Opinion
F067805
02-05-2015
The PEOPLE, Plaintiff and Respondent, v. Timothy James RODRIGUEZ, Defendant and Appellant.
Sylvia Whatley Beckham, Ojai, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
Sylvia Whatley Beckham, Ojai, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DETJEN, J. INTRODUCTION
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 (e), 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, 151 Cal.Rptr.3d 901.)
Further statutory references are to the Penal Code unless otherwise stated.
After the Act went into effect, Timothy James Rodriguez (defendant), an inmate serving a term of 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. The trial court found defendant was “not disqualified from resentencing,” but declined to resentence him due to the risk of danger to public safety.
In the published portion of this opinion, we hold the court did not err by failing to appoint an expert on the issue of current dangerousness. In the unpublished portion, we conclude the trial court did not use the wrong legal standard, misallocate the burden of proof, or abuse its discretion by denying the petition. We also conclude recently enacted section 1170.18, subdivision (c) does not modify section 1170.126, subdivision (f). We affirm.
See footnote *, ante .
DISCUSSION
Defendant says he is entitled to a remand for reconsideration of his petition, because the sentencing court (1) applied the wrong legal standard; (2) misallocated the burden of proof; (3) abused its discretion in considering the evidence, because it engaged in unfounded speculation without obtaining an expert evaluation; and (4) abused its discretion by denying relief based solely on defendant's remote history of recidivism. In conjunction with the last claim, defendant says the court's ruling is not supported by sufficient evidence, because his remote recidivist behavior did not preponderate over the extensive evidence of his more recent exemplary behavior and accomplishments. We disagree that remand is required.
See footnote *, ante .
Failure to Obtain Expert Evaluation
Defendant says resentencing him as a second strike offender would have released him on postrelease community supervision (PRCS). (See § 3451; People v. Tubbs (2014) 230 Cal.App.4th 578, 585–586, 178 Cal.Rptr.3d 678 ; People v. Espinoza (2014) 226 Cal.App.4th 635, 637–638, 172 Cal.Rptr.3d 77.) Thus, he argues, the court was confronted with a situation similar to the decision whether to grant parole to a life prisoner (see § 3041); in that context, current psychological evaluations are generally most relevant to an assessment of current dangerousness (see In re Lawrence (2008) 44 Cal.4th 1181, 1223–1224, 82 Cal.Rptr.3d 169, 190 P.3d 535 ), and the court here erred by failing to enlist, sua sponte, the assistance of an expert. Defendant says the court abused its discretion by engaging in unfounded speculation concerning, and relying on its own nonexpert estimation of, defendant's psychological state with respect to whether defendant was still prone to reoffending outside the custodial setting.
Defendant cites Evidence Code section 730 for the proposition an expert may be appointed by a court sua sponte for the purpose of obtaining an impartial expert opinion. (See Mercury Casualty Co. v. Superior Court (1986) 179 Cal.App.3d 1027, 1032, 225 Cal.Rptr. 100.) That statute “does not authorize the appointment of experts after trial in connection with sentencing proceedings.” (People v. Stuckey (2009) 175 Cal.App.4th 898, 905, 96 Cal.Rptr.3d 477 ; id. at p. 913, 96 Cal.Rptr.3d 477.) Regardless of whether a proceeding under section 1170.126 is likened to a trial or is part of a sentencing proceeding, “a trial court has inherent power, independent of statute, to exercise its discretion and control over all proceedings relating to the litigation before it [citation],” including “the power to obtain evidence upon which the judgment of the court may rest [citation].” (Johnson v. Banducci (1963) 212 Cal.App.2d 254, 260, 27 Cal.Rptr. 764 ; see Rutherford v. Owens–Illinois, Inc. (1997) 16 Cal.4th 953, 967, 67 Cal.Rptr.2d 16, 941 P.2d 1203.) Thus, it appears a court could appoint an expert, on its own motion, to conduct an evaluation concerning the risk of danger currently posed to public safety by an inmate seeking resentencing under the Act. However, “[t]he decision on the need for the appointment of an expert lies within the discretion of the trial court and the trial court's decision will not be set aside absent an abuse of that discretion. [Citations.]” (People v. Gaglione (1994) 26 Cal.App.4th 1291, 1304, 32 Cal.Rptr.2d 169, disapproved on other grounds in People v. Martinez (1995) 11 Cal.4th 434, 452, 45 Cal.Rptr.2d 905, 903 P.2d 1037 & People v. Levesque (1995) 35 Cal.App.4th 530, 539, 41 Cal.Rptr.2d 439 ; accord, People v. Vatelli (1971) 15 Cal.App.3d 54, 61, 92 Cal.Rptr. 763 ; see In re Eric A. (1999) 73 Cal.App.4th 1390, 1394, fn. 4, 87 Cal.Rptr.2d 401.) Whatever the similarities between the decisions whether to resentence under the Act and to grant parole to an inmate serving a life term, appointment of an expert did not fall outside the bounds of reason in this case. The question before the court was whether resentencing defendant would pose an unreasonable risk of danger to public safety. Given the information already before the court—all of which the court considered—the court reasonably could make the required determination itself, without the input of an expert. As has been stated in the context of a claim the word “unreasonable” is impermissibly vague, “Surely a superior court judge is capable of exercising discretion, justly applying the public safety exception, and determining whether a lesser sentence would pose an unreasonable risk of harm to the public safety. [Citation.]” (People v. Flores (2014) 227 Cal.App.4th 1070, 1075, 174 Cal.Rptr.3d 390.)
Evidence Code section 730 provides, in relevant part: “When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court ..., the court on its own motion ... may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required.”
In re Lawrence, supra, 44 Cal.4th 1181, 82 Cal.Rptr.3d 169, 190 P.3d 535, does not hold to the contrary. In that case, the Governor reversed a parole grant in part based on negative language found in early psychiatric evaluations of the inmate that suggested the inmate's release would pose an unreasonable risk of danger to the public. (Id. at pp. 1190, 1223, 82 Cal.Rptr.3d 169, 190 P.3d 535.) The California Supreme Court rejected the Governor's conclusion, stating: “[T]he passage of time is highly probative to the determination before us, and reliance upon outdated psychological reports—clearly contradicted by [the inmate's] successful participation in years of intensive therapy, a long series of reports declaring [the inmate] to be free of psychological problems and no longer a threat to public safety, and [the inmate's] own insight into her participation in this crime—does not supply some evidence justifying the Governor's conclusion that [the inmate] continues to pose a threat to public safety.” (Id. at p. 1224, 82 Cal.Rptr.3d 169, 190 P.3d 535.)
See footnote *, ante .
The judgment is affirmed.
I CONCUR:
LEVY, Acting P.J.
I CONCUR IN PART III:
PEÑA, J.
PEÑA, J.
I respectfully dissent from parts IV and V of the majority opinion. I agree the trial court could, but was not required to, appoint an expert to evaluate defendant Timothy James Rodriguez on the question of his current dangerousness. I would remand the matter for resentencing, however, because it appears the trial court abused its discretion in denying resentencing on grounds unsupported by the evidence. A remand would permit the trial court to consider any changed circumstances establishing unreasonable risk of dangerousness since the original hearing date of August 2, 2013. This would include the recent clarification of the meaning of the phrase “unreasonable risk of dangerousness” by Proposition 47's enactment of Penal Code section 1170.18, subdivision (c) (§ 1170.18(c) ).
The Safe Neighborhood and Schools Act (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014)).
Analysis
On February 22, 2000, defendant was arrested with five bindles of heroin. He pled guilty to the crime of possession of heroin for sale in September of 2000 and was sentenced to 25 years to life on November 9, 2000, based on prior “strike” convictions for robbery in 1984 and a first degree burglary in 1992. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(e).) Between the current charge and the 1992 burglary “strike,” he suffered a misdemeanor drug conviction in 1994 and a misdemeanor resisting or delaying arrest in violation of Penal Code section 148 in 1998. He filed his petition for resentencing on November 13, 2012, and his petition was heard on August 2, 2013, roughly 13 and one-half years since his heroin possession for sale offense. Since that time, defendant suffered no new convictions, no disciplinary violations in prison, and no “write-ups,” not one. Instead, defendant obtained his GED and was awarded certificates of completion for various courses of academic education. He worked in the prison as a porter and a teacher's aid and was recognized as “an outstanding worker.” He was a member in good standing of the “Lifers Group,” he had outstanding attendance in the 12–step recovery program of Narcotics Anonymous beginning in 2005, and he completed phases 1 and 2 of the Victim Awareness Offenders Program. He was 59 years old at the time of the hearing.
The prosecutor agreed defendant was a “model prisoner.” He argued against resentencing, however, based on defendant's “history of petty theft,” which he called a “petty theft problem,” and his escalating history of crime, referring to his robbery in 1984 and his residential burglary in 1992. He repeatedly emphasized this, concluding:
“[Prosecutor]: Addressing specifically, if it's—what exactly the term ‘public safety’ means. There is room, I think, to look at the safety of having your belongings, you know, kept secure. But more so, what we see here is an escalation in how property is obtained.
“We're just not dealing with a history of petty theft. I think we can see from the record we have a petty theft problem. But then we see that some times it escalates—it's escalated [into] counts of 211 in 1984 and to a 459 first degree in 1992. So it has escalated, these property crimes, into crimes in which we do have what's considered violent and serious felonies.
“More so too, if you look at the—it extends his entire life from 1972, I believe when he was 19 years old. And then in 1998, we still have a 148 PC, resisting an officer, until the present offense in 2000, and there's just—either the defendant seems to be in prison or in jail or he seems to be violating some law. This is a great concern because I think there's a difference between cases where you have two strikes and no other record, and I've seen those, and cases where you have two strikes and a dozen other offenses.
“I think when looking at who's a reasonable danger to society, you have to look and see are we dealing with a fundamental issue with the individual where he has shown that all modes of rehabilitation when outside of prison have failed and they escalate. And in this case, they have escalated in both occasions into robberies and then into first degree burglaries as well.”
“So our concern isn't so much how the defendant behaves in prison, our concern is what has consistently happened when released from prison, and not just a safety of property but when it escalates into these actual violent serious crimes as it has in the past.”
The evidence does not, however, support a finding of an escalation in defendant's commission of crime since his strike convictions. Instead, as noted above, since his 1992 residential burglary, defendant's crimes have deescalated with defendant committing two misdemeanors and a felony possession for sale of heroin in early 2000, resulting in his life sentence.
Unfortunately, in denying resentencing, the court adopted the prosecutor's unsupported reasoning of an escalating pattern of criminal conduct:
“The Court : [A]s mentioned by the People, we've seen an escalation even without crime during that period 1979 to 1984, the fact that we have the felony first degree burglary in 1992.
“So I'm not going to find that he does not present a danger to reoffend or to present a danger to society or to safety of the public. I find there is a reasonable risk of danger if he would be released on that basis.
“As noted by the People, there has been an escalation in the type of crime, so that is my finding, based upon the information provided.
“I am aware of the Lawrence case and Shaputis. And I think Shaputis was also cited by the People as well. And looking at whether the circumstances of his commitment offenses were considered, I have considered those. And his offenses are of concern because it has escalated.
“If it was just a crime, not serious or violent, we wouldn't be here in the first place but he's got a consistent series of crimes during the time he's out. The greatest period of which he was without crime was the one that was just mentioned by the defense. So I'm not ordering that he be resentenced.”
Setting aside the fact the standard provided by the law requires a finding of “unreasonable risk of danger” not “reasonable risk of danger,” which might be attributed to the court simply misspeaking, the facts do not support the conclusion. It seems clear the evidence does not support a finding of “an escalation in the type of crime,” which the court's statements appeared to show was the critical finding it relied upon to deny resentencing. “A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence.” (People v. Cluff (2001) 87 Cal.App.4th 991, 998, 105 Cal.Rptr.2d 80.) Consequently, the trial court abused its discretion by denying resentencing on the grounds of “an escalation of crimes.”
Defendant has not had “an escalation” of crimes since his last strike—the residential burglary in 1992, which he committed before the three strikes law was enacted. Defendant has gone 21 years without an escalation in crime since his residential burglary conviction in 1992. Rather, the opposite is true—his crimes since 1992 (two misdemeanors and felony drug possession for sale) signaled a retreat from violent or serious felonies. In fact, defendant had no crimes for the previous 13 and one-half years. Although in custody during that time, defendant has had no violations of any sort during that period.
It is true defendant had a history of theft crimes and other violations up until 2000, when he received his “Three Strikes” sentence. However, this is only one of many factors the trial court may consider in the exercise of its discretion to resentence under Penal Code section 1170.126, subdivision (g). More importantly, the trial court may not rely on factors unsupported by the evidence that are critical to its decision, as occurred here. (People v. Cluff, supra, 87 Cal.App.4th at p. 998, 105 Cal.Rptr.2d 80 ; In re Robert L. (1993) 21 Cal.App.4th 1057, 1068, 24 Cal.Rptr.2d 654 [court's apparent concern with the possibility grandparents might obstruct reunification was wholly speculative and therefore an abuse of discretion because it lacked any reasonable basis in the record]; Stack v. Stack (1961) 189 Cal.App.2d 357, 368, 11 Cal.Rptr. 177 [“It would seem obvious that, if there were no evidence to support the decision, there would be an abuse of discretion”].) Therefore, the matter should be remanded for resentencing unless the record shows changed circumstances establishing unreasonable risk of dangerousness since the hearing date of August 2, 2013.
In addition, I would direct the trial court to apply the current definition of “unreasonable risk of danger” in its resentencing hearing, as provided in section 1170.18(c). I respectfully disagree with the majority's analysis that section 1170.18(c) has no application to resentencing under Proposition 36, the Three Strikes Reform Act of 2012 (the Act).
Section 1170.18(c) provides: “As used throughout this Code, ‘unreasonable risk of danger to public safety’ means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.”
This section and subdivision were enacted on November 4, 2014, when California voters passed Proposition 47, and went into effect the next day (Cal. Const., art II, § 10, subd. (a).) Thus, it would apply to a new resentencing hearing under the Act.
“ ‘When construing a statute, we must “ascertain the intent of the Legislature so as to effectuate the purpose of the law.” ’ [Citations.] ‘[W]e begin with the words of a statute and give these words their ordinary meaning.’ [Citation.] ‘If the statutory language is clear and unambiguous, then we need go no further.’ [Citation.] If, however, the language supports more than one reasonable construction, we may consider ‘a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.’ [Citation.] Using these extrinsic aids, we ‘select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ [Citation.]” (People v. Sinohui (2002) 28 Cal.4th 205, 211–212, 120 Cal.Rptr.2d 783, 47 P.3d 629.)
Where the statutory language is so clear and unambiguous, there is no need for statutory construction or to resort to legislative materials or other outside sources. (Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366, 1371, 64 Cal.Rptr.2d 741.) Absent ambiguity, it is presumed the voters intend the meaning apparent on the face of an initiative measure, and the courts may not add to the statute or rewrite it to conform to a presumed intent not apparent in its language. (People v. ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 301, 58 Cal.Rptr.2d 855, 926 P.2d 1042.)
In determining whether the words enacted here are unambiguous, we do not write on a blank slate. For example, in Marshall v. Pasadena Unified School Dist. (2004) 119 Cal.App.4th 1241, 1255, 15 Cal.Rptr.3d 344, the court stated there “is nothing ambiguous about the phrase ‘as used in this code.’ ” It held the definition of “Emergency, as used in this code” applied to the entire Public Contract Code, and it was not limited to a particular chapter, article, or division of that code. Also, in People v. Bucchierre (1943) 57 Cal.App.2d 153, 166, 134 P.2d 505, the court held: “The words ‘as in this code provided’ (Penal Code, § 182 ) refer to the Penal Code.” Thus, the plain meaning rule and stare decisis dictate the conclusion that the definition provided in section 1170.18(c) applies to resentencings under the Act.
In a similar vein, the California Supreme Court in People v. Leal (2004) 33 Cal.4th 999, 1007–1008, 16 Cal.Rptr.3d 869, 94 P.3d 1071, applied the plain meaning rule as follows:
“The statutory language of the provision defining ‘duress' in each of the rape statutes is clear and unambiguous. The definition of ‘duress' in both the rape and spousal rape statutes begins with the phrase, ‘As used in this section, “duress” means....' ( [Pen.Code,] §§ 261, subd. (b), 262, subd. (c).) This clear language belies any legislative intent to apply the definitions of ‘duress' in the rape and spousal rape statutes to any other sexual offenses.
“Starting from the premise that in 1990 the Legislature incorporated into the rape statute a definition of ‘duress' that already was in use for other sexual offenses, defendant argues that the Legislature must have intended its 1993 amendment of the definition of ‘duress' in the rape statute, and the incorporation of this new definition into the spousal rape statute, to apply as well to other sexual offenses that use the term ‘duress.’ Defendant observes: ‘The legislative history does not suggest any rationale for why the Legislature would want its 1993 amendment of the definition of “duress” to apply only to rape so that it would have one meaning when the rape statutes use the phrase “force, violence, duress, menace, or fear of immediate and unlawful bodily injury” but another, much more expansive meaning when the identical phrase is used in the statutes defining sodomy, lewd acts on a child, oral copulation and foreign object rape.’
“But the Legislature was not required to set forth its reasons for providing a different definition of ‘duress' for rape and spousal rape than has been used in other sexual offenses; it is clear that it did so. ‘When “ ‘statutory language is ... clear and unambiguous there is no need for construction, and courts should not indulge in it.’ ” [Citations.] The plain meaning of words in a statute may be disregarded only when that meaning is “ ‘repugnant to the general purview of the act,’ or for some other compelling reason....” [Citations.]' [Citation.] As we said in an analogous situation: ‘It is our task to construe, not to amend, the statute. “In the construction of a statute ... the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or omit what has been inserted....” [Citation.] We may not, under the guise of construction, rewrite the law or give the words an effect different from the plain and direct import of the terms used.’ [Citation.]”
Because the Act had not previously defined the phrase “unreasonable risk of danger to public safety,” the definition in section 1170.18(c) cannot be repugnant or contradictory to the Act, nor is there a compelling reason not to apply the plain meaning rule here. Consequently, this new definition would apply to any resentencing hearings under the Penal Code, including the Act, after November 4, 2014.
While I agree with the majority opinion that section 1170.18(c) has no retroactive application to pending appellate cases, because I conclude a remand for resentencing is necessary here, section 1170.18(c) would apply prospectively to such a resentencing hearing if held after November 4, 2014.