Opinion
C076439
01-11-2017
THE PEOPLE, Plaintiff and Respondent, v. DWAYNE ALLEN EICHLER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF959374)
Quite early one morning in 1995 defendant Dwayne Allen Eichler failed to stop at a stop sign and fled when the California Highway Patrol attempted to pull him over. Eichler led officers on a high-speed chase, swerving into oncoming traffic. Ultimately, officers used a spike strip to halt defendant's vehicle. Defendant admitted to eating the methamphetamine in his possession during the chase. A jury convicted defendant of driving in willful disregard for the safety of persons or property while fleeing a police vehicle. (Veh. Code, § 2800.2.) Defendant admitted five prior strike convictions under Penal Code sections 1170.12 and 667, and two prison priors pursuant to Penal Code section 667.5, subdivision (b). The court sentenced defendant to 27 years to life in state prison. Defendant appealed his sentence and we ordered a remand for the trial court to consider its discretion to strike a prior conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The trial court declined to exercise its discretion and declined defendant's request to strike any of his prior convictions, and we affirmed the judgment. Following the passage of Proposition 36, defendant filed a petition to recall his sentence, which the trial court denied. Defendant appeals, arguing the trial court abused its discretion in denying his petition to recall his sentence. We remand for further proceedings in accordance with our opinion.
All further statutory references are to the Penal Code unless otherwise designated.
People v. Eichler (May 29, 1997, C023714) [nonpub. opn.]
People v. Eichler (Jan. 22, 1999, C027698) [nonpub. opn.]
FACTUAL AND PROCEDURAL BACKGROUND
Defendant's Past History
Defendant, born in October 1961, began using alcohol and marijuana at age 12. At age 17, defendant began using cocaine and methamphetamine. According to defendant, when he was 17 to 19 years old he committed several robberies. Following his 19th birthday, defendant was convicted of vandalism and battery, for which he served five days in jail and 10 more days after violating his probation. A year later, in 1981, defendant was convicted of three counts of armed robbery and one count of attempted armed robbery and sentenced to five years in state prison. After he was paroled in 1984 defendant was twice returned to custody for parole violations.
In 1987 defendant was convicted of assault with a deadly weapon resulting in great bodily injury. After he was released on parole, defendant twice violated his parole. In 1990 defendant was sentenced to two years four months in state prison for being a felon in possession of a firearm. Two months after being released on parole, defendant went back to prison for six months for violating his parole.
In October 1992, seven months after being released from prison, defendant was sentenced to two years' incarceration for possessing methamphetamine. Following his release, defendant was again incarcerated for violating his parole by using methamphetamine.
In January 1995 defendant and his girlfriend got into a fight at their apartment. Defendant's girlfriend ran to a neighbor's apartment. Defendant followed her with a hatchet and kicked open the door. He swung the hatchet at his neighbor's head, narrowly missing. Defendant grabbed his girlfriend by the hair and beat her. Defendant was charged with three counts of assault with a deadly weapon, first degree burglary, and corporal injury. Defendant left the scene before officers arrived and with his girlfriend fled the city. The court issued a warrant for his arrest.
Current Offense
In February 1995 defendant, driving with his girlfriend, ran a stop sign. A California Highway Patrol officer attempted to pull defendant over, but he sped away. During the pursuit, defendant twice stopped at the side of the road but then, as officers approached, drove away, accelerating up to 80 miles an hour. Defendant drove across the road into oncoming traffic. He again stopped, made a U-turn, and continued to evade police. The officers used a spike strip to deflate his tires, but defendant continued to weave across the highway. Ultimately, officers took defendant into custody. Defendant admitted to eating the methamphetamine in his possession during the chase.
A jury convicted defendant of driving with willful disregard for the safety of persons or property while fleeing the police. Defendant admitted five prior strike convictions under sections 1170.12 and 667: attempted robbery, three convictions of robbery, and assault with a deadly weapon. Defendant also admitted two prison priors pursuant to section 667.5, subdivision (b). The court sentenced defendant to 27 years to life in state prison.
Remand
Defendant appealed his sentence and we ordered a remand for resentencing so the court could consider its discretion to strike a prior conviction pursuant to Romero, supra, 13 Cal.4th 497.
The court denied defendant's request to strike any of his prior convictions. According to the court: "He has over a span of 14 years committed eight felonies. He has been sentenced to prison on four occasions before this one. Five of his felony convictions were for assaultive behavior. After having been paroled from prison, he's been returned to custody on at least five occasions for parole violations. I'm required to take account of that information in determining whether the sentence required by the implementation of the three strikes law is an appropriate one. It's plain that the interests of society are not well served by imposing a draconian sentence for relatively minor offenses. One might take the view that a life term for reckless evasion approaches draconian dimensions. I suspect it does. That's what motivated me to declare -- impose a life term reluctantly with personal distaste. However, I'm required to take account of the legitimate interest of society in enacting the three strikes law, that interest being one of isolating career criminals. That interest is served by the life term imposed in this case. On balance, the Defendant's Constitutional rights are not offended." The court concluded: "Having drawn those conclusions my ultimate conclusion is that under the authorities to which I made reference at the outset of this hearing, it would be an abuse of my discretion to avoid the implementation of the three strikes law in this case and because of my concern that it would be an abuse of discretion I decline to exercise my discretion to strike the allegation of the Information engaging the three strikes law. That's as much as I can do for you, that statement that I just made." We affirmed the trial court's judgment. (People v. Eichler, supra, C027698)
Defendant's Behavior in Prison
Defendant was sentenced in June 1995. In August 1995 defendant admitted attacking another inmate. In February 1997 defendant admitted engaging in mutual combat with another inmate. The following November he admitted punching his cellmate and stated the two "couldn't live together." The next month defendant pleaded guilty to punching two other inmates, engaging in mutual combat with another inmate, and battery on yet another inmate.
In May 1998 defendant pleaded guilty to mutual combat with another inmate. Defendant was placed on single-cell status due to his assaults on other inmates in July 1998. Subsequently defendant was transferred to Atascadero State Hospital, where he assaulted a fellow patient. In 2000 he repeated this conduct and eventually was again classified as a single-cell inmate. After being allowed to be housed with a cellmate, defendant pleaded guilty to fighting.
In November 2011 defendant was found guilty of disrespect toward a correctional officer. In May 2012 defendant was found guilty of fighting another inmate in the recreation yard and failing to yield to officers' commands to stop, resulting in the deployment of a blast grenade.
Proposition 36
On November 6, 2012, the voters passed Proposition 36, the Three Strikes Reform Act of 2012, which became effective the next day and enacted section 1170.126 (the Act), allowing a defendant to file a petition for recall of his sentence. Defendant filed a petition to recall his sentence. Following a hearing, the court denied defendant's request. Defendant filed a timely notice of appeal.
DISCUSSION
Defendant argues the trial court abused its discretion in denying his petition to recall his sentence. According to defendant, the court misunderstood the facts concerning his release and used the wrong standard of risk.
Background
At the hearing on his petition, defendant introduced exhibits including certificates of achievement for stress management, conflict resolution, anger management and rage control, and self-awareness and recovery. He also submitted verification of his GED and letters of support.
In opposition, the People submitted defendant's disciplinary reports while in prison. In addition, the People submitted a report from Dr. John Cannell, who conducted an in-patient examination of defendant at Atascadero State Prison. Dr. Cannell summarized defendant's delusional and ritualistic behavior that led to his transfer to Atascadero and described two physical altercations he had while housed there.
Dr. Switzer's Testimony
Dr. Daisy Switzer, a Ph.D. in psychology, focusing on forensic psychology, testified at the hearing. Dr. Switzer specializes in risk assessment and has conducted over 500 risk assessments, including two years of assessments for the parole board.
Dr. Switzer met with defendant for two hours after reviewing his criminal history. She did not have a favorable opinion of defendant's ability to be released into society based upon his history of visual hallucinations, racially biased beliefs, his recent disrespect for a corrections officer, and his manipulative actions while in custody.
Dr. Switzer measured defendant's "psychopathy" as "[a]verage for prison inmate being released. Not high. Not low. Just absolutely average." She also performed an HCR-20 risk assessment test and defendant again scored in the "moderate range" for an inmate about to be released from custody. In addition, defendant would need an "average" amount of supervision upon release: "He's not somebody that could just kind of be let loose. He would need . . . to be monitored." Dr. Switzer also stated substance abuse was a constant and primary "stressor" in defendant's life. She concluded defendant "was no more or less a danger than any other prisoner being released on parole."
During cross-examination, Dr. Switzer noted she saw "red flags" in connection with defendant's risk of recidivism based on his record in prison. She testified her assessment of defendant's reasonable danger to public safety was based on the assumption defendant would be supervised by the parole board and subject to mandatory drug testing. Dr. Switzer disagreed with the diagnosis that defendant suffered from schizophrenia. However, defendant admitted to Dr. Switzer that he heard voices in his head.
If defendant were to be released without supervision and mandatory drug testing, Dr. Switzer stated, the public would not be safe. She would "have pause" to release defendant or any life prisoner without supervision. Dr. Switzer expressed a belief that defendant would relapse into drug use without supervised drug treatment.
Defendant's Witnesses
Defendant's sister testified that she had room in her home and would provide defendant a place to live. She had reestablished contact with her brother around the time Proposition 36 was passed but denied that was the reason for their reunion.
Defendant's brother also testified. He had previously served time in prison in 1996. He would also provide defendant with a place to live.
Defendant's former crime partner, Robin Abela, testified. He and defendant committed their crimes in 1980; he was released in 1984. Abela was involved in programs for ex-convicts involving reform and rehabilitation. He would be able to assist defendant with placement in housing, programming, and a job, or whatever else was needed to ensure defendant's success in the community.
Defendant's Testimony
Defendant testified he began using drugs at age 17 and used drugs during his first two prison sentences. While a juvenile, defendant was sent to a boy's ranch for possession of stolen property and was adjudicated a ward of the court for petty theft and burglary. After he turned 18, defendant got into a fight with a police officer who was arresting him for being drunk in public.
In 1981 defendant committed seven robberies in the course of a few hours. He and Abela, armed with a firearm, robbed patrons at a Denny's. The pair then went to a Taco Bell, where defendant, armed with a knife, demanded food. After they left, Abela and defendant saw some men moving stereo equipment and, pretending to be police officers, stole the equipment. Defendant's 1987 conviction for assault with a deadly weapon stemmed from his stabbing of a drug dealer.
As for the violation at issue, defendant stated that after officers tried to pull him over for failure to stop at the stop sign, he did not try to flee. Instead, he just wanted to drive until he ran out of gas and smoked all of his cigarettes.
In prison, defendant made and sold wine. While in prison in 1997 defendant got into six prison fights. However, defendant testified he does not have violent tendencies, but "[m]y nature is peace and love." He characterized himself as "an exemplary inmate since 1998."
Trial Court's Ruling
The court began by noting it "unfortunately" agreed with the People, although it found defendant a very nice person who had struggled and had "come far." The court found: "First problem, as this law is written, there is no parole. There is no mandatory anything. He walks out the door. There's no doubt in my mind things would go bad. I know the voters have spoken about the mandate to have the third strike be serious and violent felonies only. But when they wrote Prop 36, they failed to provide for someone like Mr. Eichler, who needs a very high level of supervision.
"I was happy to see that Mr. Eichler has come a long way, and he has eight more years left. Here's the difference. You know, they're asking me to just let them walk out the door unsupervised. Well, that's not going to work. In eight years -- since I'm finding the People have met their burden . . . he'd be walking out the door on parole. That's what he needs. He needs parole so that he won't pose a danger to anybody else. Keep him on the straight and narrow, monitor his behavior.
"It's mand -- you might want to listen to me, Mr. Eichler . . . I'm trying to tell you why I'm finding the way I did. You need to listen to what other people are saying because you've come a long way, and I don't want you to be discouraged. You know, you might get there. I suspect if you take everybody's constructive criticisms to heart, you might get there.
"You'd be released on parole. If you violate parole, you go back to prison as a lifer. There needs to be somebody monitoring Mr. Eichler 24 hours a day. This is a huge transition because he has several factors that just give you red flags: the violence in his past. And then, again, he's come a long way, trying to understand himself. There's still the antisocial personality disorder. That will never go away. Either psychotic disorder or schizophrenia, neither one of those things goes away. [H]e has to be monitored and have complete access to some sort of mental-health facility or there's no reason for me to believe -- I'd have to ensure everybody in this community that they'd be safe with him just moving in. The other two defendants, yes, I stand by my reasoning in letting them out. Nobody opposed that either. Those two folks are going to be productive members of society. Mr. Eichler needs to be watched, and he'll need a lot of supervision to get him back into society. He needs help. So he's not the type of person that I can release and say, 'You won't be a problem.' There's too much there. The voices, the depression, all of this really bothers me.
"I also think moving in with his crime partner is not a good idea. Those two made a lot of really bad judgments that could have gone wrong, and he could have ended up seriously hurting someone. I want to commend him for his progress. His battle is not over yet.
"I'm just not going to let you out early. I think you need supervision so that you won't be a risk to everybody else.
"I think he's a good candidate for parole. This is not parole. This is -- if I ruled in his favor, he's walking out the door, you know, and I don't want him to pull another 2800.2, and I don't know that he won't do that. I'm not quite convinced. The People have met their burden of proof. He's doing a good program. I don't want to discourage him.
"That's why I'm trying to tell you that I think in eight years, if all goes well and you're a Level 2, you have no write-ups -- the other person that I let out . . . I read their files, and there was just nothing there. They had no confrontations with the staff, no write-ups. That's what I need to rule in your favor.
"I'm comparing the Defendant with the other two defendants because they will be a productive member of society. I don't have to worry about them hurting somebody else unsupervised. One even walked in and out of my courtroom.
"Mr. Eichler needs supervision for anybody to make that ruling and that finding that you can be released. I think you could be released with intensive parole supervision. Intensive.
"I agree with the doctor. He needs to be watched. He needs to be guided so that everybody else will be safe while he's making this transition. I'm not convinced at this point in time -- and, again, had the law been written differently, I might be giving you a different ruling. I probably would."
Defendant asked, "Can you stipulate to that?" The court replied: "No. Unfortunately not." Defendant observed "That is a big loophole in the law," and the court stated: "I'm just supposed to let you go and no one's going to help you. No one's going to watch you. That's why I'm saying this to you. I think that . . . the previous sentence will remain in place. And when you go before the Parole Board, you're still a lifer. You're going to get parole. They're going to watch you."
Defendant pointed out, "They don't parole very much anymore." The court responded: "You're an exception. You're a lifer. I think you need to stay in that category. I appreciate you listening to me. I think you need help. You need help getting access to mental health, medication, GPS monitoring, things of that nature. We just can't take you from a Level 3 and say, 'Walk out the door.' Society is a lot different now than when you remember. You thought it was bad in the eighties, in the nineties. Wait till you see it now. All sorts of confrontations out there. Mr. Eichler needs assistance. He needs a great deal of assistance. He needs a halfway house. He needs a group transition or things of that nature. They're all out there."
The court also told defendant it lacked the authority to place him in transitional housing: "You need it mandatory. Mandatory. Parole needs to place you there. Parole needs to test you. Parole needs to supervise you, make sure you don't hang out with your partner in crime. You need these things. That's why I'm ruling in Mr. McGrath's favor because his argument is correct.
"I agree with Dr. Switzer. We just can't have you move in down the street with nobody to help you. That's not doing you any favors, because with your history, I believe that you would commit another felony. There you go. Right back to prison, 80 percent, double the time."
After defendant pointed out that he would be monitored in transitional housing, the court stated: "You know, I think those folks are trying to be very helpful. You need more help than that. I think you will ultimately get there. I don't want you to give up hope. You need parole.
"I tried on the last defendant that we had who walked into the courtroom -- I categorized it as post-release community supervision. I ruled in their favor. When he got to the Department of Corrections, they said, 'No, you're not.' And so I know that's not out there. It's not out there.
"So I'm ruling -- I'm making the finding that you are -- you would present a danger to society as you are today. You need some help."
Discussion
Sentencing matters in general and the application of the three strikes law in particular are matters within the trial court's discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 850-851; People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) The burden is on the party challenging the sentence to clearly show the sentencing decision was irrational or arbitrary. Absent such a showing we presume the trial court acted to achieve legitimate sentencing objectives, and we will not set aside this discretionary determination on appeal. Nor will we reverse the trial court's sentencing decision simply because reasonable people might disagree; we cannot substitute our judgment for that of the trial court. (Carmony, supra, 33 Cal.4th at pp. 376-377.)
Under the Act, a defendant convicted of a felony with two or more prior strike allegations is subject to a 25-year-to-life sentence if the current conviction is a serious or violent felony but, with four exceptions, is subject only to a two-strike sentence if the current felony is not serious or violent. (§§ 667, subd. (e)(2)(A) & (C), 1170.12, subd. (c)(2)(A) & (C); People v. Yearwood (2013) 213 Cal.App.4th 161, 170 (Yearwood).) The Act also permits a person presently serving a three-strike sentence for a felony that is neither serious nor violent to petition for resentencing as a second strike offender (§ 1170.126, subd. (a)) provided the offender's prior convictions do not fall within the four exceptions. Nonetheless, the court considering the resentencing petition may still deny resentencing if it "determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).)
In exercising this discretion, the court may consider (1) the petitioner's criminal conviction history, including the types 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).)
Level of Supervision
A court's exercise of discretion in general must rest upon an understanding of the law and its interactions with the facts pertinent to the particular matter at issue. (See People v. Ruiz (1975) 14 Cal.3d 163, 168; People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) A court which is unaware of its sentencing authority cannot properly exercise its sentencing discretion. So also, a court that misunderstands the consequences of its discretionary choices cannot properly exercise the authority vested in it. It is not clear that the court in the present case fully understood the consequences of exercising its discretion to recall defendant's sentence. Rather, as defendant observes, the trial court based its denial of his petition in part on its mistaken belief he would be released without any supervision into the community.
To the contrary, participation in postrelease community supervision (PRCS) is mandatory for any inmate resentenced under section 1170.126 and released from custody. (People v. Tubbs (2014) 230 Cal.App.4th 578, 585; People v. Espinoza (2014) 226 Cal.App.4th 635, 639-640 (Espinoza).) Former inmates are no longer supervised by the state parole system, but instead, postrelease supervision is transferred to county agencies using enhanced supervision strategies, evidence-based practices, and community-based punishment. (§ 3450, subd. (b)(5).) As with parole, mandatory conditions for community supervision include warrantless searches, waiver of extradition, and weapons and travel restrictions. (§ 3453, subd. (h).) In addition, community sanctions under PRCS include "flash" incarceration in jail, community supervision, mandatory residential or nonresidential substance abuse treatment programs, mandatory random drug testing, and "community-based residential programs offering structure, supervision, drug treatment, alcohol treatment, literacy programming, employment counseling, psychological counseling, mental health treatment, or any combination of these and other interventions." (§ 3450, subd. (b)(8).)
Parole and PRCS are two separate forms of supervision. "Unlike parole, a felon participating in PRCS cannot be returned to prison for violation of his or her postrelease supervision agreement. (§ 3458.) Nor does the Department of Corrections and Rehabilitation have jurisdiction over persons subject to postrelease community supervision. (§ 3457.)" (Espinoza, supra, 226 Cal.App.4th at p. 639.) But it cannot be disputed that a defendant is monitored and subject to close supervision.
Notwithstanding the supervision compelled by PRCS, the court repeatedly stressed its concern with a lack of mandatory oversight, declaring: "I'm just supposed to let you go and no one's going to help you. No one's going to watch you. That's why I'm saying this to you." Further, the court advised: "You need parole. [¶] I tried on the last defendant that we had who walked into the courtroom -- I categorized it as post-release community supervision. I ruled in their favor. When he got to the Department of Corrections, they said, 'No you're not.' And so I know that's not out there. It's not out there." The court expressed the belief that defendant "needs to be watched. He needs to be guided so that everybody else will be safe while he's making this transition. . . . [H]ad the law been written differently, I might be giving different ruling. I probably would. [¶] . . . [¶] I'm just supposed to let you go and no one's going to help you. No one's going to watch you. . . . [¶] . . . [¶] We just can't take you from a Level 3 and say, 'Walk out the door.' . . . Mr. Eichler needs assistance. He needs a great deal of assistance. He needs a halfway house. He needs a group transition or things of that nature." The court concluded: "So I'm ruling -- I'm making the finding that you are -- you would present a danger to society as you are today. You need some help."
The Attorney General concedes the court did not indicate defendant would be subject to PRCS. However, the Attorney General contends the trial court specifically determined defendant needed parole-like supervision to protect society. The trial court stated defendant "needs a very high level of supervision" and told defendant, "[y]ou need it mandatory. Mandatory. Parole needs to place you there. Parole needs to test you. Parole needs to supervise you, make sure you don't hang out with your partner in crime. You need these things." According to the court, defendant "could be released with intensive parole supervision. Intensive."
The court's concern with releasing into the world, without restrictions, a defendant with a lifelong history of violent misbehavior, is understandable. Certainly, parole with a threat of return to prison would allay that concern. And if the court's ruminations were meant only to express its fear that defendant required the highest level of supervision, that only parole and the threat of return to prison would provide, or that no amount of supervision outside of prison could avert his dangerousness, then it could be argued the court properly exercised its discretionary choice. But the court's misunderstanding of community supervision is palpable. Contrary to the court's perception, the supervision provided under the Postrelease Community Supervision Act of 2011 (§ 3450 et seq.) would not leave defendant without "help" and "unwatched."
Community supervision under PRCS and parole are designed to serve the same purpose—to facilitate the successful reintegration into society of those released from prison, while protecting the public by active supervision of the former inmate. (§§ 3000, subd. (a)(1) [parole], 3450, subd. (b)(5) [community supervision].) PRCS simply shifted responsibility for supervising certain released inmates to local jurisdictions. The conditions imposed on those released to community supervision are the same as conditions typically imposed on parolees, such as warrantless searches, waiver of extradition, and weapons and travel restrictions. (§ 3453.) Both programs of supervision are limited to three years for most offenders. (§§ 3000, subd. (b)(2)(A), 3455, subd. (e).) Former inmates under both programs may be returned to custody for violating the conditions of release. (§§ 3057, subd. (a), 3455, subd. (a)(1).)
The court was either unaware of these similarities or, in its ruminations about defendant's continued dangerousness, chose to ignore them. In any event, its decision was predicated on the stated belief that defendant would not be subject to mandatory supervision upon release, although PRCS is mandatory for an inmate resentenced under Proposition 36. We recognize the trial court enjoys broad discretion in sentencing decisions, but when such a decision is based on an incorrect legal assumption it is subject to reversal even though substantial evidence supports the order. (Jacob A. v. C.H. (2011) 196 Cal.App.4th 1591, 1599.) Accordingly, we remand the case for further proceedings to allow the trial court to decide what, if any, impact the existence of mandatory PRCS had on its decision to deny defendant's petition.
Standard of Risk
Defendant also contends the trial court applied the wrong standard of dangerousness in determining whether defendant posed a risk to public safety. According to defendant, the court should have applied the standard of risk as defined by Proposition 47, section 1170.18, subdivision (c). Section 1170.18, subdivision (c) states: "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."
Proposition 47 was enacted after the trial court denied defendant's petition. Defendant contends section 1170.18, subdivision (c) should be applied retroactively and therefore remand is necessary to consider whether the court erred in failing to apply the more stringent standard. We note the California Supreme Court granted review of People v. Chaney (2014) 231 Cal.App.4th 1391, review granted February 18, 2015, S223676, which held that the definition of "unreasonable risk of danger to public safety" from Proposition 47 does not apply retroactively to petitions for recall and resentencing under the Act. The California Supreme Court also granted review of our case, People v. Crockett (2015) 234 Cal.App.4th 642, review granted May 13, 2015, S225198, which also held the definition does not apply retroactively.
The Penal Code presumes the prospective effect of any provision added to it unless a manifest intent to the contrary appears in extrinsic sources. (People v. Brown (2014) 54 Cal.4th 314 (Brown).) In re Estrada (1965) 63 Cal.2d 740 (Estrada) established the principle that a reduction in punishment yields an inevitable intrinsic inference of retroactive application to all cases not yet final on appeal in the absence of some form of saving clause from which a court can find an intent of prospective application. (Estrada, at pp. 744-745, 747-748.)
However, as the Supreme Court in Brown determined, the Estrada principle applies only where there is the reduction of a particular punishment for a particular crime. (Brown, supra, 54 Cal.4th at pp. 324-325.) In Brown, an increase in custody credits that was generally applicable to all presentence custody and resulted in a generally applicable reduction in punishment did not satisfy the criteria required to apply Estrada. (Brown, at pp. 317-318, 325.)
Similarly, even if section 1170.18 results in limiting the court's discretion to deny a resentencing petition under section 1170.126 that would benefit a defendant by making a reduced term more easily available, section 1170.18 generally applies to all defendants and does not satisfy the restated Estrada criteria for applying the inevitable intrinsic inference of retroactive application to cases not final on appeal. Although here we are faced with resentencing, not conduct credits, we still find Brown controlling; a generally applicable ameliorative measure is not entitled to the Estrada principle.
Accordingly, we consider whether the trial court abused its discretion in denying defendant's section 1170.126 petition based on a finding that defendant would "pose an unreasonable risk of danger to public safety." The court considered defendant's criminal history, postcommitment conduct, Dr. Switzer's testimony, and defendant's testimony. The court explained that there were several factors that were "red flags": defendant's past violence, his antisocial personality disorder, and depression. The court stated: "I believe that you would commit another felony. There you go. Right back to prison, 80 percent, double the time." The court concluded: "I'm making the finding that you . . . would present a danger to society as you are today."
We find no abuse of discretion. Over 14 years defendant committed eight felonies and was sentenced to prison five times. Five felonies were for assaultive behavior. On at least five occasions defendant violated his parole. In addition, while in prison defendant repeatedly engaged in assaultive behavior against fellow inmates. Defendant admitted to drug use, selling wine in prison, and getting into fights in prison. Given the evidence considered by the trial court in finding defendant would pose an unreasonable risk of danger to public safety despite defendant's claim that he had been an exemplary inmate since 1998, the trial court did not act arbitrarily.
Ex Post Facto Punishment and Denial of Due Process
In a supplemental brief, defendant asserts that the court's denial of his request for early release constitutes an "imposed ex post facto punishment" since the unavailability of parole, a more restrictive supervision, was due to the enactment of PRCS. He also claims the court abridged his right to due process.
If the court had granted defendant's request for relief, he would have been subject to section 3451, subdivision (a), which provides: "Notwithstanding any other law . . . all persons released from prison on and after October 1, 2011, or, whose sentence has been deemed served pursuant to Section 2900.5 after serving a prison term for a felony shall, upon release from prison and for a period not exceeding three years immediately following release, be subject to community supervision provided by the probation department of the county to which the person is being released . . . ." Defendant contends the court's denial of his petition was due to section 3451 and thus the statute constitutes ex post facto law.
We disagree. Defendant requested early release, which would result in PRCS placement; PRCS is not a punishment. His original sentence was 27 years to life, and he petitioned for a reduced sentence that, if granted, would result in his immediate release from prison and his participation in PRCS. The primary purpose of the ex post facto clause is to "prevent unforeseeable punishment." (People v. Snook (1997) 16 Cal.4th 1210, 1221.) A statute that reduces the "term of imprisonment" within the meaning of section 2900.5, subdivision (c) is not an ex post facto violation. (See In re Ramirez (1985) 39 Cal.3d 931, 932 [statutes awarding sentence reduction credits not an ex post facto violation].) Section 3451 does not punish defendant, nor does it disadvantage him, despite his arguments to the contrary.
Nor can we find it "fundamentally unfair" in violation of due process that the court declined to resentence defendant because he could not be placed on parole. The court carefully considered defendant, his criminal history, behavior in custody, witnesses in support, expert testimony, and defendant's own testimony and determined he did not qualify for early release. We find no violation of due process in the court's exercise of its discretion.
DISPOSITION
We remand for the trial court to consider defendant's petition in light of our opinion.
RAYE, P. J. We concur: NICHOLSON, J. RENNER, J.