Opinion
E067586
09-27-2017
THE PEOPLE, Plaintiff and Respondent, v. NOEL VELAZQUEZ, Defendant and Appellant.
John F. Schuck, 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, and Barry Carlton, Seth Friedman, and Sabrina Y. Lane-Erwin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF128310) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Reversed. John F. Schuck, 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, and Barry Carlton, Seth Friedman, and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Noel Velazquez, filed a petition for resentencing pursuant to Penal Code section 1170.18, which the court denied. On appeal, defendant contends the court erred in denying his petition. We reverse.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL BACKGROUND
The court apparently reviewed the opinion issued by this court of defendant's direct appeal from his conviction in case No. E044109. We take judicial notice of the opinion and utilize it as the primary basis for our factual recitation of the offenses for which the jury convicted defendant. (Evid. Code, § 459, subd. (a).)
Shortly after midnight on February 1, 2006, as the victim was entering the residence he shared with his mother, two men in ski masks, one of whom was defendant, jumped a fence and put a gun to the victim's head; forced him to his knees; took his car keys, cell phone, and wallet; and demanded to know who was in the house and whether there was an alarm. The two masked men, who were both armed with guns, forced the victim into his bedroom and forced him to lie face down. The robbers repeatedly demanded to know where the victim kept the money, which they stated they knew he had.
The robbers covered the victim's head with a towel and used a computer cable they found in the victim's room to tie him up. In the process, one of the robbers began to loop the cord around the victim's neck, but, fearful of being choked, the victim bit on the cord and held it in his mouth, telling the robber to kill him by shooting, not choking. The robber told him to release the cord and struck him more than once with the butt of his gun.
At this point, the victim heard his mother scream and then heard a thud, as one of the robbers had grabbed her by the neck and threw her to the floor as she came out of her bedroom to investigate the disturbance. At the direction of one of the robbers, the victim's mother locked her dog in the spare bedroom; she was then ordered to go into her room and sit on the corner of her bed. One of the robbers put a towel over her head and demanded money. He took approximately $100 from her purse; he then ransacked her room, throwing things out of her closet, and opening drawers. The robber told her he would kill her if he found money.
The victim's mother asked the robber if he knew her son, if her son owed him money, and attempted to find out why they were in her house. When the robber informed her that they had been told she had money, she responded that she did not have any and offered to go to the ATM. The robber then asked her if she thought he was stupid and placed his gun against her left temple, asking repeatedly for the money and continuing the destruction of her bedroom. During the ransacking, the robber pounded on the walls, looking for a safe, and again put a gun to her head a second time, threatening to kill her if he found any money.
At one point, the robber made the victim's mother, who was only wearing a robe, go to the sink area of the bathroom where he used his gun to open her robe and stared at her breasts before allowing her to put on some pants. Back in the bedroom, the robber made her bend over her bed as he stood behind her, making her fear he would rape her. At one point, the victim's mother removed the towel from her head and could see that the robber in her room had lifted his ski mask and placed a bandana around his head.
The robber eventually led the victim's mother into the spare bedroom; she saw that the victim was still on the floor with a towel over his head. The other robber was standing over him pointing a gun at him. The robber with the victim's mother then proceeded to go through the spare room. After about 15 minutes in the spare room, the robber led the victim's mother back through the hall, past the victim, and out into the garage. The robber assigned to the victim was still standing over and pointing a gun at him.
After looking around the garage, the victim's mother suggested that she had silver or crystal in the dining room; she began putting items from her hutch into a bin that had been brought in from the garage as the robber stood over her with a gun. In the kitchen area, the robber collected electronic items, including laptops and a DVD player. Then the robber had the victim's mother sit in the family room while he continued searching the cabinets. Eventually, the victim, still bound with the cord, was led into the living room at gunpoint, where he was seated near his mother.
Sometime near 5:00 a.m., the unmasked robber took the victim's cell phone. Eventually, both robbers left, one driving the victim's mother's vehicle and the other driving the victim's truck. After the robbers left, the victim's mother called 911 and reported the incident. The robbers had remained in the house for about three hours.
A short time later, the police located the vehicles using the LoJack theft recovery system; they saw defendant and a companion walking nearby. When they saw the police, defendant and his companion took off running. One officer eventually caught up with and tackled defendant, whom officers took into custody after a brief struggle. After his arrest, a police detective interviewed defendant, who admitted going to the victims' residence armed with a handgun; admitted guarding the victim, who was tied up and had a towel over his head; admitted pointing a gun at the victim; and admitted driving away from the residence in the victim's mother's vehicle. During a search of his person, methamphetamine was found in defendant's possession.
The People charged defendant with two counts of first degree robbery, accomplished by using a firearm (Pen. Code, §§ 211, 212.5, 12022.53, subd. (b), counts 1-2), two counts of unlawfully driving or taking a vehicle without permission (Veh. Code, § 10851, subd. (a), counts 4-5), one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2), count 3), one count of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 6), and one count of trying to prevent an executive officer from performing a duty (Pen. Code, § 69, count 7). The information also alleged several sentencing factors in aggravation.
The jury convicted defendant on counts 1 through 6, but acquitted him on count 7. On August 17, 2007, the court sentenced defendant to 19 years in prison. As part of the sentence, the court had imposed a consecutive eight months on the count 6 offense.
Defendant apparently refused to identify his coconspirator who, insofar as this record reveals, was never caught; defendant also failed to take any responsibility for the offenses. --------
On January 9, 2015, defense counsel filed a petition for resentencing on the count 6 offense pursuant to section 1170.18. Pursuant to the People's request, the court set a hearing for a determination of whether resentencing would pose an unreasonable risk of danger to public safety.
On December 23, 2016, the People filed opposition to defendant's petition in which they argued that, although defendant was preliminarily eligible for resentencing, the court should deny the petition because defendant posed an unreasonable risk of danger to public safety. The People argued that the offenses for which defendant stood convicted were "dangerously violent," that the victim believed the offenses were "drug motivated," and defendant had a record of discipline while incarcerated. The record of discipline included a failure to comply with orders on June 27, 2011; possession of a toothbrush with a sharpened staple on September 1, 2011, which defendant claimed was for sewing; refusal to lock down on September 20, 2015; and theft of food from the kitchen on two separate occasions.
The People maintained: "There is no doubt the defendant is likely to commit a superstrike and in fact he did in this case! The defendant and his accomplice forced [the victim], at gunpoint, into the house away from neighbors who could see and hear the commotion and be alerted to call for help. The victims were then taken from room to room at gunpoint. This defendant is not just likely to commit a super strike; he's already committed a [section] 209 [kidnapping to commit robbery] in this case."
At the hearing on October 5, 2016, the People related that the victim's mother reported that the home invasion robbery "was based on the narcotics use of the defendant. They came to the house looking for drugs. Throughout the time they were there, punching holes in the walls, kicking her things [sic]. They were asking for drugs, asking for money. They were clearly, in her personal opinion, based on her experience, high on drugs."
On December 30, 2016, defense counsel filed points and authorities regarding the standard for determining dangerousness pursuant to section 1170.18. Defense counsel noted that defendant had made strides toward self-improvement while incarcerated: defendant had attended bible study, worked toward his general equivalency diploma (GED), and had received the lowest possible classification score he was capable of receiving.
At the hearing on December 30, 2016, the court noted: "The crime is as reprehensible as it can be without killing somebody. It's the kind of terror crime that never, ever, ever leaves people. It goes on for hours. It's in their residence. But the only charge[] he's eligible for any relief on this horrible, horrible crime is Count 6 . . . ." If granted, the relief "would reduce his time by eight months." The court assumed defendant's stealing of food, in particular rice, while incarcerated was probably for the purpose of making pruno. The court observed defendant had a classification score which was the lowest which he could possibly acquire. The court noted defendant had "created a weapon out of a toothbrush and a staple" while incarcerated; which defendant described as his "quote, sewing device."
After the People maintained that it was easy to argue that defendant was likely to commit a super strike, the court interrupted to say, "Because he did." The People further argued, "Yeah. And probably attempted murder when he hog-tied the victim." The People contended defendant did not deserve the "mercy" of having his sentence reduced by eight months. The People observed there was nothing in defendant's record of incarceration which included anything about defendant undergoing drug treatment; the court agreed.
The court noted: "This is not tough for me because, in fact, he did commit a super strike. It's tough for me because when I look at the [count 6 offense], it's a separate nonviolent crime that got him eight months that occurred after the defense said he was walking to his stolen vehicle. But it is hard to—as the People said, it is hard to fathom why I would give him any break at all. Because he is the person that I put in the [two] percent category. There's—the level of vi[ci]ousness is inexcusable. You didn't—they didn't need to be as vicious as they were to accomplish whatever they thought they were accomplishing." "So I'm going to deny it based on the dangerousness. He did, in fact, commit a super strike. And as the People point out, Prop[osition] 47 is not made for him. That he does not—there is not a reason to show him any mercy. He didn't show these people any mercy, and they have to live with this the rest of their lives. [¶] So, based on what he did there, I'm going to find it as likely he will commit a super strike and deny him any relief."
II. DISCUSSION
Defendant contends the court abused its discretion in denying his petition. Specifically, defendant maintains the court's repeated references to defendant having already committed a super strike meant the court was operating under a mistake of fact in exercising its discretion. Likewise, defendant argues the court's references to giving defendant a "break" and showing him "mercy" reflect the court was acting under a misapprehension of its discretion under the law. We agree.
"Under section 1170.18, subdivision (a), a person who is currently serving a sentence for a felony conviction that would have been a misdemeanor under [Proposition 47] may petition the court that entered the judgment of conviction to recall the person's felony sentence and resentence the person as if he or she had been convicted of the misdemeanor. 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.' (§ 1170.18, subd. (b).)" (People v. Jefferson (2016) 1 Cal.App.5th 235, 239-240 (Jefferson).)
"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. [Citation.]" (Jefferson, supra, 1 Cal.App.5th at p. 242.) A person who has already incurred a conviction for a super strike is ineligible for relief pursuant to section 1170.18. (§ 1170.18, subd. (i).)
"In determining whether there is an unreasonable risk that the defendant will commit a super strike, 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.' [Citation.]" (Jefferson, supra, 1 Cal.App.5th at p. 242.) "[T]he People have the burden of proving, by a preponderance of the evidence, facts on which a finding that resentencing a petitioner would pose an unreasonable risk of danger to public safety reasonably can be based." (People v. Buford (2016) 4 Cal.App.5th 886, 893, review granted Jan. 11, 2017, S238790; accord, People v. Losa (2014) 232 Cal.App.4th 789, 791.)
"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.]"' [Citation.] The abuse of discretion standard 'involves abundant deference' to the court's ruling. [Citation.]" (Jefferson, supra, 1 Cal.App.5th at pp. 242-243 [court did not abuse its discretion in finding the defendant posed an unreasonable risk of committing a super strike where the defendant had previously been convicted of several offenses as a result of an armed home robbery, had incurred extensive administrative discipline while incarcerated, violated parole on 10 occasions, and was convicted of burglary while on parole]; accord, People v. Hall (2016) 247 Cal.App.4th 1255, 1264 [court acted within its discretion in finding the defendant posed an unreasonable risk of committing a super strike where the defendant had an increasingly violent criminal record consisting of seven separate criminal convictions, including two robberies, two strike convictions, and a crime committed while on probation].)
"The abuse of discretion standard is 'deferential,' but it 'is not empty.' [Citation.] '[I]t asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts [citations].' [Citation.]" (People v. Giordano (2007) 42 Cal.4th 644, 663.) "If the trial court misunderstands or misapplies the applicable legal standard, it has not properly exercised its discretion. [Citation.]" (People v. Millard (2009) 175 Cal.App.4th 7, 31.) "No court has discretion to make an order not authorized by law, or to find facts for which there is not substantial evidence." (In re Cristian S. (2017) 9 Cal.App.5th 510, 520.)
Here, the court not once, not twice, but three times indicated that defendant had already committed a super strike. However, defendant was neither ever convicted nor even charged with any super strike offenses. Therefore, the court's heavy reliance on the "fact" that defendant had previously committed a super strike for purposes of finding it likely he would commit a super strike in the future reflects a ruling which fell outside the boundaries of the applicable law and relevant facts.
Moreover, the court's expression that part of its analysis required that it determine whether defendant was deserving of a "break" or "mercy" additionally indicated the court acted outside the bounds of the applicable law. The remedial provisions of section 1170.18 do not permit the court to exercise unfettered discretion, particularly in determining whether a defendant deserves "mercy" or a "break." Rather, the court is limited to determining a defendant's eligibility for relief and whether he will pose an unreasonable risk of danger to society should the remedy requested be granted. The court has no power to conduct an ad hoc determination of defendant's worthiness of receiving section 1170.18 relief without reference to the specific guidelines set up within the statute for obtaining such relief.
The People contend that by virtue of the fact that the court was making a dangerousness determination, which would have rendered defendant ineligible for resentencing, in and of itself reflects the court knew defendant had not actually committed a super strike, but that the offenses for which he was convicted "could have supported super strike offenses." However, this is not what the court said. Rather, the court stated that defendant had already committed a super strike offense. Beginning with such an assumption and, presumably without awareness that that would have rendered him ineligible for resentencing, made a determination of defendant's likelihood of committing a super strike in the future infinitely easier.
Thus, the matter must be reversed and remanded for a redetermination of defendant's propensity to commit a super strike without the erroneous conclusion that he had already done so and without the assumption of broad powers of whether defendant deserves a "break" or "mercy." On remand, the court is directed to make a dangerousness determination based solely on defendant's record of conviction, record of incarceration, and any other relevant evidence. Whether the court feels defendant deserves mercy is irrelevant to any such determination. We express no opinion on whether the record, when viewed through the proper factual and legal lenses, establishes whether defendant poses a risk of committing a future super strike.
III. DISPOSITION
The matter is reversed and remanded.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.