PEOPLE v. CARRASCO

No. E066537.

THE PEOPLE, Plaintiff and Respondent, v. JOHN FRANCISCO CARRASCO, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division Two.


Attorney(s) appearing for the Case

Marilee Marshall , 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 Theodore M. Cropley and Alana Cohen Butler , 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

McKINSTER, J.

Defendant and appellant, John Francisco Carrasco, filed a petition for resentencing pursuant to Penal Code sections 1170.18 and 1170.126,1 which the court granted in part and denied in part. On appeal, defendant contends the court erred in denying his petition for relief pursuant to section 1170.126. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND2

On April 7, 2001, at 11:00 a.m., the victim left her car running while she ran into her friend's apartment and returned a couple of minutes later. She had left her purse with her credit card inside on the front seat of the car. When the victim returned, her car was gone. She immediately reported her car stolen.

On April 8, 2001, a police officer noticed the victim's car in a convenience store parking lot. He discovered the car had been reported stolen. The officer noticed defendant acting peculiar and searched him. The officer found the key to the stolen car and the victim's credit card in defendant's possession. Defendant told the officer someone gave him the car keys, but would not identify who. The officer also found a bag containing approximately six grams of methamphetamine and prescription medication, in defendant's girlfriend's name, in the trunk of the car. Additionally, the officer found men's clothing, including clothing bearing defendant's initials, in the car.

The People charged defendant by first amended felony information with the unlawful driving or taking of a vehicle (count 1; Veh. Code, § 10851, subd. (a)) while suffering from a prior conviction for vehicle theft (Pen. Code, § 666.5); receiving a stolen motor vehicle (count 2; Pen. Code, § 496d, subd. (a)) while suffering from a prior conviction for vehicle theft (Pen. Code, § 666.5); receiving stolen property (count 3; Pen. Code, § 496, subd. (a)); and possession of a controlled substance for sales (count 4; Health & Saf. Code, § 11378). The People additionally alleged defendant had suffered two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b) and four prior strike convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The People later dismissed two of the prior strike allegations.

A jury convicted defendant of unlawful driving and taking of a vehicle (count 1; Veh. Code, § 10851, subd. (a)); receiving a stolen motor vehicle (count 2; Pen. Code, § 496d, subd. (a)); receiving stolen property (count 3; Pen. Code, § 496, subd. (a)); and felony possession of a controlled substance, a lesser included offense of the charged offense of possession for sales (count 4; Health & Saf. Code, § 11377, subd. (a)). After a court trial, the court found defendant had suffered a previous conviction for vehicle theft (Pen. Code, § 666.5); had suffered two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b); and found defendant had suffered two prior strike convictions.

On February 28, 2003, the court sentenced defendant to an aggregate term of imprisonment of 50 years to life, consisting of the following: 25 years to life on count 1 with the attached section 666.5 enhancement and a consecutive 25 years to life on count 3. The court stayed imposition of punishment on count 2 pursuant to section 654 and reduced count 4 to a misdemeanor pursuant to section 17, subdivision (b), sentencing defendant to a concurrent term of one year on count 4. The court stayed punishment on both the section 667.5, subdivision (b) prior prison terms.

Defendant appealed the judgment, raising several issues. In an opinion dated March 12, 2004, we remanded the matter to allow the trial court to either strike or impose the prior prison term enhancements.3 In all other respects, we affirmed the judgment.

On November 28, 2012, defendant filed a petition requesting relief pursuant to section 1170.126. The People alleged that defendant posed an unreasonable risk of danger to public safety and requested a hearing. The trial court ordered that the People obtain defendant's prison record.

On January 24, 2014, after numerous continuances, the court held a hearing on defendant's petition. The court found defendant eligible for resentencing.

The People contended defendant posed an unreasonable risk of danger to public safety such that his petition should be denied. The People argued that defendant was almost 44 years old and had spent every single year of his adult life in custody. The People outlined the crimes that defendant had committed commencing when he was 18 years old. Defendant had two resisting an officer convictions. He committed his first robbery in 1994, which also included an assault with a deadly weapon conviction. He was sent to prison. The prosecutor then stated: "And, in 1996 he gets arrested for what ends up being his second conviction for robbery, which the Court didn't mention also included a firearm. He was armed with a firearm during that robbery in 1996." He violated his parole several times once he was released. He was arrested in 2001 in the instant case.

Defendant had been involved in an alleged assault by him and another inmate against a third inmate on May 11, 2010. According to the report, defendant hit "the victim" in the head and torso.4 Despite being ordered to stop and get down on the ground, defendant continued to hit the inmate. A correctional officer shot rubber bullets at defendant and his cohort, but they both continued to batter the inmate.

At this point, it was discovered that defendant was holding a weapon. "The victim" used his cane against defendant and the other inmate. After being shot with several more rubber bullets, a sponge round, pepper spray, and two blast grenades, all three inmates finally laid down on the ground. A homemade knife was found in defendant's possession. "The victim" was found to have puncture wounds. Defendant had several scratches. At the prison hearing on the matter, as to the charges of battery on an inmate with a weapon, defendant stated: "No Contest, I don't want to waste anybody's time."

The trial court noted that the usual situation in which a court would grant such a petition would involve a defendant who had suffered convictions for violent offenses in the remote past, but then deescalated to conducting property crimes. Defendant's circumstances were the opposite; he had incurred a burglary conviction in 1992 and then escalated to robbery and assault with a deadly weapon in 1995. In 1996, he committed a robbery in possession of a firearm. He also had sustained convictions for resisting peace officers.

The trial court recognized defendant had only one violent incident while in prison: "But it is a significant incident in which the other person was stabbed multiple times. [¶] There's some indication that the other person had a cane that was being used as a weapon. But, still, it indicates . . . defendant was readily resorting to violence with a weapon." The trial court concluded: "So, I look at that pattern and it seems to me there's a continuing pattern of violent activities with weapons. And the [section] 69[] [convictions] indicate a violent resistance to law enforcement officers. [¶] And, so, at this point, I am satisfied that [defendant] does continue to pose an unreasonable risk of dangerousness to the community." The court denied the petition.

Defendant appealed, contending he had been denied an opportunity for adequate appellate review because some of the documents relied upon by the trial court in denying the petition were not preserved and that the trial court erred by finding he posed an unreasonable danger to society. We affirmed, holding that defendant had failed to make an adequate attempt to perfect the record and that the court had acted within its discretion in finding defendant posed an unreasonable risk of danger to society.

On April 17, 2015, defendant filed a petition requesting relief pursuant to section 1170.18. The People submitted a response in which they asserted the court should hold a hearing in order to determine the value of the property the jury convicted defendant of stealing.

On June 13, 2016, the People filed a brief in which they contended the court was not limited to making a dangerousness determination as to whether it was likely defendant would commit a so called "super strike" in the future, specifically where that individual would be exposed to a life sentence for the conviction of any violent or serious offense. Therefore, the People maintained the court should deny defendant's petition because he posed an unreasonable risk of danger to the public in that he was likely to commit an offense which would expose him to life imprisonment. In his reply, defendant contended the court was limited to determining whether he was likely to commit a new "super strike" in denying his petition based on a finding of dangerousness.

After a number of continuances,5 the court held a hearing on the petition on July 15, 2016. The parties stipulated that the count 3 offense involved the theft of an item valued at less than $950. The court found that the dangerousness determination pursuant to section 1170.18 required that the court find defendant likely to commit a "super strike," and not just an offense which would expose him to life imprisonment.

The People argued that although defendant had never previously committed a "super strike," his violent criminal history made it likely that he would commit homicide, attempted homicide, and/or solicitation to commit homicide, all "super strikes," if released. The court found that defendant's record was insufficient to infer he was likely to commit a "super strike." Therefore, the court granted defendant's section 1170.18 request, reduced defendant's count 3 offense to a misdemeanor, and resentenced defendant from a consecutive 25-year-to-life term on that count, to 180 days in jail concurrent to his 25-year-to-life term on count 1.

As to defendant's request for relief pursuant to section 1170.126, the court found that the intent between the two initiatives, Propositions 36 and 47, was "very different," and pursuant to section 1170.126, the court had "far more latitude in finding dangerousness. . . ." The court found that "defendant's long history of assaultive conduct, many of which included the use of weapons, [and] the [possession of] weapons in custody" rendered defendant "an unreasonable risk of dangerousness to the community. . . ." Thus, the court denied defendant's request for section 1170.126 relief.

II. DISCUSSION

A. Applicability of Section 1170.18's Dangerousness Requirement to Section 1170.126 Requests for Relief

Defendant contends that section 1170.18's requirement that the court find a defendant likely to commit a future "super strike" was retroactively incorporated into the section 1170.126 finding of dangerousness requisite to a court's denial of a request for section 1170.126 relief.6 We disagree.

Section 1170.126, the statutory enactment of Proposition 36 (the Act), "provides a means whereby prisoners currently serving sentences of 25 years to life for a third felony conviction which was not a serious or violent felony may seek court review of their indeterminate sentences and, under certain circumstances, obtain resentencing as if they had only one prior serious or violent felony conviction." (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1286 (Kaulick).) "First, the court must determine whether the prisoner is eligible for resentencing; second, the court must determine whether resentencing would pose an unreasonable risk of danger to public safety; and third, if the prisoner is eligible and resentencing would not pose an unreasonable risk of danger, the court must actually resentence the prisoner." (Id. at p. 1299, fn. omitted.) "[O]nce a court determines that a petitioning prisoner is eligible for resentencing under the Act, the petitioner `shall be resentenced' to a second strike sentence `unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.'" (Id. at p. 1301.)

"If the court finds that resentencing a prisoner would pose an unreasonable risk of danger, the court does not resentence the prisoner, and the petitioner simply finishes out the term to which he or she was originally sentenced." (Kaulick, supra, 215 Cal.App.4th at p. 1303, fn. omitted.) "[A] court's discretionary decision to decline to modify the sentence in his favor can be based on any . . . appropriate factor (i.e., dangerousness), and such factor need not be established by proof beyond a reasonable doubt to a jury." (Ibid.) The trial court, in exercising such discretion, may rely on factors establishing the defendant's dangerousness, or lack thereof, based on a preponderance of the evidence. (Id. at p. 1305.) A trial court's decision to refuse to resentence a prisoner, based on a finding of dangerousness, need only be supported by some evidence. (Id. at p. 1306, fn. 29.)

In the November 4, 2014 election, California voters enacted Proposition 47, "The Safe Neighborhoods and Schools Act" (Proposition 47), which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) "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.)

"Section 1170.18 provides a mechanism by which a person currently serving a felony sentence for an offense that is now a misdemeanor, may petition for a recall of that sentence and request resentencing in accordance with the offense statutes as added or amended by Proposition 47. [Citation.] A person who satisfies the criteria in subdivision (a) of section 1170.18, shall have his or her sentence recalled and be `resentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' [Citation.]" (T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 649, fn. 2.)

"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." (§ 1170.18, subd. (c).) The "super strikes" listed in section 667, subdivision (e)(2)(C)(iv) include sexually violent offenses, oral copulation with a child under the age of 14, lewd and lascivious behavior with a child under the age of 14, any homicide offense, attempted homicide, solicitation to commit murder, assault with a machine gun on a peace officer, possession of a weapon of mass destruction, and any serious and/or violent felony offense punishable in California by life imprisonment or death.

"`The first principle of statutory construction requires us to interpret the words of the statute themselves, giving them their ordinary meaning, and reading them in the context of the statute (or, here, the initiative) as a whole. If the language is unambiguous, there is no need for further construction. If, however, the language is susceptible of more than one reasonable meaning, we may consider the ballot summaries and arguments to determine how the voters understood the ballot measure and what they intended in enacting it.' [Citation.] `In construing constitutional and statutory provisions, whether enacted by the Legislature or by initiative, the intent of the enacting body is the paramount consideration.' [Citation.]" (People v. Gonzales (2017) 2 Cal.5th 858, 868.) Interpretation of a ballot initiative is a purely legal question which we review de novo. (People v. Arroyo (2016) 62 Cal.4th 589, 593.)

Defendant observes that the court in People v. Cordova (2016) 248 Cal.App.4th 543, review granted August 31, 2016, S236179, held that the narrow circumspection applicable to a determination of dangerousness under section 1170.18 applied to that same determination in section 1170.126 petitions. This was because the former statute reflects that its definition of dangerousness applies throughout the code, which the Cordova court interpreted to mean the entire Penal Code. (People v. Cordova, supra, at p. 553.) However, in People v. Losa (2014) 232 Cal.App.4th 789, the court held in a case which remains published and in which the California Supreme Court has not granted review, that the "recently enacted section 1170.18, subdivision (c)" statutory framework for determining dangerousness "does not modify section 1170.126, subdivision (f)." (Id. at p. 791.)7

Similarly, the court in People v. Buford (2016) 4 Cal.App.5th 886, review granted January 11, 2017, S238790 (Buford), disagreed with the court in Cordova: "[W]e conclude [section 1170.18's] literal meaning does not comport with the purpose of [section 1170.126], and applying it to resentencing proceedings under [section 1170.126] would frustrate, rather than promote, that purpose and the intent of the electorate in enacting both initiative measures [citation]." (Buford, supra, at p. 907.) The Buford court noted that section 1170.126 "was aimed solely at revising the three strikes law." (Buford, supra, at p. 907.)

"Nowhere, however, do the ballot materials for the Act suggest voters intended essentially to release existing third strike offenders in all but the most egregious cases, as would be the result if the definition of `"unreasonable risk of danger to public safety"' contained in section 1170.18, subdivision (c) were engrafted onto resentencing proceedings under section 1170.126, subdivision (f). That voters did not intend such a result is amply demonstrated by the fact an indeterminate life term remains mandatory under the Act for a wide range of current offenses even if the offender does not have a prior conviction for a `super strike' offense (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)), and that an inmate is rendered ineligible for resentencing under section 1170.126 for an array of reasons beyond his or her having suffered such a prior conviction (§ 1170.126, subd. (e)(2))." (Buford, supra, 4 Cal.App.5th at p. 908.) "The Act clearly placed public safety above the cost savings likely to accrue as a result of its enactment." (Ibid.)

"Nowhere in the ballot materials for Proposition 47 were voters given any indication that initiative, which dealt with offenders whose current convictions would now be misdemeanors rather than felonies, had any impact on Proposition 36—enacted a scant two years earlier—which dealt with offenders whose current convictions would still be felonies, albeit not third strikes." (Buford, supra, 4 Cal.App.5th at p. 909.) "Similarly, the arguments in favor of and against Proposition 47 spoke in terms solely of Proposition 47, and never mentioned the Act." (Id. at p. 910.) "[W]e cannot reasonably conclude voters intended the definition of `"unreasonable risk of danger to public safety"' contained in section 1170.18, subdivision (c) to apply to that phrase as it appears in section 1170.126, subdivision (f), despite the former section's preamble, `As used throughout this Code. . . .' Voters cannot intend something of which they are unaware." (Id. at pp. 910-911.)

"Nor can we infer an intent to extend section 1170.18, subdivision (c)'s definition to proceedings under section 1170.126 because the phrase in question only appears in those sections of the Penal Code. The only resentencing mentioned in the Proposition 47 ballot materials was resentencing for inmates whose current offenses would be reduced to misdemeanors, not those who would still warrant second strike felony terms. There is a huge difference, both legally and in public safety risked, between someone with multiple prior serious and/or violent felony convictions whose current offense is (or would be, if committed today) a misdemeanor, and someone whose current offense is a felony. Accordingly, treating the two groups differently for resentencing purposes does not lead to absurd results, but rather is eminently logical." (Buford, supra, 4 Cal.App.5th at p. 912.)

"Whatever the wisdom of Proposition 47's policy of nearly universal resentencing where misdemeanants are concerned—and `[i]t is not for us to gainsay the wisdom of the legislative choice' [citation]—constraining that discretion so that all but the worst felony offenders are released manifestly does not [further the Act's purpose], nor does it comport with the voters' intent in enacting either measure. Accordingly, Proposition 47 has no effect on defendant's petition for resentencing under the Act." (Buford, supra, 4 Cal.App.5th at pp. 912-913, fn. omitted.)

We agree with the reasoning and holding in Buford. The limitation in section 1170.18 restricting a court from making a determination of whether a defendant poses an unreasonable risk of danger to the community in that the defendant is likely to commit a "super strike" is not applicable to a dangerousness determination under section 1170.126. Therefore, the court properly exercised its discretion in determining defendant posed an unreasonable risk of danger under section 1170.126's broader criteria.

B. The Court's Determination of Defendant's Dangerousness

Defendant contends that even if section 1170.18's standard of dangerousness is not applicable to relief under section 1170.126, the court, nonetheless, erred in determining he was an unreasonable risk of danger. We hold that defendant is estopped from raising the issue under the doctrine of the law of the case. Even assuming arguendo that defendant could raise the issue again on appeal, we hold the court acted within its discretion in determining defendant posed an unreasonable risk of danger to the community.

1. Law of the Case

"[A]ppellate court judgments establish the law that `"must be applied in the subsequent stages of the cause"'—i.e., the law of the case—`"and they are res adjudicata in other cases as to every matter adjudicated."' [Citation.]" (People v. Barragan (2004) 32 Cal.4th 236, 253.) A "`decision on a matter properly presented on a prior appeal becomes the law of the case even though it may not have been absolutely necessary to the determination of the question whether the judgment appealed from should be reversed. [Citations].' [Citation.] Thus, application of the law-of-the-case doctrine is appropriate where an issue presented and decided in the prior appeal, even if not essential to the appellate disposition, `was proper as a guide to the court below on a new trial.' [Citation.]" (People v. Boyer (2006) 38 Cal.4th 412, 442.) The "`law-of-the-case doctrine binds the trial court as to the law but controls the outcome only if the evidence on retrial or rehearing of an issue is substantially the same as that upon which the appellate ruling was based. [Citations.]'" (Id. at p. 443.)

Defendant initially filed a petition requesting relief pursuant to section 1170.126 on November 28, 2012. On January 24, 2014, the court denied defendant's petition, determining that under the same interpretation of the dangerousness requirement which we hold in the instant case, that defendant posed an unreasonable risk of danger to the community. Defendant appealed that determination and we affirmed the judgment holding that the court had acted within its discretion in finding defendant posed an unreasonable risk of danger to society. Thus, both this court and the court below are bound by the previous determination based on the same law and same set of facts that defendant poses an unreasonable risk of danger to the community.

2. Unreasonable Risk of Danger to the Community

"If the court finds that resentencing a prisoner [pursuant to section 1170.126] would pose an unreasonable risk of danger, the court does not resentence the prisoner, and the petitioner simply finishes out the term to which he or she was originally sentenced." (Kaulick, supra, 215 Cal.App.4th at p. 1303, fn. omitted.) "[A] court's discretionary decision to decline to modify the sentence in his favor can be based on any . . . appropriate factor (i.e., dangerousness), and such factor need not be established by proof beyond a reasonable doubt to a jury." (Ibid.) The trial court, in exercising such discretion, may rely on factors establishing defendant's dangerousness, or lack thereof, based on a preponderance of the evidence. (Id. at p. 1305.) A trial court's decision to refuse to resentence a prisoner, based on a finding of dangerousness, need only be supported by some evidence. (Id. at p. 1306, fn. 29.)

In both section 1170.126 hearings, the People alleged that defendant posed an unreasonable risk of danger to public safety. The People adduced evidence of defendant's prior criminal record.

That record established that defendant was almost 46 years old and had spent every single year of his adult life in custody. The People outlined the crimes that defendant had committed, commencing when he was 18 years old. Defendant had two resisting an officer convictions. He committed his first robbery in 1994, which also included an assault with a deadly weapon conviction.8 He was sent to prison. In 1996 defendant sustained a second conviction for robbery, which also included the use of a firearm. Defendant violated his parole several times once he was released. He was arrested in 2001 in the instant case.

Defendant had been involved in an alleged assault by him and another inmate against a third inmate on May 11, 2010. According to the report, defendant hit "the victim" in the head and torso. Despite being ordered to stop and get down on the ground, defendant continued to hit the inmate. A correctional officer shot rubber bullets at defendant and his cohort, but they both continued to batter the inmate.

At this point, it was discovered that defendant was holding a weapon. "The victim" used his cane against defendant and the other inmate. After being shot with several more rubber bullets, a sponge round, pepper spray, and two blast grenades, all three inmates finally laid down on the ground. A homemade knife was found in defendant's possession. "The victim" was found to have puncture wounds. Defendant had several scratches. At the prison hearing on the matter, as to the charges of battery on an inmate with a weapon, defendant stated: "No Contest, I don't want to waste anybody's time."

The trial court determined that "defendant's long history of assaultive conduct, many of which included the use of weapons, [and] the [possession of] weapons in custody" rendered him "an unreasonable risk of dangerousness to the community." The court's determination was within its discretion.

III. DISPOSITION

The judgment is affirmed.

RAMIREZ, P. J. and CODRINGTON, J., concurs.

FootNotes


1. All further statutory references are to the Penal Code unless otherwise indicated.
2. On December 15, 2016, at defendant's request, we took judicial notice of the records in defendant's prior appeals, case Nos. E033484 and E060504. We derive much of our factual and procedural history of the case from those records.
3. On June 14, 2004, the court below struck the section 667.5, subdivision (b) enhancements.
4. There was at least some evidence that the incident involved a situation of "mutual combat."
5. On October 30, 2015, defendant orally requested a hearing be set pursuant to section 1170.126 as well. Defendant never filed an additional petition seeking section 1170.126 relief.
6. As the parties acknowledge, the issue is currently pending before the California Supreme Court. (People v. Chaney (2015) 231 Cal.App.4th 1391, review granted Feb. 18, 2015, S223676 ["Does the definition of `unreasonable risk of danger to public safety' in Proposition 47 (. . . § 1170.18) apply retroactively to the recall and resentencing proceedings under the Three Strikes Reform Act of 2012 (. . . § 1170.126)?"]; People v. Valencia (2014) 232 Cal.App.4th 514, review granted Feb. 18, 2015, S223825 [§ 1170.18 does not modify § 1170.126, subd. (f)].)
7. The analysis of the issue was apparently part of the opinion which was not certified for publication; therefore, we have no citable exposition of Losa's reasoning for its holding.
8. The People concede that there is some confusion in the record as to whether defendant had sustained two convictions for robbery with a firearm noting that it "is possible that [defendant] withdrew his plea on the first prosecution at which point the prosecution dismissed but later refiled the case and [defendant] pled guilty to armed robbery alone." Regardless, this issue was addressed in defendant's previous appeal. Defendant failed here, again, to make an adequate attempt to perfect the record and the court below was made aware of the discrepancy.

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