Opinion
F070996
02-17-2017
THE PEOPLE, Plaintiff and Respondent, v. FRANK ROBERT NAVARRO, Defendant and Appellant.
Candace Hale, 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, and Eric L. Christoffersen, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SC082611A)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kern County. Michael G. Bush, Judge. Candace Hale, 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, and Eric L. Christoffersen, Deputy Attorney General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Kane, J. and Poochigian, J.
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Appellant Frank Robert Navarro appeals the denial of his petition for recall of sentence pursuant to Penal Code section 1170.126. Appellant contends the court made several errors concerning his suitability for resentencing and the standards and procedures applied in making that determination. For the reasons set forth below, we affirm.
All statutory references are to the Penal Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant is presently serving a third strike sentence for possession or purchase of a controlled substance (Health & Saf. Code, § 11351). Appellant's criminal history shows a pattern of serious criminal conduct, beginning with a juvenile strike conviction in 1964 for robbery (§ 211). Although interspersed with less relevant criminal convictions, appellant also received an eight-year federal sentence for heroin smuggling in 1971, a second strike for robbery in 1985, and multiple other strikes related to a series of robberies frequently involving the use or threatened use of a knife or other weapon over several days in July 1989. In June 2001, after being paroled in January 2001 for his 1989 convictions, appellant was found in possession of 0.48 grams of heroin. Appellant pled guilty and received his current 25-years-to-life sentence.
Following the passage of Proposition 36, appellant petitioned for resentencing. The People opposed, citing appellant's extensive criminal history, noting he has had several disciplinary violations while in prison for incidents such as possessing and manufacturing alcohol, mutual combat, and possession of tobacco, and arguing appellant did not seem to have any release plans. The probation officer assigned to provide a short report recommended appellant be resentenced to an upper term of eight years, which would result in appellant's release.
The trial court held a hearing on appellant's petition. At the outset, the court noted it had received the petition, the People's response, a reply from appellant and both appellant's old and updated probation reports. Appellant then presented evidence from one witness and testified himself. Appellant's witness, who was related to appellant and assisted with the Victory Outreach recovery home, testified that, if released, appellant would be accepted into their residential program. Appellant's testimony explained his prior criminal conduct was related to a heroin addiction which he claimed to have overcome while in prison. Appellant also explained that, at nearly 70 years old and with health problems, he wanted to reconnect with his family and show them he was a different person.
Following this testimony, the trial court indicated it wanted to take the matter under submission and asked if appellant wished to waive his presence for the ruling, which appellant did. The court later issued a minute order denying appellant's petition. The court noted the briefing it had received, and denied appellant's petition stating only that it "RELIED UPON PEOPLE V. VALENCIA (2014) 181 CAL.REPORTER 229 [sic]."
This appeal timely followed.
DISCUSSION
Appellant raises four procedurally based allegations of error on the part of the trial court. First, appellant claims the trial court failed to make an adequate record for review on appeal by not providing a complete written statement of its decision to deny appellant's petition. Second, appellant claims the trial court applied the wrong standard in determining his resentencing would pose an unreasonable risk of danger to public safety. Third, appellant claims he was entitled to have a jury determine whether his resentencing would pose an unreasonable risk of danger to public safety. Fourth, appellant claims the court erred by failing to apply the correct standard of proof in this case because the determination of dangerousness is subject to proof by clear and convincing evidence. Standard of Review
We review de novo issues of law arising from the interpretation of a voter initiative. (In re J.L. (2015) 242 Cal.App.4th 1108, 1114.) Likewise, a due process claim raises an issue of law, which is reviewed de novo. (In re H.K. (2013) 217 Cal.App.4th 1422, 1433.) Appellant's Allegations of Error Are Unfounded
Upon review, appellant's four allegations of error are unfounded. First, appellant contends the record on appeal is insufficient for adequate review because the trial court did not provide a full written statement of its decision. Appellant argues an explication of the court's reasoning is required by the Fourteenth Amendment in the context of determinations an inmate would present an unreasonable risk to public safety. We disagree. "Generally, the reason a trial court gives for its ruling is irrelevant on appeal because 'we review the trial court's actual ruling, not its reasons,' and '[a] judgment or order correct in theory will be affirmed, even where the trial court's given reasoning is erroneous.' " (Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 368.) While a complete statement of the trial court's reasoning is beneficial to this court on appeal and should be considered a best practice, unlike with other statutes and situations (see, e.g., People v. Lock (1981) 30 Cal.3d 454, 459) there is no obligation to provide such a statement in response to a petition for resentencing under Proposition 36.
Nor does appellant's citation to cases such as People v. Vickers (1972) 8 Cal.3d 451 change our analysis. Appellant's cases are distinguishable in their focus on parole and probation revocation hearings. Here, appellant is already in jail, serving a proper sentence. The constitutional interests underlying Vickers and similar cases are thus not present here. Ultimately, although the trial court's rejection of appellant's petition was minimalistic, the record underlying the court's decision is not and we can readily "infer from the record of the hearing itself that the court properly "discharge[d] [its] duty to conscientiously consider" appellant's petition and considered the evidence before it. (See People v. Burgener (2003) 29 Cal.4th 833, 893.)
Appellant's second claim, that the trial court should have applied Proposition 47's definition of unreasonable risk of danger to public safety, was previously considered by this court and denied in a case that is now pending before the California Supreme Court. (People v. Valencia (2014) 232 Cal.App.4th 514, review granted Feb. 18, 2015, S223825.) In Valencia, this court held that in passing Proposition 47, voters did not intend the definition of " 'unreasonable risk of danger to public safety' " contained in that proposition to apply to the phrase as it appears in section 1170.126. No purpose would be served by fully repeating our analysis, which we adopt herein. Adopting the reasoning expressed in Valencia, we conclude: (1) Proposition 47 has no effect on appellant's petition for resentencing under section 1170.126; and (2) appellant is not entitled to a remand so the trial court can determine his entitlement to resentencing under that section utilizing the definition of " 'unreasonable risk of danger to public safety' " contained in section 1170.18, subdivision (c).
Third, appellant argues he was entitled to a jury trial on the issue of dangerousness. Appellant recognizes that this position has been rejected in two different published opinions, but argues the courts have reached the wrong conclusion by failing to recognize that Proposition 36 implements a mandatory resentencing program. (See People v. Lopez (2015) 236 Cal.App.4th 518, review granted July 15, 2015, S227028; People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279 (Kaulick).) We do not agree. Consistent with the analysis in Kaulick, we conclude the resentencing determination is a discretionary act by the trial court which does not potentially increase a defendant's sentence. (Kaulick, supra, 215 Cal.App.4th at pp. 1304-1305.) As such, no jury trial was required to conclude appellant presents an unreasonable risk of danger to public safety.
Fourth, appellant contends the dangerousness determination must be made according to a clear and convincing standard of proof. Again, we disagree. As explained in the many cases discussing this issue, the eligibility and dangerousness determinations under Proposition 36 are subject to a preponderance of the evidence standard. (People v. Newman (2016) 2 Cal.App.5th 718, 728-732; see People v. Osuna (2014) 225 Cal.App.4th 1020, 1040; Kaulick, supra, 215 Cal.App.4th at pp. 1301-1305.) Appellant's position is further flawed in that it relies on the contention that resentencing under Proposition 36 is analogous to the imposition of a sentence enhancement. As noted above, it is not, instead constituting an act of leniency which does not increase appellant's properly imposed sentence.
DISPOSITION
The order is affirmed.