Opinion
F071327
05-11-2017
THE PEOPLE, Plaintiff and Respondent, v. BURLEY DEWAYNE VANDERPOOL, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Gregory B. Wagner, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SC068588A)
OPINION
APPEAL from an order of the Superior Court of Kern County. Michael G. Bush, Judge. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Gregory B. Wagner, Deputy Attorneys General for Plaintiff and Respondent.
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Appellant Burley Dewayne Vanderpool appeals the denial of his petition for recall of sentence pursuant to Penal Code section 1170.18. Appellant contends the court abused its discretion in concluding that resentencing appellant would pose an unreasonable risk of danger to public safety. For the reasons set forth below, we affirm.
All statutory references are to the Penal Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant is presently serving a third strike sentence for second degree burglary. (§ 460, subd. (b).) In 1996, he entered a Sears department store, picked up a $200 tool set, marked it with security tape suggesting it had been paid for, and exited the store without paying for the item. Due to appellant's prior strike convictions, appellant received 25 years to life plus an additional two years resulting from prior prison term enhancements, and has been incarcerated ever since.
Prior to his 1996 conviction, appellant was regularly convicted of various offenses. Relevant to this case, appellant was convicted of driving under the influence (Veh. Code, § 23152) in July 1973. He was again convicted of driving under the influence and, at the same time, of possessing a narcotic (Health & Saf. Code, § 11377) in March 1979. In January 1987, following several convictions for narcotics, theft, and forgery offenses, appellant was again convicted of driving under the influence and being under the influence of a narcotic (Health & Saf. Code, § 11550, subd. (a)). In 1988, in separate incidents, appellant was convicted of being under the influence of a narcotic and of reckless driving (Veh. Code, § 23103). In 1989, appellant was again convicted of driving under the influence. Shortly thereafter, appellant committed a series of robberies, resulting in his four prior strikes. Following several parole attempts and violations, appellant was released in 1996 and, within two months, was accused of committing the burglary for which he is currently incarcerated. While in prison on his current conviction, appellant has received multiple rules violation reports. Several of these reports, including the most recent report from 2012, involved the possession or manufacturing of alcohol. Two others, including a separate violation from 2012, involved possession of a narcotic.
At the hearing on appellant's petition for resentencing, appellant conceded he had a long history of drug abuse. He noted, however, that he had at various times remained sober for substantial periods of time. Appellant claimed that his participation in, and subsequent involvement with, prison drug treatment and victim awareness programs has helped to keep him clean of drugs and alcohol since 2012. Appellant explained he had changed his life and wanted to reconnect with his family.
On cross-examination, appellant admitted to being under the influence of heroin during two of his driving under the influence convictions. He also admitted his last rules violation report for narcotics occurred because he was using methamphetamine to escape from family issues that were troubling him and that the violation occurred after he had completed the prison drug treatment program. Appellant conceded the lack of a prospect for release had been a factor in why he had violated prison rules in the past.
Procedurally, appellant initially filed a petition for resentencing under Proposition 36. Prior to the hearing on that petition, which had been delayed multiple times over several years, appellant's counsel filed a second petition seeking relief under Proposition 47. The trial court and the parties proceeded under the Proposition 47 standard, concluding it was the most favorable to appellant's resentencing request and that appellant met the initial eligibility requirements for relief. In reaching its ultimate decision, the trial court relied on the argument and evidence contained in both petitions.
Following appellant's hearing on the Proposition 47 petition, which also included testimony from appellant's son regarding support for appellant were he to be released, the trial court took the matter under submission in order to reread the submissions and reflect on the testimony provided. The court later denied appellant's petition, finding the People met their burden to demonstrate that resentencing appellant would result in an unreasonable risk of danger to public safety. The court concluded appellant's continuing use of drugs and alcohol in prison, in combination with his history of driving under the influence convictions, created a risk appellant would "get out and consume alcohol or drugs and drive and kill somebody."
This appeal timely followed.
DISCUSSION
Appellant contends the trial court abused its discretion in denying resentencing because there was no substantial evidence supporting the conclusion that resentencing appellant posed an unreasonable risk of danger at the time the court made its decision. Alternatively, appellant requests a conditional remand so the court may reconsider in light of appellant's conduct since the prior ruling. Standard of Review and Applicable Law
"'On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act [(the Act)] ....' [Citation.] '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. Morales (2016) 63 Cal.4th 399, 404.)
"Proposition 47 also created a new resentencing provision, to wit, section 1170.18. Under that statute, '[a] person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the [Act] had [the Act] been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with' the various statutes that were amended or added by the Act. (§ 1170.18, subd. (a).)" (People v. Bradshaw (2016) 246 Cal.App.4th 1251, 1256-1257.) "'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).)'" (People v. Hall (2016) 247 Cal.App.4th 1255, 1261 (Hall).)
"'Subdivision (c) of section 1170.18 defines the term "unreasonable risk of danger to public safety," and subdivision (b) of the statute lists factors the court must consider in determining "whether a new sentence would result in an unreasonable risk of danger to public safety." (§ 1170.18, subds. (b), (c).)' [Citation.] '"[U]nreasonable 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).) 'The critical inquiry ... is not whether the risk is quantifiable, but rather, whether the risk would be "unreasonable."' [Citation.] 'In exercising its discretion, 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), italics added.)" (Hall, supra, 247 Cal.App.4th at p. 1262, fn. omitted.)
We review a trial court's determination that resentencing would result in an unreasonable risk of danger to public safety for an abuse of discretion. (Hall, supra, 247 Cal.App.4th at p. 1264.) We will not disturb the trial court's determination "'"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."'" (Ibid.) The Trial Court Did Not Abuse Its Discretion
Under the facts of this case, we find no abuse of discretion. One of the defined set of violent felonies under which resentencing may be denied if there is an unreasonable risk appellant will commit a crime if released is "[a]ny homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive." (§ 667, subd. (e)(2)(C)(iv)(IV).) Section 191.5 criminalizes both gross vehicular manslaughter and criminal manslaughter. Each crime involves the killing of a human being while driving under the influence as defined under, among others, Vehicle Code section 23152. (§ 191.5, subds. (a), (b).)
With respect to appellant's petition, the evidence showed appellant had a history of alcohol and drug use prior to being incarcerated. While appellant presented evidence of improved recognition of his alcohol and drug use issues, and could show at least some period of sobriety, his record in prison showed regular violations involving alcohol and a posttreatment conviction for possession of narcotics. His record also showed that substantial periods of sobriety were no indication appellant would not relapse. Further, appellant's own testimony showed his prior driving under the influence convictions arose because he was using drugs and alcohol and simply needed to get from one place to another, providing little assurance he would not drive again if he returned to his past behavior.
Given these facts, we cannot conclude the trial court exceeded all bounds of reason in concluding appellant posed an unreasonable risk of engaging in behavior that would lead to committing vehicular manslaughter if released. Appellant's prior history of drug and alcohol use, coupled with his multiple convictions for driving under the influence and his continued use of drugs and alcohol while in prison, is a sufficient foundation for the trial court's conclusion and bears on appellant's then current risk of committing a future crime. As our role is not to reweigh the evidence presented, we will not overturn the court's discretionary decision.
As an alternative argument, appellant requests we utilize our inherent authority to issue a conditional remand for the trial court to consider whether appellant's continued sobriety warrants a reconsidered ruling. We find no basis to do so. The trial court was presented with the full set of facts available at the time appellant's petition was properly heard. A conditional remand would not further the interests of justice. We take no position, however, on whether appellant may file a second petition alleging additional or new facts.
DISPOSITION
The order is affirmed.
/s/_________
KANE, J. I CONCUR: /s/_________
POOCHIGIAN, J.
GOMES, J., Dissenting.
I respectfully dissent.
Burley Dewayne Vanderpool is a 62-year-old man who is serving an indeterminate life sentence in state prison for committing a third "strike" under California's Three Strikes law. He is incarcerated because he stole $200 worth of merchandise from a department store in 1996, at the age of 41. His conduct was considered felonious under then-existing law, but would now be treated as a misdemeanor under statutes enacted and/or amended by the Safe Neighborhoods and Schools Act (Proposition 47), which California voters approved in November 2014. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108; Pen. Code, § 459.5, all further statutory references are to the Penal Code.)
"Proposition 47 also added section 1170.18, concerning persons currently serving a sentence for a conviction of a crime that the proposition reduced to a misdemeanor. It permits such a person to 'petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with' specified sections that 'have been amended or added by this act.' (§ 1170.18, subd. (a).) If the trial court finds that the person meets the criteria of subdivision (a), it must recall the sentence and resentence the person 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).)" (People v. Morales (2016) 63 Cal.4th 399, 404.)
The electorate's goal in passing Proposition 47 was to reduce the penalties imposed against a certain class of offenders. "There are two driving principles behind the reduction in punishment. First, the voters reassessed the crimes subject to Proposition 47 and determined their relative lack of severity did not justify a felony punishment. The arguments in favor of Proposition 47 in the official voter information guide, for example, refer to the crimes subject to reduction under Proposition 47 as 'petty,' 'low-level,' and 'nonviolent.' [Citation.] Second, and perhaps more importantly, Proposition 47 was intended to save taxpayer money. The arguments in favor of Proposition 47 advertise that it '[s]tops wasting money on warehousing people in prisons for nonviolent petty crimes, saving hundreds of millions of taxpayer funds every year.' " (People v. Pinon (2016) 6 Cal.App.5th 956, 965.) Vanderpool may not be a model citizen or even a model prisoner, but he is a poster child for Proposition 47.
A trial court's discretion to deny a petition for resentencing under Proposition 47 is circumscribed by section 1170.18, subdivision (c), which defines the term "unreasonable risk of danger to public safety" as meaning "an unreasonable risk that the petitioner will commit a new violent felony" described in section 667, subdivision (e)(2)(C)(iv). The enumerated offenses, which are commonly referred to as "super strikes," include rape, sexual abuse of children and minors, various homicide offenses, possessing a weapon of mass destruction, and any other serious or violent felony punishable by life imprisonment or death. (§ 667, subd. (e)(2)(C)(iv)(I-VIII); People v. Jefferson (2016) 1 Cal.App.5th 235, 242 (Jefferson).) The reference in section 667, subdivision (e)(2)(C)(iv)(IV) to "[a]ny homicide offense ... defined in Sections 187 to 191.5" means that vehicular manslaughter with intoxication qualifies as a super strike. (See § 191.5, subds. (a), (b).)
In People v. Buford (2016) 4 Cal.App.5th 886, review granted January 11, 2017, S238790 (Buford), our district analyzed in detail the standard of review for the denial of a petition under section 1170.126 (i.e., Proposition 36), which is presumably the same for Proposition 47 petitions. "[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. Those facts are reviewed for substantial evidence." (Buford, supra, 4 Cal.App.5th at p. 893.) However, "a trial court need not determine, by a preponderance of the evidence, that resentencing a petitioner would pose an unreasonable risk of danger to public safety.... Nor is the court's ultimate determination subject to substantial evidence review. Rather, its finding will be upheld if it does not constitute an abuse of discretion, i.e., if it falls within 'the bounds of reason, all of the circumstances being considered....' " (Id. at p. 901.) Thus, the trial court's implied conclusion that resentencing Vanderpool poses an unreasonable risk of him committing a super strike is reviewed for abuse of discretion. (Ibid.; Jefferson, supra, 1 Cal.App.5th at p. 242.) In other words, Vanderpool must demonstrate " ' "that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (Jefferson, at pp. 242-243.)
The facts upon which the trial court based its decision are not in dispute. Vanderpool has a well-documented history of alcohol and illegal drug use spanning from at least the 1970s until approximately 2013, when he allegedly devoted himself to a life of sobriety in hopes of someday being released from prison. He also has four prior convictions for driving under the influence (DUI) of alcohol and/or drugs, most recently in October 1989, i.e., more than 27 years ago and nearly seven years prior to his commission of the third-strike offenses for which he is currently incarcerated.
Although the historical facts are supported by the record, it is an irrational leap of reasoning to conclude that resentencing Vanderpool would create an unreasonable risk of him committing vehicular homicide with intoxication within the meaning of section 191.5. He has never been convicted of such an offense and there is no indication that he has ever been in a car accident. The remoteness of the prior DUIs and Vanderpool's current age are significant considerations that weigh in favor of resentencing. (Cf. In re Lawrence (2008) 44 Cal.4th 1181, 1219-1220 [in the context of determining parole suitability, "the passage of time—and the attendant changes in a prisoner's maturity, understanding, and mental state—[are] highly probative to the determination of current dangerousness."].) What is more, the trial court did not purport to base its decision on an "unreasonable risk" that Vanderpool would commit a super strike offense, but rather because it was "afraid he's gonna get out and consume alcohol or drugs and drive and kill somebody." This statement calls into question the trial court's understanding of the scope of its discretion, and in my view shows the ruling was in fact arbitrary, i.e., "based on one's preference, notion, whim, etc." (Webster's New World Dict. (3d college ed. 1988) p. 70.)
I realize the "critical inquiry ... is not whether the risk is quantifiable, but rather, whether the risk would be 'unreasonable.' " (People v. Garcia (2014) 230 Cal.App.4th 763, 769 [referring to the Proposition 36 standard].) However, while there is " ' "no formula for the determination of reasonableness," ' " the standard must be " ' "objectively ascertained by reference to common experiences of mankind." ' " (Ibid.) As such, there are certain statistical realities that cannot be ignored here. As of January 1, 2016, there are 34,336,025 registered vehicles and 25,914,851 licensed drivers in the State of California. According to recent statewide data, less than 900 alcohol-impaired driving fatalities occur each year. The odds that Vanderpool, if resentenced, would break his sobriety and operate a motor vehicle while intoxicated and cause an accident while driving and kill someone are so astronomical that they cannot objectively be characterized as an "unreasonable risk."
See <https://www.dmv.ca.gov/portal/wcm/connect/fafd3447-8e14-4ff6-bb98-e85f3aa9a207/ca_dmv_stats.pdf?MOD=AJPERES> (as of May 11, 2017).
The California Office of Traffic Safety uses the term "alcohol-impaired driving fatalities" to refer to "fatalities in crashes involving a driver or motorcycle rider (operator) with a blood alcohol concentration (BAC) of 0.08 grams per deciliter (g/dL) or higher." There were 882 such deaths in 2014 and 883 in 2013. (<http://www.ots.ca.gov/OTS_and_Traffic_Safety/Score_Card.asp> [as of May 11, 2017].) --------
The trial court applied something akin to a theoretical risk standard, which is contrary to the law and exceeds the limits of its discretion. Its conclusion was anecdotal and purely conjectural, not to mention based on incidents that took place nearly three decades ago and many years prior to when the petitioner was convicted of his third strike. Vanderpool has never been adjudicated as a super strike offender nor shown to have any propensity to commit such crimes. I would therefore reverse the challenged order. Alternatively, I would grant Vanderpool's request to have the matter remanded with instructions to reconsider his suitability for Proposition 47 resentencing in light of the views expressed herein and any progress he has made in sobriety during the pendency of this appeal.
/s/_________
Gomes, Acting P.J.