Opinion
E067466
03-14-2018
THE PEOPLE, Plaintiff and Respondent, v. RICHARD LYNN RAINES, Defendant and Appellant.
John L. Staley, 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, Steve Oetting, Warren J. Williams, and Michael D. Butera, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF133614) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Reversed with directions. John L. Staley, 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, Steve Oetting, Warren J. Williams, and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
Richard Lynn Raines appeals after the trial court denied his Proposition 47 petition for resentencing on the ground he "pose[d] an unreasonable risk of danger to public safety." (See Pen. Code, § 1170.18, subds. (a)-(c); unlabeled statutory citations refer to this code.) Proposition 47 defines an unreasonable risk of danger to public safety as "an unreasonable risk that the petitioner will commit a new violent felony within the meaning of [Penal Code section 677, subdivision (e)(2)(C)(iv)]." (§ 1170.18, subd. (c).) Section 677, subdivision (e)(2)(C)(iv) "enumerates a narrow list of super-strike offenses such as murder, rape and child molestation," and contains a catchall for serious or violent felonies "punishable in California by life imprisonment or death." (People v. Hoffman (2015) 241 Cal.App.4th 1304, 1310 (Hoffman); § 667, subd. (e)(2)(C)(iv)(VIII).)
Raines argues the record does not support the court's finding that he was likely to commit such an offense, and we agree. Except for two remote strike convictions—attempted robbery (§§ 211, 664) in 1984 and making criminal threats (§ 422) in 2001—neither of which involved physical violence, Raines's criminal record consists of nonviolent, low-level drug and property crimes. The trial court was understandably troubled by Raines's drug addiction and what it viewed as a near certainty he would recommit a drug or property crime after release; however, Proposition 47's definition of unreasonably dangerous is reserved for those likely to commit the most serious offenses. (Hoffman, supra, 241 Cal.App.4th at p. 1310.)
The People argue Raines falls under section 677, subdivision (e)(2)(C)(iv)'s catchall for felonies "punishable in California by life imprisonment or death" because he is likely to commit a third strike offense after release, for which he would receive an indeterminate life sentence under the "Three Strikes" law—but our courts have rejected this interpretation of the phrase punishable by life imprisonment. (See, e.g., People v. Thomas (1999) 21 Cal.4th 1122, 1127 (Thomas); see also People v. Hernandez (2017) 10 Cal.App.5th 192 (Hernandez).) Because the record does not sufficiently support a finding that Raines poses an unreasonable risk of committing a super strike or violent felony that itself carries a punishment of life imprisonment, we reverse and direct the trial court to grant the petition.
I
FACTUAL BACKGROUND
In March and April 2006, Raines repeatedly stole merchandise from The Home Depot. In May 2006, he pled guilty to six counts of second degree burglary (§ 459) and he is currently serving a 15-year 4-month sentence for those offenses. In 2015, he petitioned to have those six burglaries reduced to misdemeanor petty theft convictions (§ 490.2) under the then recently enacted Proposition 47. The trial court denied Raines's petition on the ground the total value of merchandise he stole in the six counts combined exceeded the monetary maximum for petty theft—$950 or more. (See § 490.2.) In an earlier appeal, we reversed the trial court's denial, concluding it is improper to aggregate the amounts of loss in separate burglary counts. (People v. Raines (June 1, 2016, E064448) [unpub. opn.]; see Hoffman, supra, 241 Cal.App.4th at p. 1310 [trial court erred in aggregating check values in separate forgery counts when determining if loss exceeded $950].) Because it was undisputed the amount of loss in four of the six burglaries was under $950, we directed the trial court to grant Raines's petition as to those four counts (counts 1, 2, 3, 5) unless it found he posed an unreasonable risk of danger to public safety. (See § 1170.18, subd. (b) [trial court must grant relief to defendant if his or her crime qualifies for resentencing unless the court finds defendant poses an unreasonable risk of danger to public safety].)
We affirmed the trial court's denial as to two of the six counts. For count 4, Raines conceded the amount of loss exceeded $950; for count 6, he simply failed to produce any evidence of the amount of loss, as is his burden. (People v. Perkins (2016) 244 Cal.App.4th 129, 136-140.) We explained, however, our decision did not prevent Raines from filing a new petition for count 6 with the proper evidentiary support. (People v. Raines (June 1, 2016, E064448) [unpub. opn.].) There is no indication in the record that Raines did so, and so we assume his petition is the same petition from the previous case and thus pertains to the four counts only. --------
In December 2016, the trial court held a new hearing on Raines's petition to consider dangerousness. The People filed an opposition to resentencing that recounted Raines's criminal record and behavior in prison. They argued Raines's background demonstrated he was likely to commit a third strike after release that would necessarily carry an indeterminate life sentence under the Three Strikes law given his two prior strike convictions. What follows is a summary of Raines's background as described in the People's opposition. We rely on their description of Raines's prior offenses as the underlying police reports are not in the appellate record.
As noted, Raines has two strike offenses on his record—an attempted robbery from 1984 and criminal threats from 2001. According to the People's description of the police report, Raines tried to rob a donut shop with a "toy pistol" but left when he heard the oven timer go off. The criminal threat conviction arose from a domestic dispute with his girlfriend. Raines broke her window and tried to kick in her door. Later in the day, he swung a vacuum at her and her daughter and told her if she called the police he would "beat the shit out of [her]." He eventually let her and her daughter leave and they went next door and called the police. Raines pled guilty and received 16 months in prison for each of these convictions. The remainder of his criminal record consists of 13 misdemeanor and felony drug and theft convictions resulting in grants of probation or periods of custody ranging from a few days to three years.
Raines has spent decades, most of his life, in custody. The People highlighted the following instances from his disciplinary record as evidence of his dangerousness: conspiring to introduce controlled substances into prison (1992); refusing to provide urine samples for drug testing (2001); battery on an inmate (2008); resisting a peace officer (2012); cursing at a correctional officer (2013); mutual combat with an inmate (2013); and receiving administrative segregation for incurring drug debts (2016).
In addition, the People relied heavily on a survey Raines completed in prison in 2013. As the survey is not in the record, its source and purpose are unknown. The People quoted the following portion of the survey in their opposition:
"In the last couple of years before this incarceration, how many of your friends/acquaintances were gang members? Few
"Some people see me as a violent person. Agree
"I almost never lose my temper. Disagree
"I have a short temper and can get angry quickly. Strongly Agree
"If someone insults my friends, family or group they are asking for trouble. Agree
"I won't hesitate to hit or threaten people if they have done something to hurt my friends or family. Agree."
In support of his petition, Raines filed a recidivism risk report by William Adams, a retired correctional counselor and facility captain with over 26 years of experience with the California Department of Corrections and Rehabilitation. Adams reviewed Raines's criminal history and prison file and concluded that while he was likely to commit a "property or controlled substance related crime" after release, the risk he would commit a super strike was "very low." Adams described Raines's criminal record as "consisting of limited violent offenses and mostly property and substance abuse related crimes." Adams characterized Raines's disciplinary record as minimal, pointing out he had only three serious rule violations since 2001, all of which were nonviolent. Raines received a 2012 violation for resisting an officer, but the altercation was verbal and he was not found to be the aggressor. In 2015, he was disciplined for fighting with an inmate, but this incident consisted of only verbal conduct as well. Finally, in 2016, he received a violation for telling a correctional officer he required protective custody because of a drug debt—but Adams noted Raines was not punished for this incident because the disciplinary officer determined his behavior was a result of his mental health disorder. Adams reported Raines has never been a member of a criminal street gang, but noted he did have a "short lived" membership in the Nazi Low Riders prison gang, starting in 1998 and ending in 2003.
Adams noted with approval Raines's scores for the California Static Risk Assessment (CSRA) and the COMPAS Assessment. CSRA is a tool the parole division uses to "measure[] risk to the public and . . . make decisions regarding the severity of sanctions to be imposed upon parole violators." Raines had received a score of level 4, which indicated he was at risk of committing property crimes, but not extremely violent crimes like super strikes.
COMPAS is a "research-based, risk and needs assessment tool for criminal justice practitioners to assist them in the placement, supervision, and case management of offenders in community and secure settings." COMPAS helps correctional staff "assign the right inmates to the right programs at the right time based on individual risk and needs assessment" and helps reduce "the likelihood that the inmate will reoffend upon reentry to society." Raines received a "high" COMPAS score in "substance abuse," a "medium" score for "criminal personality," a "medium" score for "anger/hospitality," a "0" for "employment problems," and a "high" score for "support from family." In all areas except family support, a high score is a negative indicator, demonstrating a high need for rehabilitation. Raines's results, Adams explained, indicate his "greatest rehabilitative need" is for drug addiction treatment. He noted Raines had participated in "some substance abuse classes, and is on the waiting list for others." Overall, Adams concluded Raines's CSRA and COMPASS results indicate he is "[c]ertainly . . . not expected by [the Department of Correction's] estimation . . . to be likely to commit a 'super strike' if released."
Raines also submitted three letters of support. A Department of Corrections construction supervisor described him as a skilled journeyman mason who "would prove to be a very valuable asset" to a health care facilities improvement program. The owner of a construction company vouched for Raines's good character and said he had a guaranteed job with his company upon his release. Raines's girlfriend, who worked in substance abuse and mental health, said she had known him for 46 years and vouched for his good character and strong family support. She said she and his family would help him with his substance abuse issues upon his release.
After reviewing this evidence and hearing argument from the parties, the trial court found Raines unreasonably dangerous and denied the petition. The court based its decision on Raines's longstanding drug problem (as evidenced by his many drug and property crimes), his failure to complete substance abuse treatment while in custody, and the fact—as evidenced in Adams's expert report—that he was "pretty close to 100 percent" likely to commit another drug or property offense after release. While conceding Raines's two strike convictions were remote in time, the court emphasized the seriousness of those offenses. The court added, "I can say to myself . . . look, he's middle-aged now; he's learned something; he won't be violent. But there's nothing in his record which supports that he's learned anything."
Acknowledging the relevant inquiry under Proposition 47 was whether Raines was at risk of committing a super-strike offense and acknowledging Raines had never committed such an offense, the court found he was at risk of doing so because "there's not one shred of evidence to me that he's not going to continue to be an angry, drug-addicted guy. And an angry, drug-addicted guy is a dangerous guy." The court concluded that "drugs are what motivates [Raines] to do what he does" and would motivate him to commit more crimes on release.
The sole issue on appeal is whether this ruling was proper.
II
DISCUSSION
Proposition 47 allows a person currently serving a sentence on a qualifying felony conviction to petition the trial court to reduce the conviction to a misdemeanor and resentence him or her under the applicable new or amended code provision. (Pen. Code, § 1170.18, subd. (a).) A petitioner with a qualifying felony is not entitled to those benefits, however, if the trial court finds he or she poses "an unreasonable risk . . . [of] commit[ting] a new violent felony within the meaning of [Penal Code section 677, subdivision (e)(2)(C)(iv)]." (Pen. Code, § 1170.18, subds. (b) & (c).) The offenses listed in Penal Code section 677, subdivision (e)(2)(C)(iv) are: (1) any offense defined as "sexually violent" under Welfare and Institutions Code section 6600, subdivision (b); (2) oral copulation, sodomy, or sexual penetration of a child; (3) a lewd or lascivious act involving a child; (4) any homicide or attempted homicide; (5) solicitation to commit murder; (6) assault with a machine gun on a peace officer or firefighter; (7) possession of a weapon of mass destruction; and (8) "[a]ny serious and/or violent felony offense punishable in California by life imprisonment or death." These disqualifying offenses are commonly referred to as "super strikes." (People v. Sledge (2017) 7 Cal.App.5th 1089.)
The prosecution bears the burden of proving the petitioner is unreasonably dangerous by a preponderance of the evidence. (People v. Jefferson (2016) 1 Cal.App.5th 235, 241-242 [concluding that because Penal Code section 1170.18 does not state the standard of proof required for a dangerousness finding, the preponderance standard applies by default under Evidence Code, § 115].) When making this determination, the trial court may consider the petitioner's criminal conviction history, custodial disciplinary record, record of rehabilitation, and any other evidence it deems relevant. (Pen. Code, § 1170.18, subd. (b).)
We review a trial court's ruling on dangerousness for abuse of discretion. (People v. Hall (2016) 247 Cal.App.4th 1255, 1264 (Hall).) A court abuses its discretion when it makes an arbitrary or capricious decision, for example, by applying the wrong legal standard or making an express or implied factual finding based on insufficient evidence. (Ibid.; People v. Sedillo (2015) 235 Cal.App.4th 1037, 1055.)
Having reviewed the record in this case, we are unable to identify a sufficient factual basis for the trial court's determination that Raines poses an unreasonable risk of committing a super strike if resentenced. As the trial court observed, Raines is a drug addict whose crimes are motivated by his addiction. His criminal record bears this out— 13 of his 15 convictions are low-level drug and property theft crimes, many of which are misdemeanors. Raines has never committed a super strike, and his two most serious offenses are decades old and did not involve physical violence. In considering his criminal record, we find the analysis of dangerousness in Hall, supra, 247 Cal.App.4th 1255 instructive.
In Hall, the defendant was serving a sentence for a 2013 conviction for grand theft from a person (§ 487, subd. (c)), the circumstances of which were serious. The defendant followed the female victim home one evening, pushed a knife against her stomach and threatened to kill her, then ripped her purse from her shoulder and ran off. (Hall, supra, 247 Cal.App.4th at p. 1259.) The defendant's lengthy criminal record also contained robbery convictions from 2002 and 2012. As he did in 2013, the defendant had threatened to kill the victim during the 2012 robbery. (Id. at p. 1266.) After the passage of Proposition 47, the defendant petitioned to have his grand theft from a person conviction reduced to a misdemeanor, but the trial court found he posed an unreasonable risk of danger to public safety because the chronology of his offenses showed "a continual and consistent escalation" in seriousness. (Hall, at pp. 1260, 1264.) Our colleagues in the First District, Division Five upheld the trial court's finding for the same reason, pointing out the defendant had consistently committed crimes for over two decades and his "most recent offenses [were] the most concerning." (Id. at p. 1266.) The Hall court concluded the defendant's criminal record demonstrated he was "becom[ing] increasingly violent," and as a result supported the inference "he presents an elevated— and escalating—risk of not only threatening violence, but also using deadly force." (Id. at pp. 1265-1266.)
Our case involves the opposite type of offender, one whose criminal behavior has been steadily decreasing in seriousness. We acknowledge the seriousness of Raines's attempted robbery and criminal threats convictions, but in doing so we cannot overlook their remoteness or the fact Raines did not inflict physical violence on his victims. Since the domestic dispute in 2001 where Raines threatened violence on his ex-girlfriend, his offenses have been limited to low-level drug and property crimes. His most recent crimes, the ones he seeks to have reduced to misdemeanors, are thefts of low-value merchandise. In Hall, the defendant's most recent crime, and the subject of the resentencing petition, was a violent theft that involved the threat of death and use of a deadly weapon. The facts of Hall counsel us to conclude Raines is not unreasonably dangerous.
The People contend Raines's answers to the 2013 prison survey indicate he is short-tempered and angry and thus likely to commit a violent crime upon release. We do not place much significance on that survey. It is not contained in the record and we have no evidence of its reliability, if any, for predicting future recidivism. In any event, even if we assume Raines is an angry, short-tempered individual, those traits have thus far never manifested in the infliction of physical violence, and there is no reason to think they will now, when he is 56 years old. What we do find predictive of Raines's future dangerousness are his CSRA and COMPAS scores and the expert's recidivism opinion. Under those three barometers, Raines's recidivism risk is limited to drug or theft crimes—he was not found to be at a significant risk of committing a super strike.
As our colleagues in the Second District explained in Hoffman, by tying the definition of dangerous to the "narrow list" of super strikes in section 667, subdivision (e)(2)(C)(iv), Proposition 47 "withholds its benefits from 'rapists, murderers, molesters and the most dangerous criminals,' but not from other offenders." (Hoffman, supra, 241 Cal.App.4th at p. 1310.) "For example, even if the judge finds that the inmate poses a risk of committing crimes like kidnapping, robbery, assault, spousal abuse, torture of small animals, carjacking or felonies committed on behalf of a criminal street gang, Proposition 47 requires [his or her] release." (Id. at pp. 1304, 1310-1311.) Here, the trial court found it a given that Raines would commit "another offense," but—unlike Hall—the record contains no evidence that future offense would be a super strike.
The People argue the ruling can be saved by the fact that any third strike Raines might commit after release will carry an indeterminate sentence under the Three Strikes law and therefore qualify as "[a]ny serious and/or violent felony offense punishable in California by life imprisonment or death"—the last entry in section 667, subdivision (e)(2)(C)(iv)'s list. However, the People's interpretation of the phrase "punishable . . . by life imprisonment" was rejected by the California Supreme Court (Thomas) and was recently rejected by the Sixth District in the context of Proposition 47 resentencing petitions (Hernandez).
In Thomas our high court faced the question whether section 667.5, subdivision (c)(7)'s definition of "violent felony" as "[a]ny felony punishable by death or imprisonment in the state prison for life" referred to felonies that themselves carry life sentences—such as aggravated kidnapping (§ 209)—or, as the Attorney General argued, referred more expansively to any felony punishable by life imprisonment under the Three Strikes law. (Thomas, supra, 21 Cal.4th at p. 1127.) The Court rejected the Attorney General's interpretation as overbroad because it would sweep all third strike offenses—including the nonviolent ones—into the definition of a violent felony. (Ibid.) The Court found it was "appropriate to limit" section 667.5's definition of violent felony "to defendants whose current offenses, in and of themselves, and without reference to the punishment accorded under the three strikes law, are violent." (Thomas, at p. 1129.) Thus, it concluded the phrase "punishable by . . . imprisonment in the state prison for life" in section 667.5 refers to an "offense that itself carries a punishment of life imprisonment," not one that carries a life sentence "merely due to [the offender's] status as a recidivist." (Thomas, at p. 1127, italics added.)
In Hernandez, the Sixth District applied Thomas's holding to the provision at issue here—section 667.5, subdivision (e)(2)(C)(iv)(VIII). (Hernandez, supra, 10 Cal.App.5th at p. 195.) Proposition 47 disqualifies those who have suffered "one or more prior convictions for an offense specified in [section 677, subdivision (e)(2)(C)(iv)]" from its resentencing and reclassification benefits. (§ 1170.18, subd. (i).) The defendant in Hernandez had been convicted of second degree robbery in 1997 and, because that offense was his third strike, had received an indeterminate term of 25 years to life in prison. (Hernandez, at p. 195.) The Attorney General argued the defendant's robbery conviction disqualified him for resentencing, urging the same interpretation of "punishable . . . by life imprisonment" the People advocate for here. (Id. at pp. 198-199.) Relying on our high court's reasoning in Thomas, the court concluded the phrase "means an offense that itself has an associated statutory punishment of life imprisonment or death, not an offense such as robbery, which has an associated statutory punishment of two, three, or five years." (Hernandez, at p. 202.) "An offense such as robbery is not converted to an 'offense punishable in California by life imprisonment or death' (§ 667, subd. (e)(2)(C)(iv)(VIII)) by virtue of the fact that the particular offender has two prior serious or violent felony convictions." (Ibid.) Following this precedent, we reject the People's expansive interpretation of "punishable . . . by life imprisonment" and hold that the final entry in section 677, subdivision (e)(2)(C)(iv)'s list of super strikes refers to offenses carrying life sentences on their own, not by way of a recidivist statute.
We understand the court's hesitation to resentence Raines. Its concerns about his inability to remain a law-abiding citizen and his untreated substance abuse issues are valid, however, they are not grounds for withholding from him the benefits of Proposition 47. As the Hoffman court noted, Proposition 47 is unlike the Three Strikes law, which "gives a judge sentencing leeway" to strike a prior conviction if it "finds defendant is 'outside the scheme's spirit.'" (Hoffman, supra, 241 Cal.App.4th at p. 1311.) "That is not the case with Proposition 47 . . . The 'criteria' for resentencing are explicitly stated in section 1170.18, subdivision (a), and 'unreasonable risk' is defined in subdivision (c). If the criteria are met, and the resentencing does not pose an unreasonable risk of a new super-strike offense, the 'felony sentence shall be recalled and the petitioner resentenced to a misdemeanor.'" (Ibid., italics added.) Here, the record supports a finding Raines poses a high risk of committing another theft or drug-related offense, but not a super strike, and as such he does not fall under the narrow category of criminals Proposition 47 defines as unreasonably dangerous.
III
DISPOSITION
We reverse the finding Raines poses an unreasonable risk of danger to public safety and direct the trial court to grant his resentencing petition as to counts 1, 2, 3, and 5.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: McKINSTER
Acting P. J. MILLER
J.