Opinion
G057414
03-09-2020
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS JOHN SMIT, Defendant and Appellant.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SWF028834) OPINION Appeal from a judgment of the Superior Court of Riverside County, John D. Molloy, Judge. Reversed with directions. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
In 2011, a jury convicted 41-year-old defendant Nicholas John Smit of four attempted murders, drug-related offenses, and enhancements. The trial court imposed a determinate sentence of 44 years, eight months in prison, followed by four consecutive life terms. Smit's sentence included eight months for cultivating marijuana and eight months possessing marijuana for sales (both felonies). We affirmed the judgment on appeal. (People v. Smit (2014) 224 Cal.App.4th 977 (Smit I).)
In 2016, the electorate enacted Proposition 64, which generally reduced felony marijuana-related crimes to misdemeanors. Smit petitioned for resentencing, but the trial court found Smit ineligible because of the attempted murder convictions. We disagreed and reversed. (People v. Smit (2018) 24 Cal.App.5th 596 (Smit II).)
In 2019, the trial court again denied Smit's petition for resentencing, finding that he "would pose an unreasonable risk of danger to public safety." (Health & Saf. Code, § 11361.8, subd. (b).) Smit appeals, this time arguing the court used the wrong legal standard of "current" rather than "future" dangerousness. We agree and reverse with directions.
Further undesignated statutory references are the Health and Safety Code.
I
FACTS AND PROCEDURAL BACKGROUND
In 2009, a police detective executed a search warrant at Smit's home and found evidence of several drug offenses. While released from custody, Smit attempted to kill the detective. Smit's "efforts to kill the detective included attempting to fire a military rocket at the building where the detective worked, setting three boobytraps using 'panji boards' and three more using zip guns." (Smit I, supra, 224 Cal.App.4th at p. 979.) Smit's sentence included eight months for cultivating marijuana, and eight months possessing marijuana for sales. (§§ 11358, 11359.)
In 2016, Smit filed a petition for resentencing. The trial court summarily denied the petition because Smit "was convicted of four counts of attempted murder." (Smit II, supra, 24 Cal.App.5th at p. 599.) This court reversed and remanded, holding that "a concurrent conviction for attempted murder in the same case . . . does not render defendant ineligible for resentencing." (Ibid.)
On February 7, 2019, the trial court conducted an evidentiary hearing. Smit was not present. The court denied Smit's petition for resentencing.
Given our disposition, we need not reach Smit's other claim regarding his lack of presence at the hearing (or a valid waiver of his presence).
II
DISCUSSION
Smit claims the "court applied the wrong legal standard in determining whether the grant of the petition would pose an unreasonable risk of danger to public safety." We agree. We will first look at the general legal principles, then discuss what occurred at the hearing, and then apply the law to the relevant facts.
1. Legal Principles
Generally, we review a trial court's ruling on a petition for resentencing for an abuse of discretion. (Pen. Code, § 1170.18, subds. (a)-(c); People v. Flores (2014) 227 Cal.App.4th 1070, 1075.) We consider whether "'the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) However, a trial court also abuses its discretion when it "applies the wrong legal standard." (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.)
"When interpreting a voter initiative . . . , we apply the same principles that govern statutory construction." (People v. Bush (2016) 245 Cal.App.4th 992, 1003.) Our goal is to ascertain the electorate's intent. (See People v. Jefferson (1999) 21 Cal.4th 86, 94.) The words of a statute are to be given their usual and ordinary meaning. (Granberry v. Islay Investments (1995) 9 Cal.4th 738, 744.)
Proposition 64 generally reduced marijuana-related crimes from felonies to misdemeanors, including the cultivation and possession of marijuana for sales. (See §§ 11358, 11359.) "A person currently serving a sentence for a conviction, whether by trial or by open or negotiated plea, who would not have been guilty of an offense, or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that act been in effect at the time of the offense may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing . . . ." (§ 11361.8, subd. (a).)
"If the petitioner satisfies the criteria in subdivision (a), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety." (§ 11361.8, subd. (b), italics added.) "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 [(super strike)] within the meaning of [Penal Code section 667, subdivision (e)(2)(C)(iv)]." (Pen. Code, § 1170.18, subd. (c).)
2. Relevant Proceedings
Prior to the hearing on the petition for resentencing, Smit's counsel, Christopher Oliver, filed a brief regarding a finding of dangerousness: "Mr. Smit in the current offense was tried and convicted for offenses that occurred between 2009 and 2010. He was approximately 40 years old. At sentencing Mr. Smit was sentenced to 4 life terms plus an additional 44 years 8 months. When considering the reduction in time by granting this petition, the court needs to evaluate if Mr. Smit will be an unreasonable risk to the public when he will be 152 years old." The prosecution filed an opposition, which apparently included a confidential police report, a victim impact statement, and incarceration records.
These records were not included in the record on appeal. However, the description of these records suggests that they would have no material effect on our analysis. --------
At the hearing on the petition, the court noted the seriousness of Smit's underlying offenses and that he had tried to escape prior to his sentencing. After listening to arguments from Mr. Oliver and the prosecutor, the court said, "So my ruling is that the petition is denied. I find that the People have carried their burden with respect to current dangerousness." (Italics added.) However, the court said "if I am wrong and the court of appeals thinks that I should follow Mr. Oliver's line of reasoning . . . . [¶] . . . then my decision would be exactly what Mr. Oliver has said for the reasons that he's articulated. There is no way that [Smit] represents a danger to society at age 100-plus."
3. Legal Analysis
A recent Court of Appeal opinion held—under facts very similar to the facts in this case—that a trial court's determination of a defendant's unreasonable risk of danger to public safety should focus on the defendant's danger at the future time of his release, not on whether he would currently pose an unreasonable risk of danger. (People v. Williams (2018) 19 Cal.App.5th 1057, 1063-1064 (Williams).) We agree.
In Williams, supra, 19 Cal.App.5th at pages 1059-1060, defendant was serving a sentence of 193 years to life. Defendant petitioned the trial court for resentencing under the Three Strikes Reform Act, and was seeking to lower his sentence by 25 years. (Id. at p. 1063.) The trial court denied defendant's motion, but the appellate court reversed, explaining that the lower "court's failure to consider when, if ever, defendant would be released if the petition was granted was an abuse of discretion." (Id. at pp. 1063-1064.)
The Williams court explained its rationale as follows: "Determining whether resentencing a defendant poses an unreasonable risk of danger to society is necessarily a forward-looking inquiry. When determining whether resentencing poses an unreasonable risk of danger, the trial court must look to when a defendant would be released if the petition is granted and the defendant is resentenced. A defendant who would obtain immediate release if the petition is granted poses a different potential danger to society than a defendant who could be released only in his or her 70's. This applies with even greater force to a defendant who would still be serving a sentence greater than a human lifespan even if the petition were granted. For example, defendant's current term of 193 years to life is the equivalent of life without parole since he cannot obtain parole until far beyond a human lifespan. Taking 25 years off this term would still leave a parole date beyond any possible life expectancy. If a defendant's term is still effectively life without parole after resentencing, then resentencing cannot pose an unreasonable risk to public safety." (Williams, supra, 19 Cal.App.5th at p. 1063.)
Here, the same rationale applies as in Williams. Under section 11361.8, Smit is seeking in the instant petition to have two his marijuana-related convictions reduced from felonies to misdemeanors. But a reduction of 16 months in his aggregate prison sentence would still leave Smit with a parole eligibility date well beyond his possible life expectancy. In other words, Smit's "resentencing cannot pose an unreasonable risk to public safety." (Williams, supra, 19 Cal.App.5th at p. 1063.) Thus, we hold that the trial court erroneously denied Smit's petition for resentencing.
The Attorney General argues that we should not follow Williams, supra, 19 Cal.App.5th 1057. The Attorney General argues that the appellate "court's reasoning in that case is flawed for three reasons: (1) older criminal defendants are not necessarily less dangerous than younger criminal defendants; (2) defendants with lengthy prison sentences do not always serve his or her entire sentence; and (3) trial courts tasked with assessing dangerousness cannot delegate the job to the Board of Parole Hearings."
But even if we were to agree with the Attorney General, none of the reasons for opposing Williams, supra, 19 Cal.App.5th 1057, could possibly apply in this case. In short, when the trial court reduces Smit's two felony marijuana-related convictions to misdemeanors, the resulting sentence will have absolutely no effect on whether Smit will ever "pose an unreasonable risk of danger to public safety." (§ 11361.8, subd. (b); see § 1361.8, subd. (c) ["A person who is serving a sentence and is resentenced pursuant subdivision (b) shall be given credit for any time already served"].)
III
DISPOSITION
The trial court's order denying Smit's petition for resentencing is reversed. The court is directed to reduce Smit's two marijuana-related felony convictions to misdemeanors. (§§ 11358, 11359.) The court is further directed to give Smit credit for any time already served, modify the abstract of judgment accordingly, and send a certified copy to the Department of Corrections and Rehabilitation.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. GOETHALS, J.