Opinion
F071944
10-17-2017
THE PEOPLE, Plaintiff and Respondent, v. HAROLD HENDRICKS FAGAN, Defendant and Appellant.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Kathleen A. McKenna, and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SF013561A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Kathleen A. McKenna, and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Peña, J. and Meehan, J.
-ooOoo-
Defendant Harold Hendricks Fagan contends on appeal that (1) the trial court abused its discretion in finding defendant would pose an unreasonable risk of danger to public safety if resentenced under Proposition 36, the Three Strikes Reform Act of 2012 (Proposition 36), and (2) the definition of dangerousness in Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47), applies to Proposition 36 petitions. We affirm.
PROCEDURAL SUMMARY
On August 12, 2010, defendant was convicted by jury trial of felony battery by a prisoner on a nonconfined person, in this case an officer at Wasco State Prison (Pen. Code, § 4501.5) and misdemeanor assault (§ 240). The trial court found true two prior strike conviction allegations pursuant to the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and sentenced defendant to 25 years to life in prison, to be served consecutively to a six-year term he was serving.
All statutory references are to the Penal Code.
We take judicial notice of the record and opinion in People v. Fagan (Mar. 29, 2012, F060944) [nonpub. opn.]. --------
On April 28, 2014, defendant filed a petition for resentencing pursuant to Proposition 36.
On June 11, 2015, the trial court denied the petition.
On July 8, 2015, defendant filed a notice of appeal.
DISCUSSION
I. Law
In November 2012, California voters approved Proposition 36, the Three Strikes Reform Act of 2012, which amended sections 667 and 1170.12. Prior to that, the former Three Strikes law mandated that a defendant who had been convicted of two or more serious or violent felonies would be subject to a sentence of 25 years to life upon conviction of a new felony. Proposition 36 amended the Three Strikes law so that a defendant with two or more strikes who is convicted of a new felony is subject to a sentence of 25 years to life only if the new felony is either serious or violent (or if certain exceptions apply); otherwise he is sentenced as a second strike offender. (See People v. Osuna (2014) 225 Cal.App.4th 1020, 1026.)
Proposition 36 also added section 1170.126, which allows eligible inmates who are currently serving a 25-year-to-life sentence under the former Three Strikes law to petition the court for resentencing. Inmates have two years from the effective date of Proposition 36 to seek resentencing absent a "showing of good cause" (§ 1170.126, subd. (b)). An inmate is eligible to petition for resentencing if his sentence would not have been a 25-year-to-life sentence had he been sentenced under the newly reformed Three Strikes law—that is, if he is a third strike offender who is serving an indeterminate life sentence based on a third strike that is not a serious or violent felony, as defined by subdivision (c) of section 667.5 or subdivision (c) of section 1192.7. (§ 1170.126, subds. (a), (b); Teal v. Superior Court (2014) 60 Cal.4th 595, 598.)
Under Proposition 36, if a petitioning inmate meets the statutory eligibility requirements, "the petitioner shall be resentenced . . . 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 determining if a petitioner poses an unreasonable risk of danger, the court has broad discretion to 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." (§ 1176.126, subd. (g); see People v. Valencia (2017) 3 Cal.5th 347, 354.) "Thus, as the Legislative Analyst explained in the Voter Information Guide, '[i]n determining whether an offender poses [an unreasonable risk of danger to public safety], the court could consider any evidence it determines is relevant, such as the offender's criminal history, behavior in prison, and participation in rehabilitation programs.' (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) analysis of Prop. 36 by Legis. Analyst, p. 50, italics added.)" (People v. Valencia, supra, at p. 354.) The prosecution must prove a petitioner's dangerousness by a preponderance of the evidence. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301, 1303, 1305 (Kaulick).)
We review the trial court's decision regarding dangerousness under the deferential abuse of discretion standard. (See Kaulick, supra, 215 Cal.App.4th at p. 1303.) The court's ruling will not be reversed on appeal unless defendant demonstrates that the court exercised its discretion in " 'an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) II. Background
On September 1, 2010, the probation officer prepared a report. According to the report, defendant's current crime was an unprovoked and injurious attack on an officer at the prison. Defendant's criminal history included robbery (§ 211), assault with a deadly weapon or force likely to cause great bodily injury (former § 245, subd. (a)(1)), and two counts of assault with a semiautomatic weapon (former § 245, subd. (b)) in 1985; assault with a deadly weapon or force likely to cause great bodily injury (former § 245, subd. (a)(1)), and assault with a deadly weapon or by any means likely to produce great bodily injury upon a peace officer or firefighter (former § 245, subd. (c)) in 2001; aggravated battery by a prisoner by gassing a peace officer (former § 4501.1, subd. (a)) in 2002; and assault with a deadly weapon or force likely to cause great bodily injury (former § 245, subd. (a)(1)) in 2007. Defendant, who was 49 years old in 2010, had spent many years incarcerated and had never been gainfully employed.
On December 13, 2014, in light of the resentencing petition, psychologist Dr. Michael Musacco evaluated defendant at the request of defense counsel. Dr. Musacco's report was attached as an exhibit to defendant's reply to the prosecutor's opposition to the resentencing petition.
Dr. Musacco reviewed defendant's mental health records generated by the Lerdo jail facility, the California Department of Corrections and Rehabilitation (CDCR), and the Department of State Hospitals. In his report, Dr. Musacco noted defendant had spent most of his adulthood in jail, prison, or state hospitals. He had been diagnosed with various mental illnesses. Recently, his condition had been considered stable because antipsychotic medications were controlling his symptoms. However, in February 2013, a treatment plan had been completed, as Dr. Musacco summarized:
"On 02/14/13, a Mental Health Treatment Plan was completed. It was noted that the Inmate had been stable for the past nine months despite a previous history of unprovoked assaultive behaviors directed towards staff and other inmates. He was described as having difficulty with his cellmates and he would become increasingly paranoid about having a cellmate. At times, he was agitated towards other inmates and he made threats of killing his cellmate if he should receive one. The evaluators noted that some of these behaviors may be manipulative, but, based on his history and his mental illness, it was recommended that he receive single cell status."
Dr. Musacco detailed defendant's history and psychological evaluation, finally concluding:
"[Defendant] has a long history of acts of physical violence, which is closely associated with his mental disorder. He has spent most of his life in prison. In addition to [his] mental illness, he also suffers from pronounced features [of] Antisocial Personality Disorder as well as a history of substance abuse issues. Although the symptoms of his mental illness have been fairly well controlled with medications, he continues to show symptoms of a chronic mental disorder, which will require a substantial amount of support and structure in order to transition to the community. Without this support and structure, [his] prognosis would not be favorable. With these concerns in mind, the following recommendations are
considered as necessary components to a successful outpatient treatment program.
". . . [Defendant] should be required to live in a highly structured and supervised board and care home staffed with persons who are aware of his background and his need for close supervision. It is my recommendation that [defendant] will also require legal supervision (i.e., a Probation Officer who is actively involved in his case). It is also my understanding that [defendant] may qualify for post-release [community] supervision [(PRCS)], which would provide him with an intensive degree of monitoring, which will be necessary in order to ensure the safety of those in the community. [¶] . . . [Defendant] should be mandated to maintain medication compliance without issue. [¶] . . . [Defendant] should be provided substance abuse therapy and I would recommend that random drug urine screens be employed to ensure that he maintains his sobriety.
". . . Most importantly, if [defendant] fails to abide by the conditions of treatment or he engages in any behaviors which violate the required conditions of release, I would recommend that he should be returned to a custodial setting. Unless [he] is provided with close supervision with tangible consequences for noncompliance, I would not make a recommendation that he could be safely released to the community."
At the hearing on the resentencing petition on June 11, 2015, after documents were submitted and defendant testified, the following occurred:
"[DEFENSE COUNSEL:] Your Honor, I will note that the standard for a Prop. 36 resentencing hearing is whether or not the defendant is a current risk of dangerousness to society.
"In looking at the records that are attached to both my petition as well as the District Attorney's response to that petition, you can see that since around 2007 my client has been receiving the correct mental-health treatment. He is aware that he does have several mental illnesses that he needs to take all of his medication for.
"Shortly after he was sentenced in this case, [defendant] did have a serious health setback where he nearly died. Since that time, he's also been mobility impaired. And I believe that he is physically incapable of doing serious harm to someone else. It's a situation that differs from prior to 2007, when he was a younger and more mobile person. [¶] At this point he has difficulty moving and is less physically a threat to others. But I believe that he also is less mentally and less emotionally a threat to others in the community because he has received successful treatment. His record over
the last seven years has shown that he finally has been appropriately diagnosed. He is aware of his diagnoses. And as [defendant] spoke to the Court, he is very self-aware that he has these mental illnesses and that he needs to take steps to address these mental illnesses. And that sharply contrasts to his mental state back when his past crimes were committed, when he either was not diagnosed with all of the mental illnesses that he's diagnosed with now or when he did not himself have the awareness of his own mental illnesses and either wasn't being adequately treated for those illnesses or was refusing treatment for those illnesses.
"At this point [defendant], as he stated, is older and wiser. He has an awareness of his own mental illnesses and hopes that he can return to the community but with the understanding that he will need to be in a place where he can receive mental-health treatment. And I believe that arrangements can be made in the next three years while he is in custody for him to be placed into a board-and-care home.
"Also, as reflected in the letter provided by [defendant]'s family, he does have a loving and supportive family who want to help him through the process of finding a permanent board-and-care home. I will also note that [defendant] is eligible for SSI [(Supplemental Security Income (SSI))], which should be able to help him pay for a permanent placement situation.
"And with that I will submit to the Court.
"THE COURT: And I am considering all of the exhibits which have been attached to the briefs by both counsel. The mental health reports—and [the prosecutor] has referenced them in her response. . . . Her discussion starts at Page 15. [¶] And then the Exhibit S is a mental health treatment plan attached as Exhibit S . . . . That has a date of May 8th, 2013. And as of that date it states that [defendant] has had difficulty with cellmates, has become increasingly paranoid about having a cellmate. He has become agitated towards other inmates and has made threats of killing his cellmate if he should receive one. [¶] . . . [¶] . . . [H]ow do you respond to fairly recent evidence that [defendant] is making threats of killing people?
"[DEFENSE COUNSEL]: Your Honor, I will note that over the last three months [defendant] has been housed at the Lerdo housing facility. In that time period, he has not been in the SHU [(Security Housing Unit)] housing, and he has been double-celled with others at Lerdo. He's had no instances of violence with his cellmates at Lerdo. He's had no problems at Lerdo. I believe that that report also notes that it may have been a manipulation on [defendant]'s part to avoid having a cellmate. I think that
that suggests that the behaviors may have been manipulative as opposed to violent. [¶] . . . [¶]
"[THE PROSECUTOR]: Your Honor, the petitioner has a record of violence that goes all the way back to 1979. I ask the Court to note that his entire record, they are all crimes of violence. We don't have an individual who has drug convictions or theft convictions. They are all crimes of violence. [¶] And I am sure the Court's read the reports. So I will just summarize. In many of these reports, it's pretty obvious he caused some pretty serious injuries to a lot of people over the time, and all of his [CDCR-]115s [(Rules Violation Reports (115s))] are for violence as well. Batteries on police officers, which is what landed him here. Threats against officers. There's a severe pattern of violence in him. And it's pretty obvious from reading all of the reports that the violence results, at least in part, from his mental-health problems. [¶] The mental health records indicate a number of things: schizoaffective disorder, antisocial personality disorder. I think Dr. Musacco, on Page 8 of his report, referenced—he says I referenced antisocial personality features. So he's got a whole range of problems here. [¶] An individual who was placed on Keyhea . . . . And what that is, that's the involuntary medication that the prison will impose on inmates who severely need it. And what that tells me, in addition to his statement within the last few years, he wants to get rid of the mental health jacket as he is not going to comply with medication if they had to force it on him in the prison and he wants to get rid of the mental health jacket.
"He can be okay when he is medicated, but when he is not this is the pattern in his records. He goes off meds. He is violent. He goes back to prison. He gets medicated. He gets out, goes off meds, and violates. It's that consistent pattern again and again and again. And there is just no realistic release plan in place. We addressed that during the motion to continue. So I am not going to talk about that again.
"I'd ask the Court to note Dr. Musacco's report. Dr. Musacco is actually hired by the defense, but the gist of his report says that if these certain things cannot be met—and they can't—then he is too dangerous to be released. I think that Dr. Musacco took the time to write a very conscientious report.
"The burden in these hearings is preponderance of the evidence, and we have met our burden. He is just too dangerous to be released under Proposition 36. [¶] . . . [¶]
"[DEFENSE COUNSEL]: Your Honor, I will note that since 2007 there has been a marked change in the reports that are referred to by [the
prosecutor]. Since 2007 [defendant] has not had any 115s. And his record has reflected that before 2007 he was in a pattern. He was in a pattern where it's true that he would have mental-health issues either because some of them had not yet been completely diagnosed, because he was unable to take some medication, because he refused treatment at different times. [¶] Since 2007 there's been a marked change, and he has had a period of seven years where he has been a different person. And I think that, in [defendant]'s own words, that was in part because he did have a serious physical health setback, when he realized that he needed to be taking care of his physical as well as mental health. Since that time he has not been the same physical person or the same mental and emotional person.
"I will note Dr. Musacco's report does state that [defendant] should live in a structured environment. And [defendant] agrees that he should live in a structured environment. He wants to be someplace where he can get the treatment that he needs. And I believe that we will be able to set him up with the treatment that he needs either through Kern Mental Health, through one of the other providers that he can be set up with through [PRCS], or through the efforts of his family and with the assistance of SSI.
"I will note that Dr. Musacco's report, while it does say he should live in a highly structured and supervised board-and-care home, it doesn't say that he needs some sort of supervision in excess of what the law provides. I believe that the report specifically cites [PRCS] as an appropriate supervision for [defendant]. [¶] The law does provide for supervision. And although it may not be lifetime supervision, it provides for supervision during the time when it would be most important for [defendant] to be supervised, during the time when he is transitioning back into society. And he will be transitioned back into society as someone who has a mental illness but someone who is finally being treated for that mental illness with the adequate medication and has shown years of progress in getting that medication and being treated, who recognizes his own mental illness and recognizes that he needs to take his medication and do everything that he can to be stable on his medication.
"The law provides for him to return to custody. And I believe that although 180 days is the maximum that someone can be released—returned to custody at a time for a violation of [PRCS], it is, you know, something that does hang over someone's head. There are consequences for someone's actions.
"The standard is current risk of dangerousness. And I think that [defendant]'s progress, the statements that he's made today, his self-awareness about his own condition, shows that, although he struggled in the
past because of his mental illness, today he is not currently a risk of danger to society. [¶] . . . [¶]III. Unreasonable Risk of Danger
"THE COURT: The Court's taking the matter under submission. I have read and considered all the evidence, the arguments of counsel. [¶] And I am going to be exercising my discretion. That includes considering the factors that are set forth in . . . [s]ection 1170.126[,] [s]ubdivision (g) . . . .
"The Court appreciates the efforts that [defendant] has been making to maintain good mental health. Quite frankly, today I found [defendant] to be an intelligent and articulate person who expresses an understanding of the problems that he's had in the past. . . . [¶] However, the Court notes that, even though he's had no 115 disciplinary findings against him in the recent past, there's still evidence that he has anger-management problems. And there's evidence that he still is making threats about killing people. Now, we can debate what his motive would be for that, whether it's to be manipulative or whether he would be making those threats because of his mental illness or for some other reason. But quite frankly, the fact that the threats are made suggests to me that he still has a lot of progress to make before the Court would be satisfied that he has resolved that type of behavioral problem.
"Dr. Musacco saw [defendant] recently. Well, his report, the evaluation date was December 13, 2014. So that would be the date he evaluated [defendant], quite recent. [¶] And again, I have considered everything in Dr. Musacco's report. I do believe it was a well written, balanced, objective report. And Dr. Musacco makes it quite clear that his opinion is that [defendant] could not be safely released to the community unless a number of very significant terms and conditions could be complied with.
"The Court finds it does not have the authority to impose the type of highly structured, custodial setting with tangible consequences and intensive degree of monitoring, all the other things that would be necessary in order to ensure the safety of those in the community.
"So considering all the evidence, I do find by a preponderance of the evidence that [defendant] currently poses an unreasonable risk of danger to public safety if he were to be released from custody at this time. And the petition is denied."
Defendant contends the evidence was insufficient to support the trial court's finding that resentencing him posed an unreasonable risk of danger to public safety, and therefore the prosecution failed to carry its burden of proving this fact by a preponderance of the evidence. Specifically, defendant challenges the two factors found by the trial court—(1) that defendant had recently threatened to kill someone and (2) that the trial court lacked the authority to ensure defendant would be placed in the appropriate setting.
Defendant asserts the record does not support the finding that he had recently threatened to kill someone. He maintains there was no documentary or testimonial evidence of this threat, and the only record of it was defense counsel's statement in court. Furthermore, he notes, defendant may have merely been trying to manipulate his way out of getting a cellmate. Defendant further contends the single incident could not reasonably outweigh the positive transformation he had achieved over eight years, and could not constitute a preponderance of the evidence.
We disagree that there was no record of this incident other than defense counsel's comments. As the trial court stated, Exhibit S, attached to the prosecutor's opposition to the petition, was a prison mental health treatment plan dated May 8, 2013. Its clinical summary stated:
"[Defendant] has been in SVSP [(Salinas Valley State Prison)] EOP [(Enhanced Outpatient Program)] for 12 months and has been relatively stable despite a history of unprovoked assaultive behavior towards staff and other inmates. Since his arrival into SVSP [he] has had difficulty with cellmates and has become increasingly paranoid about having a cell-mate. Furthermore, he has become agitated towards other inmates and has made threats of killing his cell-mate if he should receive one. He was made single cell at his previous IDTT [(Interdisciplinary Treatment Team)]. He continues to work on his depression, thought distortions and impulse control during 1:1's and during his PsychoSocial Groups. His group attendance for the past quarter has been: February: 95.2%; March: 66%; and April[:] 80.9%."
The mental status examination note of the same report stated:
"Behavior/cooperation is fair at this time. While [defendant] is cooperative with staff, he becomes agitated and frustrated when thinking about receiving a cell-mate. He catastrophizes, which results in increased paranoia and agitated behavior."
This report constituted substantial evidence of defendant's threats to kill cellmates, and the trial court did not abuse its discretion in relying on the report as evidence that defendant had not gained control over his anger and violent propensities. Dr. Musacco referenced a similar report dated February 14, 2013, which was either a second report of similar conduct or a typing error in Dr. Musacco's report. Furthermore, there was other evidence of defendant's dangerousness. He had committed many violent crimes and had spent most of his life incarcerated in prison or state hospitals. He suffered from multiple mental illnesses that recently had caused paranoia and agitation. His condition required compliance with his medications. And although he seemed to be working to improve his behavior, even recently he had issued death threats against potential cellmates.
Dr. Musacco, hired by the defense, stressed in his evaluation that defendant should not be released into the community unless intensive supervision could be provided in a highly structured setting. The court noted that Dr. Musacco believed defendant "could not be safely released to the community unless a number of very significant terms and conditions could be complied with," as the court paraphrased it. The court concluded it lacked "the authority to impose the type of highly structured, custodial setting with tangible consequences and intensive degree of monitoring, all the other things that would be necessary in order to ensure the safety of those in the community." Defense counsel had argued that PRCS could provide the appropriate supervision for defendant, but as defense counsel was aware, that supervision would not be lifelong, but limited to only three years (§ 3451, subd. (a)), and upon defendant's failure to comply with the terms of his supervision, his return to custody would be limited to 180 days (§ 3455, subd. (d) [when a defendant violates PRCS, he may be returned to county jail for no more than 180 days]). Contrary to defense counsel's assertion below and defendant's assertion on appeal, the evidence does not support the conclusion that PRCS would provide an adequate long-term setting for defendant, who had been intensively supervised in a highly structured custodial setting most of his life.
The trial court did not abuse its discretion in concluding that resentencing would pose an unreasonable risk of danger to the public based on defendant's long and violent criminal history, his nearly life-long incarceration, his recent death threats against cellmates, his mental illnesses, his ongoing need for intensive supervision and compliance with his medications, and the limitations of PRCS in providing that required supervision. These relevant factors provided ample evidence of the risk of danger if defendant were released to the community. By no means was the trial court's determination arbitrary, capricious, or patently absurd. IV. Definition of Dangerousness
By way of supplemental briefing, defendant contends the definition of dangerousness in Proposition 47 (§ 1170.18, subd. (c)) applies to Proposition 36 petitions. This issue has now been resolved by the Supreme Court in People v. Valencia, supra, 3 Cal.5th at pages 350 through 377, which held that Proposition 47's definition of unreasonable risk of danger to public safety does not apply to Proposition 36 resentencing petitions.
DISPOSITION
The trial court's order denying the Proposition 36 petition for resentencing is affirmed.