Opinion
E071439
11-04-2019
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND ENRIQUE TEQUIDA, Defendant and Appellant.
Janice R. Mazur, 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, Charles C. Ragland and Amanda Lloyd, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF75101) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Affirmed. Janice R. Mazur, 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, Charles C. Ragland and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Raymond Enrique Tequida pled guilty to kidnapping (Pen. Code, § 207, count 1), robbery (§ 211, count 2), assault with a firearm (§ 245, subd. (a)(2), count 3), being a felon in possession of a handgun (§ 12021, subd. (a)(1), count 4), and receiving stolen property (§ 496, count 5). He admitted that, as to counts 1 and 2, he personally used a firearm. (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8).) He also admitted he had a prior serious felony conviction (§ 667, subd. (a)), had served a prior prison term (§ 667.5, subd. (b)), and had a prior strike conviction (§§ 667, subds. (c) & (e), 1170.12, subd. (c)(1)). A trial court sentenced defendant to a total term of 29 years eight months in state prison. Subsequently, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which among other things established a procedure for specified classes of offenders to have their felony convictions reduced to misdemeanors and be resentenced accordingly. (§ 1170.18.) Defendant filed a petition for resentencing under Proposition 47 to reduce his conviction of receiving stolen property (§ 496, subd. (a)) to a misdemeanor. The court found him eligible for relief and set a hearing regarding whether he would pose an unreasonable risk of danger to the public. (§ 1170.18, subd. (b)(3).) The court ultimately denied the petition.
All further statutory references will be to the Penal Code, unless otherwise noted.
On appeal, defendant contends the court abused its discretion in denying his petition by placing the burden on him to prove he would not pose an unreasonable risk of danger to public safety. He requests this court to reverse the denial and remand the matter for reconsideration. Defendant has also filed a petition for writ of habeas corpus (case No. E073089), in which he claims ineffective assistance of counsel. We have considered the writ petition with the appeal and will rule on it by separate order. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the parties' briefs and the court's recitation of the facts, since the record of the 1997 proceedings is not included in the record on appeal. --------
In 1997, the victim went to a motel to look for a friend. Defendant and another suspect came out of a motel room and walked toward him. One of them grabbed the victim, forced him into the motel room, and then onto the bed. There were four suspects in the room. One of them reached into the victim's pocket and took his wallet. Defendant was holding a gun and started waving it around. He asked the victim, "Are you here to get dope or are you here to give money?" The victim was afraid for his life and said he was there to get a friend. Defendant went through the victim's wallet and took his phone book and cash. He demanded the victim's keys and hit the victim in the face with the gun when the victim did not hand them over. Defendant took the victim's glasses and cigarettes, put the gun in the victim's face, and said, "What are you going to do now? I'll find you if someone comes looking for me." Defendant then let the victim go. The victim later identified defendant in a photographic lineup. At the time of the incident, defendant was a parolee at large for residential burglary. When the police went to arrest him, he fled and ran inside a residence. He was ultimately caught trying to escape through a window. The officers found a fully loaded gun hidden under a bed in the residence. Defendant admitted the gun belonged to him.
Defendant pled guilty to five felonies arising out of the incident, including receiving stolen property. (§ 496, count 5.) A court sentenced him to state prison for 29 years eight months. One year four months of this term was imposed on count 5.
ANALYSIS
The People Met its Burden of Proof to Show That Defendant Posed An Unreasonable
Risk of Danger to Public Safety
Defendant claims the court abused its discretion in denying his Proposition 47 petition (the petition) by improperly placing the burden on him to prove he would not pose an unreasonable risk of danger to public safety. We see no abuse of discretion.
A. Relevant Law
In November 2014, California voters approved Proposition 47 (effective November 5, 2014). (§ 1170.18.) "Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) "Proposition 47 also created a new resentencing provision: section 1170.18. 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." (Id. at p. 1092.) "If the court determines that the defendant satisfies the criteria of section 1170.18, subdivision (a), the court is required to recall the felony sentence and resentence the defendant to the misdemeanor sentence, 'unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' " (People v. Jefferson (2016) 1 Cal.App.5th 235, 240 (Jefferson); see § 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). [Citation.] 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." (Jefferson, supra, 1 Cal.App.5th at p. 242.) The prosecution must establish that a petitioner poses an unreasonable risk of danger to public safety based on a preponderance of the evidence. (See Id. at p. 241; People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301-1305 (Kaulick).)
In determining whether resentencing the petitioner would pose an unreasonable risk of danger to public safety, 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." (§ 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.' [Citation.] '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.]" ' " (Jefferson, supra, 1 Cal.App.5th at pp. 242-243.)
B. Relevant Background
Defendant filed a resentencing petition and met his initial burden of showing he was entitled to relief under Proposition 47 as to his conviction in count 5. The court found him eligible for relief and set a hearing as to dangerousness. The hearing was continued multiple times.
The prosecution filed an opposition to defendant's petition for resentencing on May 2, 2016, arguing that the court should deny his petition because resentencing him would pose an unreasonable risk of danger to public safety. The prosecution presented defendant's lengthy criminal history, dating back to 1991, and recounted the facts of the current convicted offenses, which included kidnapping, robbery, and assault—all with the use of a firearm. The prosecution noted that defendant was on parole for residential burglary when he committed the current offenses. The prosecution also noted his record of conduct while in custody, including his possession of manufactured stabbing weapons, multiple incidents of battery on an inmate, participation in prison riots, multiple incidents of battery on an inmate with a weapon, possession of drug paraphernalia, and obstructing an officer. The record also showed defendant was a documented gang member. Furthermore, his in-custody offenses resulted in an additional six-year prison term and numerous terms in the Security Housing Unit (SHU).
Based on defendant's criminal history, which included convictions for burglary and robbery, and his conduct in prison, the prosecution argued that defendant was violent. Moreover, he had done nothing to rehabilitate since being incarcerated, and his disciplinary record showed he would pose a danger to society if he were to be released early. The prosecution emphasized that defendant had incurred another felony conviction while in prison, adding another six years to his incarceration.
On March 29, 2018, the prosecution filed a supplemental opposition to defendant's petition for resentencing, again arguing that a review of his criminal history proved he was violent.
On July 24, 2018, defendant submitted a points and authorities regarding the standard for dangerousness, as contemplated by Proposition 47. Defendant gave an overview of the law and argued that there had been no evidence presented that he would commit a super strike if released 16 months prior to his current date of release. He concluded that his request for resentencing should be granted "[b]ecause the People cannot meet their burden of establishing, by a preponderance of the evidence, that the defendant is likely to commit a super strike."
The court held a dangerousness hearing on July 26, 2018. Defense counsel stated that he had provided the court with a copy of his points and authorities and asked that it be filed. The prosecutor noted she received a copy of defendant's papers, stated she had filed an opposition back in May 2016 and a supplemental brief on March 29, 2018, and submitted on the written oppositions. Defense counsel stated his belief that defendant was not a significant danger. He added: "And not in any way do I believe the People could substantiate by a preponderance of the evidence that he is in danger of committing a super strike."
The court cited the 29 years eight months that defendant received for his current convictions of kidnapping, robbery, and assault with a deadly weapon. It recounted the facts of the current incident and noted that defendant was a parolee at large for residential burglary, that the victim identified him as the person who robbed him with a weapon, and that the police found a fully loaded weapon that defendant admitted belonged to him. The court also noted that defendant was a documented gang member.
The court next commented that defendant's conduct in prison was important, observing that he had been found in 1998 with stabbing weapons and in 1999 with a deadly weapon. The court stated that defendant continued to admit gang membership and continued to commit violent offenses while in prison, except for when he was "locked away in ad seg." The court offered the prosecutor the opportunity to add facts to the record before making its ruling. However, the prosecutor stated that she was submitting "to the Court's indicated, what the Court has stated on the record, along with the People's moving papers." The prosecutor added that defendant participated in multiple jail riots, and concluded that the facts of the current case, his criminal history, and his demonstration of violence in prison, showed that he was likely to commit a super strike.
The court agreed with the prosecution, stating: "I do believe he is a reasonable risk of being in danger of committing a super strike offense such as a murder[,] given his violent nature and the violence that he has elicited in terms of his actual conduct." Thus, the court denied the petition.
C. The Court Properly Denied Defendant's Petition
The court did not exceed the bounds of reason in determining that defendant was likely to commit a super strike if resentenced under Proposition 47. The court reasonably determined that defendant's 1997 kidnapping, robbery, and assault convictions, in combination with his lengthy criminal history, possession of weapons in prison, multiple incidents of battery on an inmate, participation in multiple prison riots, and past gang membership, showed he was likely to commit a super strike. Indeed, defendant personally used a firearm in the 1997 incident, threatening the victim and hitting him in the face with it. The evidence amply supports the court's determination that defendant posed an unreasonable risk of danger to public safety, if resentenced under Proposition 47.
Defendant does not argue that it was an abuse of discretion for the court to determine he posed an unreasonable risk of danger. He only claims the record demonstrates "a strong inference" that the court improperly placed the burden on him to prove he did not pose a risk of danger, rather than on the People to prove that he did. He further asserts "there is no indication that the court was ever provided clear authority, or argument, that the burden rested with the prosecution." We find defendant's claims to be completely disingenuous.
It was, and is, undisputed that the prosecution bears the burden of proof to establish that a petitioner poses an unreasonable risk of danger to public safety based on a preponderance of the evidence. (See Jefferson, supra, 1 Cal.App.5th at p. 242; Kaulick, supra, 215 Cal.App.4th at pp. 1301-1305.) Here, the prosecution met this burden, filing two oppositions to defendant's petition, arguing that the court should deny the petition because resentencing defendant would pose an unreasonable risk of danger to public safety. The prosecution cited defendant's current convictions, lengthy criminal history, and violent prison conduct. Furthermore, in response, defendant filed points and authorities with an overview of Proposition 47 and stated that "[t]he burden of proving dangerousness likely rests with the prosecutor." He argued that the court should grant his petition "[b]ecause the People cannot meet their burden of establishing that [he] is likely to commit a super strike." (Italics added.) At the dangerousness hearing, defense counsel again argued that he did not believe "the People could substantiate by a preponderance of the evidence that he is in danger of committing a super strike." (Italics added.) Thus, the record demonstrates there was no question that the prosecution had the burden to prove dangerousness.
Moreover, there is no indication the court improperly placed the burden on defendant to prove he did not pose a risk of danger. "Trial courts are generally presumed to have understood and followed established law." (People v. Lang (1989) 49 Cal.3d 991, 1044.) Defendant has not rebutted this presumption by showing there was any misunderstanding about who had the burden of proof. In fact, after stating its reasons for denying the petition, the court asked the prosecutor if she wanted to add any facts, thus indicating it was aware she had the burden of proof.
The only "evidence" defendant points to in support of his claim is one line in the minute order from the dangerousness hearing, which states: "Petition for resentencing pursuant to PC 1170.18 is denied. Reason for Partial Denial: Defense failed to meet burden." However, that one line does not accurately reflect what occurred at the hearing. The court never said anything about the defense failing to meet its burden. Similar to when discrepancies occur between minute orders and oral pronouncements in sentencing, the court's oral pronouncement here should control. (People v. Zackery (2007) 147 Cal.App.4th 380, 385 ["Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls."].) "The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order . . . ." (Id. at p. 387.) Since the court here never stated that the defense failed to meet the burden of proof, the clerk's notation in the minutes is inaccurate. Defendant even admits as much, stating, "the Reporter's Transcript does not reflect that the court made any specific finding or acknowledgement regarding the burden of proof." Nonetheless, he points to the minute order, and contends that the one line, coupled with the prosecutor's statement that she was submitting on "the court's indicated," supports "an inference that the court had given its indicated ruling off the record, including a finding that the defense failed to meet its burden." (Italics added.) This contention is pure speculation.
Ultimately, there is no valid basis for the claim that the court placed the burden on defendant to prove he would not pose an unreasonable risk of danger to public safety. Furthermore, the court did not abuse its discretion in denying his petition for resentencing.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.