent because of his "minimal participation in N.A./A.A. [Narcotic Anonymous/ Alcoholic Anonymous]" and his failure to participate in available education classes while in prison.
Defendant had told Dr. Barron that he did not find it valuable to go to N.A./A.A classes. Defendant had "issues" with "opening up" to other inmates in inmate-led groups, and he did not want to associate with child molesters. In his experience, Dr. Barron found that the availability of substance abuse treatment for prisoners was "very limited." Dr. Barron said that, on the positive side, defendant had volunteered to work, and his work involved janitorial duties.
According to Dr. Barron, defendant had received a "medium" score on the antisocial pattern subcomponent of the LS/CMI. The following factors had elevated his score: (1) being "suspended or expelled from school at least once," (2) having "less than a 10th grade education," (3) having "few friends who do not have a criminal record," and (4) not making "better use of his spare time when not working . . . to prevent boredom and possible urges to use substances."
Dr. Barron's report indicated that defendant had received a "low" score on the alcohol/drug problem subcomponent of the LS/CMI assessment because of the absence of evidence that he had used alcohol or drugs during the past 12 months. Defendant had told Dr. Barron that he had "no cravings for drugs." But Dr. Barron's report stated that defendant had "acknowledged a chronic and problematic history of substance abuse." It disclosed that defendant, in explaining his limited attendance to NA/AA, said, "I've got my own problems—I don't need to hear anybody else's." Defendant added that he did not "like it when other inmates 'talk about their drug use,' stating, 'I don't want to think about it.' "
During his interview with Dr. Barron, defendant attributed his criminality to drug use. Defendant claimed that he began drinking when he was approximately 20 years old, that he first used cocaine between the ages of 21 and 22 years, and that he first used methamphetamine, his preferred drug, when he was approximately 26 years old. Defendant had also used "cannabis." Dr. Barron was aware that defendant's documented juvenile history dated back to age 14, supposedly prior to defendant's use of drugs.
Dr. Barron's report disclosed that, at some point, defendant had been using methamphetamine every day. Defendant had "admitted craving methamphetamine in the past and trying 'dozens' of times to cut down or stop his use of the substance." Dr. Barron recognized in his report that, while defendant was on probation for possession of methamphetamine (the commitment offense), defendant violated probation by "testing positive for methamphetamine use three times, failing to report as directed, and having contact with a parolee-at-large . . . ." His report also referred to an April 2009 letter from defendant's treatment provider to his probation officer. The letter indicated that, while defendant was in the treatment program, defendant "had 'some difficulty with his sobriety' " and had associated with old friends that had led to him using drugs.
Defendant had received a "low" risk score on the education/employment subcomponent of the LS/CMI, but Dr. Barron acknowledged that defendant had been fired from quite a few places and that he had quit jobs without having new employment in place. Defendant's longest-held job was as a mechanic's helper, and he had that job "on-and-off for three years." Dr. Barron testified that defendant did not have a high school diploma or a GED, that defendant did not have a positive attitude toward education, and that defendant had said he did not see the benefit of obtaining a GED at 57 years old. Dr. Barron stated that defendant had participated in educational programming in prison, but he had not done his homework. Dr. Barron was recommending that defendant receive assistance with reentry into employment.
With respect to the family and marital subcomponent of the LS/CMI, Dr. Barron scored defendant "low" or "very low." But he acknowledged defendant's percentile rank in the IORNS's intra/interpersonal problems category, which meant that he had more treatment needs in that area than other North American male offenders. He also was aware that defendant did not appear to have a large family support group and that he had never been deeply in love with a life or sexual partner. Dr. Barron believed, however, that defendant's problems in that area could be addressed in a treatment program.
Dr. Barron scored defendant "low" on the procriminal attitude/orientation subcomponent of the LS/CMI. He explained that, during his interview of defendant, defendant had spoken about taking responsibility for past crimes, defendant had admitted hurting people in the past, and defendant indicated some remorse. Dr. Barron did not know whether defendant had engaged in cognitive therapy to address his procriminal attitude.
According to Dr. Barron, the LS/CMI assessment of defendant resulted in an overall score of "medium," which correlated to a recidivism rate of 28 percent, where "recidivism" was defined as "new incarceration after one year in the community." But Dr. Barron concluded that releasing defendant from prison would not pose an unreasonable risk of danger to public safety, as the phrase was narrowly defined under Proposition 47. His opinion held even if defendant used drugs upon release from prison. In reaching his opinion, Dr. Barron considered defendant's age of 57 years, noting that recidivism decreases as age increases. Dr. Barron did not believe, however, that defendant's age rendered him incapable of committing crimes. In Dr. Barron's opinion, defendant posed "a low risk" for committing "one of the heinous crimes specified in Proposition 47."
The evidence included a letter to defendant from Option Recovery Services, dated June 16, 2015, which indicated that its residential treatment program "continue[d] to accept all who wish to be a part of Options." The letter advised that defendant needed to obtain approval from the parole authorities prior to being fully accepted into the program if he was a parolee and that rent would be a "percentage of [his] income," "typically $350 per month if . . . low income."
Dr. Barron testified that he was aware that defendant had a post-release plan and that he had been accepted into a treatment program. Program participants were tested for substance use and they were sent to "a detox center" if they tested positive. Dr. Barron believed that the program's treatment services might further reduce the risk posed by defendant. If defendant participated in the program into which he had been accepted and participated in substance use treatment, defendant would be at a lower risk of general recidivism.
Richard Subia, a public safety consultant, testified on defendant's behalf as an expert in California's prison disciplinary rules and its parole process of evaluating inmate risk. He had reviewed defendant's prison central file. In Subia's opinion, defendant did not currently pose an unreasonable risk of danger to public safety if released into the community. His conclusion was based in part on defendant's excellent prison record, his prison behavior, and commendations from correctional staff.
Subia testified that, because drugs and alcohol are prevalent in prison, it was difficult for prisoners addicted to drugs or alcohol to break their habits. Drug dealers inside prison attempted to induce inmates with addiction problems to use drugs by giving drugs away for free or sitting with the inmates while they took drugs. In addition, opportunities for life prisoners to participate in substance abuse programs were limited. A life prisoner's custody level and classification score generally prevented any access to N.A./A.A. programs for the first five years of custody.
Subia testified that the levels of prison custody included "Max-A" Custody, Close-A Custody, Close-B Custody, Medium-A Custody, Medium-B Custody, and Minimum Custody. Subia explained that an inmate entering prison to serve a life term received at least a "Close Custody" designation and was required to complete a minimum amount of time in "Close-A Custody" and "Close-B Custody," totaling at least five years in Close Custody, before being considered for a reduction to "Medium Custody." Restrictions while in Close Custody limited an inmate's ability to access vocational training programs, educational programs, prison industry programs, self-help programs, and rehabilitation programs. At the time of the hearing, defendant had a "Medium Custody" designation at his current correctional facility.
Defendant's central file did not reflect that he had received any RVR for possession of drugs or alcohol or for being under the influence of drugs or alcohol. But defendant had received a RVR in 2012 for a serious rule violation of refusing to provide a urine sample to test for the presence of controlled substances. Defendant had been found guilty of a Division "D" offense, and, as a result, defendant had been assessed 90 days of credit forfeiture and 90 days of loss of privileges, and he had been placed on mandatory drug testing for a year. Subia explained that serious rules violations are designated as Division "A" to Division "F" offenses, with Division "A" being the most serious and resulting in the greatest potential credit forfeiture. Inmates found guilty of Division "D," "E," or "F" offenses have the opportunity to earn back loss credits based on good behavior.
According to Subia, defendant had received only one RVR in the prior eight years of custody. In his view, defendant's prison record was unusually positive. The last time Subia had looked, defendant had a mandatory minimum classification score of 19 as a life prisoner, but his classification score was zero as calculated. Defendant was currently housed at a Level 2 facility. As a life-term inmate, defendant could not be housed at a Level 1 facility because his classification score could not be reduced below 19. Subia was unable, however, to cite a specific study relating an inmate's behavior in custody with a low risk of recidivism.
Subia acknowledged that in 2001, during a previous period of incarceration, defendant was found guilty of a rules violation for battery on an inmate, which was designated a Division "D" offense. Subia indicated that a battery resulting in serious injury typically was not designated a Division "D" offense. He agreed that defendant had been one of the primary aggressor in that incident. Subia had seen no other evidence that defendant had engaged in violent prison behavior. There was no evidence that defendant had ever been involved in gang activity, which the CDCR takes seriously and monitors closely.
Subia had seen two "laudatory chronos" in defendant's central file. Prison authorities could document an inmate's behavior on "counseling chronos," which memorialized misconduct about which the inmate received counseling, or on "laudatory chronos," which memorialized positive behavior beyond what was expected or required. Defendant had received the two laudatory chronos, both dated April 2, 2013, for his work performance. Those chronos indicated that defendant was lead porter in the west block, and they commended defendant for his hard work and his job performance. Subia thought that it was conceivable that defendant had solicited the commendations.
Subia was unfamiliar with a March 2003 incident in which defendant had threatened an officer in San Benito County Jail. An incident report disclosed that defendant kicked his cell door several times because he wanted to speak with a sergeant about his housing situation. After being informed that he could not be reclassified, defendant demanded that an officer open the door and threatened to "crack somebody's head." After reading the incident report, Subia testified that he would classify it as "an aggressive incident." But the incident did not change his assessment of the risk of danger posed by defendant.
Subia acknowledged that defendant's prison record showed that he had been assigned to an educational program at the Susanville correctional facility because of low test scores. Defendant had gone to the program, but he had not wanted to be there. Defendant had received some unsatisfactory ratings from teachers; he had also received counseling chronos for failing to turn in or complete assignments. When defendant was moved to San Quentin State Prison, he was again assigned to an educational program. In that program, defendant received all unsatisfactory ratings.
Defendant had sporadically attended N.A./A.A. meetings. Subia indicated that life prisoners were ineligible for substance abuse programs but that an inmate could possibly seek an administrative override. But Subia indicated that the funding of prison rehabilitation programs had been cut by 100 million dollars in 2006, the remaining substance abuse programs could accommodate only 2,500 participants statewide, and many long-term and life-term inmates had been pulled out of those programs.
Subia testified that it was clear that defendant had been addicted to drugs and that many of his problems arose from a young age and a lot of them related to drug use. Subia was aware that defendant's criminal behavior reportedly began before he began using drugs. Subia stated that it was not unusual for a person to become involved in crime at a young age and then "progress into drugs and alcohol and other various crimes."
Subia acknowledged that defendant had been "written up" in prison for failing to drug test after he provided a tap water sample instead of a urine specimen and that, consequently, he had been required to submit to further drug testing. Subia agreed that the primary reason that an inmate would substitute water for his own urine specimen was that the inmate had "a concern that [he] would test dirty." Subia thought that defendant had achieved some "level of recovery" but still had a drug addiction problem and that it was important for defendant to be released into a program providing treatment.
Subia was also aware that defendant had a "very scattered" employment history and "very limited" marketable skills. Defendant had some janitorial skills based on his work in custody and some mechanical skills based on his "on-and-off temporary work" as an auto mechanic assistant. Subia indicated that he would have had concerns if defendant had not been accepted into the Options Recovery program.
The People called Restituto Ted Baraan, the Chief Probation Officer for San Benito County, as a witness. He testified as an expert in community corrections and reentry and risk assessment tools. He had reviewed the reports of both defense experts.
Baraan indicated that, although criminal activity generally declines as people get older, "a percentage" of the older criminal offender population continues to engage in criminal activities throughout their lifetime. When asked by defense counsel whether he would be surprised if defense counsel told him that a recent study determined that persons 50 years of age and older had a 1.2 percent rate of recidivism for violent crimes, Baraan said that he would not be surprised.
Baraan named eight criminogenic factors that were relevant in determining whether an older offender would continue to offend: (1) criminal history, (2) education-employment, (3) family and marital relationships, (4) leisure and recreation relationships, (5) alcohol and drug use, (6) antisocial thinking and patterning, (7) antisocial peers, and (8) procriminal attitude/orientation. He confirmed that a pattern of criminal behavior that began in the early teens was a criminogenic factor and that "earlier onset of criminal activity" was "an indicator of continuing criminal activity in later adulthood." He indicated that past behavior was a very good indicator of future behavior.
Baraan indicated that a reentry program could aid an offender's transition back into society and reduce the risk of recidivism if the program addressed the offender's specific criminogenic factors and needs. A reentry program that primarily addressed drug and alcohol use would be appropriate for an offender who had a criminal history that involved frequent drug-related arrests and convictions and whose drug or alcohol use was a primary criminogenic factor, as reflected in a "high score in the drug and alcohol section" of the LS/CMI or other risk needs assessment tool.
In Baraan's view, antisocial thinking and patterning, antisocial peers, and a procriminal attitude/orientation were the top three criminogenic factors and the strongest indicators of likely recidivism. Antisocial thinking involved thinking about oneself instead of other people and the broader society and not considering the impact of one's actions on other people. When an individual had an antisocial peer group, the antisocial behavior of its members became the norm for the individual. A procriminal attitude was the view that the rules did not apply to oneself and criminal activity was acceptable or justifiable.
Baraan was very familiar with the LS/CMI, and in Baraan's opinion, it was "highly valid" risk needs assessment tool. He had taken a 40-hour training class on administering the tool, but he had not personally administered any tests. In Baraan's prior position as division director of the Alameda County Probation Department, one of his responsibilities was to ensure that probation officers were effectively and appropriately using the LS/CMI. Baraan had reviewed the LS/CMI assessment results in approximately 60 probation cases.
According to Baraan, application of the LS/CMI involved some degree of subjectivity because the tool required the administrator to ask open-ended questions and interpret the information that was gathered. The validity of the test results depended in part on verification of the truth of the information provided.
Criminal history, leisure and recreation, and antisocial peers were among the factors evaluated by the LS/CMI. Baraan stated that, although criminal history is a static factor, "one of the great indicators of future behavior is past behavior." In his experience, criminals who committed "all different types of offenses," which he dubbed "general criminals," sometimes ended up being arrested for committing a homicide.
The extent to which an individual engaged in prosocial activities was a factor since, the more an individual engages in prosocial leisure activities, the less likely he is to be involved in criminal activity. But according to Baraan, the LS/CMI was not being properly administered if the focus was only on an inmate's activities in custody and not out in the community. Whether an inmate had prosocial connections in the community that would support the inmate's reentry was a consideration. A person's association with antisocial friends and peers made it more likely that the person would engage in antisocial activity.
In assessing a person's procriminal attitude, the person's attitude toward crime in general, his crimes of conviction, and his rules violations, his level of sincere remorse, and his self-awareness regarding his own actions and their impact on other persons were all considerations. In evaluating a person's antisocial thinking, a test administrator looked for patterns of violating rules and laws and for thinking that the rules and laws did not apply to him or was justified despite the impact on, or the risk of danger to, others.
Baraan believed that education and employment was an important factor because higher levels of education, employment, and job skills constituted a "protective factor" that supported "successful reentry" and made it "less likely" that an inmate would be involved in new criminal activity. He would give a "high rating" (presenting a higher risk) to a hypothetical person who had a pattern of unsteady employment, had been frequently fired, had quit jobs without new employment, had few marketable skills, had a limited ability to manage finances, had dropped out of high school in the ninth grade and never obtained a GED, had not done class assignments, and did not see the value of an education or a diploma. He explained that the education-employment section of the LS/CMI considered whether the person failed to complete the 10th grade, whether the person failed to complete the 12th grade, and whether the person had maintained stable employment with the same employer.
With respect to the family/marital factor, Baraan indicated that when an inmate had "prosocial, positive, supportive relationships with the immediate members of [his] family" and could count on them for support, it was less likely that the inmate would recidivate. Baraan said that he would give at least a moderate, or possibly a high, rating to a hypothetical inmate with a very small family consisting of an elderly parent with serious health problems who would be incapacitated or in a convalescent home when the inmate was released and a daughter with whom he had limited contact, no "lasting domestic relationship," and no prosocial peers.
Baraan testified that use of alcohol and drugs was an additional criminogenic factor since past use was an indicator of continued addiction or use. It was important to evaluate the impact of alcohol and drug use on the person's decisions, behavior, and employment.
Baraan had "a bit" of familiarity with Options Recovery Services, and he agreed that it provided good services. He was aware that it provided housing for sober living and daily programming that included NA/AA, individualized counseling by certified substance abuse disorder counselors, and anger management classes. He was also aware that individuals released under Proposition 47 were subject to one year of parole supervision and had access to reentry services.
Baraan was unaware of any "actuarial statistics" relating good behavior in prison to successful reentry. An inmate's lack of rule violations in "a custody controlled setting" were not a positive factor in risk assessment, while multiple rule violations in prison were a negative factor in risk assessment.
The trial court denied the petition for resentencing. The court was not persuaded that defendant's drug use was the biggest concern in assessing risk. It found that defendant's criminal history, which included crimes involving "great risk of harm to persons," was significant. Based on that criminal history, defendant's antisocial history, and procriminal behavior, the court concluded that there was "an extreme possibility" that "defendant could commit a crime that could result in a homicide . . . ."
II
Discussion
A. Burden of Proof
Defendant contends that the trial court erred in placing the burden of proof on him. The record reflects no such error.
At the hearing on the petition, the trial court initially said to defense counsel, "I believe you have the burden, do you not, Ms. Champion?" Defense counsel then indicated that the prosecution had the burden to show that resentencing defendant would pose an unreasonable risk. The court clarified that the defense had the burden to show that defendant fell within the scope of Proposition 47, and it indicated that, if the defendant's burden were met, the burden shifted to the prosecution.
Section 1170.18 requires a trial court to resentence an eligible petitioner whose petition for resentencing meets the statutory criteria, "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).) The California Supreme Court has clarified that "[t]he ultimate burden of proving section 1170.18 eligibility lies with the petitioner. (See Evid. Code, § 500.)" (People v. Romanowski (2017) 2 Cal.5th 903, 916.)
The prosecution, however, has the burden of proof with respect to the facts essential for a judicial determination that resentencing the petitioner would pose an unreasonable risk of danger to public safety. (See Evid. Code, §§ 115, 500; see also § 1170.18, subds. (b), (c).) "Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." (Evid. Code, § 500.) " 'Burden of proof' means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court." (Evid. Code, § 115.) "Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence." (Ibid.)
The record before us does not affirmatively establish that the trial court misunderstood the applicable burdens of proof. "In the absence of evidence to the contrary, we presume that the court 'knows and applies the correct statutory and case law.' (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; see Evid. Code, § 664; People v. Visciotti (1992) 2 Cal.4th 1, 49; Ross v. Superior Court (1977) 19 Cal.3d 899, 913.)" (People v. Thomas (2011) 52 Cal.4th 336, 361.) The presumption that "official duty has been regularly performed" (Evid. Code, § 664) "encompasses a presumption that the trial court applied the proper burden of proof in matters tried to the court. [Citations.]" (Ross, supra, at p. 914.)
Defendant has taken the trial court's query ("I believe you have the burden, do you not, Ms. Champion?") out of context. On appeal, defendant has not affirmatively shown that the court misplaced the burden of proof with respect to the risk posed by resentencing. (See People v. Rogers (2006) 39 Cal.4th 826, 877; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) B. Abuse of Discretion
1. Statutory Definition of Unreasonable Risk and Standard of Review
Section 1170.18 provides that, in exercising its discretion to determine whether "resentencing the petitioner would pose an unreasonable risk of danger to public safety," "the court may consider all of the following: [¶] (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) The petitioner's disciplinary record and record of rehabilitation while incarcerated. [¶] (3) Any 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." (§ 1170.18, subd. (b).) Section 1170.18, subdivision (c), specifies that" 'unreasonable risk of danger to public safety' means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667."
The felonies listed in Section 667, subdivision (e)(2)(C)(iv), are sometimes referred to as "super strikes" (People v. Johnson (2015) 61 Cal.4th 674, 682). The statutory list includes, for example, certain sex crimes, possession of a weapon of mass destruction, serious or violent felonies punishable by death or life imprisonment, and "[a]ny homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive" (§ 667, subd. (e)(2)(C)(iv)(IV)). Thus, it is not enough to prove that the general likelihood of recidivism is very high.
We review the trial court's exercise of discretion in determining the degree of risk for abuse. "The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted.) Where discretion is vested by statute in the trial court, the court's exercise of its discretion "must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" (People v. Jordan (1986) 42 Cal.3d 308, 316.) "The abuse of discretion standard is 'deferential,' but it 'is not empty.' (People v. Williams (1998) 17 Cal.4th 148, 162.) '[I]t asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts [citations].' (Ibid.)" (People v. Giordano (2007) 42 Cal.4th 644, 663.)
2. Analysis
Defendant asserts that the trial court abused its discretion by finding that resentencing posed an unreasonable risk that he would commit a homicide since defendant "has never been convicted, arrested, or even accused of homicide or any crime approaching that level of violence." The historical fact that defendant has never killed anyone is not determinative of the future risk of a homicide. If a prior conviction of a super strike offense were necessary to find that resentencing posed an unreasonable risk, a discretionary determination of the risk would never be required, and that aspect of section 1170.18 would be rendered superfluous, because section 1170.18 already categorically makes anyone who has been previously convicted of a super strike offense ineligible for resentencing (§ 1170.18, subd. (i)). Thus, section 1170.18 contemplates that resentencing a petitioner to a misdemeanor may present an unreasonable risk that "the petitioner will commit a new violent" (§ 1170.18, subd.(c)) super strike offense even though the petitioner has never been previously convicted of a super strike offense.
Murder, attempted murder, and voluntary manslaughter have been deemed violent felonies. (§ 667.5, subd. (c)(1), (c)(12).)
Relying on parole cases, defendant further argues that "overreliance on past crimes, without adequate consideration [of] intervening evidence of rehabilitation or a 'rational nexus' between prior crimes and future dangerousness, constitutes an abuse of discretion and reversible error." Based on parole cases, he further contends that immutable facts of past offenses cannot suffice to establish current dangerousness. He also claims that "the trial court misconstrued the factual record regarding [his] past drug use and undisputed documented evidence of sobriety while incarcerated . . . ."
The Supreme Court has held with respect to parole suitability that "the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense." (In re Shaputis (2008) 44 Cal.4th 1241, 1254-1255.) That "inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate's psychological or mental attitude. [Citations.]" (Ibid.) "[T]he circumstances of the offense, or . . . other immutable facts such as an inmate's criminal history," will support a "denial-of-parole decision" only if these facts "support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. (Regs., § 2281, subd. (a).)" (In re Lawrence (2008) 44 Cal.4th 1181, 1221 (Lawrence), italics omitted.) "Accordingly, the relevant inquiry for a reviewing court is . . . whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor." (Ibid., italics omitted.)
Our review in this case is governed by a completely different statutory scheme. But we agree that, in reviewing whether a trial court abused its discretion in determining that resentencing posed an unreasonable risk, the petitioner's criminal history should not be considered in isolation of other evidence before the trial court (cf. Lawrence, supra, 44 Cal.4th at pp. 1198-1200, 1225-1226) and the essential issue is one of current risk. In our view, the determination of that risk is an individualized one, like the decision of parole suitability.
Thus, the People's comparison of the circumstances in People v. Jefferson (2016) 1 Cal.App.5th 235 is not particularly relevant or helpful.
The issue whether the trial court abused its discretion is a difficult question given the statutory definition, which drastically narrows the meaning of "unreasonable risk of danger to public safety" (§ 1170.18, subd. (c)). The court below concluded that there was an unreasonable risk that defendant would commit a crime that resulted in a homicide, considering his criminal history, his antisocial thinking, and his procriminal behavior.
The trial court impliedly rejected the opinions of both defense experts. "[A] trial court is not obligated to accept even unanimous or uncontradicted expert opinion. [Citations.]" (People v. McCoy (1995) 40 Cal.App.4th 778, 785.) "As a general rule, '[p]rovided the trier of fact does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.]' [Citation.] This rule is applied equally to expert witnesses. [Citations.]" (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890.) "Although unanimity of expert opinion carries persuasive value [citation.]" (People v. Coogler (1969) 71 Cal.2d 153, 166), a trier of fact is not "automatically required to render a verdict which conforms to the expert opinion." (People v. Drew (1978) 22 Cal.3d 333, 350 abrogated by statute on another ground, as recognized in People v. Skinner (1985) 39 Cal.3d 765, 769.) "The value of an expert's opinion depends upon the quality of the material on which the opinion is based and the reasoning used to arrive at the conclusion. [Citations.]" (People v. Marshall (1997) 15 Cal.4th 1, 31-32.) "On appeal the inquiry with respect to the sufficiency of evidence does not differ because [the trier of fact's determination] may reflect a rejection of the opinion of one or more experts, or acceptance of the opinion of a single expert in the case of contradictory opinions by several. [Citation.]" (People v. Bean (1988) 46 Cal.3d 919, 933, fn. 4.)
Defendant has an extensive criminal record that began as a juvenile, he has numerous violations of probation and parole, and he has a long history of using controlled substances, which appears to have contributed to his inability to function within the law. The trial court could reasonable infer from defendant's entrenched recidivism (despite repeated punishment) and his behavior while on probation for possession of methamphetamine that defendant continued to act with a procriminal attitude/orientation and antisocial thinking when out of custody.
Defendant's most serious crimes had the potential to put human life at risk. Defendant had three adult burglary convictions, including his most recent felony burglary, which he committed along with arson (former § 451, subd. (c)) in March 1991. " 'Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation -- the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety.' Section 459, in short, is aimed at the danger caused by the unauthorized entry itself." (People v. Gauze (1975) 15 Cal.3d 709, 715.) "Although entry into an inhabited structure is recognized as most dangerous and most likely to create personal injury. . . [citations], some risk of danger to human life and safety exists whether or not the structure is inhabited, because the intrusion may give rise to a confrontation between the intruder and persons lawfully on the premises." (People v. Montoya (1994) 7 Cal.4th 1027, 1043.)
Section 189 "provides that a killing committed in the perpetration of or attempt to perpetrate the enumerated felonies, including burglary, is first degree murder." (People v. Farley (2009) 46 Cal.4th 1053, 1118 (Farley).) "The mental state required [for felony-murder] is simply the specific intent to commit the underlying felony [citation], since only those felonies that are inherently dangerous to life or pose a significant prospect of violence are enumerated in the statute. [Citations.]" (People v. Cavitt (2004) 33 Cal.4th 187, 197 (Cavitt).) Arson, which defendant committed in 1991, is also among the specified felonies that may support a felony-murder conviction. (§ 189.) Under the felony-murder rule, a person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent and even if the killing was committed by a cofelon. (See Farley, supra, at p. 1121; Cavitt, supra, at p. 197, see also CALCRIM Nos. 540A, 540B.)
In Farley, supra, 46 Cal.4th at p. 1121, the Supreme Court held that the merger doctrine does not apply to first degree felony murder based on the enumerated felonies. But second degree felony murder cannot be based on an assaultive felony because "the merger rule applies when 'the underlying felony is assaultive in nature,' including situations where 'the elements of the crime have an assaultive aspect . . . even if the elements also include conduct that is not assaultive.' ([People v.] Chun [(2009)] 45 Cal.4th [1172,] 1200.)" (People v. Bryant (2013) 56 Cal.4th 959, 966.)
Even after serving a substantial prison sentence for arson and burglary, defendant continued to break the law. In 1999, he violated Vehicle Code section 14601.1 (driving a vehicle when his driving privilege was suspended or revoked), and he was placed on court probation. In 1999, shortly after the Vehicle Code conviction, defendant kicked a family friend in her head as she was driving him to the county jail to turn himself in for his commitment (impliedly probationary). The same day, July 30, 1999, defendant made an implied threat of force or violence against the assault victim. Defendant was convicted of both aggravated assault (former § 245, subd. (a)(1)) and witness intimidation (§ 136.1, subd. (c)(1)).
A passenger's assault of a driver of a vehicle traveling on a roadway could conceivably cause a traffic fatality, and the resulting killing may constitute implied-malice, second degree murder where the assaultive conduct evinces a conscious disregard for human life. (§§ 187, subd. (a), 188; see People v. Knoller (2007) 41 Cal.4th 139, 156 ["a conviction for second degree murder, based on a theory of implied malice, requires proof that a defendant acted with conscious disregard of the danger to human life"]; People v. Watson (1981) 30 Cal.3d 290, 296-297, 300.) Defendant's prior imprisonment did not deter him from engaging in such potentially life-endangering conduct.
The 1999 felony offenses, the 2001 rules violation for battery on an inmate, and the 2003 county jail incident indicate that defendant has been capable of threatening or using force and violence. A defense expert agreed that defendant was one of the primary aggressors in the 2001 rules violation. There was no evidence that defendant had participated in any anger management classes to acquire the skills to avoid future threats or outbursts of violence.
Defendant admitted that he committed offenses, including arson and assault, related to his drug abuse and that he had "a chronic and problematic history of substance abuse." Use of methamphetamine has been associated with paranoia, hostility, and aggression or violence. (See People v. Martinez (2009) 47 Cal.4th 399, 413; People v. Kipp (2001) 26 Cal.4th 1100, 1119.) A connection between illegal drug use and criminal activity, including crimes of violence, may exist. (See Harmelin v. Michigan (1991) 501 U.S. 957, 1002-1003 (opn. of Kennedy, J., concurring in part and concurring in the judgment).)
Although defendant now claims that he has "maintained his sobriety while incarcerated," he was found guilty of a serious rules violation for refusing to provide a urine specimen in 2012. Defendant's own expert agreed that "the primary reason" for refusing to provide a urine specimen was fear of testing "dirty." It could reasonably be inferred that defendant has continued to struggle with substance abuse. A defense expert agreed that defendant was addicted to drugs when he was in the community and that he would still need intensive drug treatment. The evidence showed that defendant had only sporadically participated in N.A./A.A. meetings while in prison, even when he had the opportunity, and there was no evidence that defendant was progressing in any N.A. or A.A. program while in prison. Defendant had not adhered to a substance abuse treatment when previously given the opportunity on probation.
The trial court could reasonably put little stock in defendant's recent preliminary classification scores of zero and his two April 2013 laudatory "chronos" regarding his work as lead porter and find that evidence of defendant's institutional behavior was indicative of his ability to generally behave well in the highly restrictive and structured environment of a prison but was not predictive of his behavior upon release into the community. It could also discount defendant's self-serving statements to his own experts regarding his regrets as to his crimes or his lack of substance use in prison.
Under the classification score system used to classify felon inmates, "[a] lower placement score indicates lesser security control needs and a higher placement score indicates greater security control needs." (Cal. Code Regs., tit. 15, § 3375(d).) --------
The trial court could also reasonably find that defendant lacked protective factors that might have reduced the risk. Defendant lacked prosocial support in the community and most or all friends in the community had a criminal history. He had a poor work history in the community. Defendant had few vocational skills and limited education, and he had not actively sought to rectify those deficits while in prison. In prison, he had not obtained his GED. There was no evidence that he had actively participated in or completed any vocational training, rehabilitative programs, or any cognitive behavioral treatment that prepared him to function in the community and within the law. There was no evidence that defendant had productively used his time in prison to address his procriminal attitude/orientation, his antisocial thinking, or his years of substance abuse. Thus, more than the immutable facts of past offenses supported the trial court's determination regarding the risk posed by resentencing.
Even though the felony offenses were remote in time due to the long prison sentences, based on the record before it, the trial court acted within its discretion in determining that "resentencing the petitioner would pose an unreasonable risk of danger to public safety" because there was an unreasonable risk that defendant would commit "a new violent felony" within the meaning of section 667, subdivision (e)(2)(C)(iv)(IV). A discretionary " ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision 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 resentencing pursuant to section 1170.18 is affirmed.
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.