Opinion
F068951
12-07-2016
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY LEROY WALLACE, Defendant and Appellant.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CF02671718)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Ralph Nunez, Judge. Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Peña, J.
Retired judge of the Superior Court of Fresno County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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The Three Strikes Reform Act of 2012 (hereafter Proposition 36 or the Act) created a postconviction release proceeding for third strike offenders serving indeterminate life sentences for crimes that are not serious or violent felonies. If such an inmate meets the criteria enumerated in Penal Code section 1170.126, subdivision (c), he or she will be resentenced as a second strike offender unless the court determines such resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f); People v. Yearwood (2013) 213 Cal.App.4th 161, 168.)
Further statutory references are to the Penal Code unless otherwise stated.
After the Act went into effect, Anthony LeRoy Wallace (defendant), an inmate serving a term of two years plus 25 years to life in prison following conviction of a felony that was not violent (as defined by § 667.5, subd. (c)) or serious (as defined by § 1192.7, subd. (c)) filed a petition for resentencing under the Act. Following a hearing, the petition was denied.
We conclude the trial court did not abuse its discretion by finding resentencing defendant would pose an unreasonable risk of danger to public safety. We reject defendant's claims (together with their numerous subclaims) section 1170.18, subdivision (c) modified section 1170.126, subdivision (f), the trial court's determination of current dangerousness is not supported by constitutionally sufficient evidence, and the court failed to engage in adequate fact finding. Accordingly, we affirm.
This issue is currently pending before the California Supreme Court. (See, e.g., People v. Payne (2014) 232 Cal.App.4th 579, review granted Mar. 25, 2015, S223856; People v. Valencia (2014) 232 Cal.App.4th 514, review granted Feb. 18, 2015, S223825; People v. Chaney (2014) 231 Cal.App.4th 1391, review granted Feb. 18, 2015, S223676.)
FACTS AND PROCEDURAL HISTORY
"One summer evening in Fresno, [defendant]'s wife of two months, Arlissa Pointer Wallace, caught him smoking crack cocaine, called him a crack head, and told him to leave the house she had bought six or seven
years before the marriage and had refinanced shortly after the marriage. Although [Pointer] had kept the house in her name, [defendant] presumably had acquired a small community property interest through mortgage payments with community property funds.
"Instead of leaving, however, [defendant] began tearing up the house. Frightened, Pointer kept her distance from him as she opened the living room curtains in the hope a neighbor might see and call the police. [Defendant] kept breaking things. Twice [Pointer] dialed 911, but twice she hung up, fearing things would get much worse if [defendant] knew she had called. He left before the police arrived. She told a police officer that the only thing [defendant] had not broken in the house was his own stereo and that everything else in the house belonged to her. A couple of hours later, alerted by a neighbor to 'incredible pounding, very, very loud noise' from the house, police officers found [defendant] inside the house breaking things again. Only after he challenged three armed and uniformed officers to fight, did they subdue him with a [T]aser and arrest him.
"At trial, an expert witness testified to over $9,000 of damage to the house and to over $6,000 of damage to the furniture and furnishings. A jury found [defendant] guilty of felony vandalism and of two misdemeanors — being under the influence and resisting, delaying, or obstructing an officer ('resisting') — and found two assault with a deadly weapon priors true as both serious felony priors and prison term priors. [Citations.] The court sentenced him to a 25-year-to-life term for felony vandalism, a consecutive term of one year on each of his two prison term priors, and time served on each of his two misdemeanors. [Citations.]" (People v. Wallace (2004) 123 Cal.App.4th 144, 146-147, fns. omitted.)
For clarity, we refer to Arlissa Pointer Wallace as Pointer.
The trial court took judicial notice of, and on appeal defendant refers to, the probation report prepared for purposes of sentencing on defendant's commitment offense. With respect to the commitment offense, Pointer wrote a letter to the probation officer in which she said she started the incident, which was mutual, and in which she asked that defendant be placed in a drug program rather than prison.
On November 30, 2012, defendant filed a petition for resentencing under section 1170.126. In part, defendant represented he incurred his first strike conviction when, in 1987, he was tried for the attempted murder of his then girlfriend, who had five quarter-to one-half inch cuts or scratches on her throat area. Although the injuries required no stiches or surgery, the victim contracted spinal meningitis. She fell into a coma and eventually died. According to defendant, it was never proven what caused the injuries to the victim's neck or why she contracted meningitis, but, after defendant's jury deadlocked in favor of acquittal, defendant was offered and accepted a no contest plea to assault with a deadly weapon, although he maintained his actual innocence.
Defendant filed the petition on his own behalf. Counsel subsequently was appointed, and filed a supplemental petition and supporting information. Prior to the hearing on the petition, defendant's request to represent himself was granted. Except as needed for clarity or as pertinent to the issues on appeal, we do not distinguish between defendant and defense counsel in terms of who presented what information or argument.
According to the probation report, which obtained the information from this court's opinion, defendant was charged with spousal abuse from an incident that occurred on November 29, 1986, in which defendant struck his common-law wife in the face. He was charged with attempted murder, and convicted of assault with a deadly weapon, based on an incident that occurred on December 11, 1986, when defendant wrapped a towel around the neck of the same victim and stabbed her six times in the throat. The victim later contracted meningitis, which resulted in brain damage and led to a coma. Defendant was sentenced to six years in prison and twice returned to custody for violating his parole.
The probation report also related defendant previously was twice committed to the California Youth Authority (CYA) as a juvenile, once for attempting to escape a county facility and once for vandalism, and his first offense as an adult was a 1986 conviction for receiving stolen property, for which he was placed on probation.
Defendant represented he incurred his second strike when, in 1995, he verbally argued with a neighbor. The neighbor kicked an already broken glass window in defendant's face, causing a minor injury. Defendant, who possessed an aluminum pole, threw the pole 15 to 18 feet through the window, causing major injury to the victim. Defendant called an ambulance. He eventually pled guilty to assault with a deadly weapon, but was placed on probation. He violated his probation by failing to complete a drug program. According to defendant, even though he pled guilty, "this was an isolated and provoked accident."
According to the probation report, early on the morning of June 28, 1995, a Fresno police officer responded to Valley Medical Center to investigate an assault. The victim was Woodrow Vass, who was in the trauma room. Vass, who had been drinking, had a two-inch-long laceration on the left side of his forehead and was in a neck brace. Vass related that the previous evening, he had told defendant, whom he knew to be a transient suspected of thefts in the area, to leave the area near Vass's residence. Vass said defendant became enraged and threw a metal pole through a broken window into Vass's apartment, striking Vass above the left eye. According to Vass's wife, the force of the blow left Vass unconsciousness for about two minutes. The resulting wound required 50 stitches to close. When police located defendant a short time later, defendant said he and Vass had argued through the broken window of Vass's apartment over Vass calling defendant a thief. Defendant said Vass kicked a piece of glass that was still attached to the window frame, hitting defendant in the shoulder and causing a small cut. Defendant said he became mad, grabbed the metal pipe on the ground, and threw it through the window. Defendant said he only meant to throw the pipe in Vass's general direction.
According to the probation report, the violation of probation — which resulted in defendant's commitment to prison — was followed, in 1998, by misdemeanor false representation of identity to a peace officer; in October 2001, by a charge of spousal abuse that resulted in a plea to misdemeanor trespass, and as to which the victim of defendant's commitment offense reported defendant began throwing things around and calling her names, and then backhanded her in the mouth, causing a small cut to her lip. Defendant also violated his parole on several occasions.
Defendant asserted he, a nongang member who was a nonviolent, nonserious inmate, was "housed together with gang banging killers serving life sentences for murder and other heinous crimes" due to the length of his sentence. Although "[n]o prisoner serving a sentence is expected or obligated to stand still while being assaulted or threatened with physical harm by known gang members without legally defending himself," in his 11 years of incarceration on his commitment offense, defendant was issued prison rule violations only for minor infractions, and had never been found in possession of a knife or cell phone, had never assaulted or battered any inmates or staff members, and had never had any of his one-on-one fist fights result in injury. Except for such fist fights, defendant deemed himself "a model prisoner."
In a supplemental recall petition, defense counsel represented prison records showed defendant's only negative write-ups while incarcerated consisted of four fights, four verbal abuse incidents, three out-of-bounds incidents, and one "pruno" (inmate-manufactured alcohol) charge that defendant completely denied. Counsel also represented defendant was attacked on two separate occasions.
Defendant related his in-prison church attendance and Bible study, his work history (which was documented in the supplemental recall petition filed by defense counsel), and his "diligent[] . . . on-hands involve[ment]" with his criminal appeal since 2003. Defendant presented documentation showing his completion of a hypertension presentation provided by a peer education program, anger management classes, and a parenting class. He represented he had attended Alcoholics Anonymous/Narcotics Anonymous classes, and provided documentation of his placement on the waiting list for enrollment at his present facility. He also related his employment history when not in custody, and represented that if released, he had a plumbing job waiting for him as soon as he obtained a driver's license. In addition, he presented letters written by Pointer, relating that the damage at the house was caused by both of them and was not as bad as it looked. The supplemental recall petition also presented extensive portions of defendant's in-prison mental health records.
The People opposed the petition on the ground resentencing defendant would pose an unreasonable danger to public safety. The People pointed to defendant's criminal history, which began when defendant was 12 years old and, the People asserted, reflected "repeated and great violence, anger, a pattern of hostility toward women (particularly in a domestic context), tremendous volatility and impulsivity, mental illness that appears related to rage and volatility, and a distinct pattern of failing to profit from society's attempts to correct his criminal and abusive behaviors." The People also contended defendant had an "extensive" disciplinary history throughout his incarceration. They related defendant received "115's" for fighting resulting in use of force in June 2011 (an argument resulted in defendant punching the head and upper body of another inmate, and pepper spray had to be deployed when they would not stop fighting) and in October 2010 (defendant and another inmate continued to fight after being ordered to stop and pepper spray was deployed); possession of inmate-manufactured alcohol in November 2008; mutual combat with use of pepper spray in February 2005; disobeying a direct order in November 2004 and October 2004 (in both cases, defendant was ordered not to contact Deputy District Attorney Stephanie Savrnoch, but he wrote her letters that had a vindictive and threatening tone although they were not overtly threatening); and mutual combat with his cellmate in March 2004. His "128's" included disruptive behavior in January 2007 (while waiting in line for medication, defendant became agitated and verbally abusive) and verbal abuse toward a correctional officer in February 2006. Defendant also earned a rule violation for failing to follow instructions at the Fresno County Jail. The People pointed out defendant's classification score upon reception to prison following his commitment offense was 49, and his current classification score was 47, based on a continuous pattern of disciplinary write-ups and an overall "failure to program." The People calculated that from age 12 to his present age of 47 (almost 48), defendant had only spent a total of eight years in the free community, and had never been free from incarceration for more than approximately one and a half years. The People represented defendant remained under the Mental Health Services Delivery System (MHSDS) at the Correctional Clinical Case Management Services (CCCMS) level; although he was discharged from CCCMS on April 6, 2010, and viewed as being in remission, he was placed back in CCCMS due in part to the "115" on October 7, 2010, for a serious fight, and he remained medicated and under CCCMS. As of May 31, 2012, defendant's risk assessment was " 'High.' "
With respect to defendant's 1986 offenses, the People related defendant struck his common-law wife in the face when she refused to have sexual intercourse, and that he possessed a loaded shotgun. They further related there were allegations in conjunction with the stabbing that defendant also sexually assaulted the victim and forced oral copulation, but those allegations were not taken to trial.
The People also represented that in December 2001, defendant was arrested for breaking Pointer's nose. Pointer also reported defendant had raped her in another county. The case was dismissed because of concerns regarding the credibility of the rape allegation. At the time, the district attorney's office did not have the police reports regarding the prior victim's allegations of sexual abuse during the 1986 stabbing. The People asserted a comparison of the 1986 and 2001 sexual assault allegations showed "striking[] similarity," but the case was not revisited because of the commitment offense.
A "115" documents misconduct believed to be a violation of law or that is not minor in nature. A "128" documents incidents of minor misconduct. (In re Gray (2007) 151 Cal.App.4th 379, 389; see Cal. Code Regs., tit. 15, § 3312, subd. (a)(2), (3).)
The rule violation report showed that on May 6, 2013, the correctional officer instructed defendant to kneel on a bench and grab a bar with both hands. As the officer tried to remove defendant's shackles, defendant leaned back in an attempt to speak to and use hand gestures toward another inmate. The officer again instructed defendant not to lean back and to grab the bar with both hands, but defendant leaned back so far and fast, his back struck the top of the officer's head and he nearly hit the officer's head with his elbow. The officer told defendant to pay attention and follow instructions, but he ignored her, laughed, and continued communicating with the other inmate.
Attached to the People's opposition was a report by Charles Almaraz, an investigator for the district attorney's office. Almaraz related that he interviewed Pointer on March 5 and 7, 2013. Pointer told Almaraz she did not want defendant freed from custody, because she was afraid if he was released, he would come after her. Pointer acknowledged originally wanting to help defendant; she cleaned up some of the mess in her residence so it would not look so bad, but in reality, defendant broke or destroyed everything Pointer owned. Pointer acknowledged writing two letters on defendant's behalf; she stated she did so at defendant's request. Pointer related that her fear of defendant caused her to say and write things that were not true.
Also attached to the People's opposition was a letter defendant wrote to Savrnoch. In the letter, defendant accused Savrnoch of "vindictively" prosecuting him in retaliation for his exercising his right to file a writ. He also accused her of conspiring with the defense attorneys, and he said he was going to put a stop to it.
Defendant subsequently filed a supplement to his petition to counter suggestions (1) Pointer was afraid of defendant (165 pages of "love letters" from Pointer to defendant, a portion of the trial transcript in which Pointer sought removal of the protection order so she could be with defendant, and documents defendant asserted showed Pointer was hateful and vengeful and capable of deceiving the court to hurt defendant), (2) defendant had a poor prison classification score (documents defendant claimed demonstrated the reasons for his high classification scores were that his records of programming as a barber were lost, he was placed in administrative segregation for knowing a prison employee, and placement of a known gang member in his cell that caused the cell's occupants to be locked down), (3) defendant had no interest in programming (applications for programs, completion certificates, and grievances pertaining to the unavailability of certain programs), (4) letters to Savrnoch were viewed as a serious violation of law or the rules governing inmate conduct (documents defendant claimed showed he wrote letters to Savrnoch due to her perceived negative conduct, for which letters defendant was only minimally punished), (5) defendant had morbid thoughts making him a danger to society (interdisciplinary notes from August 2013 indicating defendant had no such thoughts and did not appear to be a danger to self or others), and (6) defendant manufactured pruno (documents showing defendant consistently denied the alcohol was his and pursued every appeal possible). In an additional supplement, defendant objected to consideration of Pointer's statements to the district attorney's investigator as hearsay, claimed certain statements in the People's opposition were untrue, and noted he was never tried for any sexual assault because all test results were negative.
The People presented supplemental opposition consisting of a jail incident report dated January 11, 2014, and recorded telephone calls defendant made from the jail between February 26, 2013, and January 20, 2014. The People summarized what they viewed as the pertinent content of those telephone calls.
A recording of the calls has been transmitted to this court as an exhibit, and we have listened to the calls.
According to the jail incident report, defendant's cellmate asked defendant to keep the noise level in the cell at a suitable level, but defendant became argumentative and disrespectful toward the other inmate, resulting in a physical altercation between the two. Both sustained minor injuries. Other inmates related defendant had acted in such a manner on previous occasions, and suggested that if he remained in the housing unit, the incidents would continue.
Prior to the hearing on the petition, the trial court appointed Dr. Seymour, a psychologist, to perform a risk assessment. Seymour recommended the court consider defendant to be "a moderately low risk for future interpersonal aggression."
A hearing on the petition commenced January 23, 2014. The recorded jail telephone calls were admitted into evidence and played. Also admitted were the January 11, 2014, jail incident report, and a jail scheduling report showing Seymour met with defendant one time, on July 10, 2013, for approximately 30 minutes.
Savrnoch, who had been employed as a deputy district attorney for 21 years as of the time of the hearing, testified that in 2002, she was assigned to the Spousal Abusers Prosecution Program (SAPP), which handled the most serious domestic violence cases. Savrnoch worked in that assignment for five or six years.
With respect to defendant, Pointer reported defendant had broken her nose during an assault, then driven her to Kings County and sexually assaulted her. Savrnoch filed the case involving the broken nose, but, because of concerns regarding the sexual assault case, she and her investigator eventually came to believe they would not be successful in prosecuting the broken nose case, even though Savrnoch believed it had occurred. As a result, Savrnoch dismissed the case. This greatly upset Pointer, who expressed fear of defendant.
After the case was dismissed, defendant was returned to prison on a violation of parole. At some point, he and Pointer married. Two or three months after the broken nose case was dismissed, a new case came in for filing that involved defendant vandalizing Pointer's home. The case was assigned to Savrnoch to prosecute. The jury convicted defendant of the vandalism and found true two strike priors that were also prison priors. With respect to the first prior conviction, a woman defendant was dating in Tulare County alleged defendant had assaulted her. The Tulare County District Attorney's Office subsequently dismissed the charges at the woman's request. Within days, defendant wrapped a towel around the woman's neck and stabbed her in the throat six times. The woman contracted meningitis and died. Defendant originally was charged with attempted murder, but pled to a violation of section 245. The second prior conviction involved the male victim and defendant getting into an argument, then defendant threw a lead pipe through an open window and hit the victim in the head, requiring extensive sutures.
Savrnoch was unable to obtain the police reports concerning the alleged Tulare County sexual assault until after defendant had been convicted of vandalism. She discovered details of the attack reported by Pointer were "eerily similar" to what the reports said took place in Tulare County. In addition, defendant's past violence made the vandalism more serious, which is why it was prosecuted as a three strikes case. The vandalism involved defendant starting to destroy Pointer's house, including tearing up wooden floorboards, breaking mirrors, breaking off the oven door, breaking the shower glass, and making holes in the walls. When the police were called to the house the second time, defendant was in the process of slashing the couches.
In addition to prosecuting domestic violence cases for five to six years, Savrnoch had handled domestic violence homicides. She also taught police officers throughout the state about domestic violence. She explained that in her experience, domestic violence is a crime that keeps repeating. The vandalism in defendant's case constituted domestic violence, as defendant was using the outburst of violence as a means to manipulate and intimidate the victim. Once the case was filed, however, Pointer became uncooperative, did not want defendant prosecuted, and even testified that she helped him do the destruction.
Savrnoch recalled that, throughout the entire trial, defendant referred to her and his female defense attorney by their first names. Savrnoch observed defendant to be very disrespectful toward both women.
Prior to defendant's sentencing, Savrnoch and her investigator were in Savrnoch's office when Savrnoch was handed a letter from defendant, who was at the jail. At the time, there was a panic about people sending letters containing anthrax. When Savrnoch slit open the letter, a "big poof" of white powder came out. As a result, the entire floor of the building was quarantined. Because defendant had already been convicted, however, no charges were filed against him and the incident was not brought up at sentencing.
The FBI determined the substance probably was powdered shaving cream.
In addition, defendant sent Savrnoch correspondence from prison. Although the first letter from prison was upsetting, Savrnoch took no action due to the length of defendant's sentence. Then, prior to Proposition 36, a proposition was put before voters to reform Three Strikes. It looked as if it would pass. That was when defendant sent her a second letter. He wanted to let her know he was going to be getting out of custody. In Savrnoch's opinion, the only reason for him to send the letter was to be threatening, even though what he said in the letter was not an explicit threat.
Savrnoch had her office's investigative bureau instruct the prison not to let defendant send Savrnoch any more letters. She was unaware defendant had disobeyed that order until defendant's prison records were subpoenaed in preparation for the resentencing hearing, and she learned one of defendant's 115's was for trying to send her a third letter.
Savrnoch felt threatened by defendant. She felt he was focused on her and obsessed with the fact she had prosecuted him. She believed it was not a question whether defendant would reoffend, but rather how long it would take him and who would be the next person he was going to hurt. Savrnoch noted defendant had been institutionalized since he was 12 years old, was a misogynist, and there was "no doubt in [her] mind" he would reoffend if released.
Savrnoch noted defendant had sent her boss, the District Attorney, a letter in June 2013. Despite the fact defendant had not seen Savrnoch in 11 years, she was still the whole focus of the letter. In addition, defendant talked about Savrnoch in some of the recorded jail calls.
O.D. Baird testified that defendant "adopted" the Baird family when defendant was around 13 or 14 years old, although no formal adoption proceedings were ever undertaken. Defendant lived with O.D. three times. Each time, defendant ended up going off by himself and getting into trouble. When released from jail, he came back and lived with and worked for O.D. for a while, then he got in trouble again. O.D. raised other children; defendant was the only one who "went astray." O.D. opined it was time for defendant to grow up. O.D. lived in Visalia; defendant would have O.D.'s home in which to reside if released this time. Although O.D. no longer owned a business at which defendant could work, there were several places near O.D.'s home at which defendant could get a job.
For clarity, we refer to Mr. and Mrs. Baird by their first names. No disrespect is intended.
O.D. was aware that at one point, defendant had an interest in going to Texas and living with his sister, Angie. O.D. did not know what happened to that possibility, although defendant had had words with Angie before. O.D. described defendant as having a temper and not knowing when to shut his mouth sometimes.
Renate Baird, O.D.'s wife, felt defendant's "big issues" were drugs and his temper. She described him as having a bad temper. She testified he would "fly off the handle and that gets him into trouble . . . ." Renate and O.D. kept several firearms in their home.
Renate was aware defendant's sister Angie was willing to have defendant move to Texas, where she lived, and that she had a place for him to stay and had set him up with a job. In Renate's opinion, this would have been a good thing. Renate was aware, however, that defendant's temper had gotten the best of him, and he had blown up at Angie. As a result, Angie withdrew her offer. Renate believed defendant's temper was a mental health issue. When he was on Zoloft and, when he was younger, Ritalin, he did much better. Renate felt defendant lived in the past when he needed to forgive and move on.
Defendant testified that he took full responsibility for his actions. He felt, however, that he had been "ill represented," and if things that were available had been presented during trial, he might not have been convicted or there would have been some kind of mitigation in the conviction. Defendant related he had quit drugs for four years, gone to junior college, and worked in the oil fields and in construction. He was doing well on parole, but he moved in with Pointer. When he tried to leave her, she kept putting him in jail on false charges. He went to the district attorney's office and asked for help getting his property out of the house. They told him it was a civil matter and they were not going to help. The vandalism started when defendant discovered all his belongings were gone except a television he bought while he was in junior college. Pointer burned him with cigarettes and stabbed him with car keys, then she took an ashtray and threw it at the television.
Defendant denied having a vendetta against Savrnoch. He explained that in the letter he wrote, he was being sarcastic. He called both counsel by their first names because that was how they referred to each other in his presence in court. He denied putting anything in a letter to Savrnoch; mail coming from the county jail is examined by an officer before it is sealed. In defendant's opinion, Savrnoch was "playing" the situation for the record. He felt her to be "a woman advocate" who worked "for the amnesty groups of all women" like Marjoree Mason.
Defendant testified that just before Pointer accused him of sexual assault, she took all the money from his bank account. Her nose was broken during a ranch accident. Defendant described Pointer as a known liar and a functioning drug addict. He asserted the prosecution was paying her, yet they claimed they could not find her to testify at the resentencing hearing. Defendant testified he was being accused of things he did not do. He asserted he had not written Savrnoch in 12 years, did not send her multiple letters, and did not send an anthrax letter. That letter was not even from him, but rather was a letter Pointer wrote, telling defendant about how she "screwed [him] around" with false charges of rape and "spousals and all that stuff . . . ."
Defendant described himself as "a mulatto" who was neither Black nor White, but was an outcast in jail and prison. He was not "cliqued in" with anyone, and received harassment "on both sides of the aisle from a lot of different people . . . ." Defendant apologized for getting into a few fights, but explained he had been "jumped" twice already in jail.
Defendant explained that things changed with his sister, in terms of his going to Texas and getting a job — which was already lined up — in the oil fields there, because he contracted a large hernia and thought he was going to die. He acknowledged the recorded telephone calls, but opined they were "a waste of time" because they showed nothing more than someone who was desperate and begging for his life. Defendant maintained that with his skills and work ethic, he would have no problem getting a job. He refused to "work for pennies" and did not want to work in a packing shed, however. He preferred to earn better money building freeways.
Defendant testified concerning his past history. With respect to his conviction for cutting the victim's neck, defendant explained the victim received five superficial wounds that did not require stitches or anything other than Betadine. The woman went into a coma after contracting meningitis. Defendant denied putting the scratches on the victim's neck; he was not present. Defendant and the victim lived on the property of a man who smoked PCP and had been raping the victim for years. After defendant's trial ended up with jurors split 10 to 2 in favor of acquittal, the district attorney's office dismissed allegations of great bodily injury and weapon use, and promised not to file murder or manslaughter charges if the victim died. Defendant was allowed to enter his plea for the benefit of his bargain while maintaining his innocence, and was told he would not receive more time than he was already facing on other charges. Defendant admitted striking the woman a few days earlier; she had been hitting and scratching him, and out of reflex, he punched her one time in the nose. The blow did not break her nose, but merely gave her a black eye.
As for defendant's conviction for hitting the man with a pole, defendant explained the stick was an aluminum mop handle without the mop head. Defendant threw it like a javelin from 15 to 18 feet away. The man's skull was fractured. Defendant had been asked by the police to let a domestic violence victim and her son wait in his apartment while the police arrested the man for hitting the woman. The woman wanted some drugs, and defendant agreed to get her some, because he knew they would have sex afterward. While he was looking for some boxes for the woman's belongings, he realized the man was already out of jail, and the confrontation occurred. Defendant admitted he was a frequent crack user during that time. He was in jail for 90 days, which was not enough time for him to dry out or come to his senses.
Defendant testified that he now "despise[d]" drugs. He had not used any in 12 years, and did not even smoke cigarettes. He tried to teach people about what prison really was like and what it meant to have a life term. He admitted being in a few fights, but explained he would get cornered. People did not like him and would do things like cutting in line in front of him while he was waiting to use the phone or something. No blood was spilled or weapons used in his fights with cellmates. Defendant represented he was housed at a Level II institution, which suggested he was not very dangerous, and he had seen third strike offenders resentenced and released when they were much worse than him.
At the conclusion of testimony, the parties presented extensive argument. This ensued:
"THE COURT: Okay. Well, it's kind of hard to know where to start on my part. I can tell you that I've read everything that was filed by both sides. There was a lot, and . . . I've read every single page of it, so I took a look at everything that both sides submitted.
"I obviously heard the testimony. . . . [¶] . . . [¶] . . . And I do know that during the time that you've been in prison, [defendant], you've seen the psychologist/psychiatrist. You've been on and off of meds and you determined at some point when you came back to court you didn't want to be on meds, so I know the psychiatrist told you at one point because I read it in the records that you might look at it another way and maybe the court prefer you be on meds if you need them. It's to kind of calm you down.
"There's some problems. You've talked about your history with them regarding your cocaine abuse that caused problems in your life, and you had a bipolar disorder. Actually, it was a diagnosis of bipolar disorder polysubstance abuse dependence going back and forth in custody for one reason or another. Sometimes your mind would be racing and you'd be concerned. They tried to put you on meds. Sometimes you would take the meds. Other times you'd say . . . your wish was for no meds. You didn't want to be on no meds in this prison environment. You were stressed out.
"There were issues regarding just who you were. As you mentioned in court, . . . you're of mixed race and you didn't quite fit with one group or the other. You're just kind of a man off on his own. I mean, I can go on and on, but that's kind of what happened for a long time.
"I was somewhat surprised, but then in thinking about it I figured, no, I don't know if a fellow's going to be going to prison for 27-to-life, as he understands it, there's probably not going to be a lot of program[m]ing going on. You just need to . . . do your time and get by and hopefully do something to improve your life. But there's no anger management, nothing, really very little being done that I could tell.
"[DEFENDANT]: I did anger management and parenting and all —
"THE COURT: And you did, sir, clearly.
"[DEFENDANT]: It wasn't available.
"THE COURT: You explained that a few minutes ago. . . . [¶] . . . [¶] . . . But I know at the end you did and I saw a certificate, and so once you — Prop. 36 had passed you kind of just started getting busy thinking, you know, I may be going to court.
"[DEFENDANT]: I've been appealing for 12 years.
"THE COURT: [¶] . . . [¶] . . . I'm looking at Exhibit E. This is a time line which reflects that when you were 12 years of age you were already in a county facility and there was an escape from a county facility that was a charge, that's on February 9th of '78. On May 31st of '78 there's another charge, again escape from a youth center. In 1978 you're finally paroled. You're out for 448 days. This is bothersome to me. You went to CYA, and you went to CYA with a PC 594(a).
"[DEFENDANT]: I never got a chance to elaborate on any of that, your Honor, because I — [¶] . . . [¶] . . . It was just petty theft. That's all it was. It was petty theft.
"THE COURT: Actually, vandalism, that's the charge.
"[DEFENDANT]: Yeah, the vandalism . . . was a malicious mischief. I wrecked a car on a car lot, on a Wendy's car lot and —
"THE COURT: I don't know what it was but, boy, they pretty much threw the book at you, so you went to CYA. I mean, when you go to CYA, you're going to the big house for kids, you know.
"[DEFENDANT]: But if I — if I had a chance to elaborate on that I would have told you what happened, but I —
"[PROSECUTOR]: Your Honor, I'm going to object.
"THE COURT: [Defendant], yeah, you need to listen to me . . . . [¶] . . . [¶] . . . [I]t sounds like it's negative and . . . I have to tell you on a positive note that while you were in prison, like you say six times —
"[DEFENDANT]: I've never been in prison six times.
"THE COURT: No. No. No. You were in prison over the 12 years, six incidents. Let's see, you got in a couple of fights. Nobody got really seriously hurt. Who started the fight? I don't know. . . . It's a pruno incident, three guys in a cell. You say it wasn't you. The other guys will
probably say it was you. I don't know who was making the pruno but, I mean, I'm saying six times in 12 years, not bad. Not bad. I think most people would probably have more incidents, but so . . . you're working on staying out of trouble, I'm sure. . . . But I'm telling you this is your history.
"A 594, that's vandalism, and they send you off to CYA. . . . On December 7th of 1979, and you're not discharged until January 25th of '84, so you did slightly over four years in CYA.
"[DEFENDANT]: No, I did not. I spent seven months in the California Youth Authority.
"THE COURT: You did?
"[DEFENDANT]: Seven months is all I — and then — and that was an unsecured juvenile facility. I walked right out the door and kept on walking, went straight to the Visalia Glenn Moran Juvenile Hall from the Robert K. Meyers Youth Center. I didn't escape from anywhere. I didn't pick a lock. I didn't jump a fence.
"THE COURT: Well, I think you're looking at an escape as being something you've got to break right through wires or something. . . . [¶] . . . [¶] . . . But, sir — okay, sir, so it's seven months you went to CYA?
"[DEFENDANT]: Yeah.
"THE COURT: This — this chrono doesn't tell me everything. It just gives me the basic history, but anyway you went to CYA. . . . [A]fter 233 days and you commit another offense. Basically, I don't think anything happened on this one. . . . It was never prosecuted, I believe. Then, you're out for a total of 271 days, and then you — is it 296, receiving stolen property? You're placed on three years probation for that.
"[DEFENDANT]: Five years later.
"THE COURT: This is your history. And you're out for 535 days and we not get to a domestic violence case — [¶] . . . [¶] . . . in Tulare and that was Lorraine Crosley, I believe. [¶] . . . [¶] . . . And I know that there was discussions in chambers on that case. That's a case where you had wrapped a towel around Ms. Crosley's neck, . . . that's what's in the record, and somehow you stabbed her six times. I know that there was no through — no cuts actually, so they call it a stabbing, and she developed meningitis and passed away. In the discussion I can tell that there was no way that they were going to be able to prove that the meningitis was a result of the
stabbing, so between your attorney and the district attorney in Tulare County a bargain was struck and you pled to a People's motion which was to amend it to make it a 245(a)(1), assault with a deadly weapon, a knife, in this case. And part of the record . . . whatever was said was transcribed and sealed so there was —
"[DEFENDANT]: No. No, it wasn't, your Honor.
"THE COURT: Well, it says here —
"[DEFENDANT]: I — I know —
"THE COURT: — whereupon proceedings were held, transcribed, and sealed in the court's file.
"[DEFENDANT]: Your Honor, and I — and we've been through this once before. It's on the last page.
"[PROSECUTOR]: Your Honor —
"THE COURT: [Defendant], again, you're trying to explain things. This is what I'm reading —
"[DEFENDANT]: It's on the last page of that. He talks about it on the very last page of that.
"[PROSECUTOR]: Your Honor —
"THE COURT: [Defendant], I know what happened, sir. Let me just look through this. In any case, sir, you're sentenced and essentially, as I understand it, you received credit for time served and you were placed on probation and then you violated probation. So at that point . . . you were sentenced on August 28th of '87, six years CDC . . . .
"You do your time, you get out, you're paroled. You're out for 180 days. There's a violation of your parole. Parole is revoked. You're sent back to prison, then you're out for 441 days. You suffer another parole violation and you're paroled again. Ultimately, you're discharged from parole on April the 7th of '94. You're out for 212 days, then you pick up a[ Health and Safety code section] 11364. The People couldn't figure out what the dispo was. It's a fairly insignificant charge other than it — I'm assuming this is about the time you started using drugs . . . . You're out for 71 days. Then, it's June 29th of '95, you pick up a 245. This is Mr. V[a]ss. And in your testimony the other day I had thought you downplayed what actually happened. You said you threw something of a nature of a[n] . . .
[¶] . . . [¶] . . . [a]luminum pole, yeah, that someone would use like, say, for a mop.
"[DEFENDANT]: It was.
"THE COURT: I've seen them. . . . I can tell you that's really hard to believe because . . . the injury to the fellow, according to what I've read, knocked him out just briefly. He suffered a two-inch gash above his eye. It took 50 stitches to close it. That little thing, and you made it seem like, 'Well, I really got mad. I picked it up and I threw it in his general direction. I really didn't mean to hit him with it.' That's really not —
"[DEFENDANT]: Your Honor — your Honor —
"THE COURT: [Defendant], you've got to listen to me. [Defendant], I listened to you in this —
"[DEFENDANT]: It broke his skull, your Honor. They had to pull his face back . . . to get to the skull. It wasn't like this. It was just a half crescent thing and they had to pull his face back —
"[PROSECUTOR]: See, again, he exemplifies the fact that he cannot follow directions even in a court of law.
"THE COURT: Yeah. [Defendant], you need to — I've listened to you. I've been patient. I've listened to you, everything you've had to say. In any case, that's what I see . . . . It had to be something heavier to cause that kind of damage. It would have had to be. And like I said to say, 'I just kind of threw it in his direction. You know, luckily it happened to hit him, so here I am. I'm paying the price for something when I really didn't intend to do that.'
"In any case here's the language on it. And when the court took the plea, it's . . . personal use of a dangerous weapon. They let you know it was a strike and you had admitted that you personally used a dangerous and deadly weapon, a pipe, within the meaning of Penal Code Section 667 and 1192.7. And on that one, again, an offer was made . . . . [T]here's an agreement here of no initial state prison and you were going to be released on your own recognizance until sentencing.
"Well, here's something, but factually what [the judge is] saying is that it's not just the plea and the allegation. He needs you to understand that you're admitting to using a pipe and you respond, . . . 'I did willfully and unlawfully commit a 245 upon Woodrow V[a]ss with a pipe.' No qualifications, anything. It's a pipe. And ultimately you're sentenced on
November 20th of '96 to three years CDC on that case. You're paroled on November 25th of '97 on that case. You're out for 36 days. A parole hold is placed on you and parole's revoked. You're paroled again on January 25th of '99 and you're out for 138 days. On June 12th you're charged with a 148.9 out of Coalinga. You plead on it and receive 120 days, then paroled. Your parole is revoked. It's a 245(a)(1) and the victims are Christina Oxford and Jimmy Oxford. That was a revocation of parole again. And you're paroled on 07/05 of the year 2000. You're out for 100 days. . . . [A] parole hold is placed and your parole was revoked on October 13th of that year. You're paroled again on March 12th of '01. You're out for 199 days. Again, a parole hold is placed on you and your parole's revoked. This time the alleged victim is Arl[i]ssa Pointer, and there's a plea on that case. You're discharged from parole on 12/05/01, 76 days out, and there's a reference to Arl[i]ssa Pointer suffering a broken nose. That's a case that was dismissed referring the Mrs. Savrnoch. On May the 18th you and Ms. Pointer marry. You're out for 88 days, and then we come to the case that was your third strike, the 594. That's kind of your history.
"In listening to the telephone calls, . . . it's understandable that you're going to be communicating with family members and if you get along with your family they're the ones that are going to help you out when . . . you get before the court on something like this. It's natural for people to communicate with and the Bairds are here.
"The calls to your sister, Angela, and I'm trying to understand your personality, . . . because I know that you're very excitable . . . .
"Your sister worked for the Department of Corrections as I learned her husband did as well and she told you on more than one occasion that she was not going to lie for you. . . . And she would even get upset and you'd yell at her, and she kind of — to some degree it sounds like you two, you know, you think she's uppity and she's not going to help, and she — I know she came to Fresno a couple of times, talked to you, even sent you some money that, as you put it, you couldn't cash . . . the money order, but ultimately you just kind of gave up on her because I think she gave up on you.
"I also remember reading or listening to the phone calls that she had gone to [former defense counsel]'s office and gone through the file, and at some point I guess she decided that's it. I'm not going to do anything more for [defendant]. . . . Your folks in Texas, you can't stand your mom in Texas. Your sister, you know, you're done with her. You have no intentions of going to Texas because your initial decision was you're going
to go to Texas, get the heck away from California. . . . And you're pressing your, I'll call them your stepbrothers, to write letters to the court saying they're offering you a job, even though they were telling you, '[Defendant], I don't have any job for you. You know, we're down to one van now.' That's Curt talking, 'I only have one van.' 'Oh, just, you know, tell them what they want to hear basically. Tell them you've got work for me. You know, they just want me out of this place.' All of that's on the phone calls. All of those are on the phone calls.
"And you have this notion that Mrs. Savrnoch absolutely has it out for you, even the whole District Attorney's Office has it out for you, that there's an animus in the District Attorney's Office. You can tell by the phone calls they've got it out for you. Mrs. Savrnoch, however, is the person behind it all, that she really has concocted a conspiracy to keep you locked up. I mean, it's this fixation that you have on her, obsession really that everything she's done, everything she's done, and just to put you away, that she's gone out of her way. She lies. She threatens witnesses. I guess [the current prosecutor] is part of that conspiracy now. . . . [W]hoever's worked on your case, . . . they all somehow conspired to keep you locked up.
"I don't know if that's part of your being bipolar. You know, I wish I knew more about that but . . . I can tell you there is no such thing going on. I mean, Mrs. Savrnoch prosecuted you like she's prosecuted a heck of a lot of people. That's her job. You got convicted. Three Strikes was the law at the time. You've made little of the damage done to the property that was your property. I mean, you emphasize it over and over again that it was your property. How could you be sent to state prison when it was your property that was damaged? It wasn't that much anyway. That Mrs. Pointer, I guess, was part of the conspiracy on her own in a separate sense in that she was giving away your property. She was hiding it. She was destroying it, and she just called the police to get you into trouble one way or another.
". . . I don't know what's going on with you and Ms. Pointer. Maybe there was some truth to that. There could have been. But the trial in front of me was that you destroyed the property and that was the proof. In other words, it was absolutely beyond a reasonable doubt that you did it. You were high on coke, and Ms. Pointer was angry at you, and so that was settled.
"Anyway, the bottom line is the one that I need to deal with whether or not there's an unreasonable risk of danger to the public safety and the hierarchy there, of course, is to people, whether you're likely to injure
someone. Just by the definition itself it tells me . . . at some level it's deemed to be reasonable that there is a risk, but is this a person who we can have confidence in that probably . . . there won't be any injury and you can take that risk? On the other side, is there an unreasonable risk?
"[Defendant], I have to tell you that as your history, sir, concerns me I failed to mention the two incidents at the jail since you got here, the one with the female correctional officer who, according to your statement, you bent her right leg, . . . you kind of slipped and you kind of fell back and you had to get your balance and you almost hit her, but there was nothing intended. This fight that recently occurred in jail where you suffered the greater injury, part of it I know is you're somewhat hard of hearing, and so I think when you play music or whatever it's probably going to be louder than some other folks appreciate because you need to hear it and you're only going to hear it if it's a little on the louder side. . . .
"But the bottom line, [defendant], is that I've considered everything. You've been in prison for a long time now, but I am satisfied that there is still an unreasonable risk of danger to public safety if you were to be released, so your application to resentence you is denied."
DISCUSSION
Defendant contends the trial court erred by denying his petition for resentencing. As part of his multifaceted attack on the trial court's ruling, defendant argues: (1) The definition of " 'unreasonable risk of danger to public safety' " contained in section 1170.18, subdivision (c), as enacted pursuant to Proposition 47, applies to resentencing proceedings under Proposition 36; (2) Denial of defendant's petition constituted an abuse of discretion and, because it was unsupported by sufficient evidence, a violation of due process, with the "shall"/"unless" formulation of section 1170.126, subdivision (f) creating a presumption in favor of resentencing, which in turn created a liberty interest; and (3) A trial court has discretion to deny relief only in extraordinary cases.
We reject these claims. In People v. Buford (2016) 4 Cal.App.5th 886 (Buford), we explained that the People have the burden of establishing, by a preponderance of the evidence, facts from which a determination resentencing a petitioner would pose an unreasonable risk of danger to public safety reasonably can be made. The facts upon which the court's finding of unreasonable risk is based are themselves subject to our review for substantial evidence. The ultimate determination resentencing would pose an unreasonable risk of danger is a discretionary one for the trial court, however. (Id. at pp. 898-899, 901.) We also concluded section 1170.126 does not establish or contain a presumption that a petitioner's sentence must be reduced (Buford, supra, at pp. 901, 902-903), nor does it circumscribe a trial court's discretion so as to permit a finding of dangerousness only in extraordinary cases (id. at p. 903). Finally, we rejected the notion subdivision (c) of section 1170.18 modifies subdivision (f) of section 1170.126. (Buford, supra, at pp. 903-913.) We find our reasoning and conclusions in Buford of persuasive value with respect to the issues raised in the present case, and see no reason to depart from them or repeat them here.
We agree with defendant that to the extent his due process claim goes to the sufficiency of the evidence, he was not required to object on that basis in the trial court in order to preserve the claim for appeal. (See, e.g., People v. McCullough (2013) 56 Cal.4th 589, 599; People v. Butler (2003) 31 Cal.4th 1119, 1126.) Whatever the validity of the People's forfeiture argument with respect to defendant's claim section 1170.126 created a liberty interest (see Board of Pardons v. Allen (1987) 482 U.S. 369, 370, 376-378; Superintendent v. Hill (1985) 472 U.S. 445, 447, 457; but see Swarthout v. Cooke (2011) 562 U.S. 216, 219-222 ), we conclude the record contains constitutionally sufficient evidence in any event.
Defendant contends the trial court was required, but failed, to articulate "a 'rational nexus' " between the immutable facts of defendant's criminal history and current dangerousness. In discussing the "some evidence" standard applicable in parole cases, the California Supreme Court has stated: "This standard is unquestionably deferential, but certainly is not toothless, and 'due consideration' of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision — the determination of current dangerousness." (In re Lawrence (2008) 44 Cal.4th 1181, 1210.)
Although we decline to decide how and to what extent parole cases inform the decision whether to resentence a petitioner under the Act or our review of such a decision, we do agree with defendant that the proper focus is on whether the petitioner currently poses an unreasonable risk of danger to public safety. (See Buford, supra, 4 Cal.App.5th at pp. 913-914; cf. In re Shaputis (2008) 44 Cal.4th 1241, 1254; In re Lawrence, supra, 44 Cal.4th at p. 1214.) As is the case when the grant or denial of parole is at issue, we believe a trial court may properly deny resentencing under the Act based solely on immutable facts such as a petitioner's criminal history "only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. [Citation.]" (In re Lawrence, supra, at p. 1221.) " '[T]he relevant inquiry is whether [a petitioner's prior criminal and/or disciplinary history], when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years [later]. This inquiry is . . . 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. [Citation.]' [Citation.]" (In re Shaputis, supra, 44 Cal.4th at pp. 1254-1255.)
Defendant asserts all third-strike offenders pose some risk of danger to the public; hence, the "unreasonable" risk of danger referenced in section 1170.126, subdivision (f) is a risk "over and above the inherent risk posed by the typical third-strike inmate . . . ." Defendant further asserts a danger to public safety "implies a danger of violence rather than the danger posed by non-violent criminal conduct."
We disagree with defendant's second point. Section 1170.126, subdivision (f) does not say a petitioner shall be resentenced unless the court determines resentencing the petitioner would pose an unreasonable risk of violence; rather, it speaks in terms of danger to public safety. Words and phrases used in the Penal Code "must be construed according to the context and the approved usage of the language . . . ." (§ 7, subd. 16.) In interpreting a ballot initiative, we afford the words used their ordinary and usual meaning. (People v. Park (2013) 56 Cal.4th 782, 796.) "[S]afety" has been variously defined as "the condition of being safe: freedom from exposure to danger: exemption from hurt, injury or loss" (Webster's 3d New Internat. Dict. (1986) p. 1998) and "[t]he condition of being safe; freedom from danger, risk or injury" (American Heritage Dict. (2d college ed. 1982) p. 1084). That a crime (or criminal) can constitute a danger to public safety without being violent is too obvious to dispute (see, e.g., People v. Hughes (2002) 27 Cal.4th 287, 355; People v. Villalobos (2006) 145 Cal.App.4th 310, 317) and is recognized both by the three strikes law's inclusion as a strike, by reference to section 1192.7, subdivision (c)'s definition of a " 'serious felony,' " any first degree burglary, furnishing certain drugs to a minor, and grand theft involving a firearm (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1), 1192.7, subd. (c)(18), (24) & (26)), and by section 1170.126, subdivision (e)(2)'s disqualification from eligibility for resentencing persons convicted of certain narcotics offenses (see §§ 667, subds. (e)(2)(C)(i), 1170.12, subd. (c)(2)(C)(i)). Although the ballot materials concerning Proposition 36 focused on violent criminals, section 7 of the Act provides: "This act is an exercise of the public power of the people of the State of California for the protection of the health, safety, and welfare of the people of the State of California, and shall be liberally construed to effectuate those purposes." (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, p. 110, italics omitted.) To condition resentencing denials upon the likelihood of future violence would run contrary to the language of section 1170.126, subdivision (f) and voters' intent, and would not effectuate the purposes of the Act.
That said, the trial court interpreted the statutory language as deeming it "reasonable that there is a risk," but requiring it to determine "whether or not there's an unreasonable risk of danger to the public safety and the hierarchy there, of course, is to people, whether [defendant is] likely to injure someone." In our view, the record amply supports the court's ruling even under those standards.
Here, the trial court clearly was aware it was required to find defendant currently posed an unreasonable risk to public safety. Moreover, the court's lengthy comments conveyed reasoning that established a nexus between the evidence before it and current dangerousness. Although the court relied to a large degree on defendant's criminal history, it did not do so to the exclusion of all else. On the facts of this case, that extensive history demonstrates defendant's marked inability to remain free from custody without reoffending — often violently — or at least violating the terms of his release for any appreciable period of time. The court recognized defendant has undertaken some efforts at rehabilitation while in prison, but reasonably concluded the pattern of reoffending established by defendant's past history is indeed predictive of current dangerousness years later. The record amply supports this determination, particularly in light of the evidence it contains concerning defendant's continued excitability, impulsiveness, inability to control his temper, poor insight into his actions and their consequences, and tendency to minimize his own fault and to put primary blame on others.
We reject any notion an express statement of reasons supporting a finding of dangerousness is required. Section 1170.126 — in contrast to, for example, section 1385, subdivision (a) — contains no such requirement. The trial court's ruling here was more than adequate for meaningful appellate review, and "the application of reasoned analysis" is apparent from its ruling. (In re Young (2012) 204 Cal.App.4th 288, 306.)
We express no opinion whether defendant could properly be found to fall within the definition of unreasonable risk of danger to public safety contained in section 1170.18, subdivision (c). In our view, however, defendant provides a prime example of why voters did not intend that restrictive definition to extend to resentencing proceedings under the Act.
"[T]he term judicial discretion 'implies absence of arbitrary determination, capricious disposition or whimsical thinking.' [Citation.] Moreover, discretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]" (People v. Giminez (1975) 14 Cal.3d 68, 72; accord, People v. Johnson (2015) 61 Cal.4th 734, 750.) Defendant has not borne his burden on appeal of establishing the trial court's ruling exceeds the bounds of reason. (See People v. Carmony (2004) 33 Cal.4th 367, 376.) That defendant perceives the record as presenting facts on which reasonable minds may differ is insufficient to establish an abuse of discretion. (Id. at p. 377; People v. Moya (1986) 184 Cal.App.3d 1307, 1313, fn. 2.)
Defendant complains, however, that the trial court refused to permit the relitigation of " 'static' " facts, i.e., those underlying defendant's past criminal record. He says the court's error in this regard caused it to fail to engage in adequate fact-finding, which in turn caused it to fail to exercise informed discretion and violated defendant's right to due process.
Although the trial court did state several times that it was not going to retry "static facts from [defendant's] past criminal history," an examination of the entire record of the hearing clearly demonstrates defendant was permitted to explain what, in his view, actually took place with respect to his past history. The record as a whole also shows the trial court took defendant's explanations and attempts at mitigation into account, while keeping in mind defendant pled to or was convicted of certain criminal conduct. We find no error or due process violation.
DISPOSITION
The order denying the petition for resentencing is affirmed.