Opinion
F072500
01-05-2018
THE PEOPLE, Plaintiff and Respondent, v. GLENN EDWARD HARDY, Defendant and Appellant.
Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Rachelle A. Newcomb, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MCR026551)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Madera County. Joseph A. Soldani, Judge. Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Rachelle A. Newcomb, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Peña, J., and Meehan, J.
-ooOoo-
Appellant Glenn Edward Hardy appeals from the trial court's denial of his petition for resentencing pursuant to Penal Code section 1170.126 (Proposition 36) with respect to his 2007 second degree burglary conviction (§§ 459, 460, subd. (b)). On appeal he contends: (1) the court erred when it denied his petition for resentencing pursuant to section 1170.126 with respect to this conviction; and (2) the court erred by its failure to apply section 1170.18's (Proposition 47) definition of "unreasonable risk of danger to public safety" in ruling on his petition. We affirm.
All further statutory references are to the Penal Code, unless otherwise indicated.
FACTS
The 2006 Offenses
On October 7, 2006, when Tim Deniz (Tim) arrived at his home in Madera County, he found Hardy in a van parked in the driveway. Tim briefly spoke with Hardy before Hardy drove away. Tim called his father, Julius Deniz (Julius), who arrived at the house in time to see the van and briefly chase it. Afterwards, Julius found the door to his shop open and several items missing including a battery charger, a tool set, and a chainsaw.
On October 8, 2006, tools and firearms were stolen during a burglary at William Hughes's house.
On October 9, 2006, sheriff's deputies stopped Hardy as he drove a van that was similar to the one seen in the driveway of the Deniz residence. Several tools the deputies suspected were stolen were in the van, along with an air hammer warranty registration card with Hughes's name on it. After deputies contacted Julius, he went to the location of the stop and identified the van as the one he followed two days earlier. He also identified a chainsaw with a case as property that was stolen from his residence. Deputies also took some of the property to the Hughes residence and he identified several items as belonging to him including a pair of binoculars, some hammers, and several other tools. The van also contained other items that were not identified by either victim. A deputy showed Tim a photo lineup containing Hardy's photo and he identified Hardy as the man he saw in the driveway of his residence.
On July 19, 2007, a jury convicted Hardy on one count each of first degree burglary (§§ 459, 460, subd. (a)), second degree burglary, receiving stolen property (§ 496, subd. (a)), and grand theft (§ 487, subd. (a)). In a separate proceeding, Hardy admitted two serious felony enhancements (§ 667, subd. (a)), three prior prison term enhancements (§ 667.5, subd. (b)), and allegations that he had two prior convictions within the meaning of the "Three Strikes" law (§ 667, subds. (b)-(i)). On September 4, 2007, the court denied Hardy's Romero motion and sentenced him to an aggregate indeterminate term of 63 years consisting of two consecutive terms of 25 years to life, two five-year serious felony enhancements, and three one-year prior prison term enhancements.
People v. Superior Court (Romero) (1994) 13 Cal.4th 497.
On June 23, 2008, this court affirmed the judgment in an unpublished opinion. (People v. Hardy (June 28, 2008, F053633).)
On November 6, 2014, Hardy, who was then 54 years old, filed a petition for resentencing pursuant to section 1170.126.
On December 23, 2014, the court denied the petition as to Hardy's 2007 first degree burglary conviction and set a hearing with respect to the petition's request for relief as to his other convictions.
On April 10, 2015, Hardy filed a petition pursuant to section 1170.18, requesting a reduction to misdemeanor and resentencing of his convictions for receiving stolen property and grand theft.
On July 2, 2015, the prosecutor filed an opposition to Hardy's petition to recall sentence pursuant to section 1170.126.
On August 13, 2015, the prosecutor filed a supplemental opposition.
On August 14, 2015, Hardy filed a reply to the prosecution's opposition. On that date, the court also held a hearing on both of Hardy's petitions. The Petition for Resentencing Pursuant to Section 1170 .126 and Respondent's Opposition
Hardy's petition pursuant to section 1170.126 alleged that no one was inside the dwellings when he committed his 2007 burglaries, that he was a crack addict and under the influence when he committed these offenses, and that none of his prior convictions involved violence or weapons. In a section titled, "Hardy's Social and Prior History," the petition noted that Hardy was born to a 12-year-old mother and was raised "with Jim Crow laws in the poor South." His father was absent during his childhood and was murdered in 2005.
The petition further alleged that Hardy suffered throughout his life from insulin dependent type I diabetes that worsened over the years, severe back pain, and high blood pressure. These maladies affected his ability to function in "everyday normal activities." Complications from Hardy's diabetes and chronic pain contributed to Hardy self-medicating with drugs and alcohol and led to addiction, trouble in finding work, and Hardy's failure to obtain a high school diploma. Due to difficulty controlling his diabetes in a prison setting, Hardy allegedly suffered multiple seizures while confined there.
The petition also alleged that Hardy continued to maintain a strong relationship with his four siblings and that his then 67-year-old mother fully supported him and invited him to live with her in Memphis if he were paroled. Hardy aspired to care for his mother in Memphis and to establish a relationship with his son. Hardy allegedly maintained an exceptional behavioral record in prison with no substance abuse problems and no CDCR-115 rule violations.
Hardy's 2007 probation report was attached as an exhibit to the petition. The report indicated that Hardy began using crack cocaine at age 35, he had been using it on a daily basis, and he last used in 2006.
The report also contained Hardy's criminal history. In April 1980, Hardy committed a petty larceny offense for which he was sentenced to six months in jail. In 1987, he was convicted of falsely representing his identity to a peace officer (§ 148.9, subd. (a)), a misdemeanor, and sentenced to five days in jail. He was also convicted of felony escape that year and sentenced to 180 days in jail. In 1991, he was convicted of the unlicensed driving of a motorcycle (Veh. Code, § 12500, subd. (b)). In August 1993, he was convicted of second degree burglary, placed on felony probation for three years, and sentenced to 23 days in jail. Less than a month later, he violated his probation and was sentenced to 180 days in jail. In 1995, he was convicted of first degree burglary, thereby violating his probation again, and he was sentenced to a two-year prison term. In 1996, Hardy was convicted of misdemeanor petty theft with a prior (§ 666) and ordered to serve a year in local custody. He also violated his parole that year and was returned to prison. In 1997, Hardy was convicted of being a felon in possession of ammunition (former § 12316, added by Stats. 1994, ch. 714, § 5, pp. 3406-3407 and repealed by Stats. 2010, ch. 711, § 4, p. 4036, eff. Jan. 1, 2012) and sentenced to a two-year prison term. In 1999, he pled no contest to first degree burglary and was sentenced to a six-year prison term. From 2002 through 2005, Hardy violated his parole four times and on each occasion, he was returned to prison to serve additional time.
Based on the foregoing, Hardy argued in his petition that he did not pose an unreasonable risk of danger because of the absence of violence in his criminal history, his exceptional institutional record, his mature age, and his diabetes, which required constant medical care and insulin injections to relieve excruciating pain. Hardy also noted in his petition that during the seven months he was out of custody in 2007 awaiting trial in the instant matter, he did not violate any laws.
In her opposition to Hardy's petition, the prosecutor argued that based on Hardy's criminal record, his in-prison rule violations, and his poor performance on parole and probation, he was likely to reoffend if released. In addition to Hardy's criminal history, as described in his 2007 probation report, the prosecutor's opposition stated that a "Classification Committee Chrono" showed that on November 4, 1987, Hardy was convicted of "Escape County with Force" and that Hardy received several disciplinary notices during his current prison incarceration.
"General Chrono means a CDC Form 128-B (Rev. 4-74) which is used to document information about inmates and inmate behavior. Such information may include, but is not limited to, documentation of enemies, records of disciplinary or classification matters, pay reductions or inability to satisfactorily perform a job, refusal to comply with grooming standards, removal from a program, records of parole or social service matters." (Cal. Code Regs., tit. 15, § 3000.)
The prosecutor's supplemental opposition included documentation that memorialized several in-prison rule violations by Hardy. On March 16, 2008, Hardy ignored a sign that stated that a certain area was out of bounds and he was issued a counseling chrono for refusing to comply with a written order.
On October 3, 2008, Hardy attempted to get a second breakfast meal and was issued a counseling chrono for attempted manipulation of the facility's morning breakfast program.
On July 4, 2010, Hardy refused to follow a staff member's order to get down for an alarm and he was issued a counseling chrono for failing to follow staff directions.
On November 30, 2012, Hardy was issued a rules violation report (RVR) for committing a battery on a noncustodial staff. However, this matter was dismissed on March 6, 2013.
During the hearing on Hardy's motions, the court stated that it would not consider this RVR.
On March 10, 2014, Hardy was issued an RVR for "disrespect towards staff." During the underlying incident, a staff member asked Hardy for his identification card when Hardy walked up to the window where medications for diabetics were dispensed. Hardy became belligerent and in a loud voice said, "Don't f***ing ask me for no f***ing I.D. Don't tell me about no f***ing rules. I am here because I could not keep the f***ing rules. Don't f***ing tell me what to do!" On April 8, 2014, following a hearing, Hardy was found guilty of the charged offense, but it was reduced to a "counseling chrono."
On August 11, 2014, Hardy was issued an RVR for fighting after he and another inmate were observed pushing each other. On September 8, 2014, after a hearing on the matter, Hardy was found guilty of that offense.
On October 5, 2014, Hardy was in a cell block where he was not housed and was issued an RVR for being "out of bounds." On October 11, 2014, he pled guilty to that charge.
With respect to Hardy's record of rehabilitation, the prosecutor's initial opposition noted only that Hardy had "completed various vocational/job training and academic classes." Hardy, however, did not provide any evidence in his moving papers that he ever took steps, in or out of prison, to address the underlying causes of his addiction and/or criminal behavior.
The Hearing on Hardy's Petitions
On August 14, 2015, at a hearing on Hardy's two petitions, after granting the section 1170.18 petition as to Hardy's grand theft and possession of stolen property convictions, the court heard argument on the section 1170.126 petition with respect to his second degree burglary conviction.
Defense counsel argued the court should resentence Hardy on the second degree burglary conviction because the only violence in his record was his conviction for escape with force during which Hardy allegedly kicked a wall, which counsel asserted was not true. Defense counsel also told the court that when Hardy was issued the 2012 RVR for assault on a noncustodial staff, Hardy was in "diabetic shock" and that was the reason it was dismissed. Counsel also attempted to minimize the seriousness of the 2014 RVR Hardy received for fighting, by pointing out that no injuries were involved in that incident and that there was an issue regarding whether Hardy and the other inmate even hit each other. She also argued that the conduct underlying the 2014 RVR he received for "disrespect towards staff" could have occurred because Hardy had low blood sugar and she noted that it was reduced to a counseling chrono. Thus, according to counsel, there was insufficient evidence "under the definition of unreasonable current danger" to deny the petition because Hardy did not resort to violence when he violated the prison rules, and his burglaries involved uninhabited dwellings and were linked to his drug addiction.
The prosecutor argued that based on Hardy's criminal history and his behavior in prison, which showed that Hardy could not follow rules even in a controlled environment, Hardy posed a serious risk to the community.
In denying the petition, the court stated:
"[I]n this matter the Court's [sic] tasked, not at looking at any particular incident or any particular item, but looking at the whole—the whole picture, the whole cloth, if you will, of Mr. Hardy and his actions and activities, both in and outside of prison, make a determination as to whether or not he's an unreasonable risk of danger at this time.
"And when I look at his criminal record, the fact that he has two prior first-degree burglaries when this third first-degree burglary was committed on or about the same time of the Count 2, the one we're talking about, was committed.
"I know Mr. Hardy's Counsel is arguing that, well, that's not a risk of danger. Somebody goes into somebody's house that's inhabited and steals property out of there, the Court has a different opinion and a different view of that.
"I look at his record. He continues, while he's out of custody, committing offenses or violating parole or violating probation, or committing new offenses.
He's got in prison offenses in his history. And then you look at his record of items occurring in the prison. He has the fight with the individual, the 115 rules violation. He's got some out of bounds violations. He's got this disrespect where he tells the—the LVN or whoever, that he's there because he can't follow the rules. And some of these are fairly, you know, recent in time and they go over a long history.
"So in this matter as to Count 2, which is the only count the Court's addressing, on this issue, the Court is going to deny the request for re-sentencing under 1170.126."
DISCUSSION
The Court did not Abuse its Discretion when it Denied Hardy's Section 1170 .126 Petition
Hardy compares his case to that of the defendant in People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279. In Kaulick, after a female neighbor began helping the defendant move property from his apartment, the defendant closed the door behind her, tore her blouse, and placed his hand over her mouth and attempted to rape her. (Id. at pp. 1286-1287.) The woman, however, managed to kick him between the legs and escape, nude from the waist up. (Id. at p. 1287.) In 2012, the defendant filed a petition for resentencing pursuant to section 1170.126 that the court granted even though the petition was not served on the district attorney. Thereafter, the district attorney filed a petition for a writ of mandate that was granted with directions to the trial court to vacate its order resentencing the defendant and to issue a new order setting a hearing on the petition. (Id. at pp. 1306-1307, fn. omitted.)
Hardy's comparison of his case to that of the defendant in Kaulick is of little value because the court did not reach a conclusion on the merits of the defendant's petition for resentencing and, in any case, Kaulick and Hardy's cases are too dissimilar for a comparison to be helpful.
Hardy essentially contends that the evidence showed he did not pose an unreasonable risk of danger to the public if he was resentenced because none of his 2007 convictions or his other prior offenses involved violence or the use of a weapon and his disciplinary offenses in prison were not very serious. Therefore, according to Hardy, the court abused its discretion when it denied his petition for resentencing pursuant section 1170.126. We disagree.
In order to be eligible for resentencing as a second strike offender under section 1170.126, the petitioner must satisfy the three criteria set out in subdivision (e) of that section. (People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 988-989.) If the petitioner satisfies all three criteria, as Hardy did with respect to his 2007 second degree burglary conviction, he or she "shall be resentenced [on that conviction as a second strike offender] unless the court, in its discretion, determines that resentencing the [inmate] would pose an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).) In exercising this discretion, "the court may consider: [¶] (1) The [inmate]'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 [inmate]'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." (Id., subd. (g).)
In order to be eligible for resentencing, the petitioner must be serving an indeterminate sentence for a felony that is not a serious or violent felony (§ 1170.126, subd. (e)(1)), the petitioner's current sentence was not imposed for certain specified convictions (§ 1170.126, subd. (e)(2)), and the petitioner has no convictions for certain specified offenses (§ 1170.126, subd. (e)(3)). Further, an inmate's eligibility for resentencing is evaluated on a count-by-count basis. Thus, an inmate may obtain resentencing with respect to a three strikes sentence imposed for a felony that is neither serious nor violent, despite the fact that the inmate remains subject to a third strike of 25 years to life. (People v. Johnson (2015) 61 Cal.4th 674, 688.) --------
The plain language of subdivisions (f) and (g) of section 1170.126 calls for an exercise of the sentencing court's discretion. " 'Discretion is the power to make the decision, one way or the other.' " (People v. Carmony (2004) 33 Cal.4th 367, 375.) "Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing 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, 1124-1125; see People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)
Under the clear language of section 1170.126, the ultimate determination that resentencing would pose an unreasonable risk of danger is a discretionary one. We, therefore, review that determination for abuse of discretion. Of course, if there is no evidence in the record to support the decision, the decision constitutes an abuse of discretion. (See In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.)
Ample evidence supports the court's denial of Hardy's petition. Hardy had a lengthy theft-related criminal history that dated back to his conviction in 1980 for petty theft and included three convictions for first degree burglary, three prison terms, numerous other incarcerations, and numerous violations of probation and parole. Although Hardy's first degree burglary convictions apparently did not involve actual violence, they involved the potential for violence. (People v. Davis (1998) 18 Cal.4th 712, 721 [" ' "Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation—the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence." ' "].) Further, while in prison Hardy received several disciplinary notices including five from 2012 and 2014, although one of these was dismissed and another reduced to a counseling chrono.
Moreover, although Hardy has suffered from insulin dependent diabetes and chronic back pain, he apparently suffered from these maladies when he was out of custody while he engaged in an unabated, continuous course of larcenous behavior. These ailments also resulted in Hardy self-medicating with drugs. However, there was no evidence that Hardy attended any rehabilitative programs or counseling, in or out of prison, or that he ever took any other steps to deal with his drug addiction or the other circumstances in his life that fueled his criminal behavior. Nor did he present any certificates of merit or positive chronos or other evidence that demonstrated that his character had improved while in prison.
Further, although Hardy claimed he could live with his mother in Memphis when he was released, given his failure to address the core causes of his criminal behavior, there was no reason for the court to believe that living with his mother would prevent Hardy from relapsing. To the contrary, given her elderly age and Hardy's background, the court could reasonably believe she too might become one of his victims. Hardy's lack of a substantial history of violence or weapons use and his age may have made it less likely Hardy would engage in violent behavior, particularly one involving weapons. However, the court could reasonably find that in spite of his age, his failure to address the root causes of his addiction and criminal behavior made it likely that no matter his age when released, he would again resort to self-medicating with drugs and engaging in larcenous conduct. The court could also reasonably find that notwithstanding the minimal violence in his past, his conduct in fighting with another inmate and his aggressive response when asked for his prison identification indicates he had the potential for violence, given the right circumstances. Therefore, since substantial evidence supports the court's finding that resentencing Hardy would pose an unreasonable risk to public safety, the court did not abuse its discretion when it denied his motion pursuant to section 1170.126 to resentence him on his 2007 second degree burglary conviction.
The Court Applied the Proper Standard
Proposition 47, approved by voters on November 4, 2014, "makes certain drug-and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108; see People v. Diaz (2015) 238 Cal.App.4th 1323, 1328.)
" 'Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person "currently serving" a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be "resentenced to a misdemeanor ... unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.18, subd. (b).)' " (People v. Contreras (2015) 237 Cal.App.4th 868, 891.)
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." The referenced provision of section 667 contains a list of specific felonies including certain sexually violent offenses and sex offenses against young minors; homicide offenses; solicitation to commit murder; assault on a peace officer with a machine gun; possession of a weapon of mass destruction; and offenses punishable by life imprisonment or death. (§ 667, subd. (e)(2)(C)(iv).)
In his appellate briefs, Hardy argues that the trial court abused its discretion by failing to apply the definition of an "unreasonable risk of danger to public safety" set forth in section 1170.18, subdivision (c) when it adjudicated Hardy's Proposition 36 petition. As support for this claim, Hardy relies on language in section 1170.18, subdivision (c), which states: "As used throughout this Code, 'unreasonable risk of danger to public safety' means ...." Pointing out that section 1170.126, subdivision (f) is part of the Penal Code, and that this provision of Proposition 36 uses the term "unreasonable risk of danger to public safety," Hardy argues that term must necessarily be defined in accordance with section 1170.18, subdivision (c).
After this appeal was fully briefed, our Supreme Court decided People v. Valencia (2017) 3 Cal.5th 347, 352, which holds that "Proposition 47 did not amend the Three Strikes Reform Act." As part of its analysis, the Valencia court rejected the interpretation of the "As used throughout this Code" language in section 1170.18, subdivision (c) that Hardy advanced in his appellate briefs. (Valencia, at pp. 360-362.) Ultimately, the court concluded that section 1170.18, subdivision (c)'s definition of an "unreasonable risk of danger to public safety" applies "only to the resentencing proceedings that are authorized under Proposition 47." (Valencia, at pp. 373-375, fns. omitted.) Accordingly, we hold the trial court did not err by failing to apply that definition when it exercised its discretion under section 1170.126, subdivisions (f) and (g) to determine whether resentencing Hardy would pose an unreasonable risk of danger to public safety.
DISPOSITION
The judgment is affirmed.