Opinion
E071302
06-27-2019
THE PEOPLE, Plaintiff and Respondent, v. NOEL VELAZQUEZ, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF128310) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Affirmed. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
The court denied defendant and appellant, Noel Velazquez's, Penal Code section 1170.18 petition, finding defendant posed "an unreasonable risk of danger to the public safety because he [poses] an unreasonable risk to commit a super strike offense." On appeal, defendant contends the court abused its discretion. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL BACKGROUND
We previously took judicial notice of the opinion in case No. E067586, defendant's appeal of the previous denial of his petition which we reversed and remanded for further proceedings. We utilize that opinion as the primary basis for our factual recitation of the offenses for which the jury convicted defendant and the procedural posture of the case.
Shortly after midnight on February 1, 2006, as the victim was entering the residence he shared with his mother, two men in ski masks, one of whom was defendant, jumped a fence and put a gun to the victim's head. They forced him to his knees and took his car keys, cell phone, and wallet. They demanded to know who else was in the house and whether there was an alarm. The two masked men, who were both armed with guns, forced the victim into his bedroom and forced him to lie face down. The robbers repeatedly demanded to know where the victim kept the money they knew him to have.
The robbers covered the victim's head with a towel and used a computer cable they found in the victim's room to tie him up. In the process, one of the robbers began to loop the cord around the victim's neck, but, fearful of being choked, the victim bit on the cord and held it in his mouth, telling the robber to kill him by shooting, not choking. The robber told him to release the cord and struck him more than once with the butt of his gun.
At this point, the victim heard his mother scream and heard a thud, as one of the robbers had grabbed her by the neck and threw her to the floor as she came out of her bedroom to investigate the disturbance. At the direction of one of the robbers, the victim's mother locked her dog in the spare bedroom; she was then ordered to go into her room and sit on the corner of her bed. One of the robbers put a towel over her head and demanded money. He took approximately $100 from her purse; he then ransacked her room, throwing things out of her closet, and opening drawers. The robber told her he would kill her if he found money.
The victim's mother asked the robber if he knew her son, if her son owed him money, and attempted to find out why they were in her house. When the robber informed her that they had been told she had money, she responded that she did not have any money and offered to go to the ATM. The robber then asked her if she thought he was stupid and placed his gun against her left temple, asking repeatedly for the money and continuing the destruction of her bedroom. During the ransacking, the robber pounded on the walls, looking for a safe, and again put a gun to the victim's mother's head a second time, threatening to kill her if he found any money.
At one point, the robber made the victim's mother, who was only wearing a robe, go to the bathroom where he used his gun to open her robe and stared at her breasts before allowing her to put on some pants. Back in the bedroom, the robber made her bend over her bed as he stood behind her, making her fear he would rape her. At one point, the victim's mother removed the towel from her head and could see that the robber in her room had lifted his ski mask and placed a bandana around his head.
The robber eventually led the victim's mother into the spare bedroom; she saw that the victim was still on the floor with a towel over his head. The other robber was standing over him pointing a gun at him. The robber with the victim's mother then proceeded to go through the spare room. After about 15 minutes in the spare room, the robber led the victim's mother back through the hall, past the victim, and out into the garage. The robber assigned to the victim was still standing over and pointing a gun at him.
After looking around the garage, the victim's mother suggested that she had silver or crystal in the dining room; she began putting items from her hutch into a bin that had been brought in from the garage as the robber stood over her with a gun. In the kitchen, the robber collected electronic items, including laptops and a DVD player. Then the robber had the victim's mother sit in the family room while he continued searching the cabinets. Eventually, the victim, still bound with the cord, was led into the living room at gunpoint, where he was seated near his mother.
Sometime near 5:00 a.m., the unmasked robber took the victim's cell phone. Eventually, both robbers left, one driving the victim's mother's vehicle and the other driving the victim's truck. After the robbers left, the victim's mother called 911 and reported the incident.
A short time later, the police located the vehicles using a theft recovery system; they saw defendant and a companion walking nearby. When they saw the police, defendant and his companion took off running. One officer eventually tackled defendant, whom officers took into custody after a brief struggle. After his arrest, a police detective interviewed defendant, who admitted going to the victims' residence armed with a handgun; admitted guarding the victim, who was tied up and had a towel over his head; admitted pointing a gun at the victim; and admitted driving away from the residence in the victim's mother's vehicle. During a search of his person, officers found defendant in possession of methamphetamine.
The People charged defendant with two counts of first degree robbery, accomplished by using a firearm (Pen. Code, §§ 211, 212.5, 12022.53, subd. (b), counts 1-2), two counts of unlawfully driving or taking a vehicle without permission (Veh. Code, § 10851, subd. (a), counts 4-5), one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2), count 3), one count of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 6), and one count of trying to prevent an executive officer from performing a duty (Pen. Code, § 69, count 7). The information also alleged several sentencing factors in aggravation.
The jury convicted defendant on counts 1 through 6, but acquitted him on count 7. On August 17, 2007, the court sentenced defendant to 19 years in prison. As part of the sentence, the court imposed a consecutive eight months on the count 6 offense.
Defendant apparently refused to identify his coconspirator who, insofar as this record reveals, was never caught; defendant also failed to take any responsibility for the offenses.
On January 9, 2015, defense counsel filed a petition for resentencing on the count 6 offense pursuant to section 1170.18. Pursuant to the People's request, the court set a hearing for a determination of whether resentencing would pose an unreasonable risk of danger to public safety.
On December 23, 2016, the People filed opposition to defendant's petition in which they argued that, although defendant was preliminarily eligible for resentencing, the court should deny the petition because defendant posed an unreasonable risk of danger to public safety. The People argued that the offenses for which defendant stood convicted were "dangerously violent," that the victim believed the offenses were "drug motivated," and defendant had a record of discipline while incarcerated. The record of discipline included a failure to comply with orders on June 27, 2011; possession of a toothbrush with a sharpened staple on September 1, 2011, which defendant claimed was for sewing; refusal to lock down on September 20, 2015; and theft of food from the kitchen on two separate occasions.
The People maintained: "There is no doubt the defendant is likely to commit a superstrike and in fact he did in this case! The defendant and his accomplice forced [the victim], at gunpoint, into the house away from neighbors who could see and hear the commotion and be alerted to call for help. The victims were then taken from room to room at gunpoint. This defendant is not just likely to commit a super strike; he's already committed a [section] 209 [kidnapping to commit robbery] in this case."
At the hearing on October 5, 2016, the People related that the victim's mother reported that the home invasion robbery "was based on the narcotics use of the defendant. They came to the house looking for drugs. Throughout the time they were there, punching holes in the walls, kicking her things [sic]. They were asking for drugs, asking for money. They were clearly, in her personal opinion, based on her experience, high on drugs."
On December 30, 2016, defense counsel filed points and authorities regarding the standard for determining dangerousness pursuant to section 1170.18. Defense counsel noted that defendant had made strides toward self-improvement while incarcerated: defendant had attended bible study, worked toward his general equivalency diploma (GED), and had received the lowest possible classification score he was capable of receiving.
At the hearing on December 30, 2016, the court noted: "The crime is as reprehensible as it can be without killing somebody. It's the kind of terror crime that never, ever, ever leaves people. It goes on for hours. It's in their residence. But the only charge[] he's eligible for any relief on this horrible, horrible crime is Count 6 . . . ." If granted, the relief "would reduce his time by eight months." The court assumed defendant's stealing of food, in particular rice, while incarcerated was probably for the purpose of making pruno. The court observed defendant had a classification score which was the lowest which he could possibly acquire. The court noted defendant had "created a weapon out of a toothbrush and a staple" while incarcerated, which defendant described as his "quote, sewing device."
After the People maintained that it was easy to argue that defendant was likely to commit a super strike, the court interrupted to say, "Because he did." The People further argued, "Yeah. And probably attempted murder when he hog-tied the victim." The People contended defendant did not deserve the "mercy" of having his sentence reduced by eight months. The People observed there was nothing in defendant's record of incarceration which included anything about defendant undergoing drug treatment; the court agreed.
The court noted: "This is not tough for me because, in fact, he did commit a super strike. It's tough for me because when I look at the [count 6 offense], it's a separate nonviolent crime that got him eight months that occurred after the defense said he was walking to his stolen vehicle. But it is hard to—as the People said, it is hard to fathom why I would give him any break at all. Because he is the person that I put in the [two] percent category. There's—the level of vi[ci]ousness is inexcusable. You didn't—they didn't need to be as vicious as they were to accomplish whatever they thought they were accomplishing." "So I'm going to deny it based on the dangerousness. He did, in fact, commit a super strike. And as the People point out, Prop[osition] 47 is not made for him. That he does not—there is not a reason to show him any mercy. He didn't show these people any mercy, and they have to live with this the rest of their lives. [¶] So, based on what he did there, I'm going to find it as likely he will commit a super strike and deny him any relief."
Defendant appealed, contending the court abused its discretion by repeatedly stating he had already committed a super strike offense when he had never been convicted or charged with a super strike offense. Defendant additionally maintained the court erred in acting under a misapprehension of its discretion to extend to determining whether it should give defendant a "break" or show him "mercy." In an opinion dated September 27, 2017, we agreed and reversed and remanded the matter for a hearing at which the court was to make a dangerous determination based solely on defendant's record of conviction, record of incarceration, and any other relevant evidence.
On August 2, 2018, the court held the hearing on the petition on remand from this court. Defense counsel requested the court to "reconsider the points and authorities that I previously filed in this matter." Defense counsel stated: "I reiterate my arguments that I've made in previous cases, that the People have the burden of [proving] that he is going to be a danger . . . of committing a super strike." The People maintained "the facts suggest, in this case, that there's no doubt that the defendant will likely commit a super strike."
The court noted: "Without reciting all the facts, I would incorporate the facts that are recited in the Court of Appeal opinion, and just note for the record that we're talking about a residential robbery, where two masked men—one being the defendant—who both were armed with guns, forced the victim into his bedroom and forced him to lie face down, and then repeatedly demanded to know where he kept his money." "I do find that that conduct is such that he is a likely person to commit a super strike offense, and because of that is an unreasonable risk of danger to public safety."
II. DISCUSSION
Defendant contends the court abused its discretion in finding that he posed an unreasonable risk of danger to public safety. We disagree.
"Under section 1170.18, subdivision (a), a person who is currently serving a sentence for a felony conviction that would have been a misdemeanor under [Proposition 47] may petition the court that entered the judgment of conviction to recall the person's felony sentence and resentence the person as if he or she had been convicted of the misdemeanor. If the court determines that the defendant satisfies the criteria of section 1170.18, subdivision (a), the court is required to recall the felony sentence and resentence the defendant to the misdemeanor sentence, '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).)" (People v. Jefferson (2016) 1 Cal.App.5th 235, 239-240 (Jefferson).)
"For purposes of Proposition 47, an 'unreasonable risk of danger to public safety' means 'an unreasonable risk that the petitioner will commit a new violent felony' described in section 667, subdivision (e)(2)(C)(iv). [Citation.] These violent felonies are known as 'super strikes' and include murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, and any serious or violent felony punishable by death or life imprisonment. [Citation.]" (Jefferson, supra, 1 Cal.App.5th at p. 242.) A person who has already incurred a conviction for a super strike is ineligible for relief pursuant to section 1170.18. (§ 1170.18, subd. (i).)
"In determining whether there is an unreasonable risk that the defendant will commit a super strike, the court may consider: '(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.' [Citation.]" (Jefferson, supra, 1 Cal.App.5th at p. 242.) "[T]he People have the burden of proving, by a preponderance of the evidence, facts on which a finding that resentencing a petitioner would pose an unreasonable risk of danger to public safety reasonably can be based." (People v. Buford (2016) 4 Cal.App.5th 886, 893; accord, People v. Losa (2014) 232 Cal.App.4th 789, 791.)
"We review a dangerousness finding for an abuse of discretion, given that the court is statutorily required to determine dangerousness 'in its discretion.' [Citation.] 'Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion "must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]"' [Citation.] The abuse of discretion standard 'involves abundant deference' to the court's ruling. [Citation.]" (Jefferson, supra, 1 Cal.App.5th at pp. 242-243 [court did not abuse its discretion in finding the defendant posed an unreasonable risk of committing a super strike where the defendant had previously been convicted of several offenses as a result of an armed home robbery, had incurred extensive administrative discipline while incarcerated, violated parole on 10 occasions, and was convicted of burglary while on parole]; accord, People v. Hall (2016) 247 Cal.App.4th 1255, 1264-1265 [court acted within its discretion in finding the defendant posed an unreasonable risk of committing a super strike where the defendant had an increasingly violent criminal record consisting of seven separate criminal convictions, including two robberies, two strike convictions, and a crime committed while on probation, two offenses which involved threats to kill the victims].)
Here, the court acted within its discretion in finding that defendant posed an unreasonable risk of danger to public safety due to the likelihood he would commit a super strike offense. The parties acknowledged the court was well versed in the facts and procedural history of defendant's case. The court noted some of the facts underlying defendant's conviction. The court noted for the record that defendant was a residential robber who was armed with a gun, who forced the victim into his bedroom, who forced him to lie face down, and who then repeatedly demanded to know where he kept his money.
Defendant stood convicted of two counts of first degree robbery, accomplished by using a firearm; two counts of unlawfully driving or taking a vehicle without permission; one count of assault with a firearm; and one count of possessing methamphetamine. Assuming the veracity of defendant's admission, we know that he was the one who guarded, helped tie up, struck, and directed the movement of the victim. Defendant helped tie the victim with a cord, which ended up looped around the victim's neck, which frightened the victim into believing he was going to be choked to death. Defendant struck the victim with the butt of defendant's gun at least twice.
As the People noted, the evidence would have supported a conviction for kidnapping to commit robbery, a crime punishable by life imprisonment, i.e., a super strike offense. (§ 209, subd. (b)(1); People v. Ledesma (2017) 14 Cal.App.5th 830, 836 [asportation requires "movement beyond that which is incidental to the underlying crime and movement that increases the risk of harm to the victim . . . ."].) Here, to facilitate the robbery, defendant, pointing a gun at the victim, first forced the victim into his bedroom and later led the victim, bound with a cord, into the living room.
We also note that defendant could have been charged and convicted as an aider and abettor to all the offenses the other robber committed against the victim's mother. (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) Here, this would have included an additional conviction for kidnapping to commit robbery, another super strike offense. Defendant's accomplice, who was also armed, directed the victim's mother to lock her dog in the spare bedroom; ordered her to go into her room and sit on the corner of her bed; led her into the spare bedroom, led her back through the hall, past the victim and out into the garage; directed her to sit in the family room while he continued searching the cabinets; and finally led her into the living room, all to facilitate the robbery. Defendant's accomplice threatened to kill the victim's mother. Defendant likewise could have been charged and convicted as an aider and abettor of sexual battery. (§ 243.4.) Defendant's accomplice opened the victim's mother's robe with his gun, stared at her breasts, and made her bend over her bed as he stood behind her, causing her to fear he would rape her. Thus, considering both defendant's criminal history and other relevant evidence, the court acted within its discretion in finding defendant posed an unreasonable risk of danger to public safety.
Defendant asks that we compare the facts of the instant case with the facts of Jefferson, supra, 1 Cal.App.5th 235, where this court likewise found the defendant posed an unreasonable risk of danger to public safety. We agree with defendant that the facts in Jefferson are much worse than those of the instant case; however, Jefferson did not establish a minimum quantum of proof necessary to establish a finding that a defendant poses an unreasonable risk of danger to public safety. Moreover, even defendant acknowledges that the defendant in Jefferson had reduced his security assessment score to the same score as defendant. (Jefferson, supra, at p. 244.) Thus, we find Jefferson inapposite to our analysis.
In Hall, the court upheld the trial court's dangerousness determination in which the court stated: "'So in two instances, I've got what I think can be fairly recognized as circumstantial evidence of an individual who has the present capacity to, and presumably the willingness to use deadly force. [¶] And if I look at those factors and if I look at how contemporaneous those incidents are in time to the request being made today, . . . [¶] . . . I think . . . a reasonable inference can be drawn that [Hall ] is in fact ready, willing, and able to commit one of those super strikes if . . . one of his victims doesn't comply with his unreasonable and unlawful demands.' (Italics added.)" (People v. Hall, supra, 247 Cal.App.4th at p. 1265.) Here, defendant actually used what could be described as at least force likely to cause great bodily injury, if not, force likely to cause death. Thus, considering all the relevant evidence, the court could have legitimately made a reasonable inference that defendant was ready, willing, and able to commit a super strike offense.
Defendant contends his youth, age 22 at the time he committed the offenses, should mitigate a decision in his favor; however, the defendant in Jefferson was 20, even younger than defendant, when he committed the underlying crimes which formed the basis for the court's determination of dangerousness which this court upheld. (Johnson, supra, 1 Cal.App.5th at p. 243.) Thus, the court acted within its discretion by denying defendant's petition.
III. DISPOSITION
The matter is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.