Opinion
C085991
10-25-2019
THE PEOPLE, Plaintiff and Respondent, v. CESARE J. REDMOND, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 97F01724)
Defendant Cesare J. Redmond appeals following the denial of his Proposition 64 petition to recall and resentence his prior felony marijuana conviction. The trial court found that granting the petition would pose an unreasonable risk of danger to public safety. We affirm the judgment.
FACTS AND PROCEEDINGS
In 1997, defendant was sentenced to a 35-year four-month aggregate term for various offenses, including two counts of assault with an assault rifle and two counts of assault with a semiautomatic firearm. Eight months of that aggregate term stemmed from a felony conviction for possessing marijuana for sale (Health & Saf. Code, § 11359; statutory section references that follow are to the Health and Safety Code unless otherwise stated).
Twenty years later, defendant petitioned, under Proposition 64 (§ 11361.8), to redesignate his marijuana conviction. The petition was denied "due to unreasonable risk of danger to public safety." But the following month, defendant moved successfully to stay the order denying the petition.
Subsequently a brief was filed on defendant's behalf in support of the petition and a hearing was held. The brief argued defendant is eligible for relief because it cannot be established that he is reasonably likely to commit a new violent "super strike" felony. The brief noted defendant's current incarceration resulted from two shootings in 1997. The first was at an occupied vehicle. The second (occurring four days later) was into a residence. Defendant was then 22 and thought to have been affiliated with the Valley High Crips — though no gang charges were filed. The shooting may have been in retaliation for an incident where defendant was shot at. The brief maintained, however, that defendant's 20-year-old offenses are not grounds to conclude he is reasonably likely to commit a new "super strike."
At the hearing, held in late 2017, defendant testified that he began his incarceration at a level 4 prison, but through work and avoiding write-ups, was now at a level 2 prison. He did, however, have six write-ups for possessing a cell phone. He explained it keeps him in contact with family and friends; the prison phone was too expensive for his family.
In 2007, he received a write-up for refusing to go into his cell, after officers emptied his cell of everything, including soap, toilet paper, and the bed. In 2009, he was written up for a fight. He had been arguing about sports with another prisoner who took a swing at him. Defendant grabbed his attacker, and officers broke up the fight. Defendant testified they did not hit each other, and it was not gang related.
As to the shootings that led to his incarceration, defendant denied being in a gang before the shootings: "They said I was [a gang member], but I wasn't. I was just affiliated with people that are from my neighborhood." He also explained: "20 years ago I was somebody who I am not today. I'm totally different than what I was back then. I'm not as young. I'm not as dumb."
On cross-examination, defendant was asked about the shootings. As to the shooting into the car, he claimed he had been there but did not pull the trigger: "What had actually happened was, it looked like somebody . . . was about to start shooting at us and then [defendant's cousin's friend] started shooting at them before they could start shooting at us, but when it all came out in court, it was a bong, it wasn't even a gun." He clarified that he thought the victim had pulled up something shiny, but police later said they found only a bong in the car. Defendant conceded his gun had been used to shoot the two men, and the gun was later found at his home.
As to the shooting into the home, defendant denied participating. But he admitted he had provided the weapon and that an assault weapon was later found in his house. Defendant answered that he "might" have filed an application for a pardon or clemency based on factual innocence, saying he was not present at either shooting — which was not true.
Defendant also conceded that when he was 14, he kicked his mother in the eye, which caused him to become a ward of the court. As a ward, he possessed stolen property and committed a first degree burglary. He was sent to the Boys Ranch, committed additional crimes, and wound up at the California Youth Authority, where he escaped and went on to plead guilty to misdemeanor possession of a gun and was placed on probation. While on probation, he was involved in the two shootings that led to his current sentence.
Following testimony and arguments, the trial court denied the petition. It found the People had met their burden of proving by a preponderance of the evidence that defendant posed an unreasonable risk of danger of committing a super strike, or another serious or violent felony punishable by death or life imprisonment, when released.
The court noted defendant was not set for release for another 10 years and appeared to be doing a good job, with excellent work ethic and habits. And defendant had no prior sex offenses in his background.
But defendant had been convicted of assault with an assault rifle. And, though it had been almost 10 years since he had a major write up, his write-ups involved violence: the fight and the incident regarding the bedding. Further, the multiple cell phone violations, while minor, showed defendant did not always follow the rules.
Defendant's juvenile record was "very concerning." The court noted, defendant had also been arrested in 1992 for strong-arm robbery. And his current offenses involved separate occasions of conduct that would be super-strike attempted homicide. The court noted it had considered defendant's subsequent filing of claims of factual innocence in terms of whether he had truly accepted responsibility for his actions. Still, defendant's demeanor was very calm, he answered questions appropriately, and he was not argumentative or aggressive.
The court summarized: "basically the Court has before it someone who has an extremely serious criminal history and a disciplinary record in prison that is not perfect but a lot better than other disciplinary records that we see."
DISCUSSION
I
Defendant's abuse of discretion claim
On appeal, defendant first contends the trial court abused its discretion in finding his release would pose an unreasonable risk of danger to public safety. He argues the record fails to support that finding. He maintains the people failed to prove that a sentence reduction — of eight months at most — would cause an unreasonable risk of danger that he would commit one of a very circumscribed list of offenses. He points out that he has no record of sex offenses, homicides, or homicide attempts. And he avers the prosecution failed to show he had continued to behave violently during his 20 years of incarceration. We find no error.
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 Penal Code section 667 subdivision (e)(2)(C)(iv), the so-called super strikes. (Pen. Code, § 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. (Pen. Code, § 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 an extremely serious criminal history accompanied by a good — but by no means perfect — prison disciplinary record. He has demonstrated improvement, working his way to a level 2 prison, and for the past 10 years, he has avoided write-ups involving violence — though he has six write-ups for possessing a cell phone.
More troubling is defendant's extensive and serious criminal history, including an escape from the California Youth Authority, burglary, and involvement in shootings into a car and a house. The breadth and severity of his criminal history supports the trial court's decision. And the nature of defendant's subsequent conduct while incarcerated was not such that it renders the trial court's finding an abuse of discretion. Accordingly, the trial court acted within its discretion in denying the petition.
II
Defendant's due process claim
Defendant next contends the trial court's reliance on decades-old offenses and juvenile adjudications deprived him of due process under the Fourteenth Amendment. He reasons that, as a matter of due process, actions committed more than 20 years ago are too stale to support a finding of a current unreasonable risk of danger to public safety. He notes his incarcerating offenses were committed when he was 22 and, at the earliest, he will be released when he is 52. He also points to recent studies that people over 50 who are released from prison are much less likely to commit a crime than younger people who are released.
Section 11361.8 explicitly authorizes a trial court to consider a petitioner's criminal conviction history, and "[a]ny other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety." (§ 11361.8 subd. (b)(1); Pen. Code § 1170.18, subd. (b).) To that, defendant offers no authority to show a trial court is precluded from looking into 20-year-old offenses where the court deems them relevant to its determination.
And we see nothing unfair in the consideration of decades-old convictions or juvenile adjudications if they reasonably inform a trial court's determination of future risk — particularly where the decades-old offenses are the reason for a defendant's current incarceration. (See People v. Gaston (1999) 74 Cal.App.4th 310, 315 ["In deciding a defendant's 'prospects' for committing future crimes, the sentence imposed by the trial court is itself a factor, since the defendant presumably will have fewer opportunities to commit crime while in prison"].) Indeed, the older the prior offense, the greater the defendant's opportunity to demonstrate rehabilitation. Here, defendant was afforded a hearing and an opportunity to explain his role in his past offenses and his progress since committing them. We see no denial of due process.
DISPOSITION
The judgment (order) is affirmed.
/s/_________
HULL, Acting P. J. We concur: /s/_________
MURRAY, J. /s/_________
HOCH, J.