Opinion
H041796
11-19-2019
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO MARQUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. S8-08393)
Defendant Francisco Marquez appeals the trial court's denial of his petition under Penal Code section 1170, subdivision (d)(2) seeking resentencing after a sentence of life without the possibility of parole was imposed without consideration of the factors discussed in Miller v. Alabama (2012) 567 U.S. 460 (Miller). Defendant argues that the trial court abused its discretion in denying the petition because it did not consider the Miller factors and because the evidence did not support the court's decision. We consider this appeal together with defendant's petition for writ of habeas corpus which also seeks resentencing under Miller (case No. H043178). Finding no prejudicial error, we will affirm the trial court's order denying defendant's petition.
I. TRIAL COURT PROCEEDINGS
A. MURDER PROSECUTION LEADING TO LIFE WITHOUT PAROLE SENTENCE
The following factual background is derived from this court's unpublished opinion affirming the murder convictions of defendant and his accomplice Jesus Arroyo Madrigal. (People v. Madrigal (Feb. 21, 2001, H019433).)
A jury heard the following testimony: Ulysses Huante died on the side of a secluded road in Watsonville in 1997 from two gunshot wounds to the head and one gunshot wound to the back. Witnesses reported hearing gunshots and then the sound of a car speeding away. Defendant (17 years old at the time) and Madrigal (then 18 years old) were found about a week later sleeping in Huante's car, which had been reported stolen. Another juvenile testified that defendant told him he had shot a rival gang member twice in the back and once in the head. The brother of defendant's girlfriend testified (under a grant of immunity) that defendant told him he had stolen a car in Watsonville, and gave him the gun used in the homicide.
Defendant was convicted of first degree murder (Pen. Code, § 187), carjacking (Pen. Code, § 215), and kidnapping for carjacking (Pen. Code, § 209.5). The jury found true the special allegation that defendant personally used a firearm (Pen. Code, § 12022.5, subd. (a)) and the special circumstances that defendant committed the murder during a carjacking and during a kidnapping (Pen. Code, § 190.2, subd. (a)(17)(B), (a)(17)(L)). Defendant was sentenced to life without parole for first degree murder with special circumstances in 1998, with concurrent terms for the other counts and enhancements. On appeal, a different panel of this court found no error in the murder and kidnapping convictions, but reversed the carjacking conviction because carjacking is a lesser included offense of kidnapping for carjacking. Though this court remanded the matter "with direction to [the superior] court to dismiss the carjacking charge, and to resentence both defendants accordingly," there is no evidence in the record that defendant was ever resentenced.
B. SECTION 1170 , SUBDIVISION (D)(2) PETITION
Defendant petitioned the trial court in propria persona for resentencing under Penal Code section 1170, subdivision (d)(2) (section 1170(d)(2)) in 2013. Defendant contended he was eligible for resentencing because he had no juvenile adjudications before the murder conviction; there was an adult codefendant in the murder case; and he had engaged in rehabilitative acts while in prison (including dropping out of his prison gang). The petition included a handwritten "Statement of Remorse" in which defendant stated: "mere words of comfort cannot alone atone for the suffering my past behavior has caused my victim[ ] ... , his family, mine, and the community. There must be action to back up those words that demonstrate[s] a sincere remorse and ability to recognize the folly of my errors." The trial court appointed counsel and held an evidentiary hearing over multiple days.
1. Section 1170(d)(2) Hearing Testimony
The hearing included a combination of public and in camera sessions in order to maintain the confidentiality of information discussed during defendant's gang debriefing. Although we have reviewed the entire record, we summarize here only testimony from the unsealed portions of the record to avoid the need for a partially sealed opinion.
Defendant's sister Marcella testified that their father left the family home and moved to Mexico when defendant was around 11 years old. Marcella believed their father's departure adversely affected defendant because he "felt abandoned." During defendant's time in prison, he and Marcella remained in consistent contact; she testified she had hundreds of letters with her that they had exchanged. She testified that defendant had "always shown remorse ever since the first day when he was arrested." She explained on cross-examination that by remorse she meant he "always expressed to us that it hurt him not being able to be with us because our father left us. He felt like now he was responsible for us and it hurt him not being able to be with us." Marcella testified that she believed a different person was responsible for Huante's murder and that defendant had merely taken the blame.
James Esten testified as a defense expert in evaluating the contents of inmates' central files regarding the issues of gang classification, discipline, and gang debriefing. Esten reviewed defendant's prison records and interviewed him. He noted that defendant had been involved in street gang activity before being sentenced for Huante's murder, and that he "made the transition from street gang to prison gang with very little friction" once he began serving his life sentence. Esten opined that defendant had "taken significant steps" toward rehabilitating himself by engaging in the debriefing process to officially drop out and end his affiliation with the Mexican Mafia prison gang.
Defendant testified on his own behalf. He admitted killing Huante. He admitted he had been affiliated with a Sureño street gang before entering prison, and further admitted aligning himself with the Mexican Mafia prison gang when he began serving his life sentence. Defendant testified that he was involved in drug activity and assaultive activity on behalf of the Mexican Mafia. Defendant acknowledged an incident in 2001 where he stabbed an inmate seven or eight times. Defendant testified that he was armed with "stabbing instruments" most of the time he was in prison between gaining sufficient stature with the Mexican Mafia around 2000 and starting the dropout process in 2011. In addition to weapons, defendant testified that he had heroin in his cell "[m]ost of the time" he was in prison before dropping out. Defendant admitted selling drugs regularly and giving some of his earnings to senior members of the Mexican Mafia. He also admitted that he gave other inmates drugs as a reward for favors such as carrying out stabbings on his behalf. Defendant acknowledged that in 2008 he was validated as an associate of the Mexican Mafia.
Defendant testified that he decided to go through the dropout process in 2011 because he wanted to end his affiliation with the Mexican Mafia and wanted to "start to do things right." He completed the dropout process in 2013 when a senior special agent from the Department of Corrections and Rehabilitation validated defendant as a Mexican Mafia dropout. Defendant testified that he had taken proactive steps toward rehabilitation since dropping out, including attending Narcotics Anonymous meetings; working toward his GED; completing mail-order anger management and parenting courses; getting baptized; and helping train correctional officers at the county jail. Defendant stated that his main goal in bringing the section 1170(d)(2) petition was to apologize to Huante's family. On cross-examination, he acknowledged that prior to filing the section 1170(d)(2) petition he had never attempted to apologize to Huante's family.
Morgan Chappell testified for the People as an expert in "local gangs and the validation and the debriefing procedure." Chappell had worked as a detective and a sergeant with the Watsonville Police Department before moving to his present role as an investigator for the district attorney's office. Based on reviewing defendant's debriefing report and attending the section 1170(d)(2) hearings, Chappell opined that defendant had been "a very valuable part of the organization, somebody who proved to be a loyal and willing soldier over the years, that he was in the organization and proved himself time and again through dope sales and violence and contributing in the ways that the Mexican Mafia members definitely sought." Chappell testified that defendant "achieved a position of authority and is by far the highest ranking Poorsider to have ever gone into the organization, the Mexican Mafia." (Defendant was a member of the Sureño Poorside street gang before entering prison.) Chappell explained that it was very difficult for an inmate who is not from southern California to gain a status on par with defendant's within the Mexican Mafia.
2. Trial Court's Section 1170(d)(2) Petition Denial
The trial court gave a detailed oral tentative decision before inviting argument from the parties. The court focused on the factors listed in section 1170(d)(2)(F), and discussed each applicable factor. The court acknowledged defendant had no prior juvenile felony adjudications for assaultive crimes. (§ 1170(d)(2)(F)(ii).) Defendant had committed the murder leading to the life without parole sentence with an adult (§ 1170(d)(2)(F)(iii)), but the court did not find that factor particularly probative (presumably because defendant and his accomplice were only one year apart in age).
As to the section 1170(d)(2)(F) factors the trial court described as "more applicable to this hearing," it determined that defendant had a mixed record regarding performing "acts that tend to indicate rehabilitation or the potential for rehabilitation." (§ 1170(d)(2)(F)(vi).) The court found defendant's rehabilitative efforts had occurred only in the "relatively recent debriefing process," and that before that process defendant had engaged in "violent and assaultive behaviors that took place for many years" while serving his life sentence. Related to the rehabilitative efforts factor, the court found that defendant had not sufficiently demonstrated remorse for the murder. The court noted there was no showing of remorse immediately after the murder conviction, and there had been what "appeared to be a level of misplaced pride regarding [defendant's] criminal acts." The court pointed to the many years that passed before defendant made any "reference toward remorse," and found that "a good faith argument can be made that the issue of remorse appears to be related strictly and solely to the subject petition."
The court weighed competing arguments about defendant's maintenance of family ties, and found that defendant had maintained ties with family members. (§ 1170(d)(2)(F)(vii).) As to the final factor—whether defendant had been found to be the aggressor in violent activities in prison within the preceding five years (§ 1170(d)(2)(F)(viii)—the court noted two non-violent disciplinary actions within that period, but also that defendant had committed violent disciplinary violations before that time period and that it "would not have a thorough examination of this matter without taking into account the history that this gentleman has had while in custody." The court concluded that while defendant appeared to be sincere and his recent acts showing rehabilitation were encouraging, the court was "evaluating and balancing years of violent apparently constant gang activity versus a rather short period of time within which Mr. Marquez is in a dropout capacity." The court concluded defendant's rehabilitative efforts had occurred over "too short a period of time" and his "potential for rehabilitation remain[ed] uncertain."
During argument following the tentative decision, defendant's counsel referenced Miller, supra, 567 U.S. 460, arguing the Supreme Court in that case found that sentences of life without parole for juveniles should be uncommon. The trial court then elaborated on its tentative decision to deny defendant's petition. The court indicated it had read both Miller and Graham v. Florida (2010) 560 U.S. 48. The court also acknowledged that defendant had grown up without his father (relevant to whether defendant had insufficient adult support or supervision (§ 1170(d)(2)(F)(iv))), but found that circumstance did not change its decision to deny the petition.
II. DISCUSSION
In his original briefing, defendant argued that the trial court abused its discretion both by not considering the factors identified in Miller, supra, 567 U.S. 460, and by determining that defendant had shown insufficient rehabilitation or remorse. Following the Supreme Court's decision in In re Kirchner (2017) 2 Cal.5th 1040 (Kirchner), we requested supplemental briefing on the effect of that decision on this appeal. We sought further supplemental briefing regarding the effect of Senate Bill No. 394 (Stats. 2017, ch. 684, § 1) and its amendments to Penal Code section 3051. Defendant argues that, notwithstanding those authorities, the trial court erred by not considering the Miller factors and by rendering a decision not supported by the record. Before addressing defendant's arguments, we summarize Kirchner and Senate Bill No. 394, and explain how those authorities affect this appeal.
A. IN RE KIRCHNER
Kirchner was convicted of a murder he committed when he was 16 years old, and the trial court imposed a life without parole sentence without considering the factors the United States Supreme Court would later identify in Miller regarding the " 'distinctive attributes of youth' and how these attributes 'diminish the penological justifications for imposing the harshest sentences on juvenile offenders.' " (Kirchner, supra, 2 Cal.5th at pp. 1042-1043, quoting Miller, supra, 567 U.S. at p. 472.) Over 20 years after his conviction, Kirchner petitioned for a writ of habeas corpus seeking resentencing based on Miller, and the trial court granted the petition. (Kirchner, at pp. 1043-1044.) The Court of Appeal reversed the trial court, finding that the section 1170(d)(2) petition process remedied any constitutional defect in Kirchner's sentence. (Kirchner. at p. 1043.)
The Supreme Court in Kirchner summarized United States Supreme Court jurisprudence regarding juveniles and the Eighth Amendment to the United States Constitution's prohibition on cruel and unusual punishment. (Kirchner, supra, 2 Cal.5th at pp. 1046-1049.) The Kirchner court noted that in Miller, supra, 567 U.S 460, the United States Supreme Court found that a statute providing for mandatory life without parole sentences for juveniles convicted of murder violated the Eighth Amendment. (Kirchner, at pp. 1047-1048.) To impose a life without parole sentence on a juvenile convicted of murder, a sentencing court must first consider "evidence that may exist regarding (1) 'a juvenile offender's "chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences" '; (2) ' "the family and home environment that surrounds [the juvenile]—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional" '; (3) ' "the circumstances of the homicide offense, including the extent of [the juvenile's] participation in the conduct and the way familial and peer pressures may have affected him" '; (4) 'whether the offender "might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys" '; and (5) ' "the possibility of rehabilitation." ' " (Kirchner, at p. 1048.) The requirement that sentencing courts consider the foregoing Miller factors is retroactive. (Kirchner, at p. 1048, citing Montgomery v. Louisiana (2016) 577 U.S. ___ .)
The Kirchner court described the section 1170(d)(2) sentence recall process. (Kirchner, supra, 2 Cal.5th at p. 1049.) That subdivision allows eligible inmates who were sentenced to life without parole as juveniles to petition for resentencing after serving at least 15 years of an indeterminate sentence. (§ 1170(d)(2)(A)(i).) If a petitioning defendant establishes one or more of the qualifying circumstances listed in section 1170(d)(2)(B) by a preponderance of the evidence, the court must recall the original sentence and hold a hearing to resentence the defendant. (Kirchner, at pp. 1049-1050.) At a resentencing hearing, a trial court may consider factors that include whether the defendant: was convicted through the felony murder doctrine or as an aider and abettor; had juvenile felony adjudications for assaultive crimes; committed murder with one or more adult codefendants; had insufficient adult support; suffered from psychological or physical trauma; suffers from cognitive limitations due to mental illness or developmental disabilities; has performed acts indicating rehabilitation; has maintained family ties; and has a disciplinary record for violent activities in prison in the past five years. (Kirchner, at p. 1050, citing § 1170(d)(2)(F).) The court may also consider any other criteria it deems relevant. (Kirchner, at p. 1050, citing § 1170(d)(2)(I).)
The Kirchner court then discussed the issue presented: whether the section 1170(d)(2) sentence recall procedure is an adequate remedy for Miller error such that resentencing relief by petition for writ of habeas corpus was unnecessary. (Kirchner, supra, 2 Cal.5th at p. 1052.) The court held "section 1170(d)(2) does not provide an adequate remedy at law for Miller error, and that petitioner may obtain a Miller resentencing as a form of habeas corpus relief." (Kirchner, at p. 1043.) The court identified several reasons to support its conclusion. The court noted that not all individuals sentenced to life without parole as juveniles without consideration of the Miller factors can obtain relief under section 1170(d)(2) because that subdivision categorically excludes individuals convicted of certain types of crimes (e.g., individuals convicted of torturing the murder victim). (Kirchner, at p. 1053; see § 1170(d)(2)(A)(ii).) Section 1170(d)(2) also imposes threshold pleading requirements mandating that petitioning defendants demonstrate their remorse and prove by a preponderance of the evidence that one or more of the statutorily prescribed qualifying circumstances applies. (Kirchner, at p. 1053.) And a petitioning defendant cannot obtain relief under section 1170(d)(2) until he or she has served 15 years of a life without parole sentence. (Kirchner, at p. 1053, fn. 11.)
"Even more fundamentally, the ultimate resentencing inquiry specified under section 1170(d)(2) is not designed to address Miller error, and will not necessarily provide a defendant with the lawful sentence that Miller requires." (Kirchner, supra, 2 Cal.5th at p. 1054.) The section 1170(d)(2) factors are discretionary, and those factors only partially overlap the Miller factors. (Kirchner, at p. 1054.) As such, the section 1170(d)(2) petition process "does not necessarily require consideration of all relevant evidence bearing on the Miller factors, through the lens prescribed by Miller, as part of the resentencing inquiry." (Kirchner, at p. 1053.)
The Kirchner court rejected an argument that the section 1170(d)(2) petition process should be a necessary prerequisite to obtaining habeas corpus relief for a Miller violation, reasoning that such a rule would "interpose additional proceedings—culminating in a potentially inapposite inquiry—ahead of the vindication of a constitutional right, and assign to section 1170(d)(2) a function it was not designed to perform." (Kirchner, supra, 2 Cal.5th at p. 1055.) The Supreme Court rejected the Court of Appeal's approach as "rewriting the statute to impose upon the People the burden" of demonstrating Miller compliance in section 1170(d)(2) proceedings. The Kirchner court "decline[d] to so transform the section 1170(d)(2) process into something different from what the Legislature intended—namely, an avenue for recalling lawfully issued sentences of life without parole, and potentially resentencing defendants to terms that incorporate an opportunity for parole." (Kirchner, at p. 1056.) While not an adequate remedy to correct Miller sentencing error, the court explained that the section 1170(d)(2) recall procedure "nevertheless serves a useful purpose in the overall sentencing framework for juvenile offenders" by providing a "mechanism that allows a second, third, and perhaps even a fourth look at a lawful sentence of life without parole." (Kirchner, at p. 1056, fn. 12.)
B. SENATE BILL NO. 394 AND PENAL CODE SECTION 3051
Since 2014, Penal Code section 3051 has provided offenders serving lengthy sentences for offenses committed while young to "youth offender parole hearings " after serving a prescribed number of years in prison. (People v. Franklin (2016) 63 Cal.4th 261, 276-277 (Franklin).) For example, a "person who was convicted of a controlling offense that was committed when the person was 25 years of age or younger and for which the sentence is a life term of 25 years to life shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing." (Pen. Code, § 3051, subd. (b)(3).)
As summarized in Kirchner, the Supreme Court determined in Franklin that the relief afforded to youthful offenders by section 3051 converts a sentence that would otherwise be the functional equivalent of life without parole into a life sentence with the possibility of parole, "meaning that his or her sentence does not implicate Miller and its strictures." (Kirchner, supra, 2 Cal.5th at p. 1049, fn. 4; citing Franklin, supra, 63 Cal.4th at pp. 278-280.) The Kirchner court observed that juveniles "sentenced to life without parole presently [were] ineligible for the 'youth offender parole hearing[s]' under section 3051 that are available to most other juvenile offenders and defendants under 23 years of age at the time of their controlling offense." (Kirchner, at p. 1049, fn. 4.) But the court noted that then-pending legislation would extend section 3051 relief to juveniles serving sentences of life without parole. (Kirchner, at p. 1049, fn. 4.)
That legislation was signed into law by the Governor as Senate Bill No. 394. (Stats. 2017, ch. 684, § 1.) The bill added a new subdivision (b)(4) to Penal Code section 3051, which provides that a "person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which the sentence is life without the possibility of parole shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing, unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions." (Pen. Code, § 3051, subd. (b)(4).)
C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
We review the denial of a section 1170(d)(2) petition for abuse of discretion. (People v. Willover (2016) 248 Cal.App.4th 302, 320.)
1. The Trial Court Was Not Required to Consider the Miller Factors
Defendant argues that the trial court should have considered the "Miller 'hallmarks of youth' factors in its decision to deny the resentencing petition under section 1170(d)(2)" because those factors "must be considered by any court when making sentencing decisions concerning a youthful offender such as" defendant. Senate Bill No. 394 and its addition of subdivision (b)(4) to section 3051 cures the Eighth Amendment Miller concern that caused the Kirchner court to grant habeas relief and resentencing. Kirchner did not address the issue presented here—whether the Miller factors must be considered when reviewing a section 1170(d)(2) petition when the underlying sentence is lawful—because Senate Bill No. 394 had not yet been enacted. But implicit in Kirchner is a determination that deciding a section 1170(d)(2) petition is a task independent from ensuring that a sentence imposed is constitutional under Miller.
Nothing in section 1170(d)(2) or Kirchner suggests the Miller factors must be considered when deciding a section 1170(d)(2) petition. To the contrary, the thrust of the Kirchner decision was that Miller issues and section 1170(d)(2) issues should be considered separately. (See Kirchner, supra, 2 Cal.5th at p. 1056.) Defendant's life without parole sentence is no longer unconstitutional because he is now entitled to a youth offender parole hearing. (See also In re Cook (2019) 7 Cal.5th 439, 458-459 [denying habeas corpus petition without prejudice to petitioner filing a motion in the trial court under section 1203.01 to make a record of information that will be relevant in a future youth offender parole hearing].) The trial court did not err in considering only the section 1170(d)(2) factors when deciding defendant's section 1170(d)(2) petition.
2. The Trial Court's Decision Is Supported By the Evidence
Defendant argues the trial court erred by finding that he had not adequately demonstrated remorse for Huante's murder, and by determining that defendant's rehabilitative efforts had occurred too recently.
a. Inadequate Showing of Remorse
Defendant attacks the trial court's finding that he had not "satisfactorily shown" remorse for killing Huante. Defendant points to the statement of remorse in his section 1170(d)(2) petition and his testimony at the hearing, arguing that they show his remorse was "indisputably both sincere and heartfelt." But the sincerity of defendant's statement of remorse is a credibility determination entrusted to the trial court. (People v. Jones (1990) 51 Cal.3d 294, 314 ["[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends."].) In stating that defendant had not satisfactorily shown remorse, the trial court made an implicit credibility determination against defendant.
Substantial evidence in the record supports the trial court's credibility determination. Defendant acknowledged during his testimony that until filing the section 1170(d)(2) petition he had never attempted to apologize to Huante's family. Marcella's testimony at trial that she did not think defendant had murdered Huante suggests defendant never admitted to his sister that he was responsible for Huante's death despite exchanging hundreds of letters with her. And Marcella's description of defendant's remorse—that he told her it hurt him to be away from his family—did not demonstrate that defendant felt any remorse for the pain he caused Huante's family. The foregoing evidence supports the trial court's conclusion and distinguishes this case from People v. Cluff (2001) 87 Cal.App.4th 991. (See id. at pp. 1001-1003 [reversing failure to register conviction (Pen. Code, § 290), finding that the "trial court's analysis became disconnected from the evidence and entered the realm of imagination, speculation, supposition, and guesswork"].)
Addressing the trial court's comment that "a good faith argument can be made that the issue of remorse appears to be related strictly and solely to the subject petition," defendant argues that his statement of remorse "was included with the petition, not because of some self-serving purpose, as the court suggests, but because such a statement is required by" section 1170(d)(2)(B). But we understand that to be the trial court's point—there was a possibility defendant included the statement of remorse solely because it was a statutory prerequisite to consideration of his petition.
Defendant relies extensively on In re Elkins (2006) 144 Cal.App.4th 475 (Elkins). Elkins petitioned for writ of habeas corpus to challenge the Governor's reversal of a decision by the Board of Parole Hearings to grant him parole from a life sentence. (Id. at p. 479.) The Governor had concluded that "Elkins's 'current insight into the life offense is too recent ... to weigh in favor of his parole,' " and that Elkins had " 'accepted full responsibility for the murder for less than a decade.' " (Elkins, at p. 494.) In granting the petition, the Elkins court found that the Governor's conclusion was factually incorrect because Elkins had accepted full responsibility 12 years earlier. (Ibid.) The Elkins court also rejected the Governor's premise that Elkins's acceptance of responsibility was too recent, reasoning that "acceptance of responsibility works in favor of release '[no] matter how longstanding or recent it is,' so long as the inmate 'genuinely accepts responsibility.' " (Id. at p. 495.) But in Elkins there was no dispute that he had taken full responsibility for the crime and demonstrated remorse for his actions. By contrast, here the trial court found defendant had not satisfactorily demonstrated remorse and it implicitly made an adverse credibility determination against defendant.
b. Recency of Rehabilitative Efforts
Defendant makes two arguments relating to the trial court's finding that his rehabilitative efforts are too recent. The first is that the trial court used the wrong starting point, and the second is that "[w]hat truly matters here is the depth and sincerity of the efforts, not the total time frame."
Defendant began serving his life sentence in 1998, initiated the debriefing process in 2011, and received his final sign-off as a validated dropout in 2013. The trial court found that "April 2013 to December 2014 [the month of the hearing] is not a sufficient period of time to confirm to this Court the permanency of the petitioner's alleged change of life and lifestyle." We agree with defendant that because there was no evidence of misbehavior by defendant after initiating the dropout process in 2011, the trial court should have used that date to analyze defendant's petition.
As defendant acknowledges, a trial court's misapprehension of facts is state law error subject to harmless error analysis. (See People v. Avalos (1984) 37 Cal.3d 216, 233 (Avalos) [reviewing for harmless error whether trial court improperly relied on aggravating factors both to aggravate sentences and to run sentences consecutive]; People v. Watson (1956) 46 Cal.2d 818, 836-837.) The trial court's error does not compel reversal unless defendant can demonstrate it is reasonably probable that he would have received a more favorable result but for the error. (Avalos, at p. 233.)
Using the dropout initiation date of 2011 (rather than the validation date of 2013), the trial court was presented with a defendant who had spent over 12 years intimately involved in a prison gang, followed by over three years in the process of dropping out. As defendant readily admitted, his association with the Mexican Mafia involved frequent assaultive incidents as well as persistent drug trafficking. Defendant admitted that during his time with the Mexican Mafia he was almost always armed with a stabbing instrument, and almost always possessed drugs. And defendant rose to a position of authority within the gang, described by the People's expert as "by far the highest ranking" individual in the Mexican Mafia to have come from defendant's street gang that the expert had ever encountered. Presented with that history of prison gang involvement, the trial court could reasonably have misgivings about prematurely granting relief. We find it not reasonably probable that defendant would have obtained a more favorable result had the trial court used the 2011 dropout initiation date in its analysis of defendant's rehabilitative efforts.
As to defendant's argument that there is " 'no minimum time requirement' " for a defendant's rehabilitative acts so long as they are sincere, we agree with the premise in the abstract but conclude that it does not compel reversal. In finding that defendant's "potential for rehabilitation remain[ed] uncertain," the trial court expressed doubt regarding defendant's commitment to rehabilitation. As we have already discussed, that uncertainty was not unreasonable given defendant's long history of prison gang involvement and limited evidence of remorse.
Defendant has taken commendable steps toward rehabilitation. He will have another opportunity to petition for relief under section 1170(d)(2) after serving the 20th year of his sentence. (§ 1170(d)(2)(H).) On this record, defendant has not demonstrated an abuse of discretion in the trial court's denial of his section 1170(d)(2) petition.
III. DISPOSITION
The trial court's order denying defendant's section 1170(d)(2) petition is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Greenwood, P. J. /s/_________
Elia, J.