Opinion
H042546
11-14-2017
THE PEOPLE, Plaintiff and Respondent, v. ROY RAUL CAMPOS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C9812477)
I. INTRODUCTION
In 2000, defendant Roy Raul Campos was convicted of felony burglary (Pen. Code, §§ 459/460, subd. (b)) and was sentenced to an indeterminate term of 25 years to life pursuant to the Three Strikes law (§§ 667, subds. (b)-(i); 1170.12). In 2014, defendant filed a petition for a recall of his sentence pursuant to section 1170.126, subdivision (b), which was enacted as part of Proposition 36, the Three Strikes Reform Act of 2012 (hereafter, "Reform Act"). The trial court denied defendant's petition after finding that resentencing him as a second strike offender "would pose an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).)
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant makes two arguments on appeal. First, defendant contends the trial court erroneously refused to apply the more restrictive definition of "unreasonable risk of danger to public safety" that is set forth in section 1170.18, subdivision (c), which was enacted in 2014 as part of Proposition 47, the Safe Neighborhoods and Schools Act. Second, defendant contends the trial court abused its discretion by finding that resentencing him "would pose an unreasonable risk of danger to public safety" even under the standard set forth in Proposition 36. (See § 1170.126, subds. (f) & (g).)
As we shall explain, defendant's first argument was recently rejected by our Supreme Court in People v. Valencia (2017) 3 Cal.5th 347 (Valencia), and we find that defendant's second argument lacks merit. Thus, we will affirm the trial court's order denying defendant's petition.
II. BACKGROUND
A. Defendant's Commitment Offense
On March 8, 2000, defendant was sentenced to an indeterminate term of 25 years to life after a jury convicted him of second degree burglary. (§§ 459/460, subd. (b).) In the same proceeding, defendant was convicted of petty theft with a prior (§ 666), for which the trial court also imposed an indeterminate term of 25 years to life but stayed that punishment pursuant to section 654. Defendant admitted five strike allegations (§ 667, subds. (b)-(i)), along with one prior prison term allegation (§ 667.5, subd. (b)), for which an additional one-year term was imposed.
The burglary occurred on December 20, 1998 at a store called Denim Depot. A rock had been used to break the glass panel of the front door, and five leather jackets had been stolen. Defendant was arrested nearby and identified by a witness, but he denied responsibility for the burglary.
According to the probation report prepared for sentencing, defendant said he had been using various substances—including alcohol, marijuana, cocaine, and PCP—since age 14.
B. Defendant's Criminal History
In 1981, defendant was convicted of two counts of robbery (§ 211) and two counts of kidnapping (§ 207). Defendant committed the crimes with a codefendant named Sandoval. The victims were a woman and her nephew who were coming from a market. Defendant pulled out a 12-inch kitchen knife and told the victims to get into the back seat of their car. Defendant then drove the victims' car to a remote location. Sandoval followed in his own car. At the remote location, defendant and Sandoval took the tires and wheels from the victims' car, made the victims lie face down, and drove off in Sandoval's car. Defendant was 19 years old at the time and was committed to the California Youth Authority for seven years.
In 1984, defendant was convicted of escape (§ 4532, subd. (a)).
In 1987, defendant was convicted of second degree burglary (§§ 459/ former 460.2). Defendant and three codefendants had been "going through" the victims' car, which was parked near a beach.
In 1989, defendant was convicted of petty theft with a prior (§ 666). He and a codefendant walked into a store, took off their shoes, put on new shoes from the store, and left without paying for the shoes. Defendant was on parole at the time.
In 1993, defendant was convicted of felony assault (§ 245, subd. (a)(1)) with personal infliction of great bodily injury (§ 12022.7). Defendant had been punching his girlfriend. When defendant's father intervened, defendant "beat his father to a pulp." Defendant was arrested for assault and for being under the influence of PCP.
Defendant's misdemeanor convictions included convictions of being under the influence of a controlled substance (Health & Saf. Code, § 11550) in 1984, 1986, 1988, 1989, 1990; a 1984 conviction of resisting arrest (§ 148); convictions of failure to appear (Veh. Code, § 40508, subd. (a)) in 1992 and 1996; a conviction of providing false information to a peace officer (§ 148.9) in 1996; and convictions of driving under the influence (Veh. Code, § 23152, subd. (a)) and failing to stop at the scene of an accident (Veh. Code, § 20002, subd. (a)) in 1993.
C. Petition and Opposition
On November 6, 2014, defendant filed a petition seeking "appointment of counsel and a finding of eligibility for possible resentencing" pursuant to section 1170.126. The trial court appointed counsel to represent defendant.
The People filed opposition to defendant's petition, arguing that resentencing him would pose an unreasonable risk of danger to public safety. The People noted that while in prison, defendant had committed violence on a number of occasions.
In defendant's written response, he pointed out that after the Reform Act, someone convicted of the same burglary offense, with the same criminal record, would have a maximum exposure of seven years; he had been in custody for over 16 years. He argued that the Reform Act created a presumption in favor of resentencing, that the prosecution had the burden of proving that he posed an unreasonable risk of danger to public safety, that he was entitled to a jury trial on the question of whether he posed an unreasonable risk of danger to public safety, and that resentencing him would not pose an unreasonable risk of danger to public safety.
In support of his claim that resentencing him would not pose an unreasonable risk of danger to public safety, defendant asserted that he was remorseful, and he equated his commitment offense to a shoplifting. Defendant characterized his record of prison discipline as "minimal" but acknowledged he had been in five fights with other inmates. He claimed he had support of "family members in the community" and would participate in re-entry services. He also cited research showing that "life termers pose a low risk to public safety" and that "people generally 'age out of crime' " after age 50.
In a supplemental memorandum of points and authorities, defendant argued that the trial court should use the definition of "unreasonable risk of danger to public safety" provided by section 1170.18, subdivision (c), which had recently been enacted as part of Proposition 47.
Section 1170.18, subdivision (c) reads: "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 eight felonies or classes of felonies listed in section 667, subdivision (e)(2)(C)(iv) are sometimes referred to as "super strikes." (See Valencia, supra, 3 Cal.5th at p. 351.) --------
D. Hearing
At a hearing held on May 29, 2015, the trial court denied defendant's request for a jury trial and found that "the Proposition 47 definition of unreasonable risk does not apply to cases under [section] 1170.126."
Defendant then presented testimony from Richard Subia, a public safety consultant who was found qualified as an expert in policies and procedures of the California Department of Corrections and Rehabilitation (CDCR) as well as "CDCR gang culture and prison gang issues." Subia had worked with the CDCR from 1986 through 2012. He had previously testified in "close to 40" Proposition 36 hearings. In preparation for his testimony, Subia had reviewed defendant's complete CDCR file and conducted a personal interview of defendant.
Defendant had a number of "CC rules violations reports" while in prison. Many of those reports were for "delaying a peace officer in the performance of his duties, disobeying, refusing a direct order." In each of those instances, defendant had refused to accept a particular cellmate or had refused to move in with a particular cellmate.
Defendant also had two disciplinary violations ("115s") for battery on an inmate and three for mutual combat. The first was related to defendant's participation in a 2003 race riot, during which Southern inmates had attacked Northern inmates. Defendant fought with the Northerners during the riot, which took place in a dining hall. According to Subia, defendant would have had "no place to go" during the riot, and he would not have had a choice in his identification as a Northerner, since he was from San Jose. Subia later acknowledged, however, that during the riot, defendant had refused orders to stop fighting, even after a correctional officer shot him in the shoulder.
Defendant was not a validated gang member, but in prison Northern Hispanic gang members "would" have approached him and asked him to "do things." If defendant had refused, "he would [have] become a target." If defendant did not want to follow the rules of the Northern Hispanics, he also could have requested to be placed in the sensitive needs yard, which is what he did following the riot.
Defendant told Subia that placement in the sensitive needs yard did not end his problems, because gangs had developed there as well. Defendant "had a couple of fights" and complained that gang members were being put into his cell. He refused to be housed with any inmates, which resulted in multiple write-ups and his classification score being raised. It took years before CDCR allowed defendant to be in a cell by himself.
In 2004, defendant was written up for "disrespect to staff" after threatening a correctional officer. Defendant had accused the officer of forgetting to allow defendant to take a shower. He had been disciplined by losing 30 days of credit as well as privileges.
In 2005, defendant received a disciplinary violation for punching his cellmate. Defendant had been upset about the cellmate's hygiene and had requested to be moved to another cell, which led to an altercation.
In August 2006, defendant received a disciplinary violation for mutual combat with his cellmate, even though defendant had "all the injuries" and the cellmate had none.
In November 2007, defendant fought with another inmate inside the prison library. An officer observed "both inmates . . . striking each other" and ordered them to "get down," but they refused and continued to fight, so the officer employed his baton.
In October 2008, defendant was again "involved in mutual combat" with another inmate, and both inmates again refused to "get down" when ordered to do so. An officer had to employ O.C. spray.
In November 2008, defendant was disciplined for obstructing a peace officer in the performance of his duties. Defendant had refused to move from administrative segregation to the general population. Two days after that incident, defendant had refused an order to go to the yard.
In December 2008, defendant was again disciplined for refusing to go to the yard. Also at that time, defendant had been refusing to participate in "program activities" at the prison. Later that month, defendant was disciplined for refusing a direct order, after he refused to be "double celled."
In February 2009, defendant was disciplined for refusing to comply with an order regarding assigned housing. Defendant had again refused to be "double celled." Another similar violation occurred later that same month.
In October 2009, defendant was disciplined for being out of bounds.
In 2010, defendant suffered his most serious disciplinary violation. The incident involved a "cell fight." Defendant had been observed punching his cellmate, who was "on the floor in a fetal position." Defendant had not complied when a correctional officer ordered him to get down, nor when the correctional officer used O.C. spray. Despite being commanded to stop, defendant had used both a television and a fan to assault the victim.
Defendant's most recent disciplinary violation was in 2011. Defendant was told that he was going to have a cellmate, and he responded by saying, "If somebody comes in with me, I'm going to end up killing him." Defendant meant that "he was going to have to defend himself," but he was nevertheless written up for "willfully objecting and delaying a peace officer."
Since 2011, defendant's disciplinary points had gone down. However, for 12 months of that time, he had been in the security housing unit (SHU).
Subia had considered defendant's commitment offense (the burglary) and prior criminal history. He noted that since the assault involving defendant's father, defendant had committed only "little misdemeanor offenses" until he committed the burglary leading to his current commitment. In Subia's opinion, the burglary was "completely different" than the prior felony offenses.
Subia testified that because defendant had been sentenced to a life term, he would have been excluded from access to many prison programs, at least initially. Subia explained that a life inmate can do programs if he "gets his score down." Defendant's score was 121; it had originally been 69.
E. Arguments and Trial Court Ruling
At the end of the hearing, the prosecutor argued that the evidence showed defendant was "a violent individual" who had done nothing to change his ways or better himself.
Defendant's attorney noted that defendant was 53 years old and that four of the five strike priors were from the 1981 offenses, which defendant committed when he was "just 19 years old." Defendant's attorney further noted that the fifth strike offense (the 1993 assault involving his father) occurred almost 10 years after defendant's release from custody for the 1981 offenses and that defendant had "successfully completed . . . probation" for that case "without any violations." Defendant had "only minor traffic violations" between 1993 and 1998, when he committed the burglary. The burglary would have been eligible for reclassification as a misdemeanor pursuant to Proposition 47 "but for the fact the theft occurred when the business was closed." The burglary involved "the theft of five leather jackets," four of which were returned.
Defendant's attorney argued that defendant's prison rule violations stemmed from his expressed "desire to not affiliate with the gang." She noted that if released, defendant would be placed on post-release community supervision and would be able to participate in services.
The trial court announced its ruling on June 2, 2015. The trial court first reviewed defendant's criminal history and defendant's history of prison discipline. The trial court then discussed Subia's opinion that defendant's history of prison discipline derived primarily from defendant's "fear of being housed with hostile cellmates" who were gang members. The trial court found that Subia's opinion was "based entirely . . . on the information he gleaned from his interview with the defendant." The trial court noted it did not accept defendant's statements as true; that there was no evidence showing that defendant had sought out any protection from within the prison system; and that at the time of each incident, defendant had not indicated that he was looking out for his own safety. The trial court found that defendant's history of prison discipline showed, instead, that when defendant did not agree with CDCR decisions, he resorted to "disregard of the rules, disruption[,] or physical violence."
The trial court also addressed Subia's testimony that defendant's "inability to program" was due to his "classification and placement score" rather than an "unwillingness to program." The trial court noted that a life prisoner can obtain a lower classification score but that defendant's classification score had risen to 121 points due to his own "choices of the means and the methods that he uses to deal with conflicts with other inmates and [with] prison authorities." Additionally, even when defendant was out of custody, he had not "sought any significant educational opportunity or vocational training" and had long periods of unemployment. He also had not tried to address his drug and alcohol abuse.
The trial court noted that defendant's criminal history included "some violence" and acknowledged that defendant did not commit any crimes of violence between the two sets of strike offenses. However, the trial court noted, defendant had continued to engage in criminal conduct—the use of "controlled substances"—during that period, and that all of defendant's crimes had been "brazen" and reflected "a significant lack of impulse control." The trial court also found defendant's crimes "inherently more dangerous" because they were often "committed in concert with other people." The trial court noted that in less than 18 years, defendant had committed offenses that resulted in him being in custody for 14 years and eight months.
The trial court rejected the notion that defendant's age made him less likely to reoffend, noting that "defendant's willingness to resort to or participate in violence . . . has, if anything, increased during his period of incarceration."
Ultimately, the trial court found "that resentencing the defendant would pose an unreasonable danger to the community," and it denied the petition.
III. DISCUSSION
A. Definition of "Unreasonable Risk of Danger to Public Safety"
Defendant contends the definition of "unreasonable risk of danger to public safety" that is set forth in section 1170.18, subdivision (c) applies to the same phrase as used in section 1170.126, subdivision (f). However, this argument was rejected by the California Supreme Court in Valencia, supra, 3 Cal.5th 347, which held that "Proposition 47's definition of 'unreasonable risk of danger to public safety' does not apply to resentencing proceedings under the Three Strikes Reform Act." (Id. at p. 377.) In light of that California Supreme Court precedent, we conclude the trial court did not err by refusing to apply section 1170.18, subdivision (c)'s more restrictive definition of "unreasonable risk of danger to public safety" definition when ruling on his section 1170.126 petition. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
B. Finding of "Unreasonable Risk of Danger to Public Safety"
Defendant contends the trial court abused its discretion by finding that resentencing him "would pose an unreasonable risk of danger to public safety" even under the standard set forth in Proposition 36. (See § 1170.126, subds. (f) & (g).)
"Proposition 36 did not define the phrase 'unreasonable risk of danger to public safety' " (Valencia, supra, 3 Cal.5th at p. 350), but it did specify the factors a court "may consider" in exercising its discretion in making a determination as to whether the defendant would pose an unreasonable risk of danger to public safety: "(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." (§ 1170.126, subd. (g).)
1. Count-By-Count Assessment of Dangerousness
Defendant first contends the trial court failed to assess his dangerousness on a "count-by-count basis." Defendant notes that eligibility for Proposition 36 resentencing must be assessed on a count-by-count basis. (See People v. Johnson (2015) 61 Cal.4th 674, 680 [defendant's conviction for first degree burglary, a serious felony, did not render him ineligible for resentencing with respect to a second degree burglary conviction, which is not serious or violent].)
As an initial matter, we observe that defendant failed to make this argument below, thereby arguably forfeiting this claim. (See gen., People v. Scott (1994) 9 Cal.4th 331, 353.) But even if the claim was not forfeited, and even assuming the trial court was required to assess defendant's dangerousness on a count-by-count basis, any error was harmless. As the People point out, defendant's two offenses—second degree burglary and petty theft with a prior—were committed on the same occasion and during the same course of conduct. Defendant used a rock to break into a store and stole five leather jackets. On this record, there was no basis for distinguishing between the dangerousness associated with defendant's commission of the two offenses, and thus any error in failing to consider dangerousness on a count-by-count basis was not prejudicial under any standard. (See Chapman v. California (1967) 386 U.S. 18, 24 ["harmless beyond a reasonable doubt" standard for federal constitutional error]; People v. Watson (1956) 46 Cal.2d 818, 836-837 ["reasonable probability" standard for error under California law].)
2. Rejection of Expert Testimony
Defendant next contends the trial court "ignored or misunderstood evidence that was critical in showing that [he] did not present an unreasonable risk of danger to public safety if resentenced." He refers to the trial court's findings concerning Subia's opinion that defendant's prison discipline stemmed from defendant's "fear of being housed with hostile cellmates" who were gang members. Defendant asserts that there is, in fact, "ample central file documentation of [his] attempts to protect himself from gang assaults," but he provides no record citations and acknowledges that Subia had to "read between the lines of those documents" in order to find that they corroborated defendant's claim. Defendant further acknowledges that "it is impossible to know from the documents exactly what [he] may have told certain staff members."
We do not agree with defendant's claim that the trial court improperly rejected Subia's expert testimony regarding the reasons for defendant's prison disciplinary incidents because it was "uncontradicted." As the trial court found and as defendant acknowledges, there was no documentary evidence that defendant's prison discipline problems stemmed from a fear of being housed with violent gang members. Subia's opinion relied almost entirely on defendant's recent self-serving statements. Our review of the record thus shows that the trial court did not "act arbitrarily" by rejecting Subia's opinion. (See Camp v. Ortega (1962) 209 Cal.App.2d 275, 283.)
3. Reliance on "Past Immutable Facts"
Last, defendant contends the trial court erroneously relied solely on defendant's criminal past and in-prison record, while disregarding his "conforming and pro-social behavior since then." He cites this court's opinion in People v. Esparza (2015) 242 Cal.App.4th 726, which held that the "proper focus" of a court deciding whether to resentence a petitioner under the Reform Act "is on whether the petitioner currently poses an unreasonable risk of danger to public safety" and that "a trial court may properly deny resentencing under the [Reform] 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.]" (Id. at p. 746.)
The record does not support defendant's claim that the trial court relied solely on defendant's criminal past and in-prison record. In finding that resentencing defendant would "would pose an unreasonable risk of danger to public safety" (§ 1170.126, subd. (f)), the trial court reviewed defendant's criminal history, history of prison discipline, and Subia's testimony. The trial court also considered defendant's failure to pursue opportunities for education, vocational training, and substance abuse treatment when out of custody. The trial court further considered defendant's age.
Defendant asserts that the trial court "completely ignored the fact that [he] had been drug and alcohol-free for at least 12 years at the time of the Proposition 36 decision." But defendant's failure to abuse those substances while in a very restricted prison sentence is not significantly predictive of whether he would resume use of those substances upon his release. In light of the fact that defendant had a long history of substance abuse and had not participated in treatment either in or out of custody, the trial court was not required to place significant weight on defendant's apparent sobriety while in prison when determining his dangerousness if resentenced.
Defendant similarly points out that his most recent prison disciplinary violation was in 2011, "over three and a half years" before the trial court's decision. However, the trial court reasonably found that in light of defendant's long history of violent criminal conduct, a short period without violent conduct was insignificant and not particularly probative of defendant's dangerousness. Further, as the trial court noted, defendant had spent 12 months of that time in SHU, where he would have been very restricted.
Finally, defendant notes that since 2011, he had been housed in a single cell and that since 2013, he had been taking Prozac. Because defendant's prison discipline problems frequently stemmed from cellmate issues, the trial court could reasonably find that defendant's lack of discipline problems while single-celled was not probative of whether defendant would be dangerous if released to society. Likewise, the trial court could reasonably find that defendant's recent medication compliance while in a structured prison setting did not show a lack of dangerousness if resentenced.
In sum, after reviewing the entire record, we conclude that the trial court did not abuse its discretion by finding that resentencing defendant "would pose an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).)
IV. DISPOSITION
The June 2, 2015 order denying defendant's Penal Code section 1170.126 petition is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.