Opinion
C099059
08-05-2024
THE PEOPLE, Plaintiff and Respondent, v. HENRY CHAVEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 05F07263)
EARL, P. J.
A jury convicted defendant Henry Chavez of seven counts of crimes related to sexual assault and rape, including crimes against a person under 16 years. A jury also found true the allegations that he had four prior convictions for crimes related to sexual assault and rape.
The trial court sentenced Chavez to an aggregate term of 300 years to life, plus an additional 20 years of enhancements. Approximately 12 years after sentencing, the Secretary of the Department of Corrections and Rehabilitation (Secretary) recommended that the trial court recall Chavez's sentence under Penal Code section 1170, subdivision (d) to consider whether to strike Chavez's four serious felony sentencing enhancements pursuant to section 667, subdivision (a)(1). The trial court denied the Secretary's recommendation, and Chavez appealed.
Undesignated statutory references are to the Penal Code.
In 2022, this court reversed the trial court's ruling and remanded it back to the trial court to reconsider the request under section 1172.1. (People v. Chavez (July 22, 2022, C094323) [nonpub. opn.].) The trial court again denied the request.
On this, his second resentencing appeal, Chavez contends the trial court abused its discretion in declining to recall and resentence him pursuant to section 1172.1. We find no error and thus affirm the order denying recall and resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
This case centers upon the Secretary's recommendation for resentencing for Chavez's sex crimes, including kidnapping to commit rape (count 1, § 209, subd. (b)(1)); forcible oral copulation (count 2, former § 288a, subd. (c)(2)); forcible digital penetration (count 4, § 289, subd. (a)(1)); forcible rape (count 5, § 261, subd. (a)(2)); forcible oral copulation with a person under the age of 16 years (count 6, former § 288a, subd. (b)(2)); forcible digital penetration of a person under the age of 16 years (count 8, § 289, subd. (i)), and unlawful sexual intercourse with a person under the age of 16 years (count 9, § 261.5, subd. (d)). As such, we dispense with a recitation of the underlying facts of Chavez's criminal conduct.
In 2008, a jury found Chavez guilty of counts 1, 2, 4, 5, 6, 8, and 9. The jury also found true allegations of prior strike convictions for forcible sodomy (§ 286, subd. (c)); forcible rape (§ 261, subd. (a)(2)); assault with the intent to commit rape (§ 220); and assault with the intent to commit sodomy (§ 220) pursuant to section 667, subdivisions (b) through (i), and section 1170.12. The trial court sentenced Chavez to a term of 300 years to life plus four 5-year enhancements for the prior convictions pursuant to section 667, subdivision (a)(1). At sentencing, Chavez moved to dismiss a prior strike, which the trial court denied.
In 2020, the Secretary recommended the trial court recall Chavez's sentence (§ 1170, subd. (d)) and consider whether to strike his four serious felony sentencing enhancements (§ 667, subd. (a)(1)) in light of then recent legislative changes. The trial court declined to recall Chavez's sentence. Chavez appealed. This court reversed the trial court's order denying the Secretary's recommendation and remanded the case with directions to the trial court to reconsider the request under the newly created section 1170.03 (now § 1172.1). (People v. Chavez, supra, C094323.)
The same trial court presided over Chavez's trial and the resentencing hearing. The court reviewed all the pleadings in this case and was aware of Chavez's history. Based on the information from both the original trial and from the resentencing hearing, the trial court found Chavez to currently be an unreasonable risk of danger to public safety based on the following circumstances: (1) Chavez is a "super-striker . . . somebody who is more likely than not to commit other super-strike offenses if he is resentenced"; (2) Chavez was out on bail when he abused his second victim; and (3) Chavez was on parole for approximately one year before he kidnapped and raped his third victim/the victim in the current case. For these reasons, the trial court determined the presumption pursuant to section 1172.1, subdivision (b)(2) was overcome and denied resentencing to Chavez.
DISCUSSION
Chavez contends the trial court failed to consider all the necessary factors and abused its discretion by declining to resentence him based on the Secretary's recommendation. Chavez further argues that his postconviction record, history of childhood sexual abuse, developmental disability, and substance abuse combined with a presumption favoring recall and resentencing should have been sufficient to strike the enhancements. The People respond that the trial court found Chavez posed a current unreasonable risk of danger to public safety based on his history of repeated sexual offenses, thus overcoming the presumption pursuant to section 1172.1, subdivision (b)(2).
A. Standard of Review
We review the trial court's discretionary resentencing determinations for abuse of discretion. (People v. Frazier (2020) 55 Cal.App.5th 858, 863.) The trial court abuses its sentencing discretion when its decision is arbitrary or capricious, inconsistent with the letter and spirit of the law, or based on circumstances that constitute an improper basis for decision. (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
B. Legal Background
Upon the recommendation of the Secretary, the trial court may "recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence." (§ 1172.1, subd. (a)(1).) In recalling and resentencing pursuant to this provision, the court may consider postconviction factors, including but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice. (§ 1172.1, subd. (a)(5).)
The court shall consider if the defendant has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence, and whether those circumstances were a contributing factor in the commission of the offense. (§ 1172.1, subd. (a)(5).) There shall be a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety. (§ 1172.1, subd. (b)(2).)
An" 'unreasonable risk of danger to public safety'" is "an unreasonable risk that [the defendant] will commit a new violent felony." (§ 1170.18, subd. (c).) This includes "[a]ny serious or violent felony offense punishable in California by life imprisonment or death." (§ 667, subd. (e)(2)(C)(iv)(VIII).) The presumption favoring recall evinces the Legislature's intent that trial courts generally accept the Secretary's recommendations. (People v. McMurray (2022) 76 Cal.App.5th 1035, 1040.)
C. Analysis
The Secretary recommended resentencing, thus there was a presumption in favor of recall and resentencing, which could "only be overcome if [the trial court] finds the defendant currently poses an unreasonable risk of [committing a super strike]." (§ 1172.1, subd. (b)(2), italics added.)
Chavez relies on In re Shaputis (2008) 44 Cal.4th 1241 in arguing the trial court failed to properly determine the current dangerousness of the defendant. Shaputis holds that," '[T]he determination whether an inmate poses a current danger is not dependent upon whether his or her commitment offense is more or less egregious than other, similar crimes. [Citation.] . . . Rather, the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense.... [Citation.]' [Citation.] [¶] . . . '. . . [S]ome evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety.'" (Id. at pp. 1254-1255.)
Chavez contends the trial court relied entirely on the static factors of his convictions without making any reasoned attempt to assess whether he continues to present such a risk and was "entirely dismissive" to the intrinsic factors, such as his postconviction factors, psychological experience, and history of childhood trauma that are to be considered in determining the recall and resentencing. These include having no rule violations while incarcerated, maintaining work assignments, attending education programs, participating in Catholic 12-step/bible study programs, gaining family support, and, according to witnesses, taking full responsibility for his actions and showing considerable remorse. We disagree.
At resentencing, the trial court noted it had reviewed all the pleadings and acknowledged its discretion to strike the prior conviction enhancements. The pleadings included Chavez's reply to the Secretary's recommendation, which referenced the very factors Chavez claims the trial court dismissed. The court also heard from counsel that Chavez had been participating in self-help programs. Ultimately, the trial court found that Chavez is "somebody who is more likely than not to commit other super-strike offenses if he is resentenced" despite the postconviction factors. His behavior and conduct while incarcerated "inures to [Chavez's] benefit other than he does not rape women when he is incarcerated in the Department of Corrections and Rehabilitation." The trial court was not dismissive of intrinsic factors, it simply found them outweighed by Chavez's dangerousness. It found the presumption favoring recall and resentencing overcome by a clear demonstration that Chavez poses an unreasonable risk to public safety. We agree with the trial court.
Here, the evidence of Chavez's criminal history showed that in 1991, he was convicted of raping a 29-year-old woman. Chavez was released on bail for that offense, and approximately one year later he raped a 16-year-old girl. He was incarcerated for approximately 10 years before being released on parole. Despite that lengthy incarceration, Chavez went on to kidnap and rape a 15-year-old girl, the subject of this underlying case, thus proving he had not rehabilitated. His history of committing serious sex crimes despite repeated incarcerations demonstrates a predictive pattern of behavior that easily lends itself to concluding that Chavez is an unreasonable risk of danger to public safety.
Accordingly, we conclude the trial court properly considered Chavez's personal experience and postconviction factors and did not abuse its discretion when declining to recall and resentence.
DISPOSITION
The order denying recall and resentencing is affirmed.
We concur: MAURO, J. MESIWALA, J.