Opinion
A140596
10-27-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ROY BAMBER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR21951)
I.
INTRODUCTION
Appellant Robert Bamber argues the trial court improperly denied his petition for resentencing under Proposition 36, the Three Strikes Reform Act. Bamber contends the trial court must apply the standard for dangerousness articulated in Proposition 47, the Safe Neighborhoods and Schools Act. After the parties' briefs were submitted, our Supreme Court decided People v. Valencia (2017) 3 Cal.5th 347 (Valencia), which held that Proposition 47's definition of unreasonable risk of danger to public safety does not apply to resentencing under Proposition 36.
Under the less restrictive definition in Proposition 36, we conclude the trial court did not abuse its discretion in denying Bamber's petition because he would pose an unreasonable risk of danger to public safety. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Current Offense and Prior Strikes
Bamber's first strike offense occurred in 1978 when he was convicted for residential burglary armed with a deadly weapon. His second strike offense occurred in 1984 based on a conviction for burglary and auto theft.
The current offense, his third strike, occurred in 1995 when he was convicted for car theft (Veh. Code, § 10851, subd. (a)), possession of a hypodermic needle (Bus. & Prof. Code, § 4159), possession of stolen property (Pen. Code, § 496, subd. (a) ) and threatening an executive officer (§ 69). The jury found true that Bamber had suffered four prior serious felony convictions (§ 667, subds. (a), (e)(2)), and served four prior prison terms (§ 667.5, subd. (b)).
All subsequent references are to the Penal Code unless otherwise identified.
B. Bamber's Criminal History
Bamber's criminal history dates back to 1965 when he was a juvenile. Over the next 30 years, he was convicted of burglary, robbery, forgery, drug offenses, conspiracy, and attempted burglary in five counties.
Bamber had been on parole five times prior to his current offense. His performance on parole was poor, and he was on parole when he committed the current offense.
C. Conduct While in Custody
In connection with his resentencing motion, the probation department submitted a report detailing Bamber's behavior while in custody. Over the course of his 18 years in prison to 2013, Bamber had received over 30 rule violations. During the 1990's, Bamber had engaged in numerous fights including attacking another inmate with a weapon. During the period of 2000 to 2010, he had engaged in "multiple mutual combats," disobeyed orders, and engaged in disruptive behavior.
On August 8, 2009, Bamber assaulted another inmate by punching him four times in the head with his fist, knocking him to the ground and then stomping on his head twice with his boots.
He had no rule violations from 2010 to 2013. Bamber participated in work assignments as a porter, did yard work, and engaged in vocational training.
D. Petition for Resentencing
Bamber filed a petition for resentencing under Proposition 36. Respondent filed a response arguing that the court should not exercise its discretion to resentence Bamber because of his extensive criminal history and disciplinary record in prison. Respondent outlined Bamber's 14 criminal convictions from 1965 until commission of his current offense in 1994 and conviction in 1995, and his 36 rule violations while incarcerated since 1995.
The probation report stated that Bamber had demonstrated a clear pattern of violence-related behavior. While he had availed himself of vocational training and schooling, his efforts at rehabilitation have been minimal. The probation officer recommended denial of his petition for resentencing under Proposition 36.
On December 3, 2013, the court held a hearing on Bamber's petition for resentencing. Bamber testified about his declining health and physical inability to engage in violence. He had a stroke in 2010 and had to use a wheelchair, walker or cane. He currently used a cane, but can walk by himself.
Bamber testified that in 1998 he assaulted another inmate with a tuna can made into a weapon because the inmate threatened him. In 2006, he got into a fight with his cellmate because he did not like child molesters. In 2009, he got into a fight in the line waiting for diabetes medication. He hit another inmate because the inmate allowed other people to cut in line.
Bamber was 64 years old in 2013. He testified that since his stroke and heart bypass surgery, he had become a different person.
Defense counsel also called Dr. Albert Kastl, a Ph.D. in psychology, to testify about psychological studies of age and risk. Dr. Kastl cited to an article in the journal Criminology that found a progressive decrease in criminality beginning at age 30, and by age 59 or 60 most individuals stop committing crimes. After age 60 the chance of an individual committing a crime is less than one-quarter of one percent
Dr. Kastl testified that Bamber's records showed antisocial personality disorder. Dr. Kastl's opinion, based on Bamber's age, was there was "virtually no risk" in releasing him. Dr. Kastl did not give Bamber any risk assessment tests. On cross-examination, the prosecutor highlighted that Bamber had four incidents in 2009, at age 61, including punching and stomping on another inmate and pushing an officer. Dr. Kastl admitted that Bamber has not performed well on probation, on parole, or while in custody.
The court stated it was required to consider Bamber's substantial criminal history, his disciplinary record of over 30 violations, as well as the probation reports and the testimony given at the hearing. "[B]ased on my review of all the records and what I've heard today and the prior criminal history, subsequent conduct in prison after being sentenced to a life term, that Mr. Bamber does pose an unreasonable risk of danger to public safety, and his petition for resentencing is denied."
III.
DISCUSSION
A. Proposition 47
The focus of Bamber's appeal was that he was improperly denied resentencing under the more restrictive standard required under Proposition 47. After Bamber's briefs were filed, our Supreme Court issued its Valencia decision. In Valencia, the court held that Proposition 47's definition of "unreasonable risk of danger to public safety" does not apply to Proposition 36 resentencing petitions. (Valencia, supra, 3 Cal.5th at p. 352.)
On July 6, 2017, we invited counsel to file letter briefs addressing the applicability of Valencia to this appeal. Respondent argued that Valencia foreclosed Bamber's claim, and since substantial evidence supported the trial court's finding under Proposition 36 that Bamber posed an unreasonable danger to public safety, the trial court's order denying resentencing should be affirmed.
Bamber argued that this court should still consider his appeal under the standard articulated in Proposition 36 because he would not pose an unreasonable risk of danger to public safety under any definition of the term.
B. Proposition 36
We review the denial of a Proposition 36 petition on the ground of future dangerousness under the abuse of discretion standard pursuant to Penal Code section 1170.126, subdivision (f). (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1302-1303.)
"An inmate who is serving a third strike sentence that would have yielded a second strike sentence under Proposition 36's new sentencing rules 'shall be resentenced' as second strike offender 'unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' (§ 1170.126, subd. (f).)" (Valencia, supra, 3 Cal.5th at p. 354.)
"In exercising its discretion to deny resentencing, the court has broad discretion to consider: (1) the inmate'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) his or her 'disciplinary record and record of rehabilitation while incarcerated'; and (3) '[a]ny 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.' (§ 1170.126, subd. (g)(1)-(3).) Thus, as the Legislative Analyst explained in the Voter Information Guide, '[i]n determining whether an offender poses [an unreasonable risk of danger to public safety], the court could consider any evidence it determines is relevant, such as the offender's criminal history, behavior in prison, and participation in rehabilitation programs.' (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) analysis of Prop. 36 by Legis. Analyst, p. 50, italics added.)" (Valencia, supra, 3 Cal.5th at p. 354.)
Here, the trial court considered Bamber's criminal history, subsequent conduct in prison, and the testimony at the hearing. Bamber had a lengthy criminal record from 1965 until he was incarcerated on his third strike in 1995. His crimes included burglary armed with a deadly weapon, robbery, and threatening an officer.
In his 18 years in custody until the hearing in 2013, Bamber had over 30 rule violations, many of them involving disruptive behavior and violence. In his own testimony, he admitted that in 1998 he assaulted an inmate with a can modified to be a weapon; in 2006 he assaulted his cellmate because he did not like child molesters; and in 2009 he punched and stomped on the head of an inmate for allowing other inmates to go ahead in the line for diabetes medication.
Bamber suffered a stroke in 2010 and testified that he had since become a different person. This claim is supported by his lack of rule violations from 2010 to 2013. Dr. Kastl's testimony was not persuasive in that he testified there was virtually no risk of Bamber being a danger given he was over age 60; yet Bamber had incidents of violence in prison at age 61. Further, Dr. Kastl admitted that Bamber had performed poorly on probation, on parole, and while in custody. In fact, Bamber had never successfully completed parole and was on parole when he committed the current offense.
The probation department found that Bamber's efforts at rehabilitation were "minimal" and he demonstrated a clear pattern of violence-related behavior. The department recommended the petition for resentencing be denied. The trial court found: "[B]ased on my review of all the records and what I've heard today and the prior criminal history, subsequent conduct in prison after being sentenced to a life term, that Mr. Bamber does pose an unreasonable risk of danger to public safety, and his petition for resentencing is denied." We find no abuse of discretion.
IV.
DISPOSITION
The judgment is affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
KENNEDY, J. /s/_________
RIVERA, J.
Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------