Opinion
G054874
04-26-2018
THE PEOPLE, Plaintiff and Respondent, v. NASIR KAMARUDDIN SHAMSI, Defendant and Appellant.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 02WF0793) OPINION Appeal from postjudgment orders of the Superior Court of Orange County, Kazuharu Makino, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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In 2012 defendant Nasir Kamaruddin Shamsi pleaded guilty to first degree robbery in concert (Pen. Code, §§ 211, 212.5, subd. (a), 213, subd. (a); all undesignated statutory references are to this code), kidnapping (§ 207, subd. (a)), ten counts of second degree burglary (§ 459, 460, subd. (b)), fraudulent use of access card (§ 484g, subd. (a)), cultivation and possession of marijuana for sale (Health & Saf. Code, §§ 11358, 11359). Defendant also admitted an allegation he committed the marijuana offenses while he was released from custody on bail. (§ 12022.1, subd. (b).) As part of the negotiated disposition the prosecution dismissed a kidnapping for ransom charge. (§ 209, subd. (a).) And the court sentenced defendant to a total term of 21 years and four months in prison.
In 2015 defendant filed a petition for recall of sentence under section 1170.18, subdivision (a), one of the statutes enacted as part of the Safe Neighborhoods and Schools Act (Proposition 47), seeking to reduce the felony burglary, access card and marijuana cultivation convictions to misdemeanors.
On September 23, 2015, the court held a hearing on the petition. Defendant was present with appointed counsel. At the outset, defendant's counsel withdrew the petition as to the marijuana cultivation conviction. The parties then agreed, and the court found, the felony burglary and access card convictions were all eligible for reduction to misdemeanors, and the amount of loss for each of these offenses was less than $950.
The prosecutor opposed the petition and argued that resentencing defendant would pose an "unreasonable risk of danger to the public safety" within the meaning of section 1170.18, subdivisions (b) and (c). The court took judicial notice of the clerk's minutes, the guilty plea form (which included a lengthy factual basis for the plea), the preliminary hearing transcript, and other court records. The court also stated it had read and considered the kidnapping victim's preliminary hearing testimony.
The prosecutor called Michael Reilly, a former Huntington Beach Police Detective, as a witness. Reilly testified about the investigation, apprehension and prosecution of defendant for the kidnapping offenses charged in this case.
Following the presentation of evidence, the court entertained arguments from counsel. The prosecutor argued defendant posed an unreasonable risk of danger to public safety, because the evidence showed the kidnapping offense was in fact an aggravated kidnapping for ransom, as originally charged, even though that charge was later dismissed when defendant pled guilty to simple kidnapping. Defense counsel disputed that characterization of the evidence and argued other mitigating facts.
The court denied the petition because: "It's obvious, after reading the prelim transcript, this is obviously a kidnapping for ransom. This is not just a simple kidnapping where somehow incidental to that there was a robbery that took place somewhere. This was a clear-cut kidnapping for ransom." "[T]he most obvious thing in trying to decide whether the person is a danger of committing one of these prohibited crimes is the fact that he has committed one of the prohibited crimes. . . . . So, I don't think there could be any better evidence that he's a risk of doing such a thing."
The court's references to "prohibited" crimes, relates to section 1170.18, subdivision (c) which states, "As used throughout this code, 'unreasonable risk of danger to public safety' means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667." That clause specifies certain serious or violent felony offenses ("super strike" offenses), including those punishable by life imprisonment or death. Kidnapping for ransom is one such super strike offense. (§ 209, subd. (a).)
In October 2016, defendant filed, in propria persona, a "Petition for Reconsideration and for Modification of Prop 47 Petition." Much of this petition is unintelligible or immaterial. Nevertheless, it appears defendant claimed the court abused its discretion in finding he would pose an unreasonable risk of danger to public safety because it applied the wrong standard, and that the court's finding is not supported by substantial evidence. Defendant also claimed his appointed counsel rendered ineffective assistance in connection with the Proposition 47 petition and hearing, and by failing to properly advise him of his right to appeal from the denial of the petition.
In December 2016, the court held a brief hearing and summarily denied the petition for reconsideration. The prosecutor was present but defendant was not. On March 30, 2017, defendant filed, in propria persona, a "Request for Immediate Response on Pending Prop 47 Petition for Reconsideration." That same day, the court ruled by minute order: "Motion by Defense for reconsideration of petition is denied. Original petition denied 09/23/15 - no legal grounds for reconsideration."
Defendant appealed from the March 30 minute order.
We construe the notice of appeal to encompass all Proposition 47 proceedings. (6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Appeal, § 92, p. 266) --------
We appointed counsel to represent defendant on appeal. Counsel filed a brief summarizing the proceedings and facts of the case and advised the court she found no arguable issues to assert on defendant's behalf. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) To assist us in our independent review, counsel suggested we consider whether the court applied the incorrect standard and abused its discretion in denying the petition based on a finding defendant posed an unreasonable risk of danger to public safety. Defendant filed a supplemental brief on his own behalf, the relevant parts of which merely repeat verbatim the arguments contained in his petition for reconsideration in the court below.
DISCUSSION
We have independently reviewed the entire record as required under Anders v. California, supra, 386 U.S. 738 and People v. Wende, supra, 25 Cal.3d 436, and we have found no arguable issues on appeal.
Section 1170.18, subdivision (b) expressly provides the court discretion to deny the petition, "[i]f . . . the court, . . . determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." Further, as noted, subdivision (c) defines the "unreasonable risk of danger to public safety" standard in precise terms, as an unreasonable risk the petitioner will commit a new super strike offense.
We review the dangerousness finding under the abuse of discretion standard. (People v. Jefferson (2016) 1 Cal.App.5th 235, 242.) "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.]'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) Of course, the abuse of discretion standard "involves abundant deference" to the court's ruling. (People v. Jackson (2005) 128 Cal.App.4th 1009, 1018.)
We conclude the court applied the correct standard and did not act in an arbitrary, capricious or patently absurd manner in determining defendant posed an unreasonable risk of danger to public safety. In short, the court reasonably determined his kidnapping conviction, and the other evidence, showed there is an unreasonable risk that he will commit a new super strike offense, namely, another kidnapping for ransom, if he were resentenced on his burglary and access card convictions under Proposition 47.
Defendant's ineffective assistance of counsel claim is equally unavailing. "To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel's performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.]" (People v. Anderson (2001) 25 Cal.4th 543, 569 (Anderson); see Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
Prejudice is shown where there is a reasonable probability that, "'"'but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'"' [Citations.]" (Anderson, supra, 25 Cal.4th at p. 569.)
In this case, defendant has failed to demonstrate that his counsel's performance fell below a standard of reasonable competence. And even if we were to assume deficient performance, he has not shown he was prejudiced as a result. Thus, defendant cannot prevail on his ineffective assistance of counsel claim.
DISPOSITION
The orders are affirmed.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.