Opinion
C084688
10-02-2018
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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF950009374)
Defendant Dwayne Allen Eichler's petition for resentencing pursuant to Penal Code section 1170.126 is before this court a second time. In his first appeal, we found the trial court's denial of his resentencing petition was an abuse of discretion because the trial court mistakenly believed defendant would not be subject to postrelease community supervision (PRCS) if the resentencing petition was granted. We remanded the case for the trial court to consider the petition in light of our opinion identifying this error.
Undesignated statutory references are to the Penal Code.
On remand, the trial court reaffirmed its original denial. Defendant appeals from the denial, contending the court abused its discretion by relying on the probation officer's testimony that he presented as a high risk on PRCS to compel a finding that resentencing presented an unreasonable risk to public safety. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant's history, the facts of the underlying offense, and the proceedings in the initial petition are taken from our prior opinion, which is included in the appellate record in this case. (People v. Eichler (Jan. 11, 2017, C076439) [nonpub. opn.].)
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. 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 People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court denied defendant's request to strike any of his prior convictions.
Defendant's Behavior in Prison Before the Petition
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 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.
The Petition
Defendant filed a petition for resentencing pursuant to section 1170.126. 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 inpatient examination of defendant at Atascadero State Hospital. 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, his 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 also testified he would 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 boys' 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."
The Initial 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 [defendant], who needs a very high level of supervision.
"I was happy to see that [defendant] 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 . . . 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 [defendant] 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. [Defendant] 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.
"[Defendant] 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 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. [Defendant] 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 [the prosecutor'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."
The Appeal
Defendant appealed the denial, asserting it was an abuse of discretion. We found that a court's exercise of discretion must rest on a proper understanding of the law at issue, and a court unaware of its authority cannot properly exercise its sentencing discretion. (See People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8; People v. Ruiz (1975) 14 Cal.3d 163, 168.) Since a defendant released pursuant to section 1170.126 was subject to mandatory PRCS (see People v. Tubbs (2014) 230 Cal.App.4th 578, 585; People v. Espinoza (2014) 226 Cal.App.4th 635, 639-640), contrary to the trial court's ruling, defendant would be subjected to supervision if the petition was granted. PRCS shared many characteristics of parole, including warrantless searches, waiver of extradition, and weapons and travel restrictions (§ 3453, subd. (h)) as well as various community sanctions. However, it differed from parole in that a defendant cannot be returned to prison for violating the postrelease supervision agreement (§ 3458) and the Department of Corrections and Rehabilitation does not have jurisdiction over a person under PRCS (§ 3457). Finding the trial court was either unaware of the similarities between PRCS and parole or chose to ignore them, we remanded 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.
Proceedings on Remand
Defendant filed a brief in support of his petition on remand. He argued the supervision afforded by mandatory PRCS justified granting his petition, as the intensive supervision of PRCS was essentially the same as being on parole. Defendant argued he was not a danger to society. To show his continued progress in the three years since the initial hearing, defendant attached documents showing certification in digital literacy, competency in orientation, shop, and site safety, and industrial safety and health. Defendant also supplied evidence of attendance in the Lifer Support Group, the Criminal Gang Anonymous group, Criminals and Gangmembers Anonymous (CGA), Narcotics Anonymous, a defects of character workshop, a beliefs workshop, a spiritual principles workshop, a relapse prevention workshop, a five languages of apology workshop, a goal seeking workshop, and the prison library's summer reading program. Defendant submitted evidence of his remission from his mental health issues, that he was no longer prescribed psychotropic medication, and that he was discharged from the mental health services delivery system. An extensive resume was attached as well. Defendant's Comparative Static Risk Assessment score was one, the lowest possible. At a May 13, 2016 consultation hearing with the Board of Parole Hearings, the Board found defendant was performing satisfactorily in all areas, with recommendations that he establish strong parole plans, residential housing, or transitional housing. Finally, he presented evidence showing a strong job market for geographic information systems specialists.
The prosecution called Yuba County Probation Officer Matt Ricardy. After reviewing defendant's case file and our opinion in the prior appeal, Officer Ricardy concluded defendant "would most certainly be high risk," that is, at a "high risk to recidivate to commit another criminal offense in the future." A majority of the high-risk classification was based on the severity and violence of defendant's criminal history as well as his current offense. While defendant's risk and needs contained dynamic factors, the overall risk level did not change much. In light of the risk presented, if released to PRCS in Yuba County, defendant would be on a "short leash" and at the top of his department's list. He would be on the top of the list due to his extensive criminal history, what he did in prison, his defiance to authority, his mental health issues, and his substance abuse issues.
Yuba County had five officers assigned to people on PRCS. An officer supervising high-risk offenders on PRCS would have a PRCS caseload in the upper 30's. They had in-house programs to change behavioral problems such as aggression replacement training, batterers' treatment programs, moral recognition therapy, and substance abuse counseling. They also helped individuals with employment and maintained a strong connection with the Office of Education. According to Officer Ricardy, Yuba County offered "a full gamut of services."
High-risk offenders had to report at least once a month. They were subject to an initial twice weekly and then random drug testing once it was shown they were not using controlled substances. While Yuba County had ankle monitors, they were reserved for high-risk sex offenders. High-risk offenders were subject to searches at least once every three months.
Officer Ricardy was "[f]airly familiar" with the supervision afforded under parole. Parole may offer different programs and "have different approaches," but PRCS and parole showed the same "base spirit." He thought his department's officers supervised as well, if not better, than parole officers.
Since defendant's last county of residence was Santa Clara, he normally would be returned there under common PRCS practices. Officer Ricardy talked to a supervisor at the Santa Clara County Probation Department, and asked the same type of questions the prosecutor asked him at this hearing. The level of supervision in Santa Clara County was higher than Yuba County's. Officers in Santa Clara County saw their individuals three times a month, which was "a little more intense than we provide, and one of those has to be in the residence." Their caseloads of 30 to 35 were a little smaller, and their programs, while similar, would be "a little more intensively supervised from the officer." The behavioral health programs of both counties were similar. Santa Clara County also had a very similar approach to ankle monitors. In both counties, a person released pursuant to Proposition 36 would be on a shorter leash.
Defendant testified that he had continued his college education and completed two "computer vocations" since the last hearing. He was discharged from the mental health department, was no longer on psychotropic medications, and would utilize any behavioral services offered to him. If released on PRCS, he would not use drugs or alcohol and would obey the rules set for him. He took responsibility for his current offense but said there were "extenuating circumstances" regarding his prison disciplinary record.
The trial court issued its ruling as follows:
"I thought the testimony of Matt Ricardy was extremely educational to me. He is a very experienced probation officer. But it was very troubling to me. The category of high risk does not allow me to not continue to conclude that Defendant, if he was released, would pose an unreasonable risk of danger to public safety. So you have your record.
"And Mr. Ricardy's opinion I very much respect. Perhaps the Parole Board will reach a different conclusion. Different factors. Different type of hearing. But the comments from Probation don't cause me to change my opinion. Actually, it's very instructive to me about the degree of risk that Defendant does present. I can't overlook that."
After declining defendant's request to interject, the trial court continued:
"I am not changing my ruling. I came in to today's hearing with an open mind. I re-read all the documents. But as a judge sitting in this county, how do I grant the petition with the assessment of the defendant being the way it is also with the gentleman in charge of [PRCS]? Very experienced probation officer. So you have your record."
DISCUSSION
Defendant contends the trial court abused its discretion by treating the probation officer's characterization of him as high risk on PRCS as a deal breaker that compelled the denial. We disagree.
Following Proposition 36, 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 is subject only to a two strikes 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.)
Section 1170.126 allows a person presently serving a three strikes sentence for a felony that is neither serious nor violent to petition for resentencing as a second strike offender. (§ 1170.126, subd. (a).) If the prisoner is not subject to a disqualifying factor not present here, then the trial court shall resentence him or her under the two strikes provision "unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).) "In exercising its discretion in subdivision (f), the court may consider: [¶] (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).)
"Since section 1170.126 vests the trial court with discretion to determine whether resentencing defendant poses an unreasonable risk to public safety, we review the court's decision under the familiar abuse of discretion standard. Using this standard, we consider whether the ruling 'exceeds the bounds of reason or is arbitrary, whimsical or capricious. [Citations.] This standard involves abundant deference to the trial court's rulings.' [Citation.]" (People v. Williams (2018) 19 Cal.App.5th 1057, 1062.) As the party challenging the trial court's order, the defendant bears the burden of clearly showing that the order was irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 376.) Absent that showing, we presume the trial court acted properly. (Id. at pp. 376-377.) We will not reverse the trial court's decision merely because reasonable people might disagree. (Id. at p. 377.) The trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Ibid.)
Defendant asserts the probation officer's assessment of defendant as high risk "was based solely on the static risk factor of [defendant's] criminal history." According to defendant, "[t]he remoteness of that criminality, the reform and rehabilitation that he had demonstrated since then, and all the other so-called dynamic or changeable risk factors that reduced his dangerousness made no difference to its assignment of his risk category." While admitting that Officer Ricardy's assessment might be reasonable for the purpose of allocating probation department resources and determining the level of supervision, defendant argues "it was unreasonable for the trial court to treat that assessment here as controlling" because an assessment made for administrative purposes "simply does not translate into an unreasonable risk for judicial purposes in implementation of section 1170.126.
Analogizing the dangerousness finding in section 1170.126 to the determination of dangerousness in the context of parole cases, defendant argues that factors after defendant's criminal acts, such as subsequent behavior and current mental state, can show that his past offenses may no longer be a reliable indicator of his threat to public safety. (See, e.g., In re Lawrence (2008) 44 Cal.4th 1181, 1219 ["when there is affirmative evidence, based upon the prisoner's subsequent behavior and current mental state, that the prisoner, if released, would not currently be dangerous, his or her past offense may no longer realistically constitute a reliable or accurate indicator of the prisoner's current dangerousness"].) He claims the record "shows strong evidence" of his rehabilitation, there was no other evidence of current dangerousness, and other evidence of behavioral and mental health problems was stale and outdated.
Defendant characterizes the trial court's action on remand as "intrinsically illogical" because the concern that provided the reason for its initial ruling, that defendant needed very close supervision, was allayed by the testimony that defendant, as a high-risk person, would be subject to intense supervision. He concludes, the ruling should be reversed and remanded for a "new and fair determination" of his entitlement to recall his sentence.
We agree with defendant that the dangerousness determination under section 1170.126 must look to a defendant's current dangerousness.
"In discussing the 'some evidence' standard applicable in parole cases, the California Supreme Court has stated: 'This standard is unquestionably deferential, but certainly is not toothless, and "due consideration" of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision—the determination of current dangerousness.' [Citation.]
"Although we decline to decide how and to what extent parole cases inform the decision whether to resentence a petitioner under the [Three Strikes Reform] Act or our review of such a decision, we believe that the proper focus is on whether the petitioner currently poses an unreasonable risk of danger to public safety. [Citations.] Further, we believe that a trial court may properly deny resentencing under the [Three Strikes 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.] ' "[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.]" (People v. Esparza (2015) 242 Cal.App.4th 726, 745-746.)
However, we do not agree with his assessment of the trial court's decision.
Officer Ricardy's assessment of defendant as posing a high risk if placed on PRCS was not determined solely by his criminal record. Officer Ricardy viewed our prior opinion and defendant's case file before making his assessment. While defendant's record formed a majority of his rationale for the classification, Officer Ricardy also testified that defendant would be placed on the top of the list of PRCS persons based on extensive criminal history, what he did in prison, his defiance of authority, his mental health issues, and his substance abuse issues.
The trial court did not base its ruling solely on Officer Ricardy's testimony. The court stated that it came into the hearing with an "open mind," it had "re-read" all of the documents, but it determined not to change its prior ruling. While Officer Ricardy's testimony greatly informed that decision, the court's ruling was made in the context of its prior ruling and based on all of the evidence available in both hearings on the resentencing petition.
The trial court reasonably rested its decision in part on Officer Ricardy's testimony. The fact that the court was persuaded by the probation officer's testimony that defendant would be classified as high risk, does not require the court to conclude that the higher level of supervision on PRCS brought on by this classification would necessarily protect the public in the manner required under section 1170.126. The court's initial ruling expressed considerable concern about the threat posed to public safety if defendant, who would not be subject to parole, was released. Because its concern was based at least in part on either not knowing or ignoring the fact that defendant would be subjected to mandatory PRCS if released, we remanded for the court to decide what, if any impact mandatory PRCS has on the decision to deny the petition. The trial court complied with our orders on remand. It took evidence regarding PRCS and the level of supervision and services defendant would receive in the court's county as well as the county defendant would be most likely released on PRCS. Finding Officer Ricardy's classification of defendant as high risk persuasive, it concluded that defendant's resentencing would still pose an unreasonable risk of danger to public safety.
That finding is not an abuse of discretion. As we noted in our prior opinion, the court's finding that defendant posed a danger to society was not an abuse of discretion in light of defendant's criminal record and behavior in prison, despite defendant's claim that he had been an exemplary inmate since 1998. Defendant showed continued improvement since then, with no rules infractions in prison, continued education, participation in rehabilitation, and no longer needing mental health treatment. However, the trial court, hearing the case on remand to determine the effect of mandatory PRCS on its decision to deny the petition, was neither arbitrary nor capricious in concluding that, notwithstanding the supervision afforded by PRCS, resentencing defendant still posed an unreasonable risk to public safety in light of his extensive and violent criminal record and a record of violence and misbehavior in prison last continued up to 2012.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: ROBIE, J. BUTZ, J.