NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62-013102)
The trial court denied defendant Steven Mark Williams's Penal Code section 1170.126 petition for resentencing. Defendant contends, and the People concede, that the trial court applied the wrong standard in denying the petition. We agree with the parties and reverse with directions.
Undesignated statutory references are to the Penal Code. --------
On November 5, 2001, defendant pled no contest to second degree commercial burglary and escape from custody with felony charges pending. Defendant also admitted he had two prior strike convictions for burglary in 1987 and 1992. The trial court sentenced defendant to 25 years to life for each count, consecutive, to also run consecutively to a 43-years-to-life sentence that had been previously imposed in a Nevada County case. The total aggregate sentence was 93 years to life.
In September 2014 defendant filed a petition for resentencing pursuant to section 1170.126, seeking reduction of his sentences for the current (burglary and escape) convictions. Defendant argued that if his petition were granted he would not be eligible for parole until 2044, at which point he would be over 80 years old. Even were he to prevail on his then-pending appeal from a previous case, he would not be eligible for release until 2037. The People opposed the petition.
The trial court found prima facie grounds of eligibility but denied the petition, stating: "The Court feels that if he were released today, . . . he would pose an unreasonable risk even at this age now to public safety. . . . " "The question is today does he presently pose an unreasonable risk? I find it has been shown that he does. [¶] So his request for resentencing is denied on . . . that basis."
The parties agree that the trial court erred in denying defendant's petition based on the risk defendant would pose to public safety if he were released that day rather than when he would become eligible if the petition were granted.
We recently (and after the trial court's ruling in the instant case) held that "[d]etermining 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." (People v. Williams (2018) 19 Cal.App.5th 1057, 1063.) "Resentencing poses significantly less danger to society if it is contingent on a finding at some future date that the defendant no longer poses a threat to society. [Citation.]" (Id. at pp. 1063-1064.)
Here, granting the petition would not entitle defendant to immediate release. Rather, the dangerousness determination would be deferred until defendant is at least 75 years old and would be vested in the Board of Parole Hearings. (§ 3041, subd. (b)(1); Cal. Code Regs., tit. 15, § 2402, subd. (a).) "In making [the dangerousness] determination, the trial court must take into account when defendant could be released if the petition is granted and whether that release is contingent on considerations of public safety." (People v. Williams, supra, 19 Cal.App.5th at p. 1064.) The trial court mistakenly based its reasoning and finding of dangerousness on the risk defendant would pose "if he were released today." We have since clarified the standard. The failure to consider when, if ever, defendant would be released if the petition were granted and whether that release would be contingent on considerations of public safety, requires reversal. (Id. at p. 1064.)
The order denying the petition is reversed and the case remanded for the trial court to reconsider defendant's petition in a manner consistent with this opinion.
Duarte, J. We concur: /s/_________
Butz, Acting P. J. /s/_________