Opinion
H043842
05-31-2018
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO MORENO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS111435A)
Defendant Fernando Moreno appeals from the denial of his petition for resentencing under voter-enacted Proposition 36, the Three Strikes Reform Act of 2012 (Reform Act or Proposition 36). Moreno argues that the denial of his petition must be reversed because the trial court failed to apply the correct legal standard in deciding whether resentencing would pose an "unreasonable risk of danger to public safety" within the meaning of the Reform Act (Pen. Code, § 1170.126, subd. (f)). He contends that the trial court should have applied the definition for that same phrase as set forth in section 1170.18, subdivision (c) of the Safe Neighborhoods and Schools Act, enacted by voters in 2014 as Proposition 47 (Proposition 47). However, Moreno's argument is foreclosed by the California Supreme Court's decision in People v. Valencia (2017) 3 Cal.5th 347 (Valencia), which held that Proposition 47's definition of "unreasonable risk of danger to public safety" does not apply to resentencing proceedings under the Reform Act.
Unspecified statutory references are to the Penal Code.
BACKGROUND
This summary is taken from the record on appeal in this case, as well as from the records in two previous appeals filed by Moreno (People v. Moreno (Dec. 16, 2013, H039087) [nonpub. opn.]; People v. Moreno (Nov. 12, 2015, H041189) [nonpub. opn.]) of which we took judicial notice on November 23, 2016.
In 1992, Moreno was convicted of three counts of robbery (§ 211) and sentenced to three years in prison. After his release on parole, Moreno was convicted of second degree burglary (§ 460, subd. (b)) and found to have two or more prior strike convictions for robbery (§ 667, former § 1170.12). Moreno was sentenced under the Three Strikes law to an indeterminate term of 25 years to life. While serving his term, Moreno pleaded in 2002 to assault by a prisoner (§ 4501.5) and possession of a weapon by a prisoner (§ 4502), and was sentenced to five more years.
In October 2012, while serving his term, Moreno pleaded to a separate instance of possession of a weapon by a prisoner (§ 4502, subd. (a)) and admitted to having two or more prior strike convictions (§ 667, former § 1170.12). Prison officers had discovered the sharp melted plastic, resembling a dirk or dagger, during a body search of Moreno in January 2011 after a prison yard fight in which Moreno was not involved. The trial court imposed a sentence of 25 years to life, consecutive to any other term that Moreno was serving.
In 2014, Moreno petitioned under the Reform Act for resentencing of his second indeterminate life sentence based on the October 2012 conviction. The trial court denied the petition without a hearing, reasoning that Moreno was ineligible for resentencing under section 1170.126 because he was "armed with a . . . deadly weapon" within the meaning of an exclusion set forth in section 1170.126, subdivision (e)(2). A panel of this court reversed that ruling on appeal and remanded for the trial court to determine whether resentencing Moreno would pose an unreasonable risk of danger to public safety in accordance with section 1170.126, subdivision (f).
People v. Moreno (Nov. 12, 2015, H041189 [nonpub. opn.]).
The hearing on remand took place in May 2016. The trial court considered documentary evidence of prison rule violations committed by Moreno between 1995 and 2016, including violations involving violence, as well as evidence of Moreno's efforts at rehabilitation. The court also considered the competing arguments of counsel as to what legal standard applied for determining "unreasonable risk of danger to public safety" under Proposition 36.
As noted earlier, the California Supreme Court later answered this question in Valencia, supra, 3 Cal.5th 347.
In a written order filed on June 1, 2016, the trial court denied the petition for resentencing, finding "there is an unreasonable risk that [Moreno] will commit a new violent felony." The court cited Moreno's disciplinary record while in prison, including eight assaults on a correctional officer, four assaults on a prisoner, and six incidents of possessing a weapon, and noted that Moreno's rehabilitation record by comparison was "negligible." It acknowledged the defense's argument that Moreno's rule violations had decreased in frequency and severity over time but found the "reduction merely points to the grave level of violence in the past." The court noted its particular concern that Moreno "has not only engaged in many incidents of violent behavior—putting the lives of inmates and Correctional Officers at risk—but in many of the incidents he played a leadership role in inciting violence and conspiring with others to do violence to others." The court did not specify which legal standard it had applied in determining unreasonable risk.
This appeal followed.
DISCUSSION
The Reform Act, in relevant part, established a procedure for " 'persons presently serving an indeterminate term of imprisonment' under the prior version of the Three Strikes law to seek resentencing under the Reform Act's revised penalty structure." (People v. Conley (2016) 63 Cal.4th 646, 653, quoting § 1170.126, subd. (a).) The resentencing provision directs the court to grant the petition of an eligible third striker serving an indeterminate term of life imprisonment "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).)
Moreno contends that the trial court denied his petition under section 1170.126, subdivision (f), based on an erroneous legal standard for determining whether he posed such "unreasonable risk of danger to public safety." He argues that the meaning of that phrase may be found in the definition supplied two years later by the enactment of Proposition 47, which states that its definition is to be "used throughout this code," referring to the Penal Code. (See § 1170.18, subd. (c).) Interpreting Proposition 36's application of "unreasonable risk of danger to public safety" in accordance with the definition provided in Proposition 47 would effectively limit the trial court's discretion under section 1170.126, subdivision (f), by confining its analysis to whether resentencing would pose a risk of the petitioner committing any of the serious or violent "super strike" offenses listed in section 1170.18, subdivision (c).
Section 1170.18, subdivision (c) states, "As used throughout this code, '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 cited subdivision of section 667 enumerates eight types of particularly egregious felonies often referred to as " 'super strikes.' " (Valencia, supra, 3 Cal.5th at p. 351.) These include homicide or attempted homicide, assault with a machine gun on a peace officer, possession of a weapon of mass destruction, certain sex offenses such as involving violence or molestation of a child under 14 years of age, and "[a]ny serious and/or violent felony offense punishable in California by life imprisonment or death." (See § 667, subd. (e)(2)(C)(iv)(VIII).)
This argument is no longer tenable. In Valencia, supra, 3 Cal.5th 347, a closely divided court rejected applying Proposition 47's definition of an "unreasonable risk of danger to public safety" to the resentencing proceedings established by the Reform Act, noting such application "would be more favorable to three strike inmates and result in the release of more recidivist serious and/or violent offenders than had been originally contemplated under Proposition 36." (Valencia, supra, at p. 356.) The court held that Proposition 47 did not amend the Reform Act and therefore the Proposition 47 definition of "unreasonable risk of danger to public safety" does not apply to the resentencing provision of Proposition 36. (Valencia, supra, at pp. 356-357.)
We note that Moreno's opening brief, and the People's response brief, were filed before the Supreme Court issued its decision in Valencia. Following Valencia, Moreno did not file a reply brief or seek to supplement his arguments on appeal.
The Supreme Court's decision in Valencia disposes of any contention that the trial court in this case erred by failing to apply Proposition 47's definition of unreasonable risk of danger to Moreno's resentencing petition under Proposition 36. Since this is Moreno's sole contention on appeal, we will affirm.
To be clear, Moreno raises a single issue on appeal, which is whether the trial court should have applied Proposition 47's definition of "unreasonable risk of danger to public safety" to Moreno's resentencing determination under Proposition 36. Because Valencia resolves this issue, we need not remand the matter for the trial court to apply the Proposition 47 definition of unreasonable risk of danger. Furthermore, because Moreno does not contend that the court abused its discretion in making its dangerousness determination under the broader, undefined standard for "unreasonable risk of danger to public safety" set forth in section 1170.126, subdivision (f), we need not address the trial court's exercise of discretion in applying the factors set forth in section 1170.126, subdivision (g) to its determination that "there is an unreasonable risk that [Moreno] will commit a new violent felony." --------
DISPOSITION
The order denying the petition for resentencing is affirmed.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Elia, J. /s/_________
Mihara, J.