Opinion
D081214
01-31-2024
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JAMES CLARK, Defendant and Appellant.
Britton Donaldson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Arlyn Escalante, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County Nos. SCD114617 &SCD115699, Lisa R. Rodriguez, Judge. Affirmed.
Britton Donaldson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Arlyn Escalante, Deputy Attorneys General, for Plaintiff and Respondent.
IRION, Acting P. J.
Michael James Clark, who is currently serving a prison sentence of 55 years eight months imposed in 1996, appeals the order denying the request by the Secretary of the Department of Corrections and Rehabilitation (the Secretary) for recall of the sentence and resentencing. He complains the trial court erroneously failed to consider childhood trauma that contributed to his current convictions and abused its discretion by finding him to be an unreasonable risk of danger to public safety. We affirm.
I.
BACKGROUND
A. Current Crimes
On July 19, 1995, Clark entered the home of an elderly couple, E.K. and F.K., and found F.K. cleaning a bathroom. Clark ordered F.K. out of the bathroom at gunpoint, told her not to scream, and asked where E.K. was. When F.K. said E.K was out, Clark twisted F.K.'s arm behind her back and led her around the house to make sure nobody else was there. He then led her to a bedroom and bound her hands and feet. While Clark was searching for valuables, E.K. returned home. Clark struck E.K. with the gun, knocked him onto the floor, and bound him. Clark left with approximately $8,000 worth of cash and other property. F.K. and E.K. eventually freed themselves, and E.K. was taken to a hospital where a facial wound was sutured.
Nine days later, Clark entered the home of another elderly couple, A.V.P. and P.V.P., and found P.V.P. scrubbing a hallway floor. Clark asked whether P.V.P. was alone, and she responded affirmatively. He told her not to scream, shoved a gun in her face, and punched her. P.V.P. fell to the floor. Clark then hit the back of her head with the gun, dragged her by the hair into the dining room, and threatened to kill her. A.V.P. heard P.V.P. screaming and rushed to her aid. Clark told him," 'Hit the deck or I'll kill her.'" A.V.P. and Clark scuffled and eventually ended up outside the house, where Clark lost control of the gun, staggered down the street, and punched a neighbor who tried to stop him. Police were summoned and found Clark hiding in nearby bushes. He told police that had he not lost the gun, he would have been willing to shoot it out with them so that he would not be in jail. P.V.P. sustained a laceration and bruises; and A.V.P. sustained lacerations, bruises, and a broken toe.
Based on these two incidents, the People charged Clark with two counts of first degree robbery (Pen. Code, § 211; subsequent section references are to this code), one count of attempted robbery (§§ 21a, 211), two counts of residential burglary (§ 459), two counts of assault with a firearm (§ 245, subd. (a)(2)), two counts of assault with a semiautomatic firearm (id., subd. (b)), one count of possession of a firearm by a felon (former § 12021, subd. (a)), and one count of battery (§ 242). The People alleged multiple firearm, great bodily injury, and victim age enhancements. (§§ 667.9, subd. (a), 12022.5, 12022.7.) The People also alleged Clark had served two prior prison terms (former § 667.5, subd. (b)), had two prior convictions that qualified as serious felonies subject to five-year enhancements (§ 667, subd. (a)), and had three prior convictions that qualified as strikes under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12).
The People filed a separate case for each incident. We have combined the charges and allegations from the two cases for simplicity.
Clark pled guilty to all charges and admitted all allegations. The trial court dismissed allegations concerning two of the prior strike convictions and sentenced Clark to prison as a second-strike offender for an aggregate term of 55 years eight months.
B. Request for Recall and Resentencing
The Secretary sent a letter dated February 12, 2021, to the trial court requesting recall of Clark's sentence and resentencing. (Former § 1170, subd. (d)(1), now codified as amended at § 1172.1 (Stats. 2021, ch. 719, § 3.1; Stats. 2022, ch. 58, § 9).) The Secretary stated she had identified inmates who served more time than their base terms and were at high risk from COVID-19, and she "strongly believe[d] these cases merit review [by the courts] to prevent a potential serious outcome due to COVID-19." The Secretary stated Clark met the review criteria, and she enclosed with the letter documents that included information about Clark's criminal history, prison discipline, and rehabilitative programming.
The trial court appointed counsel for Clark and solicited briefing from the parties on whether it should recall his sentence and resentence him as requested by the Secretary. The People urged the court to deny the Secretary's request, on the grounds Clark's current and past crimes and disciplinary problems in prison showed he was "an unreasonable risk of danger to public safety" (§ 1172.1, subd. (b)(2)) and continued incarceration was in the interests of justice. Clark argued continued incarceration after more than 25 years was not in the interest of justice, especially in light of his age (then almost 68 years) and serious health problems, and urged the court to recall the sentence, exercise its discretion to strike certain enhancements, and resentence him to a total prison term of 25 years eight months.
If a request for recall and resentencing is from the Secretary, "[t]here shall be a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18." (§ 1172.1, subd. (b)(2).) Section 1170.18, subdivision (c) defines an" 'unreasonable risk of danger to public safety'" as an unreasonable risk the person will commit a violent sex offense, homicide offense, or other felony offense listed in section 667, subdivision (e)(2)(C)(iv).
The trial court held a hearing on September 29, 2022, at which it stated it had reviewed the Secretary's letter, the parties' briefs, the probation officer's reports, letters from victims, and the original sentencing order. The court next heard argument from counsel. Counsel for Clark argued the Secretary's letter triggered a presumption in favor of recall and resentencing that could only be overcome if the court found Clark to be an unreasonable risk of danger to public safety because he was at risk of committing a so-called "super strike." Counsel argued Clark was no such risk, because he had never committed a super strike, he had no disciplinary rules violations involving violence in prison since 2014, and his age and serious medical problems made him no longer capable of the violence he had committed in the past. The deputy district attorney argued the presumption in favor of recall and resentencing had been overcome based on Clark's past and current crimes, which involved violence and firearm use, and his many disciplinary rules violations in prison, two of which involved violence.
A "super strike" is a colloquial term for a felony listed in section 667, subdivision (e)(2)(C)(iv). (People v. Valencia (2017) 3 Cal.5th 347, 351.) The list includes "any attempted homicide offense." (§ 667, subd. (e)(2)(C)(iv)(IV).) In a case that resulted in two of Clark's prior strike convictions, he was charged with but not convicted of attempted murder for shooting at one of the victims during a robbery.
After hearing argument from counsel, the trial court announced its ruling. The court acknowledged the statutory presumption in favor of recall and resentencing and that it could be overcome only if the court found Clark to be an unreasonable risk of danger to public safety. The court identified several factors it had to consider to make that finding, including Clark's criminal history, the extent of injuries to victims, the length of his sentence, remoteness of the crimes, and his prison record. The court stated Clark had served 25 years on his sentence of 55 years eight months and was then almost 68 years old. The court went on to summarize the facts of the current crimes and noted Clark had preyed on elderly victims in their homes, used firearms, threatened to kill one of the victims, and physically injured multiple victims. The court noted Clark had convictions for possession of a controlled substance, resisting arrest, burglary, and multiple armed robberies, during one of which he shot a victim and was charged with but not convicted of attempted murder. Turning to Clark's conduct in prison, the trial court remarked he had 12 disciplinary rules violations, two of which involved fighting; had been removed from an anger management program for missing classes; and had only recently participated in in-cell rehabilitative programming. The court stated Clark's static risk assessment score made him a high risk of future violence. The court acknowledged Clark had physical and medical problems, including hearing loss, mobility impairment, back pain, cirrhosis, and chronic kidney disease, which were managed on an outpatient basis, and was at high risk from COVID-19. The court also briefly discussed three opinions from the Courts of Appeal that upheld trial court determinations that a defendant was an unreasonable risk of danger to public safety within the meaning of section 1170.18, subdivision (c): People v. Strother (2021) 72 Cal.App.5th 563 (Strother), People v. Jefferson (2016) 1 Cal.App.5th 235 (Jefferson), and People v. Hall (2016) 247 Cal.App.4th 1255 (Hall).
The trial court summed up: "Given the criminal history, the conduct in the instant cases, the minimal rehabilitative efforts that only include in-cell study, and actually being dismissed himself from the anger management course, and in his own words threatened to kill the victims and acknowledgment of the danger he possesses, although he has never previously committed a super[ ]strike, although he was charged with one, the Court finds that he is ready, willing, and able, if the situation was presented, that he could commit a super[ ]strike, and it is an unreasonable risk of danger to public safety." The court therefore found the presumption in favor of recall and resentencing had been overcome and denied the Secretary's request.
II.
DISCUSSION
Clark asserts two claims of reversible error: (1) the trial court failed to consider his childhood trauma and its contribution to his current convictions; and (2) the court abused its discretion by denying the Secretary's request for recall and resentencing on the ground he is an unreasonable risk of danger to public safety. We consider each claim in turn.
A. Childhood Trauma
Clark complains the trial court "did not consider [his] history of psychological, physical, or childhood trauma, including abuse, neglect and exploitation, which clearly [was] a contributing factor in the commission of the offenses for which he was convicted in 1995." Section 1172.1, subdivision (a)(5) provides that in recalling and resentencing, the court "shall consider if the defendant has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence, . . . and whether those circumstances were a contributing factor in the commission of the offense." Citing the probation officer's report, Clark claims his parents divorced a year or two after he was born, and his mother remarried when he was about 10 years old; "his stepfather was extremely physically abusive, especially to [him]"; his father was "wild" and a mean drunk, and "induced [him] to begin armed robberies when [he] was 17 years of age." He then concludes, without citing anything in the record or providing any explanation, that "[t]he trauma [he] endured while he was young was likely one of the main causes for his behavior as an adult and when he committed the two offenses in 1995." Clark argues it was "unfair" for the court to deny recall and resentencing without having considered the impact of his childhood trauma on the commission of the crimes for which he is presently incarcerated, and asks us to reverse and remand for the court to consider it. We decline to do so.
Clark forfeited this claim of error. An appellant generally may not complain on appeal that in making the challenged ruling the trial court erroneously failed to consider a theory the appellant did not urge it to consider. (E.g., People v. Stowell (2003) 31 Cal.4th 1107, 1114; People v. Roberts (2010) 184 Cal.App.4th 1149, 1193.) To preserve the claim of error for appeal, the appellant must have brought "any deficiency in the ruling to the trial court's attention by a contemporaneous objection, to give the court an opportunity to correct the error." (People v. Mungia (2008) 44 Cal.4th 1101, 1141.) Neither in his briefing nor at the hearing in the trial court did Clark ever mention his childhood trauma, let alone explain how that trauma contributed to the robberies and other crimes for which he is now in prison. It would be unfair to the People and to the trial court to allow Clark now to raise a claim the People had no opportunity to rebut and the trial court had no opportunity to consider. (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 700; People v. Manning (1973) 33 Cal.App.3d 586, 601.)
Furthermore, although in his opening brief on appeal Clark cites statements he made to the probation officer about abuse and exploitation as a child, he does not cite anything in the record or provide any analysis showing a causal relationship between that abuse and exploitation and his convictions for crimes he committed when he was 40 years old. He simply asserts the trauma he suffered as a child "was likely one of the main causes" of those convictions. We deem such an unsupported and undeveloped argument forfeited and do not discuss it further. (People v. Davis (2022) 75 Cal.App.5th 694, 721; People v. Clayburg (2012) 211 Cal.App.4th 86, 93; In re S.C. (2006) 138 Cal.App.4th 396, 408.)
B. Unreasonable Risk of Danger to Public Safety
Clark also complains the trial court erred by denying the Secretary's request for recall and resentencing on the ground he is an unreasonable risk of danger to public safety. He argues he is not such a risk, because he committed the current crimes in 1995, his violent conduct has not escalated since then, intervening statutory changes permit dismissal of enhancements that used to be mandatory and could substantially shorten his sentence, he has had only two disciplinary rules violations involving violence while in prison, and he is in poor health and highly susceptible to COVID-19. We review the trial court's decision for abuse of discretion. (People v. E.M. (2022) 85 Cal.App.5th 1075, 1082; People v. Frazier (2020) 55 Cal.App.5th 858, 863.) A ruling constitutes such an abuse "when it' "exceeds the bounds of reason, all of the circumstances before [the court] being considered," '" or when it is" 'so irrational or arbitrary that no reasonable person could agree with it.'" (Wade v. Superior Court (2019) 33 Cal.App.5th 694, 708.) A court abuses its discretion when it applies the wrong legal standard or bases its decision on express or implied factual findings unsupported by substantial evidence. (People v. Doron (2023) 95 Cal.App.5th 1, 9; People v. Moine (2021) 62 Cal.App.5th 440, 449.) No such abuse occurred in this case.
The trial court applied the correct legal standard. It expressly acknowledged the statutory presumption in favor of recall and resentencing when, as happened in this case, the Secretary sends a letter to the court requesting recall and resentencing. (§ 1172.1, subd. (b)(2).) The court also expressly acknowledged the presumption could be overcome only if it found Clark to be an unreasonable risk of danger to public safety as defined in section 1170.18, subdivision (c). (§ 1172.1, subd. (b)(2).) As we summarized above (see pp. 5-7, ante), in making that determination the court considered Clark's "criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes" (§ 1170.18, subd. (b)(1)); and postconviction factors including his "disciplinary record and record of rehabilitation . . . while incarcerated" and "evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced [his] risk for future violence" (§ 1172.1, subd. (a)(5)). The record thus shows the court considered the legally relevant factors the parties had briefed and argued.
Substantial evidence supports the trial court's discretionary determination that Clark is an unreasonable risk of danger to public safety. Although he correctly points out he has never been convicted of a super strike, "[w]e cannot limit the trial court's discretion to offenders who have already committed a super strike." (Hall, supra, 247 Cal.App.4th at p. 1266.) The trial court reasonably could find Clark presented an unreasonable risk of committing a super strike based on information contained in the probation officer's reports and the documents that accompanied the Secretary's letter. Those documents showed that in committing the current crimes, he used a firearm, threatened to kill a victim, inflicted great bodily injury on multiple victims, and after being apprehended told police he would have engaged them in a shootout had he not lost control of his gun. The documents also showed Clark had committed multiple prior robberies, during one of which he shot a victim. The documents from the Secretary showed Clark was twice disciplined for fighting and was assessed as high risk for future violence. The evidence thus supports the court's determination that because Clark "is ready, willing, and able, if the situation were presented, [to] commit a super[ ]strike," he is an unreasonable risk of danger to public safety. (See § 667, subd. (e)(2)(C)(iv)(IV) [super strike includes "[a]ny homicide offense, including any attempted homicide offense"]; cf. Jefferson, supra, 1 Cal.App.5th at p. 245 [defendant's prior conviction of robbery during which he used firearm and inflicted great bodily injury on victim, multiple disciplinary rules violations in prison, and multiple parole violations supported finding he was likely to commit murder or attempted murder]; Hall, supra, 247 Cal.App.4th at pp. 1264-1266 [defendant's current theft conviction in which he pressed knife against and threatened to stab victim, prior robbery conviction in which he threatened to kill victim, and repeated failure to rehabilitate supported finding he presented elevated risk of using deadly force].)
Clark attempts to show the trial court erred in making that determination by pointing out distinctions between his case and those the trial court briefly discussed in announcing its decision. He asserts the time gap between the crimes and the resentencing proceeding is greater in his case (approximately 27 years) than it was in Hall, supra, 247 Cal.App.4th 1255 (approximately two years), and he has shown no escalation in violence close in time to the resentencing proceeding as had the defendant in Hall. Clark distinguishes Jefferson, supra, 1 Cal.App.5th 235, on the grounds the resentencing proceeding in that case occurred before the amendments to section 1385 that authorize trial courts to dismiss enhancements took effect, and he is much older and in poorer physical condition than the defendant in that case. Clark contends that compared to the defendant in Strother, supra, 72 Cal.App.5th 563, he committed crimes that were less violent, has fewer disciplinary rules violations involving violence, and is older and in poorer physical condition. None of these distinctions persuades us the trial court abused its discretion in finding Clark an unreasonable risk of danger to public safety.
The temporal remoteness of Clark's current crimes (July 1995) relative to the Secretary's request for recall and resentencing (February 2021) does not show he is not at risk of committing a super strike. The main reason his violence did not continue or escalate during that period is that he was incarcerated" 'and thus had little or no opportunity to commit' additional crimes." (People v. Vasquez (2021) 72 Cal.App.5th 374, 390; accord, People v. Massey (1987) 192 Cal.App.3d 819, 825.) While in prison, Clark engaged in additional violence (fighting), and until very recently did little rehabilitative programming. He has not been in "a crime-free cleansing period of rehabilitation." (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
The date of the hearing on the Secretary's request for recall and resentencing relative to the effective date of the amendments to section 1385 granting sentencing courts discretion to dismiss enhancements is irrelevant to the trial court's decision to deny the request. Those amendments took effect on January 1, 2022 (Stats. 2021, ch. 721, § 1; Stats. 2022, ch. 58, § 15), and apply to all sentencing proceedings, including recall and resentencing proceedings requested by the Secretary, that occur on or after that date (§ 1172.1, subd. (a)(1) [court may "recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced"); People v. Bautista-Castanon (2023) 89 Cal.App.5th 922, 930 ["Because the resentencing in this case will take place after January 1, 2022, the new law will apply."]). The amendments specify how a court should exercise its discretion as to dismissal of enhancements when it sentences a defendant; they say nothing about a court's discretion in deciding whether to recall and resentence a defendant in the first place. (See § 1385, subd. (c).) Had the trial court recalled Clark's sentence, the amendments to section 1385 would have applied because the hearing on the Secretary's request occurred on September 29, 2022. But the court denied the request, and so had no occasion to consider or to apply the amendments.
Clark's claims that he is older, in poorer physical condition, and less violent than defendants in other cases where appellate courts upheld findings the defendants were an unreasonable risk of danger to public safety do not persuade us the trial court erred in making such a finding as to him. Clark was almost 68 years old when the trial court denied the Secretary's request for recall and resentencing, and thus was older than the 37- or 38-year-old defendant in Jefferson, supra, 1 Cal.App.5th 235, and the 54- or 55-year-old defendant in Strother, supra, 72 Cal.App.5th 563. Since neither case discussed the defendant's age, physical limitations, or medical problems, the cases provide no useful guidance on how such factors should be considered in deciding whether a defendant is an unreasonable risk of danger to public safety. Such factors are, of course, relevant to an assessment of a person's ability and likelihood to commit violence. (See § 1172.1, subd. (a)(5).) The trial court noted Clark has mobility impairment and chronic medical problems, but also noted he is managed as an outpatient and requires only uncomplicated nursing care. He thus does not appear to be so debilitated that he would be unable or unlikely to commit acts of violence, such as the armed attacks on elderly victims for which he is currently in prison and which did not require great strength and agility. Although those crimes did not involve shooting at a police officer or fatally shooting a victim in the head, as did the crimes at issue in Strother, they did involve violence very similar to that at issue in Jefferson, where the victim was struck on the head and dragged by her hair in her home during an armed robbery. And Clark did shoot a victim during a robbery underlying one of his prior strike convictions. As to in-prison violence, only two of Clark's 12 disciplinary rules violations involved violence, whereas most of the 34 violations by the defendant in Strother did. The pertinent point, however, is not the number of violations but, as recognized by the trial court, their "telling of [Clark's] continued inability to follow rules" even in the highly structured setting of a prison. (See Strother, at p. 573 ["serious rules violations in prison constitute powerful evidence of an inmate's current willingness to engage in serious rulebreaking behavior and are probative of recidivist tendencies and the danger to public safety"].)
For the reasons discussed above, we conclude Clark has not shown the trial court's decision to deny the Secretary's request for recall and resentencing because he is an unreasonable risk of danger to public safety" '" 'exceed[ed] the bounds of reason, all of the circumstances being considered.'" '" (People v. Pacheco (2022) 75 Cal.App.5th 207, 213; see Jefferson, supra, 1 Cal.App.5th at p. 245 [affirming denial of resentencing petition when trial court "did not exceed the bounds of reason in determining that defendant was likely to commit a super strike if resentenced"].) We therefore must uphold the decision.
III. DISPOSITION
The order denying the request for recall and resentencing is affirmed.
WE CONCUR: DO, J. BUCHANAN, J.