Opinion
H041917
01-03-2017
THE PEOPLE, Plaintiff and Respondent, v. JOHN THEODORE RODEWALD, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Clara County Super. Ct. No. CC625858)
I. INTRODUCTION
Defendant John Theodore Rodewald appeals after the trial court denied his petitions for recall of sentence pursuant to Penal Code sections 1170.126 and 1170.18. At the time he requested resentencing, defendant was serving a sentence of 25 years to life for possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), which had been imposed pursuant to the Three Strikes law (former §§ 667, subds. (b)-(i), 1170.12, subd. (c)) prior to its amendment by Proposition 36, the Three Strikes Reform Act of 2012 and prior to the passage of Proposition 47, the Safe Neighborhoods and Schools Act (the Act). The trial court denied defendant's petitions after finding that resentencing defendant would pose an unreasonable risk of danger to public safety pursuant to section 1170.126, subdivision (f) and section 1170.18, subdivision (b).
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant challenges only the order denying resentencing under section 1170.18, which was enacted as part of Proposition 47. Defendant contends that section 1170.18 violates equal protection by providing trial courts with the discretion not to resentence a person like him, who is "currently serving a sentence" (id., subd. (a)) based on a finding that resentencing would pose an unreasonable risk of danger to public safety, because that discretion is not afforded to trial courts when a person who committed the same offense has completed serving a sentence or has not yet been sentenced. Defendant also contends that he was entitled to a jury trial with proof beyond a reasonable doubt, because "unreasonable risk of danger to public safety" (id., subd. (b)) is now an element of his offense. Alternatively, defendant contends he had the right to a jury trial because "unreasonable risk of danger to public safety" (ibid.) is a fact that was used to impose greater punishment. Finally, defendant contends no substantial evidence supports the trial court's finding that resentencing him would pose an unreasonable risk of danger to public safety.
For reasons that we will explain, we will affirm the trial court's orders.
II. BACKGROUND
A. Defendant's Current Felony Offense
On January 16, 2007, defendant pleaded guilty to felony possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and misdemeanor being under the influence of cocaine (Health & Saf. Code, § 11550, subd. (a)). Defendant admitted he had suffered two prior convictions for serious or violent felonies (§§ 667, subd. (d), 1170.12, subd. (b))—a California conviction of burglary and a Washington conviction of robbery. Defendant was sentenced to a prison term of 25 years to life pursuant to the version of the Three Strikes law in existence at the time (see former §§ 667, subd. (e)(2), 1170.12, subd. (c)(2)).
Defendant appealed from his conviction and sentence, and this court affirmed the judgment. (People v. Rodewald (June 12, 2008, H031748) [nonpub. opn.].)
At the People's request, we take judicial notice of defendant's prior appeal.
B. Resentencing Proceedings
On January 17, 2013, defendant filed a petition for recall of sentence pursuant to section 1170.126, which was enacted in 2012 as part of Proposition 36. Since defendant's indeterminate life sentence had been imposed for an offense that was not a serious or violent felony, he sought to be sentenced as a second strike offender. (See § 1170.126, subd. (b).) Defendant alleged that no disqualifying factors or conditions listed in section 1170.126, subdivision (e) applied to his commitment offense or criminal history. The trial court appointed counsel for defendant and ordered the matter on calendar.
The People filed opposition to defendant's section 1170.126 petition on May 17, 2013. The People conceded that defendant was eligible for resentencing but argued that the trial court should deny resentencing pursuant to section 1170.126, subdivision (f) because defendant " 'would pose an unreasonable risk of danger to public safety.' " The People summarized defendant's criminal history and attached exhibits, including the probation report prepared for defendant's 2007 sentencing hearing and various other documents—primarily, police reports—that contained the facts of defendant's prior convictions and uncharged offenses.
Defendant filed a reply prior to the scheduled hearing on his section 1170.126 petition. Defendant pointed out that since his incarceration, he had not suffered any new convictions. He asserted that he was remorseful. He noted that a more recent commission of his offense (possession of cocaine) would no longer give the court the option of imposing a sentence of 25 years to life. Defendant also objected to the introduction of hearsay by the People, contending it would violate his due process rights at the resentencing hearing.
Defendant subsequently sought and obtained a continuance based on the fact he was undergoing treatment for hepatitis C.
On November 4, 2014, the electorate passed Proposition 47, which went into effect the next day. (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1089 (Rivera).) Proposition 47 reclassified certain drug- and theft-related offenses as misdemeanors, including a violation of Health and Safety Code section 11350, subdivision (a), except where the defendant has one or more prior convictions for an offense specified in section 667, subdivision (e)(2)(C)(iv) or for an offense requiring sex offender registration pursuant to section 290, subdivision (c). Proposition 47 also added section 1170.18, which permits a person who is "currently serving a sentence" for a conviction of a reclassified offense to request to be resentenced to a misdemeanor (id., subd. (a)) and permits a person who has "completed his or her sentence" to apply for redesignation of his or her conviction as a misdemeanor (id., subd. (f)).
Section 667, subdivision (e)(2)(C)(iv) lists a number of serious or violent felonies, which have been referred to as "super strike" offenses. (See Rivera, supra, 233 Cal.App.4th at p. 1092.) They are: "(I) A 'sexually violent offense' as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code. [¶] (II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289. [¶] (III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288. [¶] (IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive. [¶] (V) Solicitation to commit murder as defined in Section 653f. [¶] (VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245. [¶] (VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418. [¶] (VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death." (§ 667, subd. (e)(2)(C)(iv).)
The People filed a supplemental brief addressing the effect of Proposition 47 on defendant's case. The People implicitly conceded that defendant's current conviction was eligible for reduction to a misdemeanor pursuant to section 1170.18 but argued that the trial court should deny such relief on the basis of section 1170.18, subdivision (b) because "a new sentence would result in an unreasonable risk of danger to public safety."
The trial court held a hearing on defendant's section 1170.126 petition on November 24, 2014 and December 8, 2014. The parties agreed that although defendant had not filed a petition under section 1170.18, the trial court could also consider whether defendant was entitled to be resentenced under that section. The trial court noted that as to section 1170.126, the question was whether defendant posed an unreasonable risk to public safety, and that under section 1170.18, subdivision (c), the question was whether resentencing defendant would pose an unreasonable risk that he would commit a new violent felony within the meaning of section 667, subdivision (e)(2)(C)(iv).
The prosecution argued that although defendant's prior convictions did not include any of the offenses that would disqualify him from Proposition 47 relief, he had committed sexual assaults (described below) that were "violent and perverse," making him a continuing threat to public safety.
Defendant submitted five exhibits into evidence: a chrono documenting his participation in a chemical dependency, codependency, and "anger violence confrontation" class; a chrono from a chaplain; a letter from his sister; a letter from his father; and a typed narrative. Defendant also testified. Defendant admitted he had been involved in two fights while in prison. He claimed that both times, he had been attacked by his cell mates. If released, defendant intended to try to get a job in housing construction. He might also try to get work as a mechanic with his brother and nephew. Defendant was not in good health. He had diabetic neuropathy in both feet and "pretty bad" sciatica. He had 80 percent cirrhosis of his liver, type two diabetes, high blood pressure, and hypertension.
1. Prior Convictions and Uncharged Offenses
As noted above, the facts of defendant's prior offenses were contained in the probation report prepared for defendant's 2007 sentencing hearing as well as documents such as police reports.
Defendant raped a 62-year-old woman in January 1984, in Alaska. The victim, Charlotte C., had previously suffered a stroke and was partially paralyzed, so she could not resist. Charlotte C. died a month later, and defendant was not charged with any crime as a result of the assault because prosecutors determined they could not prosecute the case without the victim's testimony.
At the resentencing hearing, defendant admitted having sex with Charlotte C. but claimed it had been consensual. Defendant claimed he had gone to Charlotte C.'s home to see her roommate. Charlotte C. was lying in bed naked. She had lifted the sheets and said "gently," so defendant had assumed she wanted to have sex with him. Defendant was contacted by the police afterwards, and he was charged with battery on a police officer.
Defendant was convicted of robbery in Washington after an incident in March 1985, although he had originally been charged with murder. The victim, 65-year-old Rita D., was bound with nylons and strangled to death, and seminal fluid was found in her vagina. A male was seen leaving the apartment in defendant's car, and defendant's fingerprints were found in the apartment. Defendant admitted he had been in the apartment along with Jerry Pizzuto. Defendant also admitted he had taken money from the victim's purse and gotten nylons out of a dresser, and he admitted giving Pizzuto a ride after the murder. Pizzuto had confessed to the murder, and defendant had testified against Pizzuto as part of a plea agreement.
At the resentencing hearing, defendant minimized his involvement in the incident resulting in the death of Rita D. Defendant testified that his sister had asked him to take Pizzuto somewhere, and that Pizzuto owed him $40 for the ride. Pizzuto said that Rita D. owed him money, so they went to her residence. Pizzuto and Rita D. began kissing and went into the bedroom. Defendant wanted to leave, so Rita D. told him to get her purse. Pizzuto told defendant to get Rita D.'s stockings out of a drawer so she could get dressed. Defendant then picked up Pizzuto's weapon (a bayonet) and went to the car. Pizzuto later got into the car. Defendant did not know that Rita D. had died until he read about her death in a newspaper.
Also in March 1985, defendant raped a woman in Seattle. Defendant approached the very overweight victim, 36-year-old Donna H., while she was waiting at a bus stop. Defendant offered the victim a ride, drove her to a parking lot, and then raped her. Defendant later claimed the sex had been consensual. At the time, defendant was facing murder charges stemming from the Rita D. incident, and defendant was not prosecuted for any crime involving Donna H. The prosecutor did not think that the victim would "make a good appearance on her own behalf since she tended to "drift[]" when explaining the incident.
Defendant testified that Donna H. had asked him about getting some methamphetamine. Defendant had pretended he had some, and he offered to give Donna H. a ride, but he made a wrong turn and ended up in a parking lot. They engaged in consensual sexual activity until Donna H. learned that defendant wasn't going to give her methamphetamine.
In June 1989, defendant raped a woman in Kodiak, Alaska. Defendant met the victim, Della H., at a bar and convinced her to accompany him to his boat by saying there was a party. The victim tried to leave, but defendant hit her on the head and neck. The victim pretended to be knocked out. Defendant then raped her and orally copulated her. Defendant later claimed the sex had been consensual. He was convicted of assault and sentenced to eight months in county jail.
Defendant testified that he and Della H. left the bar to go get amphetamine from the commercial fishing boat he lived on. At the boat, they talked and had coffee. Defendant tried to kiss her, but he fell over and pulled her with him. Della H. left the boat; nothing sexual happened.
Defendant was convicted of false imprisonment and sentenced to prison for four years following an incident in November 1990. Defendant had grabbed the victim, 70-year-old Mary P., as she was walking down the street. Defendant had forced her to the ground and groped or stroked her neck.
Defendant testified that he first saw Mary P. when he was trying to fix his car. He later tapped her on the shoulder, in order to ask her for directions, but she fell down. Defendant tried to help her up, but she did not want his help, so he left.
Defendant's burglary conviction resulted from a June 1993 incident involving 85-year-old Jacqueline H. On the day of the burglary, defendant had also entered the home of another woman, Kathleen M., then pointed a gun at her, tied her hands and feet, and placed a gag into her mouth. Defendant fled when the victim's husband arrived home. Defendant was questioned by police and denied he had been involved in that incident, but he admitted he had entered the home of Jacqueline H. earlier that day. After pleading guilty to burglary, defendant was sentenced to a 14-year prison term.
Defendant testified that he met Jacqueline H. when delivering recycling bins to her home. He spilled water on some paperwork and asked her for a towel. Defendant took a towel but forgot to return it, so he went back to her home another day. When no one responded to his knock, he entered the house, returned the towel, and left.
Defendant was convicted of making an obscene phone call to 80-year-old Dora M. in July of 2002. Defendant called the victim at her retirement home, saying, "I'm going to come over and stick my cock into you." Defendant's name was on the caller ID.
Defendant admitted making the obscene phone call to Dora M. He claimed that a woman named Georgiana had been making calls from his trailer. Defendant had been drunk, and Georgiana had told him what to say.
Defendant was convicted of misdemeanor assault in 2003 and possession of drug paraphernalia in 2005 and 2006.
2. Trial Court Ruling
The trial court denied defendant's requests for resentencing under sections 1170.126 and 1170.18, subdivision (b). The trial court found defendant's testimony about the prior offenses "to simply not be credible" and that his "lack of candor" showed that he remained a risk to public safety. The trial court described defendant's criminal history as "long and serious" and found nothing to indicate defendant had "meaningfully addressed any of the issues regarding [his] sexual compulsions towards women and particularly towards older and vulnerable women." Defendant had also only recently begun to address his substance abuse issues. Thus, he presented an unreasonable risk of danger to public safety and specifically posed an unreasonable risk of committing a new and violent crime within the meaning of section 667, subdivision (e)(2)(C)(iv).
III. DISCUSSION
A. Equal Protection
Defendant contends that section 1170.18 violates equal protection by providing trial courts with the discretion not to resentence persons who are "currently serving a sentence" (§ 1170.18, subd. (a)) based on a finding that resentencing would pose an "unreasonable risk of danger to public safety" (id., subd. (b)). Defendant points out that trial courts must impose a misdemeanor sentence for an eligible defendant who committed the same offense as him but had not yet been sentenced at the time Proposition 47 passed, without any consideration of the risk of danger to public safety. He also points out that trial courts must redesignate the felony conviction of an eligible defendant who committed the same offense as him and who "completed his or her sentence" (§ 1170.18, subd. (f)), without any consideration of the risk of danger to public safety. Defendant contends that the three groups are similarly situated and that differential treatment of the three groups does not pass the strict scrutiny or rational basis tests.
The Attorney General argues that defendant forfeited his equal protection claim by failing to raise it below, because it is an " 'as applied' argument." In his opening brief, defendant does assert that Proposition 47 violates equal protection "as applied to [him]." However, defendant's claim is better characterized as a " 'facial challenge' " because it involves "the review of abstract and generalized legal concepts" rather than "scrutiny of individual facts and circumstances." (See In re Sheena K. (2007) 40 Cal.4th 875, 885.) We will therefore consider defendant's claim on the merits.
" ' "The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but "whether they are similarly situated for purposes of the law challenged." ' [Citation.] In other words, we ask at the threshold whether two classes that are different in some respects are sufficiently similar with respect to the laws in question to require the government to justify its differential treatment of these classes under those laws." (People v. McKee (2010) 47 Cal.4th 1172, 1202 (McKee).)
The " ' "purposes of the law challenged" ' " (McKee, supra, 47 Cal.4th at p. 1202) are set forth in sections 2 and 3 of Proposition 47. In section 2 of the initiative, the electorate declared that it was enacting the Act "to ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K-12 schools, victim services, and mental health and drug treatment." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2.) Section 3 of the initiative specified six items that comprised the "purpose and intent of the people of the State of California" in enacting the Act: "(1) Ensure that people convicted of murder, rape, and child molestation will not benefit from this act. [¶] (2) Create the Safe Neighborhoods and Schools Fund. . . . [¶] (3) Require misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes. [¶] (4) Authorize consideration of resentencing for anyone who is currently serving a sentence for any of the offenses listed herein that are now misdemeanors. [¶] (5) Require a thorough review of criminal history and risk assessment of any individuals before resentencing to ensure that they do not pose a risk to public safety. [¶] (6) This measure will save significant state corrections dollars on an annual basis. . . . This measure will increase investments in programs that reduce crime and improve public safety, . . . which will reduce future expenditures for corrections." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3.)
The Attorney General asserts that, for purposes of Proposition 47, the timing of conviction differentiates the three different groups of eligible defendants affected by that initiative: (1) those (like defendant) who had committed an offense that became a misdemeanor after Proposition 47 passed and were "currently serving a sentence" (§ 1170.18, subd. (a)) at the time they filed a petition for recall of sentence (group 1); (2) those who have committed the same offense but had not yet been sentenced at the time Proposition 47 passed (group 2); and (3) those who had committed the same offense and had completed serving their sentences before seeking redesignation of their convictions pursuant to Proposition 47 (group 3).
We agree with the Attorney General that defendants in group 1 are not similarly situated to defendants in group 3, who completed serving felony sentences prior to seeking redesignation of their convictions. Redesignating the felony convictions of defendants in group 3 will not save the state any prison costs, since their prison sentences have been completed. Redesignating the felony convictions of defendants in group 3 will also not pose a potential danger to the public, since the redesignation will not cause those defendants to be released from prison.
It is a closer question whether, for purposes of Proposition 47, defendants in group 1 are similarly situated to defendants in group 2. Reducing the convictions of both groups will save the state prison costs, and at least arguably, misdemeanor punishment for both groups poses a similar danger to public safety. We will assume that these two groups are similarly situated, and proceed to consider whether their differential treatment is justified. (See McKee, supra, 47 Cal.4th at p. 1202.)
Defendant argues that in determining whether Proposition 47's differential treatment is justified, we should apply the strict scrutiny standard of review, under which "the state must first establish that it has a compelling interest which justifies the law and then demonstrate that the distinctions drawn by the law are necessary to further that purpose. [Citations.]" (People v. Olivas (1976) 17 Cal.3d 236, 251, italics omitted (Olivas).) Defendant contends that strict scrutiny is appropriate because Proposition 47 affects his personal liberty, which is "a fundamental interest or right." (Olivas, supra, at p. 251.)
As the Attorney General points out, however, the rational relationship test has been deemed appropriate to similar equal protection challenges, such as the claim that Proposition 36 violates equal protection because it, like Proposition 47, contains a dangerousness exception that applies only to those defendants who had been sentenced to indeterminate life terms prior to the initiative's effective date. (People v. Yearwood (2013) 213 Cal.App.4th 161, 178 (Yearwood).) As Yearwood explained: "Prisoners are not a suspect class. The status of being incarcerated is neither an immutable characteristic nor an invidious basis of classification. [Citation.]" (Ibid.; see also People v. Lynch (2012) 209 Cal.App.4th 353, 359 (Lynch) ["Where, as here, the question involves the possible retroactive application of a more beneficial sentencing scheme, defendant has no fundamental liberty interest at stake."].)
We find that the electorate had a rational basis for including a dangerousness exception as to defendants who were "currently serving a sentence" (§ 1170.18, subd. (a)) at the time they filed a petition for recall of sentence, but not as to defendants who have committed the same offense but had not yet been sentenced at the time Proposition 47 passed. The discretionary public safety exception applicable to the first group is rationally related to a legitimate state interest: it decreases the likelihood that prisoners whose sentences are reduced or who are released due to Proposition 47 will pose an unreasonable risk of danger to the public. (Cf. Yearwood, supra, 213 Cal.App.4th at p. 179.) The electorate could have decided that a discretionary public safety exception was not as important for those defendants who had not yet been sentenced, since public safety can be protected through the charging discretion afforded to prosecutors as well as by court approval of any plea bargain and the court's discretionary sentencing decisions.
Our Supreme Court has rejected the notion that an equal protection violation can arise "from the timing of the effective date of a statute lessening the punishment for a particular offense." (People v. Floyd (2003) 31 Cal.4th 179, 188 [no equal protection violation arising from prospective application of Proposition 36, the Substance Abuse and Crime Prevention Act of 2000].) Prospective application of a new statute "allows the Legislature [or electorate] to control the risk of new legislation by limiting its application. If the Legislature [or electorate] subsequently determines the benefits of the legislation outweigh the costs, then it may extend the benefits of the legislation retroactively." (Lynch, supra, 209 Cal.App.4th at p. 361.)
We conclude that section 1170.18 does not violate equal protection by providing trial courts with the discretion not to resentence persons like defendant, who was "currently serving a sentence" (id., subd. (a)) at the time he filed his petition, based on a finding that resentencing would pose an "unreasonable risk of danger to public safety" (id., subd. (b)), but not providing that discretion as to eligible defendants who committed the same offense as him but were not yet sentenced at the time Proposition 47 passed, nor as to eligible defendants who committed the same offense as him and who had completed serving their sentences at the time they filed their petitions.
B. Right to Jury Trial
Defendant contends he was entitled to a jury trial because "unreasonable risk of danger to public safety" (§ 1170.18, subd. (b)) is now an element of his offense. Defendant compares his offense, which remains a felony if the prosecution proves that resentencing would pose an "unreasonable risk of danger to public safety" (ibid.), to offenses such as evading an officer in a vehicle, which is a misdemeanor under Vehicle Code section 2800.1, subdivision (a) but a felony under Vehicle Code section 2800.2, subdivision (b) if the driving is done "in a willful or wanton disregard for the safety of persons or property."
We do not agree with defendant that Proposition 47 changed the elements of his cocaine possession offense to include a new element: "unreasonable risk of danger to public safety" (§ 1170.18, subd. (b)). The elements of defendant's offense were not changed. Instead, Proposition 47 afforded defendant an opportunity to have his conviction—the elements of which were established by his guilty plea—reduced to a misdemeanor. Defendant's guilt was not at issue in the resentencing proceeding. Thus, denying defendant relief under Proposition 47 did not violate his right to a jury trial on the elements of the offense.
Alternatively, defendant contends he had the right to a jury trial because "unreasonable risk of danger to public safety" (§ 1170.18, subd. (b)) is a fact that was used to impose greater punishment. Defendant relies on the principle that, "under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence." (Cunningham v. California (2007) 549 U.S. 270, 281; see also Apprendi v. New Jersey (2000) 530 U.S. 466, 490.)
This claim was recently addressed in People v. Jefferson (2016) 1 Cal.App.5th 235 (Jefferson). As that court pointed out, cases have previously rejected this claim in the context of section 1170.126, which contains a similar resentencing scheme and dangerousness provision. (Jefferson, supra, at p. 240; see People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1302-1305; People v. Flores (2014) 227 Cal.App.4th 1070, 1075-1076.) The Jefferson court found that the reasoning of those cases "applies with equal force to dangerousness determinations under Proposition 47." (Jefferson, supra, at p. 240.) The court explained: "A finding of dangerousness under Proposition 36 or 47 is not a fact that exposes the defendant to a greater potential sentence, however. If the court finds the defendant would pose an unreasonable risk of danger to public safety if he is resentenced under Proposition 36 or 47, the defendant 'simply finishes out the term to which he or she was originally sentenced.' [Citation.] [¶] Additionally, because Propositions 36 and 47 only allow the defendant's original sentence to be modified downward, not upward, any facts found in a proceeding under section 1170.18 or 1170.126, including the defendant's dangerousness, do not implicate the defendant's Sixth Amendment rights. [Citation.]" (Id. at p. 241.) The Jefferson court also noted that "a defendant has no constitutional right to be resentenced under Proposition 36 or 47. Rather, the resentencing provisions of Propositions 36 and 47 are acts of lenity on the part of the electorate. [Citation.] They do not call for the 'wholesale resentencing of eligible petitioners.' [Citation.] Thus, there is no Sixth Amendment or other constitutional right to have the prosecution prove dangerousness to a jury beyond a reasonable doubt. [Citations.]" (Ibid.)
The reasoning of the Jefferson court is persuasive, and we adopt it here in concluding that defendant was not entitled to a jury trial on the issue of whether resentencing him to misdemeanor punishment would pose an "unreasonable risk of danger to public safety." (§ 1170.18, subd. (b).)
C. Unreasonable Risk of Danger to Public Safety
Defendant contends the trial court abused its discretion by denying his section 1170.18 petition because no substantial evidence supports the trial court's finding that resentencing him would pose an "unreasonable risk of danger to public safety." (§ 1170.18, subd. (b).)
Section 1170.18, subdivision (c) defines an "unreasonable risk of danger to public safety" as "an unreasonable risk that the petitioner will commit a new violent felony" described in section 667, subdivision (e)(2)(C)(iv). As noted above (ante, fn. 3), those violent felonies, or "super strike" offenses (Rivera, supra, 233 Cal.App.4th at p. 1092) include sexually violent offenses, homicide offenses, and any serious and/or violent felony offense punishable by a life sentence or the death penalty.
Section 1170.18, subdivision (b) provides that in determining whether there is an unreasonable risk that the defendant will commit an enumerated violent felony, the court may consider: "(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."
"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.]" ' [Citation.]" (Jefferson, supra, 1 Cal.App.5th at pp. 242-243.)
Defendant contends the trial court failed to "properly evaluate whether [defendant] is a current danger to society." He contends the evidence of his past conduct did not show that he had a "compulsion" to sexually victimize elderly and vulnerable women because some of the women were not elderly. He asserts that his offenses have become "less violent, not more, over time" and that the evidence showed he had made recent efforts to address his drug problem. He also contends that his current age (56 years old) and medical conditions make him less dangerous.
The record demonstrates that the trial court properly focused on defendant's current dangerousness and that it properly considered defendant's criminal conviction history, disciplinary record and record of rehabilitation while incarcerated, and other evidence presented at the hearing. As the trial court found, defendant's criminal history is "long and serious," and it indicates he had a compulsion or tendency to commit sexual assaults, particularly on victims who were older and/or vulnerable. Although defendant has no convictions of sexual offenses, the trial court could properly find, based on the evidence presented at the hearing, that defendant had committed a number of rapes and sexual assaults over two decades. Many of his victims were elderly, and many were vulnerable due to their location or physical condition. And while defendant tried to minimize his culpability in each instance, the trial court found his testimony "to simply not be credible" and that his "lack of candor" showed that he remained a risk to public safety. The fact that defendant had been in two fights while in prison also showed he had difficulty following rules, even when in a restrictive setting. On this record, the trial court did not abuse its discretion by finding that imposition of a misdemeanor sentence would result in an unreasonable risk of danger to public safety.
Defendant also contends the trial court's reliance on "allegations" of sexual offenses, which did not result in conviction, violated due process.
" 'Due process does not require that a criminal defendant be afforded the same evidentiary protections at sentencing proceedings as exist at trial. [Citations.] A sentencing judge may consider responsible unsworn or out-of-court statements concerning the convicted person's life and characteristics. [Citations.]' [Citation.]" (People v. Roberts (2011) 195 Cal.App.4th 1106, 1128.) However, "[a] court's reliance, in its sentencing and probation decisions, on factually erroneous sentencing reports or other incorrect or unreliable information can constitute a denial of due process." (People v. Eckley (2004) 123 Cal.App.4th 1072, 1080.)
Defendant's due process claim asserts that "a sentencing 'fact' cannot be established by mere unsustained allegations of past offenses contained in police reports." However, as noted above, a sentencing judge can rely on out-of-court statements as long as there is some indicia of reliability. Defendant has not shown that the probation report or other documentation of defendant's prior offenses was unreliable, and the cases defendant relies on are inapposite. The trial court in this case did not rely on convictions that were constitutionally invalid. (See United States v. Tucker (1972) 404 U.S. 443, 444-445.) Nor did the trial court base its decision on "misinformation or misreading of court records." (Townsend v. Burke (1948) 334 U.S. 736, 741.) And the trial court's determination was not "based on unsworn evidence detailing otherwise unverified statements of a faceless informer that would not even support a search warrant or an arrest." (United States v. Weston (9th Cir. 1971) 448 F.2d 626, 631.)
IV. DISPOSITION
The order denying defendant's Penal Code sections 1170.126 and 1170.18 petitions is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.