Opinion
E068400
07-19-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY WAYNE MAHAN, Defendant and Appellant.
Ava R. Stralla, 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, Michael Pulos and Kathryn Kirschbaum, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1600207) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Affirmed. Ava R. Stralla, 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, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Anthony Wayne Mahan appeals from a trial court's order denying his petition for resentencing under Health & Safety Code section 11361.8, subdivision (b) (Proposition 64). We affirm.
All further statutory references will be to the Health and Safety Code unless otherwise noted. --------
PROCEDURAL HISTORY
On May 11, 2016, pursuant to a plea agreement, defendant pled guilty to one count of possessing marijuana for sale (Health & Saf. Code, § 11359) and admitted that he had one prior strike conviction for discharging a firearm in a grossly negligent manner (Pen. Code §§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1), 246.3). On June 15, 2016, in accordance with the plea agreement, a trial court sentenced defendant to the low term of two years eight months in state prison.
On November 8, 2016, the voters passed the Control, Regulate and Tax Adult Use of Marijuana Act (Proposition 64), which amended section 11359 to provide that "[e]very person 18 years of age or over who possesses cannabis for sale shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment." (§ 11359, subd. (b).) Proposition 64, which became effective November 9, 2016, allows a "person currently serving a sentence for a conviction" of specified marijuana-related crimes to petition the superior court to recall the prisoner's sentence and resentence them according to the amended statute. (§ 11361.8, subd. (a).) "If an inmate files such a petition and satisfies the statutory criteria for relief, 'the court shall grant the petition . . . unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety.' [Citation.] An ' "unreasonable risk of danger to public safety" ' is defined as 'an unreasonable risk that the petitioner will commit a new violent felony within the meaning of [Penal Code section 667, subdivision (e)(2)(C)(iv)].' " (People v. Rascon (2017) 10 Cal.App.5th 388, 393.)
On November 23, 2016, defendant filed a handwritten motion for resentencing under section 11361.8, in propria persona.
On December 21, 2016, the People filed its response, requesting a hearing to determine whether defendant posed an unreasonable risk of danger to public safety.
On February 3, 2017, the Riverside County Public Defender filed a petition for resentencing under section 11361.8, on behalf of defendant.
On February 7, 2017, the court set a hearing on the petition.
After several continuances, the court held a hearing on April 21, 2017. That same day, defense counsel filed a brief regarding the standard for dangerousness. He asserted that, in determining whether a petitioner posed an unreasonable risk of danger, a court could consider the petitioner's criminal conviction history, disciplinary record, and record of rehabilitation while incarcerated. Defense counsel argued that, since being incarcerated, defendant had received several milestone credits for his schooling, and that he had done exceptionally well while incarcerated. He attached a progress report from a child batterers/parenting program, a certificate of completion of a parenting class, and records reflecting defendant's milestone completions in certain school subjects, such as math. Defense counsel further argued that there had been no credible evidence to support the assertion that defendant was likely to commit a strike offense in the next several months.
At the outset of the hearing, the court noted that it reviewed "the materials that were submitted by the defense yesterday." Defense counsel addressed the court and admitted that defendant had made some mistakes in the recent past. Counsel asserted that defendant's domestic violence charge in 2008 resulted in a misdemeanor. Counsel further noted that defendant went to prison on his prior strike conviction in 2012 for two years. He noted that the likelihood of defendant committing a super strike was extremely remote, and the People had not met its burden of proof. The court mentioned that it reviewed the police reports previously and noted that, approximately four years prior, defendant fired a weapon at "some sort of a rival gang banger." He also engaged in a high-speed pursuit with the police, where he had a weapon and an 11-year-old child in the car. The court stated that "[a]ny of those things could have resulted in a super strike having been committed." The court commented that someone who engaged in that type of conduct just four years prior had demonstrated that they were a danger. The court further noted that, sometime after that, defendant resisted some police officers, and he assaulted the mother of his child while she was holding an 11-month-old baby. The court acknowledged that defendant had participated in some programs since then, all while in the structured environment of prison. The court concluded that someone who engaged in the conduct of fleeing from police officers while armed with a handgun, with an 11-year-old child in his car, and firing a weapon out of a car at another group of individuals, remained an unreasonable risk of danger to public safety and was at risk of committing a super strike. The court thus denied defendant's request for resentencing.
ANALYSIS
Defendant Has Failed to Show an Abuse of Discretion
Defendant's sole contention on appeal is that the trial court abused its discretion in denying his petition based on its finding that he would pose an unreasonable risk of danger to public safety. He claims the prosecution failed to meet its burden of proof and nothing in this record demonstrates an unreasonable risk of danger that he would commit a super strike. We find no abuse of discretion.
Health and Safety Code section 11361.8, subdivision (b), provides that if the party opposing a petition for resentencing does not prove that the petitioner does not satisfy the criteria listed in subdivision (a), a court must grant a petition, unless it determines that the petitioner would pose an unreasonable risk of danger to public safety. " 'Unreasonable risk of danger to public safety' " is defined as "an unreasonable risk that the petitioner will commit a new violent felony within the meaning of [Penal Code section 667, subdivision (e)(2)(C)(iv).]" (Pen. Code, § 1170.18, subd. (c).) These felonies, or super strikes, include sexually violent offenses, as defined in Welfare and Institutions Code section 6600, oral copulation and lewd or lascivious acts with a child under 14 years old, homicide or attempted homicide, assault with a machine gun on a peace officer, and any serious and/or violent felony offense punishable in California by life imprisonment or death. (Pen. Code, § 667, subd. (e)(2)(C)(iv).) In exercising its discretion, the court may consider evidence provided for in Penal Code section 1170.18, subdivision (b). (Health & Saf. Code, § 11361.8, subd. (b).) Such evidence includes the petitioner's criminal conviction history, including the types of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes, as well as the petitioner's disciplinary record and record of rehabilitation while incarcerated. (Pen. Code, § 1170.18, subd. (b).)
The court here based its denial of defendant's petition on his criminal conviction history, which was a proper consideration. (Health & Saf. Code, § 11361.8, subd. (b); Pen. Code, § 1170.18, subd. (b).) We first note that the defendant "bears the burden to provide a record on appeal which affirmatively shows that there was an error below, and any uncertainty in the record must be resolved against the defendant." (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.) Defendant has provided the police report from only one of the incidents the court cited. The police report shows that he went to the home of his ex-girlfriend (the victim) to see their son. She was pregnant with their second child. Defendant became angry. The victim picked their son up, and defendant grabbed her by the hair and threw her to the ground. She fell to the ground with their son in her arms. Defendant then head-butted the victim's right eye and began to choke her. She reportedly had difficulty breathing because he put so much pressure on her neck. After about two minutes of choking her, he let her get up. He then grabbed a small fan and threw it at her, and it hit her forehead. The victim sustained a six- to eight-inch abrasion on her back from the fall, and their son sustained a one-inch abrasion on his shoulder. Defendant's conduct of throwing his pregnant ex-girlfriend to the ground while she was holding their son, and choking her for two minutes, reflects his violent nature and demonstrates an unreasonable risk that he could commit a new violent felony.
The court also cited the facts from defendant's prior conviction for discharging a firearm in a grossly negligent manner (Pen. Code, § 246.3), which was the prior strike he admitted pursuant to his plea agreement. Defendant did not provide the police report for this incident; however, he does not dispute the court's recitation of the facts of this incident. The court noted that, just four years prior, defendant had engaged in the conduct of firing a weapon at a group of individuals and fleeing from police officers while armed with a handgun, with an 11-year-old child in his car. It determined that this conduct could have resulted in a super strike being committed and that defendant was, therefore, an unreasonable risk of danger to public safety.
In view of the record, we conclude that the court did not abuse its discretion in finding that defendant was an unreasonable risk of danger to public safety.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J.
SLOUGH
J.