Opinion
E066682
09-27-2017
THE PEOPLE, Plaintiff and Respondent, v. HECTOR LOPEZ OZUNA, JR., Defendant and Appellant.
Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Kristen Ramirez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1401066) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Hector Lopez Ozuna, Jr., appeals from the trial court's order denying his petition for resentencing under Proposition 47 because it found he was likely to commit a super strike if resentenced. Because of defendant's long, repeated, and violent criminal history; his unsatisfactory behavior in prison and on parole; his long-term drug addiction; and his continuing acts of violence and use and possession of weapons, despite his advancing age and physical infirmities, we affirm.
FACTS AND PROCEDURE
On the afternoon of March 26, 2014, police officers saw defendant and another man fighting in the parking lot of a market. The other man, whom the police report described as the "aggressor," punched defendant in the face and knocked him to the ground. One of the officers led the other man away, and another officer handcuffed defendant without incident. The other man was very angry. He continued to yell at defendant that he was going to kill him, kept trying to break free and attack defendant, and actively resisted arrest while being handcuffed and placed in the police car by three officers. The officer near defendant placed him back on the ground and helped subdue the other man. Another officer then helped defendant get up from the ground and took him to the front of the police car. Defendant declined medical assistance and stated he did not want to press charges. The officer asked defendant if he had anything illegal in his possession. Defendant admitted to having methamphetamine on his person and to using it daily.
On March 28, 2014, the People filed a complaint charging defendant with possessing methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) The People also alleged defendant had six prison term priors (Pen Code, § 667.5, subd. (b)) and four strike priors (Pen. Code, §§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)).
Section references are to the Penal Code when not otherwise indicated.
On May 13, 2014, defendant pled guilty to the possession charge and admitted one strike prior. The court sentenced him as agreed to the upper term of three years in state prison, doubled to six years for the strike prior.
On November 4, 2014, voters enacted Proposition 47, entitled the Safe Neighborhoods and Schools Act, which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) As of its effective date, Proposition 47 classified as misdemeanors certain drug- and theft-related offenses that previously were felonies or wobblers, unless they were committed by certain ineligible defendants. (§ 1170.18, subd. (a).) 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 for the misdemeanor offense. (§ 1170.18, subd. (a).)
On December 7, 2015, defendant, acting in propria persona, filed a petition to recall his sentence under section 1170.18. In his petition, defendant correctly alleged that his conviction for possessing methamphetamine qualifies for relief. Defendant also alleged he does not pose an unreasonable risk of danger, as required by the statute. He included documentation showing he is hearing impaired enough to require a hearing aid, and uses a cane. The court appointed a public defender. The People filed its opposition to the petition, arguing defendant poses an "obvious danger" when out of custody. The People attached a summary of defendant's arrests, convictions, paroles, and behavior while in custody.
The court held a hearing on July 1, 2016, at which the 56-year-old defendant was present and represented by the public defender. Defendant was using a walker, rather than a cane, at the hearing. After hearing argument from both parties, the court denied the petition.
This appeal followed.
DISCUSSION
Defendant argues the trial court abused its discretion when it denied his petition for resentencing based on its finding that he was likely to commit a super strike if resentenced. We find no abuse of discretion.
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).)
"For purposes of Proposition 47, an 'unreasonable risk of danger to public safety' means 'an unreasonable risk that the petitioner will commit a new violent felony' described in section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (c).) These violent felonies are known as 'super strikes' and include murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, and any serious or violent felony punishable by death or life imprisonment. [Citations]" (People v. Jefferson (2016) 1 Cal.app.5th 235, 242)
The court may consider the following when it determines whether an unreasonable risk exists that the defendant will commit a super strike: "(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)(1)-(3).)
"We review a dangerousness finding for an abuse of discretion, given that the court is statutorily required to determine dangerousness 'in its discretion.' (§ 1170.18, subd. (b).) '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. [Citations.]" ' The abuse of discretion standard 'involves abundant deference' to the court's ruling. [Citation]" (People v. Jefferson, supra, 1 Cal.App.5th at pp. 242-243.)
Here, defendant's criminal history is extensive and violent, involved serious injuries to several victims, and in one case death, and resulted in several long prison terms. In 1976, defendant was sent to the California Youth Authority at age 16, was paroled later that year, was re-arrested for violating parole in 1977, and was paroled in 1978. In 1980, defendant was arrested for murder, but a jury convicted him of voluntary manslaughter with the personal use of a knife (former §§ 192.1, 12022, subd. (b)), for which he received a five-year prison sentence. He was paroled in 1984. In 1987, while on parole from a prison term for drug charges, defendant was arrested, and later convicted of being a violent felon in possession of a firearm (former § 12021.1), for which he received four years in prison. In 1996, while on parole, defendant was arrested and in 1997 convicted of assault with a deadly weapon on a police officer (former § 245, subd. (c)) with great bodily injury (former § 12022.7, subd. (a)); battery on a police officer with serious bodily injury (former § 243, subd. (d)) with great bodily injury (former § 12022.7, subd. (a)); mayhem (§ 203); and misdemeanor battery (§ 242), battery on a police officer (former § 243, subd. (b)), and resisting a peace officer (§ 148), for which he was sentenced to 15 years in prison. After defendant was paroled in 2010, he absconded from parole in 2010 and 2014, and was arrested on the most recent charges in 2014. Defendant also had in-custody arrests in 1986 and 1988 for weapons possession by a prisoner (§ 4502), but was not convicted.
In addition to the violent offenses and numerous drug arrests, defendant's record includes at least six drug-related convictions, in 1984, 1985, 1986, 1991, 1993, and 2014, for which he received sentences of 30 days jail time, a prison sentence of unknown duration, and prison sentences of 16 months, two years, four years and six years. --------
Defendant also has an extensive discipline record while in custody. The highlights include possessing an explosive device in 2000, possessing a weapon in 2001, battery on an inmate with serious bodily injury in 2009, and hiding medicine in his check twice in 2015. The most recent transgression took place in 2015, in which he struck another inmate over the head with his cane, and then struck him two more times after staff ordered him to stop, knocking the victim to the ground. This is in addition to one of defendant's drug convictions mentioned in a footnote above, when he was convicted of possessing drugs in prison in 1985 and received a 16-month prison sentence.
Under the third criterion set forth in section 1170.18, subdivision (b)(1)-(3), other relevant evidence, the court also considered that defendant has spent much of the last 40 years in prison and never once successfully completed parole. The court also considered that as late as 2013, defendant was arrested but not convicted of possessing a dirk or dagger. (§ 21310.) Finally, the court took into consideration defendant's long-term drug addiction, and that, despite his advancing age and deteriorating body, defendant was still able and willing to inflict violence on others.
Given all of the above evidence regarding defendant's longstanding drug addiction and history of violence, including recent acts of violence despite his advancing age and physical disabilities, we cannot say the trial court abused its discretion when it found that defendant posed an unreasonable risk of committing a super strike were the court to grant his petition under section 1170.18.
DISPOSITION
The court's order denying the petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.