Opinion
A148437
04-13-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE J. RAMIREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR-279697)
Defendant Jose J. Ramirez appeals from the trial court's order denying his petition for resentencing pursuant to the Safe Neighborhoods and Schools Act (Proposition 47), on the ground that resentencing would pose an unreasonable risk of danger to public safety. (Pen. Code, § 1170.18, subd. (b).) Appellant contends (1) the trial court denied his constitutional and statutory right to be present, and (2) the court's dangerousness finding was in error. We affirm.
All undesignated section references are to the Penal Code.
BACKGROUND
In 2011, appellant pled no contest to one count of possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)). Pursuant to the plea agreement, appellant was sentenced to a 16-month prison term, to be served consecutively to a prison sentence he was already serving.
In 2016, appellant filed a petition for resentencing of his 2010 conviction under Proposition 47. The trial court found that resentencing would pose an unreasonable risk of danger to public safety, and denied the petition. This appeal followed.
DISCUSSION
" 'Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).' " (People v. Hall (2016) 247 Cal.App.4th 1255, 1261 (Hall).) " 'Under section 1170.18, a person "currently serving" a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).)" (Ibid.) It was undisputed below that appellant's cannabis conviction is now a misdemeanor under Proposition 47.
" 'A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be "resentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.18, subd. (b).)' " (Hall, supra, 247 Cal.App.4th at p. 1261.)
I. Right To Be Present
Appellant first argues the trial court violated his constitutional and statutory right to be present at the hearing regarding whether his resentencing would pose an unreasonable risk of danger. We find any error harmless.
A. Background
Appellant's Proposition 47 petition was filed on March 1, 2016. On March 9, the People filed a written opposition arguing appellant posed an unreasonable risk of danger to public safety.
The People also argued resentencing would violate the negotiated plea agreement. The trial court rejected this argument and the People do not pursue it on appeal.
On March 17, defense counsel appeared in court without appellant and advised the court that appellant was "in CDCR." The court asked, "So we need to set an 1170.18(b) hearing?" The parties agreed, and defense counsel requested a hearing date "45 days out, to arrange for transportation and make sure everything is in order." The court set the hearing for May 2 and signed an order directing appellant be transported for the hearing.
Appellant did not appear at the May 2 hearing. At the beginning of the hearing, defense counsel represented to the court: "[Appellant] contacted me after the issuance of the removal order, specifically requesting he not be moved for education reasons." Counsel continued, "We let the sheriff's department know, and it was my first time, it should have gone further up. So my sincerest apologies. It won't happen again." The hearing then proceeded. Defense counsel presented no evidence at the hearing.
B. Analysis
Section 977, subdivision (b)(1) provides, "In all cases in which a felony is charged, the accused shall be personally present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present . . . ." In addition, " '[d]ue process guarantees the right to be present at any "stage . . . that is critical to [the] outcome" and where the defendant's "presence would contribute to the fairness of the procedure." ' [Citation.] The state constitutional right to be present at trial, which is guaranteed by article I of the California Constitution, ' "is generally coextensive with the federal due process right." ' [Citation.] As a matter of both federal and state constitutional law, however, a defendant may validly waive his or her right to be present during a critical stage of the trial, provided the waiver is knowing, intelligent, and voluntary." (People v. Cunningham (2015) 61 Cal.4th 609, 633.) We will assume appellant had a statutory and constitutional right to be present at the hearing regarding dangerousness.
The dangerousness determination follows, and is distinct from, the determination of whether a defendant's conviction is eligible for Proposition 47 resentencing. (See People v. Fedalizo (2016) 246 Cal.App.4th 98, 110 [holding the defendant had no right to be present at an uncontested hearing regarding Proposition 47 eligibility].)
Defense counsel's representation of appellant's waiver did not satisfy the requirement of a written waiver imposed by section 977, subdivision (b). With respect to the waiver of the constitutional right, our Supreme Court recently explained in People v. Mendoza (2016) 62 Cal.4th 856 (Mendoza): "We have noted an unsettled state of the law on the question whether a waiver [of the constitutional right to be present] by defense counsel is effective, but stated that '[a]t a minimum, there must be some evidence that the defendant understood the right he was waiving and the consequences of doing so.' " (Id. at p. 899.) For example, in a previous case the court "found no effective waiver of the right to be present during a pretrial evidentiary hearing when 'defense counsel represented to the court that counsel had discussed the hearing with defendant and that defendant would waive his presence.' [Citation.] We commented that there was no evidence that counsel had informed the defendant of his right to attend or that defendant understood that he would be unable to contribute to the discussion regarding the evidence if he was not present." (Ibid.) In Mendoza, "the [defendant's] absence occurred on the basis of representations from counsel. Because it is unclear whether a waiver by counsel is effective in these circumstances, we will assume without deciding there was error and consider whether any error was prejudicial." (Id. at p. 900.) We shall do the same.
Appellant argues any error is structural and requires reversal. We disagree. " 'Under the federal Constitution, error pertaining to a defendant's presence is evaluated under the harmless-beyond-a-reasonable-doubt standard set forth in Chapman v. California (1967) 386 U.S. 18, 23.' " (Mendoza, supra, 62 Cal.4th at p. 902 [rejecting structural error claim].) Appellant argues that, had he been present, he might have been able to present evidence about his lack of violent behavior in prison or other facts showing he did not pose an unreasonable risk of danger to public safety.
"[R]eview of any error under section[] 977 . . . is conducted under the Watson standard (People v. Watson (1956) 46 Cal.2d 818, 836)." (Mendoza, supra, 62 Cal.4th at p. 902.)
People v. Davis (2005) 36 Cal.4th 510 (Davis) is instructive. In Davis, the court found no prejudice from a violation of the defendant's constitutional right to be present at a pretrial hearing regarding the admissibility of jailhouse tape. (Id. at p. 530.) The court rejected the defendant's "assert[ion] that had he been present at the May 16, 1989 hearing, he could have assisted his attorney in deciphering the tape recording and filling in many of the portions of the transcript that were marked 'unintelligible.' " (Id. at p. 533.) The court noted, "defendant's attorneys had access to the tape and the proposed transcript before the May 16, 1989 hearing. Thus, they had ample opportunity to discuss the contents with defendant and to seek his assistance in deciphering the recorded conversation. Assuming they did so, defendant's presence at the hearing would have added little to his attorneys' ability to argue the admissibility of the excerpts." (Ibid.) Moreover, the court continued, "even assuming defendant and his counsel had no opportunity to review the tape and transcript either before or after the hearing, there is no way on this record to determine, had defendant been present at the hearing: (1) whether he could have filled in the 'unintelligible' portions of the tape and transcript; (2) whether the prosecutor would have agreed to defendant's interpretation; and (3) had defendant's interpretation been agreed to, whether the resulting transcript of the tape recording would have been less prejudicial to defendant than the transcript used at trial. Because we do not know what defendant would have said about the unintelligible portions on the tape, it seems equally reasonable to assume that his clarifications would have done nothing to make the tape less incriminating or perhaps made it even more incriminating." (Ibid., fn. omitted.)
As in Davis, appellant's counsel knew that dangerousness would be at issue in the hearing and had ample opportunity to discuss the matter with appellant. Moreover, the possibility that appellant had helpful information or that any such information would have changed the trial court's ruling is purely speculative on this record. We conclude appellant failed to demonstrate he was prejudiced by any error.
Appellant speculates that he may never have met or conferred with his attorney prior to the hearing. We will not so presume from this record; any evidence of such facts is properly raised by a habeas petition.
II. Unreasonable Risk of Danger Finding
Appellant argues the trial court erred in determining that resentencing would pose an unreasonable risk of danger to public safety. We disagree.
A. Background
At the hearing, the People submitted certified records of appellant's prior convictions and prison record. The records showed appellant was convicted in 2003 of two counts of carjacking (§ 215, subd. (a)), second degree robbery (§ 211), assault with a firearm (§ 245, subd. (a)(2)), and felony evasion (Veh. Code, § 2800.2, subd. (a)). In addition, enhancements were found true that appellant personally and intentionally discharged a firearm during one of the carjackings (§ 12022.53, subd. (c)), personally used a firearm during the other carjacking and the robbery (§ 12022.53, subd. (b)), and committed four of the offenses while released on bail (§ 12022.1, subd. (a)). Appellant was sentenced to an aggregate term of 36 years four months.
The certified records also showed that in prison, appellant lost 30 days of credit in December 2009 and 180 days in April 2010.
The trial court found appellant poses "an unreasonable risk of danger to public safety and he's serving a prison sentence in excess of 30 years. Two counts of carjacking, one count of robbery, and then his conduct in prison, at least as late as 2010 was poor. He had a 180-day credit loss. That's the maximum, my understanding, that CDCR could impose. He's got this -- he's got an assault with a firearm conviction with the use of a firearm, 12022.5. So this is not a -- this is definitely a gentleman that is poised, at some point, to commit a super strike."
B. Analysis
For purposes of Proposition 47, " 'unreasonable risk of danger to public safety' means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of [section 667, subdivision (e)(2)(C)(iv)]." (§ 1170.18, subd. (c).) "In exercising its discretion [in making this determination], the court may consider all of the following: [¶] (1) The petitioner'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. [¶] (2) The petitioner's disciplinary record and record of rehabilitation while incarcerated. [¶] (3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety." (§ 1170.18, subd. (b).) " 'The critical inquiry . . . is not whether the risk is quantifiable, but rather, whether the risk would be "unreasonable." ' " (Hall, supra, 247 Cal.App.4th at p. 1262.) We review the trial court's ruling on this issue for abuse of discretion. (Id. at p. 1264.)
"Section 667, subdivision (e)(2)(C)(iv) provides a list of felony offenses commonly known as 'super strikes.' " (Hall, supra, 247 Cal.App.4th at p. 1262.) These felonies are: "(I) A 'sexually violent offense' as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code. [¶] (II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289. [¶] (III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288. [¶] (IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive. [¶] (V) Solicitation to commit murder as defined in Section 653f. [¶] (VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245. [¶] (VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418. [¶] (VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death." (§ 667, subd. (e)(2)(C)(iv).) --------
Appellant argues the commission of a lesser crime cannot be evidence of a risk to commit a super strike. He "essentially suggests the trial court may only exercise its discretion to find an unreasonable risk to public safety when considering an offender who has previously committed a 'super strike' offense. Such offenders are already categorically eliminated from eligibility for resentencing. (§ 1170.18, subd. (i).) We cannot limit the trial court's discretion to offenders who have already committed a super strike offense without construing subdivisions (b) and (c) of section 1170.18 as meaningless surplusage." (Hall, supra, 247 Cal.App.4th at p. 1266.) Appellant's reference to studies of the homicide rate during robberies does not alter this analysis.
Appellant also relies on In re Lawrence (2008) 44 Cal.4th 1181, a case reviewing the denial of parole, to contend that his prior conviction alone is insufficient to support a finding of current danger. Assuming parole cases apply here, they do not demonstrate error. Contrary to appellant's suggestion, In re Lawrence and the companion case, In re Shaputis (2008) 44 Cal.4th 1241, did not hold that a prior offense can never constitute evidence of current dangerousness. Instead, the cases held "the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense." (In re Shaputis, at pp. 1254-1255.) "Absent affirmative evidence of a change in the prisoner's demeanor and mental state, the circumstances of the commitment offense may continue to be probative of the prisoner's dangerousness for some time in the future. At some point, however, when there is affirmative evidence, based upon the prisoner's subsequent behavior and current mental state, that the prisoner, if released, would not currently be dangerous, his or her past offense may no longer realistically constitute a reliable or accurate indicator of the prisoner's current dangerousness." (In re Lawrence, at p. 1219.)
No such affirmative evidence of a change in appellant's demeanor and mental state was present here. The trial court properly relied on appellant's violent prior convictions, and his disciplinary record in prison could give rise to a reasonable inference that he was not rehabilitating. The court's dangerousness ruling was not an abuse of discretion. (See In re Lawrence, supra, 44 Cal.4th at p. 1228 ["In some cases, such as those in which the inmate has failed to make efforts toward rehabilitation [or] has continued to engage in criminal conduct postincarceration, . . . the aggravated circumstances of the commitment offense may well continue to provide 'some evidence' of current dangerousness even decades after commission of the offense."]; Hall, supra, 247 Cal.App.4th at p. 1266 ["The trial court could reasonably infer from Hall's recent criminal behavior and repeated failure to rehabilitate that he presents an elevated—and escalating—risk of not only threatening violence, but also using deadly force."].)
DISPOSITION
The order is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.