Opinion
H043098
07-02-2018
THE PEOPLE, Plaintiff and Respondent, v. DAN CAESAR, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 201282)
Defendant Dan Caesar, is currently serving a "Three Strikes" sentence. He filed a petition for resentencing under Penal Code section 1170.126. Although he was eligible to be resentenced, the trial court exercised its discretion to find that resentencing him "would pose an unreasonable risk of danger to public safety" (§ 1170.126, subd. (f)) and denied his petition. We affirm the trial court's order.
All further statutory references are to the Penal Code.
In addition to the appeal of the trial court's denial of his petition for resentencing, defendant filed a Petition for Writ of Habeas Corpus in pro per in this court. We deny defendant's writ petition.
We ordered the writ petition (H045574) considered with the appeal in case number H043098. Defendant's Petition for Writ of Habeas Corpus is denied by separate order.
I. STATEMENT OF THE FACTS AND CASE
On September 7, 1997, defendant was playing basketball with other residents of a homeless shelter where he was living at the time. Defendant became angry at the other basketball players, and physically attacked three of them. Defendant punched two of them in the face, chest and back, and kicked another in the head.
As the result of the incident, in July 1998, defendant was convicted of two counts of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); counts 1 & 3), battery causing serious bodily injury (§§ 242, 243, subd. (d); count 2), and misdemeanor battery (§§ 242, 243, subd. (a); count 4). The jury found the allegations that defendant had suffered two prior strike convictions (§ 667, subds. (b)-(i)), for which he served two prior prison terms (§ 667.5, subd. (b)) to be true. Defendant's prior strike convictions occurred in 1984 and 1989 respectively, and were both for first degree burglary of an inhabited dwelling. (§§ 459, 460, subd. (a).) Neither of the burglary convictions involved violence or weapons. The trial court denied defendant's Romero motion to dismiss one of his prior strike convictions, and sentenced defendant to 27 years to life in prison.
Romero v. Superior Court (1996) 13 Cal.4th 497.
On December 17, 2013, defendant filed a petition for recall of sentence pursuant to the Three Strikes Reform Act of 2012 (§ 1170.126) in pro per. The court found that defendant qualified for consideration of the petition for resentencing, and appointed the Public Defender to represent him. The matter was set for hearing in front of the Honorable Edward F. Lee, who had presided over defendant's trial in 1998, and sentenced him to 27 years to life for this felony conviction with two strike priors.
The court considered a number of factors relevant to defendant's petition, including defendant's history of misconduct while in prison, defendant's current physical condition and a recent psychological evaluation. There were 27 incidents of misconduct between 1998 and 2011 while defendant was in prison. The most serious incidents were mutual combat between defendant and another inmate in 1998, defendant's threat of violence against an inmate in 2002, three instances of battery on a peace officer in 2003, battery on a peace officer with a food tray in 2005, and attempted battery on a peace officer with a food tray in 2007. The two incidents closest in time to the filing of the petition in 2015 occurred in March 2011, when defendant put feces and urine on a food tray and handed it to a correctional officer, and in November 2011, when defendant was accused of "Willfully delaying a Peace Officer/Refusing Assigned Housing."
At the time of the petition, defendant was in failing health. He was 58 years old and was using a wheelchair because he had very limited mobility. Defendant had suffered frostbite in 1977 while serving in the Army in Germany that resulted in peripheral neuropathy in his feet. Defendant had been using diapers for several years prior to his petition due to his limited mobility.
The psychological evaluation was conducted by Andrea Shelley, Psy.D., and was submitted to the court on June 18, 2015. In her summary, Dr. Shelley described defendant's current mental health as follows: "[Defendant] denied any current symptoms of depression, mania, or anxiety. He denied current suicidal ideation or homicidal thoughts. In his reflection during our history of mental illness and challenges, he demonstrated adequate insight and judgment and did not indicate any indications of poor judgment or lack of impulse control at the time of the evaluation. [¶] He denied currently experiencing any type of hallucinations, delusions, or paranoia and none were noted in his behavior. His speech was clear and of normal rate and volume. In all, he appeared forthcoming in regard to his past difficulties and challenges in regard to mental illness and substance abuse."
With regard to defendant's mental health history, Dr. Shelley noted that while defendant was housed at Pelican Bay State Prison in 2010, he "experienced persecutory delusions that correctional officers were putting feces and dead bugs in his food. In order to retaliate, he put feces on his food tray. Due to medical noncompliance and continued paranoia and acting out, a court order for medication was required." Dr. Shelley's report also stated: "Once a Keyhea order (court order to force medication) was instated and [defendant] was obtaining medication, his symptoms decreased, however, he did not gain insight into the fact that he has a mental illness and needs to take psychotropic medication."
Keyhea v. Rushen (1986) 178 Cal.App.3d 526. --------
Dr. Shelley's report also stated that when defendant was transferred to Santa Clara County Jail on February 19, 2015, "he was prescribed antipsychotic and antidepressant medications based on his treatment history and reports from prison. He was given a diagnosis of Depression and Psychosis, NOS. Following the expiration of the Keyhea order for mandatory medication, on 3-12-15, his psychiatrist opined that [defendant] was reporting that he had not experienced psychotic symptoms and did not want to take antipsychotic medication, and thus he was going to discontinue the treatment. [¶] Since that time to the present date of the evaluation on 7-14-15, [defendant] has remained compliant with his psychotropic medications. Medical notes did not indicate any reports of paranoia, delusions, auditory hallucinations, or aggressive behavior."
Dr. Shelly concluded that defendant suffered from a "severe mental illness," and lacked "insight into his mental illness, which is very common with people who have illnesses such as schizophrenia and schizoaffective disorder." She recommended that if defendant was to be released, he should be placed in "a locked facility or some type of very highly monitored facility that will monitor his medication compliance and be able to continue to educate him on the importance of psychotropic medication."
Defendant testified on his own behalf at the hearing. In discussing the underlying third strike conviction, defendant stated that he was sorry that he had overacted during the basketball game and hurt people. He said that he had felt threatened during the game and that he needed to do something to stop things from getting worse. Defendant also said that he had learned to better control his anger since the incident.
Defendant testified that the misconduct incidents that occurred since he has been in prison were a result of his belief the staff were harassing him. He said that he would get into arguments with the staff, and would slap trays out of their hands. Defendant also stated that he was in pain at the time of the incident because of an untreated medical condition with his feet. Defendant said that once his feet were treated, and his mental health medication was straightened out, his problems with the staff stopped.
Defendant testified that he was currently taking the medication that had been prescribed to him, and that it was working. He also said that he would not stop taking it unless a doctor told him to do so.
Following the initial hearing, the court sought additional evidence regarding defendant's prior military service. After receiving the military service information, at a further hearing, the court took the matter under submission.
On October 29, 2015, the trial court denied defendant's petition. The court stated the following in a written order: "6. I presided over the 1998 jury trial in which Petitioner was convicted of two felony counts for savagely beating two persons at a rehabilitation center because of a petty disagreement over a basketball game. At the Romero hearing, I declined to strike one or more of his strike priors because I found that he was then a violent man, capable of erupting into serious violence over a minor dispute. (Order, August 14th, 1998.)
"7. It is undisputed that Petitioner has a history of violence and threats while confined at CDCR, including multiple acts of violence on both fellow inmates and correctional officers, which resulted in at least two confinements in the Special Housing Unit and losses of hundreds of days of "good time" credits. Petitioner notes that none of the incidents resulted in serious injuries or outside prosecutions, and characterizes the disciplinary history as "very minimal." The Court cannot agree with the latter characterization.
"8. Petitioner relies, in part, on the report of Dr. Andrea [Shelley], Psy.D. (Petitioner's Reply; Exhibit E). In her report, Dr. [Shelley] noted Petitioner's previous diagnosis of Psychosis and Depression and opined that Petitioner currently has a 'severe mental illness' and 'a lack of insight into his mental illness, which is very common with people who have illnesses such as schizophrenia [. . .].' She further describes Petitioner's disturbing history of violence and threatened violence while confined in CDCR, as well as repeated occurrences of refusing to take his prescribed anti-psychotic medications followed by 'angry, unpredictable, and irrational behavior.' In terms of potential placement in the event of resentencing, Dr. [Shelley] recommends 'a locked facility or some type of highly monitored facility that will monitor his medication compliance [. . .].'
"9. Petitioner suffers from an apparent disability that largely confines him to a wheelchair, although he can walk some limited distances. Petitioner reports that his condition is improving, but he will undoubtedly require medical treatment for his condition and personal assistance with the daily needs of life for the foreseeable future. This will require medical personnel and attendants to work in extremely close proximity to Petitioner until he fully recovers.
"10. The Court will not consider Petitioner's record of military service for the purposes of this petition. Normally military service is laudable, but Petitioner's DD 214 shows an unexplained 69 days of 'lost time' under [section 972 of title 10, United States Code] which typically reflects time lost due to AWOL, civilian confinement, or time spent recovering from illnesses or injuries that are self-inflicted or caused by neglect or misconduct. [(10 USCS § 972(a).)] Since no explanation was provided, I will not consider the military service for any purpose, positive or negative.
"11. Given the Petitioner's current severe mental illness, his current lack of insight into his mental illness coupled with a history of becoming medication non-compliant followed by paranoia and acting out, as well as his documented history of violent actions and threats while confined at CDCR and the fact that his disability will require close proximity of medical and other persons, I find that the People have met their burden of proof that Petitioner would pose an unreasonable risk to public safety even given the transitional assistance offered by the Re-Entry Resource Center and possible assistance by the Veterans Administration. The Court finds that Petitioner remains a violent man, prone to violence upon minor - even imagined - provocation. Accordingly, his Petition for Resentencing is DENIED."
Defendant filed a timely notice of appeal.
II. DISCUSSION
a. Proposition 36
In the November 6, 2012 election, California voters approved Proposition 36, the Three Strikes Reform Act of 2012 (hereafter the Reform Act). Prior to the passage of Proposition 36, the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) required that a defendant convicted of two prior serious or violent felonies be subject to a sentence of 25 years to life upon conviction of a third felony. As amended by the Reform Act, section 1170.12, subdivision (c)(2)(C), and section 667, subdivision (e)(2)(C), now mandate that a defendant with two or more strikes who is convicted of a felony that is neither serious nor violent be sentenced as a second strike offender (unless certain exceptions apply).
The Reform Act also added section 1170.126, which allows eligible inmates who are currently subject to 25years to life sentences under the Three Strikes law to petition the court for resentencing. "Section 1170.126, subdivisions (a) and (b), broadly describe who is eligible to file a petition and to be resentenced. Subdivision (a) of section 1170.126 states: 'The resentencing provisions under this section and related statutes are intended to apply exclusively to persons presently serving an indeterminate term of imprisonment pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, whose sentence under this act would not have been an indeterminate life sentence.' " (Teal v. Superior Court (2014) 60 Cal.4th 595, 598.) "Subdivision (b) of section 1170.126 states: 'Any person serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12 upon conviction, whether by trial or plea, of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, may file a petition for a recall of sentence . . . .' " (Id. at p. 599.)
An eligible prisoner "shall be resentenced" as a second strike offender unless the court determines that resentencing him or her "would pose an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).)
We review the trial court's finding that resentencing defendant would pose an unreasonable risk of danger to public safety for an abuse of discretion. (People v. Jefferson (2016) 1 Cal.App.5th 235, 242-243.) "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)
b. Defendant's Military Service Record
Defendant presented his military service record as evidence in support of his petition for resentencing. The court did not consider this information, stating: "The Court will not consider Petitioner's record of military service for the purpose of this petition. Normally military service is laudable, but Petitioner's DD 214 shows an unexplained 69 days of 'lost time' under [10 USCS § 972(a)], which typically reflects time lost due to AWOL, civilian confinement, or time spent recovery from illnesses or injuries that are self-inflicted or caused by neglect or misconduct. [Citation.] Since no explanation was provided, I will not consider the military service for any purpose, positive or negative."
Defendant argues that the court abused its discretion when it refused to consider his military service record for the purpose of his petition. However, defendant cites no authority for the proposition that the trial court was required to consider his military record for the purpose of resentencing pursuant to section 1170.126. Instead, defendant points to cases requiring the parole board to consider "all relevant factors when evaluating an inmate's suitability for parole." (In re Lazor (2009) 172 Cal.App.4th 1185, 1201 (Lazor).) Defendant argues that like a parole hearing, the trial court must consider all relevant evidence when determining whether he presents a danger to public safety.
We find the parole board cases such as Lazor, supra, inapplicable in the context of resentencing. As we noted in People v. Esparza (2015) 242 Cal.App.4th 726 (Esparza), "we decline to decide how and to what extent parole cases inform the decision whether to resentence" a petition under section 1170.126. (Esparza, supra, 242 Cal.App.4th at p. 746.)
Moreover, section 1170.126, subdivision (g) is clear that in exercising its discretion, the trial court is not required to consider any specific evidence; rather, the court may consider defendant's criminal history, disciplinary record, and "any other evidence the court, in its discretion, determines to be relevant in deciding whether a new sentence in an unreasonable risk of danger to public safety." (§ 1170.126, subds. (g)(1)-(3).)
Defendant's military service record falls with the category of "any other evidence" the court may consider when assessing whether a defendant poses a danger to public safety under section 1170.126. The court specifically noted that it would not consider the service record due to the 69 days that were unaccounted for during defendant's service, and defendant's lack of explanation about those days. The court's decision not to consider the service record as either a positive or a negative factor for the purpose of resentencing was well within the court's discretion under section 1170.126.
c. Court's Consideration of Other Factors
Defendant argues that in finding that defendant posed a danger to public safety, the trial court based its decision on "stale historical factors" and did not give weight to the change in defendant's behavior over time.
Defendant cites Esparza, supra, for the proposition that the trial court must consider defendant's current dangerousness when deciding whether to grant a petition for resentencing. " ' "[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.)
Here, contrary to defendant's assertion, the court did not consider defendant's criminal history and record of discipline in isolation; rather, the court looked at defendant's past acts and present condition in determining that he posed a threat to public safety. Specifically, the court noted that defendant's conviction involved a complete loss of control and violent behavior arising out of a minor incident. Defendant also had a history of violent conduct while in prison. In addition, the court noted that Dr. Shelley's report stated that defendant currently suffers from a severe mental illness about which he lacks insight. The court considered the fact that defendant has repeatedly refused to take prescribed psychiatric medication, which has resulted in defendant demonstrating angry and irrational behavior. Finally, the court noted that Dr. Shelley stated that because of his history of refusing to take medication, if defendant were to be released from prison, he would need to be housed in a locked facility that could monitor defendant's medication use.
Notwithstanding defendant's significant physical impairment and mental condition, the court did not abuse its discretion in denying defendant's petition for resentencing. The court considered relevant factors including defendant's history as well as his current condition, mental health, and inconsistent history of medication compliance in determining that defendant posed a risk to public safety. Under the abuse of discretion standard, this court finds no error on the part of the trial court.
III. DISPOSITION
The order denying defendant's petition for resentencing is affirmed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Grover, J.