Opinion
B329116
09-18-2024
THE PEOPLE, Plaintiff and Respondent, v. OLIVER JAY BOLES, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan S. Pithey, Assistant Attorney General, Steven D. Matthews and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a postjudgment order of the Superior Court of Los Angeles County No. BA402975 Richard S. Kemalyan, Judge. Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan S. Pithey, Assistant Attorney General, Steven D. Matthews and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent.
VIRAMONTES, J.
INTRODUCTION
In 2013, appellant Oliver Jay Boles was convicted of second degree robbery (Penal Code § 211), and sentenced to a total term of 17 years. His sentence included two 5-year enhancements for suffering two prior serious felony convictions (§ 667, subd. (a)(1)), and a one-year enhancement for serving a prior prison term (§ 667.5, subd. (b)). In 2022, the California Department of Corrections and Rehabilitation (CDCR) recommended the trial court resentence Boles under section 1172.1 (former § 1170.3).Following a hearing, the trial court struck the one-year prior prison term enhancement, but reimposed each of the five-year prior serious felony enhancements. On appeal, Boles argues the trial court abused its discretion and violated due process in refusing to strike at least one prior serious felony enhancement. We conclude the trial court did not err because it considered the relevant resentencing factors, and reasonably found that Boles posed a risk of danger to public safety. We accordingly affirm.
Unless otherwise stated, all further undesignated statutory references are to the Penal Code.
Effective January 1, 2022, the Legislature moved the recall and resentencing provisions of former section 1170, subdivision (d)(1), to new section 1170.03 (Stats. 2021, ch. 719, §§ 1-7), which was then renumbered as section 1172.1, effective June 30, 2022 (Stats. 2022, ch. 58, § 9).
FACTUAL AND PROCEDURAL BACKGROUND
I. Boles's 2013 robbery conviction
On September 23, 2012, Boles approached the victim, James Neihart, while he was standing on the street and holding approximately $20 in his hand. Boles ordered Neihart to give him the money. Boles then grabbed Neihart's arm and bit his hand, causing him to fall to the ground. After taking the money from Neihart, Boles tried to flee on foot. However, Neihart alerted nearby officers, who quickly apprehended Boles and found the money on his person. At the scene of the arrest, Neihart identified Boles as the person who robbed him.
In February 2013, following a bench trial, the court found Boles guilty of one count of second degree robbery in violation of section 211. The court also found true the allegations under the Three Strikes law (§§ 667, subds. (b)-(i) &1170.12, subds. (a)- (d)) and section 667, subdivision (a)(1), that Boles suffered two prior serious felony convictions for robbery in 1988 and attempted robbery in 1994. In addition, the court found true the allegation under section 667.5, subdivision (b), that Boles served a prior prison term for drug possession in 2010.
At sentencing, the trial court struck the 1988 conviction for purposes of the Three Strikes law, causing the current conviction to be considered a second strike offense. The court then sentenced Boles to an aggregate term of 17 years in state prison, consisting of three years for the robbery offense doubled to six years under the Three Strikes law, two consecutive terms of five years for the two prior serious felony enhancements under section 667, subdivision (a)(1), and an additional term of one year for the prior prison term enhancement under section 667.5, subdivision (b).
II. CDCR's 2022 request for recall and resentencing
In April 2022, the Secretary of the CDCR issued a letter recommending that the trial court recall Boles's sentence and resentence him based on recent changes in the law granting courts discretion to strike prior serious felony enhancements. After appointing counsel to represent Boles, the trial court set the matter for a hearing on the CDCR's request, and allowed the parties to file briefs.
In their brief, the People asked the trial court to strike the one-year prior prison term enhancement, but not the two 5-year prior serious felony enhancements. The People summarized Boles's criminal history, which included convictions for robbery in 1988, assault in 1991 and 1992, attempted robbery in 1994, battery on another prisoner in 2001, battery on a peace officer in 2009, drug possession in 2010, and a section 1368 proceeding for indecent exposure in 2011. In two of the cases, the proceedings were suspended due to Boles's mental incompetence. On several occasions, Boles violated the terms of his parole, including when he committed the current offense. The People's brief also described Boles's record of discipline and rehabilitative actions while in custody. Boles had rule violations for fighting in 2010 and 2014, and aggressive conduct toward prison staff in 2015. He was enrolled in an Adult Basic Education program, but had not participated in any self-help groups or activities. The CDCR's risk assessments showed that Boles's security risk classification had been steadily decreasing during his incarceration, and that he was considered at "low" risk for recidivism if released. However, in assessing Boles's rehabilitative needs, the CDCR ranked his criminal personality, educational problems, employment problems, and lack of family support as "high."
In his brief, Boles asked the trial court to strike the one-year prior prison term enhancement as well as one of the five-year prior serious felony enhancements. In support of his request, Boles asserted that he was 54 years old and was in regular contact with his brother. He also argued that he did not pose a current risk to public safety based on the CDCR's risk assessments, his limited rule violations, and his efforts at rehabilitation. As examples of those efforts, Boles noted that he asked to be move to a special needs yard in 2018, he received positive annual reviews from his counselor starting in 2020, he had been accepted into one rehabilitative program, and he was awaiting approval for enrollment in other educational classes.
III. The 2023 hearing on recall and resentencing
On April 24, 2023, the trial court held the hearing on the request for recall and resentencing. Boles waived his appearance, but was represented by counsel at the hearing. In asking the court to strike at least one of the five-year enhancements, defense counsel emphasized that Boles had not had any rule violations in recent years, and that his security risk classification had decreased over the course of his incarceration. In opposing the request, the prosecutor highlighted the facts of the underlying offense, Boles's history of assaultive behavior in and out of custody, his parole violations, his failure to participate in any rehabilitative programs, and his lack of family support. In response, defense counsel stated that Boles had availed himself of some rehabilitative programs, and was on the waiting lists for others. His counsel added that "the issue is more limited programming availability than it is any kind of reluctancy on Mr. Boles's part." His counsel also noted that Boles had strong family support through his brother.
The trial court decided to strike the one-year prior prison term enhancement, but to reimpose each of the five-year prior serious felony enhancements. In announcing its ruling, the court began by stating, "I think you have both touched upon issues that I knew and know exist in this case and have evaluated. I think the only item that I didn't really see was whether Mr. Boles was on a waiting list for any programs, but that's okay. I mean, I'll kind of throw that into the consideration here."
The court described section 1172.1's presumption in favor of resentencing and the relevant factors to consider. It then provided its analysis of those factors, stating in relevant part: "One, there's no information regarding childhood trauma, intimate partner battery, or human trafficking, or youthfulness at the time of the crime. [¶] Two, the defendant's inmate disciplinary records go hand in hand in large extent with his history of assaultive behavior when not in custody, including arrests for 11 assaultive offenses. Although, the court will note that in the more recent past few years . . . I'm not sure there has been any disciplinary record concerning assaultive behavior. [¶] Three, defendant's records of failure to participate in any selfhelp groups or activities is noteworthy in part and does enhance issues of public safety .... He may be on waiting lists but has not yet availed himself nor perhaps had the opportunity to engage in self-help groups or activities. [¶] It does not appear at the present time at least that the defendant has adequately prepared himself for successful transition back into the communit[y]. [¶] Four, the defendant is a second-strike offender and has been committed to state prison on approximately six occasions. The court does note that the strikes do appear to have some age on them, and the court will also note that he has a history of parole violations. [¶] The court further notes that the . . . risk assessment from the [CDCR] reveals a high crime personality with anger issues, employment problems, and at least it states family support problems, but I accept [defense counsel's] representation that Mr. Boles's brother has been in contact and is supportive of his brother." The court concluded that "although there's a presumption favoring recall and resentencing," Boles's "history both in and out of state prison reveal[s] an unreasonable risk [to] public safety."
The court also considered whether to dismiss the prior serious felony enhancements in furtherance of justice under section 1385. The court noted that it was required to afford great weight to the fact that multiple enhancements were alleged, and the prior convictions were more than five years old. The court nevertheless concluded that dismissal of the enhancements would endanger public safety based on Boles's criminal history, his current offense, and the CDCR's records of his conduct while in custody.
At the conclusion of the hearing, the court struck the one-year prior prison term enhancement imposed under section 667.5, subdivision (b). It then resentenced Boles to a total of 16 years in state prison, consisting of three years for the robbery offense doubled to six years under the Three Strikes law, plus two 5-year prior serious felony enhancements under section 667, subdivision (a)(1).
Boles filed a timely appeal.
DISCUSSION
On appeal, Boles argues the trial court abused its discretion and violated his due process rights by refusing to strike at least one of the prior serious felony enhancements. He specifically asserts the trial court erred by failing to consider his positive postconviction conduct in its ruling. We find no abuse of discretion or violation of due process in the resentencing decision.
I. Governing law
Section 1172.1 provides that "[w]hen a defendant, upon conviction for a felony offense, has been committed to the custody of the Secretary of the [CDCR] . . ., the court may . . . at any time upon the recommendation of the secretary . . . recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, . . . provided the new sentence, if any, is no greater than the initial sentence." (Id., subd. (a)(1).) The CDCR's recommendation thus "furnishes the court with jurisdiction it would not otherwise have to recall and resentence and is 'an invitation to the court to exercise its equitable jurisdiction.'" (People v. McMurray (2022) 76 Cal.App.5th 1035, 1040.)
Section 1172.1 further provides that, when the CDCR makes a resentencing request, "[t]here shall be a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the defendant currently poses an unreasonable risk of danger to public safety, as defined in subdivision (c) of [s]ection 1170.18." (§1172.1, subd. (b)(2).) Section 1170.18, subdivision (c), in turn defines an unreasonable risk of danger to public safety as "an unreasonable risk that the [defendant] will commit a new violent felony within the meaning of [section 667, subdivision (e)(2)(C)(iv)]," which identifies eight types of serious or violent felonies known as "super strikes." (People v. Braggs (2022) 85 Cal.App.5th 809, 818.)
In recalling and resentencing under section 1172.1, the court "shall consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant's risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice." (Id., subd. (a)(5).) The court also "shall . . . apply any changes in law that reduce sentences or provide for judicial discretion ...." (Id., subd. (a)(2).)
One relevant change in the law concerns the trial court's authority to strike or dismiss a sentencing enhancement under section 1385. Effective 2019, the Legislature amended sections 667 and 1385 to allow a court to exercise its discretion to strike a prior serious felony enhancement. (Stats. 2018, ch. 1013, §§ 1-2; People v. Garcia (2018) 28 Cal.App.5th 961, 971.) Effective 2022, the Legislature again amended section 1385 to specify the factors that a court must consider in exercising such discretion. (Stats. 2021, ch. 721, § 1; People v. Dain (2024) 99 Cal.App.5th 399, 409410, review granted May 29, 2024, S283924.) Section 1385 now provides that the court "shall dismiss an enhancement if it is in the furtherance of justice to do so" (id., subd. (c)(1)), and "shall consider and afford great weight to evidence offered by the defendant to prove" specified mitigating circumstances, "unless the court finds that dismissal of the enhancement would endanger public safety" (id., subd. (c)(2)). Those mitigating circumstances include where "[m]ultiple enhancements are alleged in a single case" (id., subd. (c)(2)(B)), and where "[t]he enhancement is based on a prior conviction that is over five years old" (id., subd. (c)(2)(H)).
We review the trial court's resentencing decision for abuse of discretion. (People v. E.M. (2022) 85 Cal.App.5th 1075, 1082; People v. Frazier (2020) 55 Cal.App.5th 858, 863.) Under this deferential standard of review,"' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary." '" (People v. Carmony (2004) 33 Cal.4th 367, 376.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.)
II. The trial court did not abuse its discretion or violate due process in its resentencing decision
In challenging the trial court's decision not to strike at least one of the five-year prior serious felony enhancements, Boles contends the court erred by disregarding his postconviction efforts at rehabilitation. The record, however, does not support this claim. Rather, it reflects that the trial court considered the relevant factors, including Boles's postconviction conduct, and reasonably found that he posed a risk of danger to public safety.
At the hearing on the CDCR's request for recall and resentencing, the trial court gave both defense counsel and the prosecutor an opportunity to argue at length about the merits of the request. Defense counsel highlighted Boles's lack of recent rule violations, his decreasing security risk classification, his family support, and his placement on waiting lists for certain programs. After hearing the arguments, the trial court stated that both counsel "touched upon issues that I knew and know exist in this case and have evaluated." The court noted that it was not aware Boles was on waiting lists for any programs, but it would consider that factor in its ruling. The court further recognized that, under section 1172.1, there was a presumption in favor of resentencing that could only be overcome if Boles posed an unreasonable risk to public safety, and that its resentencing decision should take into account any relevant postconviction matters. After summarizing the various factors that it considered, the court found that Boles's "history both in and out of state prison reveal[ed] an unreasonable risk [to] public safety," which overcame the presumption in favor of resentencing. The court also explained that it was declining to strike the five-year enhancements in furtherance of justice based on Boles's "criminal history," his "C.D.C.R. records," the "present offense," and "public safety."
Boles nevertheless argues that the trial court's decision rested on an incomplete consideration of his postconviction record because the court "seemingly ignor[ed] positive post[]conviction factors." In particular, Boles asserts that the court failed to consider the CDCR's risk assessments showing that his security risk classification had been steadily decreasing, and that he was at low risk to reoffend. Boles also claims that the court disregarded the age and allegedly nonviolent nature of his prison rule violations, as well as his recent positive actions toward rehabilitation. Yet all of the postconviction conduct that Boles claims the court ignored was detailed in the papers filed by the parties prior to the resentencing hearing. Moreover, during the hearing, defense counsel specifically discussed the timing and nature of Boles's rule violations, the improvement in his security risk reclassification, and his efforts to enroll in rehabilitative programming. In response, the court acknowledged that Boles did not have any recent rule violations for assaultive behavior, and it agreed to consider the fact that Boles might not have had the opportunity to participate in some programs. However, the court expressed concern that, during his 10 years in custody on the current offense, Boles had yet to avail himself of any self-help groups or activities, which were designed to enhance public safety by reducing the rate of recidivism. While the court may not have stated on the record every factor that it considered in declining to strike the prior serious felony enhancements, it explained that it "reviewed all the materials" submitted by the parties, and that it "weighed and considered the totality of the circumstances in this matter." In the absence of evidence to the contrary, we presume the trial court considered all of the relevant factors and properly applied the law in reaching its resentencing decision. (People v. Brugman (2021) 62 Cal.App.5th 608, 638.)
Furthermore, based on the totality of the record, the trial court reasonably could find that Boles posed a risk of danger to public safety within the meaning of section 1172.1, and that striking the prior serious felony enhancements would endanger public safety within the meaning of section 1385. The evidence showed that Boles had an extensive criminal history, including multiple convictions for assaultive crimes and parole violations. Boles's disciplinary record while in custody also reflected rule violations for fighting or aggressive conduct. Although these disciplinary issues occurred in the first few years of his sentence, Boles had not participated in any self-help programs during the 10 years that he had been incarcerated on the current offense. Additionally, the CDCR ranked Boles's rehabilitative needs as high in the areas of criminal personality, educational and employment problems, and lack of family support.
On this record, the trial court's decision to resentence Boles to a total state prison term of 16 years by reimposing each of the five-year prior serious felony enhancements was not "so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony, supra, 33 Cal.4th at p. 377.) Boles has failed to show an abuse of discretion or violation of due process in the resentencing decision.
DISPOSITION
The order recalling Boles's sentence and resentencing him to an aggregate term of 16 years in state prison is affirmed.
WE CONCUR: STRATTON, P. J., WILEY, J.