Opinion
A148535
09-19-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTOINE THOMAS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FCR241350)
I. INTRODUCTION
Antoine Thomas appeals from a postjudgment order denying his petition to recall his sentence under Penal Code section 1170.126, a provision of the Three Strikes Reform Act of 2012 that was enacted pursuant to Proposition 36 (the Act or Proposition 36). Appellant contends the order must be reversed because the trial court's finding that he poses an unreasonable risk of danger to public safety was legally flawed and factually unsupported.
Statutory references are to the Penal Code unless otherwise stated. Also, we have adopted the spelling of appellant's first name ("Antoine") from the notice of appeal prepared by defense counsel in this case. We note, however, that appellate counsel has used a different spelling ("Antione") in the appellate briefs. We further note that the spelling of appellant's first name is inconsistent throughout the trial court record before us. For those reasons, we are unable to discern which of the two spellings is correct.
Specifically, appellant argues that the trial court erred by failing to apply the legal standard for assessing dangerousness set forth in section 1170.18, subdivision (c), which was enacted pursuant to Proposition 47. We reject this contention in light of our Supreme Court's recent decision in People v. Valencia (2017) 3 Cal.5th 347 (Valencia). Alternatively, appellant contends the trial court erred by imposing the burden on him to prove that he is not currently dangerous. However, the record shows otherwise. Finally, appellant contends the trial court used incorrect criteria to determine that he poses an unreasonable risk of danger to public safety because the record does not contain affirmative evidence that appellant currently poses an unreasonable risk of engaging in violence if he is released from prison. Appellant contends this requirement applies in parole eligibility cases and also restricts a trial court's discretion under Proposition 36. We disagree with this argument. Accordingly, we affirm the challenged order.
II. BACKGROUND
A. Appellant's Current Sentence
Appellant is currently serving an aggregate prison sentence of 60 years to life resulting from his convictions in two unrelated cases. The jury verdicts and sentences in these two cases resulted in a single judgment that was affirmed by this court in January 2013. (People v. Thomas (Jan. 9, 2013) A132523, A134344 [nonpub. opn.].) We take judicial notice of our prior opinion in this case, which is the source of our summary of appellant's current offenses. (Evid. Code, § 452.)
Case No. FCR241350: In April 2007, Fairfield police officers were investigating reports of illegal narcotics sales when they observed suspicious activity among pedestrians and occupants of a parked car. Officers approached the car, smelled a strong odor of marijuana and subsequently searched the car and occupants. Appellant, who was in the back seat of the car, possessed several rocks of cocaine and other indicia that he was selling drugs. In December 2010, a jury convicted appellant of felony possession of cocaine base for sale. (Health & Saf. Code, § 11351.5.) The jury also found that he had seven prior "strike" convictions (§ 667, subds. (b)-(i), § 1170.12, subds. (a)-(d)), and had served one prior prison term (§ 667.5, subd. (b)).
Case No. FCR271880: In October 2009, two men robbed a Chuck E. Cheese restaurant in Fairfield. One of the assailants used a gun to force an employee to empty the contents of a safe into a pillow case. The robbery was captured on video. A restaurant employee and another reluctant witness identified appellant as the assailant with the gun who took the pillowcase full of money. A jury found appellant guilty of second degree robbery (§ 211), and that he personally used a handgun during the commission of the offense (§ 12022.5, subd. (a)(1), § 12022.53, subd. (b)). The jury also found that appellant had suffered four prior "strike" convictions (§ 667, subds. (b)-(i), § 1170.12, subds. (a)-(d)).
On May 23, 2011, appellant was sentenced in both of these cases. In case FCR241350 (the drug case), the court sentenced appellant to an indeterminate term of 25 years to life pursuant to the three strikes law. In case FCR271880 (the robbery case), appellant was sentenced to an additional indeterminate term of 25 years to life, plus a consecutive term of 10 years for personal use of a handgun.
B. Proposition 36
On November 6, 2012, voters approved Proposition 36, which changed "the requirements for sentencing a third strike offender to an indeterminate term of 25 years to life imprisonment." (People v. Yearwood (2013) 213 Cal.App.4th 161, 167 (Yearwood).) Under the version of the three strikes law that was in effect when appellant's current sentence was imposed, a recidivist with two or more prior strikes who was convicted of any new felony was subject to an indeterminate life sentence. (See id. at p. 167.) "The Act diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike offender. [Citations.]" (Id. at p. 168.)
"The Act also created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126.)" (Yearwood, supra, 213 Cal.App.4th at p. 168.)
Under the statutory procedure set forth in the Act, resentencing does not automatically follow from eligibility. Instead, if a petitioner meets the statutory eligibility requirements, section 1170.126, subdivision (f) provides that he or she must be resentenced to a second strike term unless the trial court, "in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." Section 1170.126, subdivision (g) further provides: "In exercising its discretion in subdivision (f), 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; and [¶] (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."
The Act contains a provision requiring that petitions for resentencing under Proposition 36 be filed within two years after the Act went into effect, absent a showing of good cause for filing a petition after that date. (§ 1170.126, subd. (b).) The Act went into effect on November 7, 2012, the day after Proposition 36 was approved by California voters. (See Cal. Const., art. II, § 10, subd. (a).) Thus, absent good cause, the last day to file a petition under Proposition 36 was November 7, 2014.
C. Appellant's Proposition 36 Petition
On November 7, 2014, appellant filed a petition to recall his sentence in his drug case and to resentence him under Proposition 36. Appellant argued he was eligible to be sentenced as a second strike offender because his drug conviction was not a serious or violent felony as defined by the Act, and he had not been convicted of any disqualifying offenses. (See § 1170.126, subd. (e).) Appellant acknowledged that his robbery conviction was a serious felony, which precluded resentencing in that case. He also recognized that the robbery conviction might influence the court's determination whether appellant posed an unreasonable danger to public safety, but he maintained that the robbery conviction did not render him ineligible for resentencing for his drug conviction, which was a nonserious, nonviolent felony under the Act. (Citing People v. Machado (2014) 226 Cal.App.4th 1044 (Machado).)
When appellant filed his petition, this issue was not yet settled. In fact, Machado had been depublished and superseded by grant of review. (People v. Machado (review granted July 30, 2014, S219819.) Ultimately, though, our Supreme Court affirmed the decision in Machado, holding that "the presence of a conviction of a serious or violent felony does not disqualify an inmate from resentencing with respect to a current offense that is neither serious nor violent." (People v. Johnson (2015) 61 Cal.4th 674, 679.)
Appellant also argued that resentencing him as a second strike offender in his drug case would not pose an unreasonable risk of danger to public safety under section 1170.126, subdivision (f). As support for this argument, appellant stated that he expected to be exonerated in the robbery case and, if that happened, "there would be no evidence of violence in the past 20 years." Appellant further alleged that he arranged for housing, employment, counseling and other services to assist him once he was released from prison. As proof of these arrangements, appellant produced letters of support from family, friends and others who offered to assist him.
On June 5, 2015, the People filed formal opposition, urging the trial court to exercise its discretion to deny appellant's petition on the ground that resentencing him under the Act would pose an unreasonable risk of danger to public safety. The People relied on evidence of appellant's felony history dating back to 1995 when, at the age of 18, he was convicted of robbery and multiple assaults with a firearm arising out of a bank robbery. In 2005, only a few months after completing his sentence, appellant violated parole. In 2007, he committed the current drug offense, and while that charge was pending, he continued to commit crimes. In June 2009, he was arrested for firearm possession; driving in wanton disregard for the safety of people and property while attempting to flee from police; possession of a controlled substance while armed; and transportation of a controlled substance. Appellant's most recent crime was the October 2009 armed robbery of the Chuck E. Cheese. Ultimately, the People argued that appellant's long list of crimes, which included convictions for serious and violent felonies, and the fact that appellant "failed miserably at remaining free from custody," demonstrated the substantial risk that he posed to the community.
D. The Trial Court's Ruling
At an April 29, 2016 hearing on the petition, appellant presented testimony from several witnesses. His older sister, Sharena Thomas-Curley, testified that she could help appellant secure employment in her field of work, which involved survivor skills training. Several friends of Thomas-Curley testified in support of appellant's release, one vouching for his "good heart"; another offering employment at a graphic design company; and a third offering to provide "life coaching." Thomas-Curley's minister testified he would help appellant find housing.
At the hearing, appellant's counsel requested that the court also consider letters of support that appellant had submitted previously, as well as appellant's file from the California Department of Corrections and Rehabilitation (CDCR), which demonstrated that he had not been involved in gang activities or violent altercations while in prison. Counsel argued that this evidence demonstrated that appellant did not pose an unreasonable risk of danger. Counsel further argued that, as a practical matter, the only effect of granting the petition would be to give appellant a meaningful opportunity to become eligible for parole during his lifetime, as he would still have to serve his third strike sentence in the robbery case.
During the hearing, the prosecutor conceded appellant was eligible for resentencing in his drug case, but argued the petition should be denied because he posed an unreasonable risk of danger to public safety, emphasizing his extensive criminal history culminating in the violent 2009 robbery. Furthermore, appellant had spent most of his life in prison; he was 18 when he was sentenced to a 10-year prison term and "he wasn't out for very long before he started committing these offenses."
The prosecutor pointed out that appellant had been forced to abandon his original theory that he would be exonerated of the robbery because during the period since the petition was filed, appellant had made numerous unsuccessful requests to be found factually innocent of the Chuck E. Cheese robbery.
On May 2, 2016, the trial court denied appellant's petition, finding that "based on the totality of the believable evidence that's been presented, [appellant] is a person who poses an unreasonable risk of danger to public safety." First, the court found that people who testified and/or wrote letters on behalf of appellant were either biased or lacked foundation to offer opinions about him. Aside from appellant's sister "whose bias [was] obvious," the other witnesses did not know appellant personally, but only through his sister. Second, the court stated that it had no information about appellant's conduct in prison. Third, the court believed that the best indication of future dangerous was past behavior and in this case appellant's "[p]ast behavior is very violent and very dangerous and it shows a disregard for others." The court briefly reviewed appellant's conviction record, highlighting a reckless driving felony, which showed that appellant "could care less about anybody else other than himself," and the Chuck E. Cheese robbery, "where [appellant] used a handgun during the robbery, [and] terrorized the individual." Finally, the court concluded it did not "see any" evidence to support a finding that appellant did not "represent an unreasonable risk of danger to others."
On May 3, 2016, appellant filed a request for reconsideration, which was heard on May 12. Appellant's counsel requested that the court consider appellant's CDCR file as evidence in support of the petition, pointing out that the court had previously indicated it had not seen that file. The prosecutor argued that the prison records did not alter the conclusion that appellant was dangerous. The court agreed to review the records.
On May 16, 2016, the court filed an order, which stated: "The Court, after review of the additional documents submitted by the Petitioner, i.e., the selected records from the California Department of Corrections and Rehabilitation, again denies the petition. The additional documents provide further evidence that the Petitioner represents a substantial danger to society should he be released. The additional records reveal a minimum of three C.D.C. 115's and other Rules violations. Even in custody, the Petitioner does not comply with the rules. Further, he has been hostile, aggressive, disruptive, and profane with both staff and other inmates."
III. DISCUSSION
A. Issues on Appeal
As discussed, there is no dispute in this case that appellant is eligible for resentencing under the Act. If a petitioner meets the statutory eligibility requirements for resentencing under Proposition 36, section 1170.126, subdivision (f) provides that he or she must be resentenced to a second strike term unless the trial court, "in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." Because section 1170.126 vests " 'discretionary power . . . in the trial court,' " the court's " '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. [Citation.]" ' [Citations.]" (People v. Williams (2013) 58 Cal.4th 197, 270-271 (Williams).)
Appellant contends the trial court abused its discretion in two ways. First, it failed or refused to apply the definition of an "unreasonable risk of danger to public safety" that is set forth in section 1170.18, subdivision (c), which was added to the Penal Code as part of Proposition 47. Second, the court allegedly failed to hold the prosecution to its burden of proving that appellant is currently dangerous.
B. Proposition 47 Does Not Apply
Proposition 47, approved by voters on November 4, 2014, "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. Lynall (2015) 233 Cal.App.4th 1102, 1108; see also People v. Diaz (2015) 238 Cal.App.4th 1323, 1328.)
" 'Proposition 47 also created a new resentencing provision: section 1170.18. 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).) 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).)' [Citation.]" (People v. Contreras (2015) 237 Cal.App.4th 868, 891.)
Section 1170.18 subdivision (c) states: "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." The referenced provision of section 667 contains a list of specific felonies including certain sexually violent offenses and sex offenses against young minors; homicide offenses; solicitation to commit murder; assault on a peace officer with a machine gun; possession of a weapon of mass destruction; and offenses punishable by life imprisonment or death. (§ 667, subd. (e)(2)(C)(iv).)
In his appellate briefs, appellant argues that the trial court abused its discretion by failing to apply the definition of an unreasonable risk of danger to public safety set forth in section 1170.18, subdivision (c) when it adjudicated appellant's Proposition 36 petition. As support for this claim, appellant relies on language in section 1170.18, subdivision (c), which states: "As used throughout this Code, 'unreasonable risk of danger to public safety' means . . . ." Pointing out that section 1170.126, subdivision (f) is part of the Penal Code, and that this provision of Proposition 36 uses the term "unreasonable risk of danger to public safety," appellant argues that term must necessarily be defined in accordance with section 1170.18, subdivision (c).
After this appeal was fully briefed, our Supreme Court decided Valencia, supra, 3 Cal.5th 347, which holds that "Proposition 47 did not amend the Three Strikes Reform Act." (Valencia, at p. 352.) As part of its analysis, the Valencia court rejected the interpretation of the "As used throughout this Code" language in section 1170.18, subdivision (c) that appellant advanced in his appellate briefs. (Valencia, at pp. 360-362.) Ultimately, the court concluded that section 1170.18, subdivision (c)'s definition of an unreasonable risk of danger to public safety applies "only to the resentencing proceedings that are authorized under Proposition 47." (Valencia, at pp. 373-375.)
As appellant's counsel conceded during oral argument before this court, Valencia undermines appellant's claim that he was entitled to the benefit of the narrow definition of dangerousness set forth in section 1170.18, subdivision (c). Accordingly, we hold the trial court did not err by failing to apply that definition when it exercised its discretion under section 1170.126, subdivisions (f) and (g) to determine whether resentencing appellant would pose an unreasonable risk of danger to public safety.
C. The Trial Court Did Not Abuse Its Discretion
Appellant contends that even if the Proposition 47 standard does not apply, the trial court abused its discretion by finding that appellant poses an unreasonable danger to public safety. We disagree. As our factual summary reflects, the trial court considered the relevant factors outlined in section 1170.126, subdivision (g), including appellant's criminal history, prison record, and post-release plans. After weighing all this evidence, the court concluded that appellant posed an unreasonable risk of danger to public safety.
Appellant argues that the trial court abused its discretion because it "improperly allocated the burden of persuasion on the issue of dangerousness to appellant rather than the prosecution." Once a court determines that a petitioner is eligible for resentencing under the Act, the prosecutor has the burden of establishing that resentencing the petitioner would pose an unreasonable risk of danger to public safety. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301; People v. Esparza (2015) 242 Cal.App.4th 726, 742 (Esparza).) Appellant's contention that the trial court erroneously imposed this burden on him is not supported by the record.
In his petition, appellant expressly argued that the prosecutor bore the burden of proving that appellant posed a danger to public safety. The prosecutor did not dispute this contention, and thus there was no reason for the court to address it. Furthermore, the court summarized the evidence that led it to conclude that appellant posed an unreasonable risk of danger. The record demonstrates that the court's ruling was not based on a perceived failure of proof by appellant. Rather, the court found that the evidence affirmatively showed that appellant was dangerous.
Appellant points out that the trial court made the following statement during the hearing on his petition: "I don't see any evidence to support making a finding that [appellant] doesn't represent an unreasonable risk of danger to others." Appellant contends this statement "suggests that it was [appellant's] job to persuade the court that he is not dangerous." (Italics omitted.) Appellant ignores that the court made this statement after it summarized the evidence that appellant is presently dangerous and explained why the evidence appellant chose to offer did not lead the court to a contrary conclusion. When read in context, the statement about which appellant complains does not support his contention that the trial court misallocated the burden of proof.
Finally, appellant argues that the trial court abused its discretion by focusing on a "general risk of recidivism" rather than on whether appellant "currently poses an unreasonable risk of future violence." Two assumptions are built into this argument: (1) a prisoner's criminal history is insufficient by itself to support a finding that he poses an unreasonable risk to public safety; and (2) the risk to public safety that warrants denying a resentencing petition must be a risk of violence as opposed to some other dangerous conduct. As support for these assumptions, appellant relies on cases that discuss the criteria for evaluating whether the Parole Board correctly decided that an inmate was unsuitable for parole. (See, e.g., In re Jackson (2011) 193 Cal.App.4th 1376.) Appellant argues parole cases are informative because the determination whether an inmate is suitable for release on parole ultimately turns on whether releasing the inmate would "pose an unreasonable risk of danger to society." (See Cal. Code Regs., tit. 15, § 2402, subd. (a).)
Appellant fails to cite any case that limits a trial court's discretion under Proposition 36 by requiring it to apply parole eligibility criteria in order to determine whether a petitioner poses an unreasonable risk to public safety. Our research indicates that appellate courts have explicitly "decline[d] to decide how and to what extent parole cases inform the decision whether to resentence a petitioner under the Act or [appellate] review of such a decision." (Esparza, supra, 242 Cal.App.4th at p. 746; see also People v. Buford (2016) 4 Cal.App.5th 886, 913, review granted Jan. 17, 2017, S238790.) Instead, we use the following guidelines to evaluate a claim that the trial court abused its discretion under the Act:
"[A] trial court may properly deny resentencing under the Act based solely on immutable facts such as a petitioner's criminal history 'only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. [Citation.]' [Citation.] ' "[T]he relevant inquiry is whether [a petitioner's prior criminal and/or disciplinary history], when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years [later]. This inquiry is . . . an individualized one, and cannot be undertaken simply by examining the circumstances of [the petitioner's criminal history] in isolation, without consideration of the passage of time or the attendant changes in the inmate's psychological or mental attitude. [Citation.]" [Citation.]' [Citation.]" (Esparza, supra, 242 Cal.App.4th at p. 746.)
In the present case, the trial court's ruling complies with these guidelines. Specifically, the court did not abuse its discretion by concluding that appellant's criminal history continued to be predictive of his current dangerousness when, among other things, appellant has spent most of his adult life in prison, and when he was released he reoffended within a short period of time. Furthermore, contrary to the oral argument of appellant's counsel on appeal, the trial court did focus on offenses that involved violence, of which there were many. Finally, the court also considered other facts in the record, but it discounted the witness testimony because it was not probative of appellant's current situation, and it concluded that the CDCR records only further supported its view that appellant posed an unreasonable risk of danger. Under our standard of review, we cannot conclude that the trial court's analysis was arbitrary or unreasonable or that it resulted in a miscarriage of justice. (See Williams, supra, 58 Cal.4th at pp. 270-271.) Accordingly, the trial court did not abuse its discretion under section 1170.126.
IV. DISPOSITION
The order denying appellant's petition for resentencing is affirmed.
/s/_________
RUVOLO, P.J. We concur: /s/_________
REARDON, J. /s/_________
RIVERA, J.