Opinion
D072927
06-20-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL GARCIA, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS215683) APPEAL from a postjudgment order of the Superior Court of San Diego County, Lisa R. Rodriguez, Judge. Affirmed. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Daniel Garcia appeals from a postjudgment order denying his petition to reclassify certain convictions to misdemeanors. (Pen. Code, § 1170.18, subd. (a).) He contends the trial court abused its discretion in denying the petition because he is eligible for resentencing and the prosecution did not meet its burden of establishing by a preponderance of the evidence that resentencing him would pose an unreasonable risk of danger to public safety. (Id., subd. (b).)
Further statutory references are to the Penal Code unless otherwise specified.
We conclude the court did not abuse its discretion in denying the petition because there is substantial evidence in the record to support the court's determination. We, therefore, affirm the order.
II
BACKGROUND
A
In 2007, Garcia, an accomplice, and the victim went to the victim's motel room and smoked methamphetamine. Two women later joined them. After the women joined them, Garcia went into the bathroom and pulled out a semiautomatic handgun. He walked out of the bathroom and racked a round into the chamber. One of the women ran out of the motel room, but the other woman was too scared to leave. Garcia and his accomplice pushed the victim onto the bed, one of them sat on top of him to hold him down, and they both began hitting him. When the victim tried to yell for help, Garcia told him to shut up if he did not want to die. Garcia and the accomplice put tape over the victim's mouth and a pillowcase over his head. Garcia then bound the victim's hands and feet with tape.
Garcia and the accomplice left the victim in the motel room bound and gagged. They stole his wallet, credit card, and identification. The accomplice stole the victim's car and drove away. Garcia drove away in a different car. Garcia used the victim's credit card twice at gas stations, twice to check balances at the victim's bank ATM, twice to withdraw money from the ATM, and twice at a casino. The bank did not authorize the first attempt to use the card at the casino. The bank authorized the second attempt, but the casino employees would not honor it because Garcia did not have proper identification.
Police later found the victim dead. The medical examiner believed the victim died from the combination of sudden cardiopulmonary arrest while bound and gagged, acute methamphetamine and cocaine intoxication, and prior heart disease. The medical examiner also believed the weight of the person who sat on the victim, the binding and gagging, the effect of the drugs in the victim's system, and the stress of the attack contributed to causing the victim's heart and lungs to stop. The medical examiner further believed asphyxiation or suffocation was a contributing factor to the victim's death because of the gagging of the victim's mouth, the pillowcase over the victim's head, and the weight on the victim's chest.
B
In 2010, to avoid what he characterized as "a strong likelihood" of a first degree murder conviction and an indeterminate sentence, Garcia pleaded guilty to voluntary manslaughter (Pen. Code, § 192, subd. (a); count 2); grand theft (id., § 487, subd. (a); count 4); assault with force likely to cause great bodily injury (id., § 245, subd. (a)(1); count 5); unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a); count 6); two counts of burglary (Pen. Code, § 459; counts 7 & 14); five counts of petty theft using an access card or account information (id., § 484g, subd. (a); counts 8 through 12); attempted grand theft (id., §§ 487, subd. (a), 664; count 13); false imprisonment by violence (id., §§ 236, 237, subd. (a); count 15); and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 16). As to count 2, he admitted he personally used a firearm in committing the offense (Pen. Code, § 12022.5, subd. (a)), and as to counts 8 through 12, he admitted he had a prior theft conviction (id., § 666). The trial court sentenced him to a stipulated term of 29 years eight months in prison.
C
Before his conviction in this case, Garcia's criminal history included a 2003 conviction for driving without a license and a 2005 conviction for petty theft. Since his prison commitment, Garcia has passed the General Education Development tests, participated in leadership roles, and completed self-help programs. However, he has also had two rules violations, one in 2013 and one in 2015, for engaging in fistfights with cellmates.
In the 2013 incident, a corrections officer found Garcia bent at the waist holding his cellmate's wrists as the cellmate struggled to break free. The cellmate had what appeared to be blood on his left cheek. In the 2015 incident, a corrections officer found Garcia and his cellmate swinging their arms back and forth and striking each other's upper torsos with clenched fists. The officer ordered them to get down, but they continued to fight, even after being sprayed multiple times with pepper spray, until another officer struck Garcia's cellmate with a baton.
D
In 2017, after the Safe Neighborhoods and Schools Act (Proposition 47) reclassified certain drug and theft offenses to misdemeanors and created a process for resentencing persons for those offenses (see § 1170.18), Garcia filed a petition seeking to reclassify his convictions for counts 4, 7 through 14, and 16 to misdemeanors. The court conducted an evidentiary hearing, during which it considered Garcia's criminal history, the circumstances of the offenses he committed in this case, his prison programming and disciplinary history, and his family support. The court ultimately denied the petition, finding the circumstances of the offenses in this case, including the victim's death and the personal use of a firearm, and Garcia's subsequent violence in prison, created a reasonable inference he was ready, willing, and able to commit a super strike (see fn. 2, post). Consequently, the court found Garcia was not eligible for resentencing because he would pose an unreasonable risk of danger to public safety if resentenced.
III
DISCUSSION
Consideration of a resentencing petition is a two-step process. First, the court must determine if the petitioner is eligible for resentencing. If the petitioner is eligible, then the court must determine whether resentencing the petitioner would pose an unreasonable risk of danger to public safety. (§ 1170.18, subd. (b); People v. Hall (2016) 247 Cal.App.4th 1255, 1261 (Hall).) " '[U]nreasonable risk of danger to public safety' means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of" section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (c).)
These felonies are colloquially referred to as "super strikes" and include "(I) A 'sexually violent offense' as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code. [¶] (II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289. [¶] (III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288. [¶] (IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive. [¶] (V) Solicitation to commit murder as defined in Section 653f. [¶] (VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245. [¶] (VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418. [¶] (VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death." (§ 667, subd. (e)(2)(C)(iv).) --------
To determine whether resentencing a petitioner would pose an unreasonable risk of danger to public safety, a court considers: "(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. [¶] (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." (§ 1170.18, subd. (b).) " 'The critical inquiry ... is not whether the risk is quantifiable, but rather, whether the risk would be "unreasonable." ' " (Hall, supra, 247 Cal.App.4th at p. 1262, quoting People v. Garcia (2014) 230 Cal.App.4th 763, 769.)
We review the trial court's dangerous determination for abuse of discretion. (People v. Jefferson (2016) 1 Cal.App.5th 235, 242; Hall, supra, 247 Cal.App.4th at p. 1264.) A trial court abuses its discretion when its decision rests on improper criteria, rests on erroneous legal assumptions, or is unsupported by substantial evidence. (Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 529-530.)
Here, Garcia does not assert the trial court rested its decision on improper criteria or erroneous legal assumptions. Indeed, the record shows the court carefully considered the information required by section 1170.18, subdivision (b). Ultimately, the court found resentencing Garcia posed an unreasonable risk to public safety because Garcia's physically violent behavior in this case and his physically violent behavior in prison created a reasonable inference he was ready, willing, and able to commit a super strike by engaging in conduct that rose to the level of taking a life. The circumstances of Garcia's convictions in this case and his rules violations, which were not disputed below, provide substantial evidence to support the court's determination. Indeed, as Garcia acknowledged during the guilty plea proceedings, had he not negotiated a plea agreement, there was a strong likelihood the outcome of this case could have been a super strike. Accordingly, Garcia has not established the court abused its discretion in denying his petition.
IV
DISPOSITION
The order is affirmed.
McCONNELL, P. J. WE CONCUR: O'ROURKE, J. DATO, J.