Filed 1/11/18 P. v. Durbin CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAN CHARLES DUBRIN,

Defendant and Appellant.


E066967

(Super.Ct.No. FCH07697)

OPINION


APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Dismissed by opinion.
Nancy Olsen, 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, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Brian Charles Dubrin appeals the denial of his petition for recall of his “three strikes” sentence pursuant to Proposition 36. (Pen. Code, § 1170.126.) In his opening brief, he argues that the Proposition 47 definition of unreasonable danger applies to Proposition 36. However, in his reply brief, he concedes that the California Supreme Court recently held that Proposition 47’s definition of dangerousness does not apply to Proposition 36 petitions. (People v. Valencia (2017) 3 Cal.5th 347.) Thus, his sole contention on appeal is that the trial court abused its discretion in finding that resentencing him would pose an unreasonable risk of danger to public safety under section 1170.126, subdivision (f). We dismiss the appeal following appellant’s notice of abandonment and request for dismissal.
PROCEDURAL BACKGROUND
In 2008, a jury found defendant guilty of possessing a weapon while in custody (§ 4502, subd. (a)), assault by means likely to produce great bodily injury (former § 245, subd. (a)(1)), and resisting an executive officer (§ 69). The trial court found true the allegations that defendant had two prior strike convictions (§§ 1170.12, 667, subds. (b)-(i)) and had served one prior prison term (§ 667.5, subd. (b).) The court sentenced him to concurrent terms of 25 years to life, plus one year on the prior prison enhancement, for a total term of 26 years to life in state prison.
On November 6, 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012 (Reform Act), which is set forth in section 1170.126. Under the Reform Act, a defendant convicted of two prior serious or violent felonies is subject to a sentence of 25 years to life only if his third felony is a serious or violent felony. A defendant who has already been sentenced may petition for recall of his sentence to be sentenced as a second-strike offender. Such petition may be denied if disqualifying exceptions apply. (People v. White (2014) 223 Cal.App.4th 512, 517.)
On November 20, 2012, defendant filed a petition for habeas corpus in propria persona, which the court deemed a petition for resentencing under section 1170.126. The court appointed defendant counsel and set an eligibility hearing.
On February 15, 2013, the district attorney alleged that defendant was not eligible for relief because he posed an unreasonable risk of danger to public safety. The court set hearing on the issue of dangerousness. The matter was continued for various reasons, and the first dangerousness hearing was held on April 21, 2016. The final hearing was held on September 26, 2016, when the court denied the petition.
ANALYSIS
The Court Did Not Abuse Its Discretion in Finding Defendant Posed an Unreasonable Risk of Danger to Public Safety
Defendant contends that the court abused its discretion in finding he posed an unreasonable risk of danger to public safety. We disagree.
A. Relevant Law and Standard of Review
Under Proposition 36, “a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety.” (People v. Yearwood (2013) 213 Cal.App.4th 161, 168, italics added; § 1170.126, subd. (f).) In exercising its discretion, 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; and [¶] (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.” (§ 1170.126, subd. (g).)
The court’s ultimate conclusion as to whether the defendant poses an unreasonable risk of danger is a discretionary one. (§ 1170.126, subd. (f).) In the context of sentencing decisions, “a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
B. Relevant Background
At the outset of the eligibility hearing, the court acknowledged that defendant was statutorily eligible for Proposition 36 resentencing. Thus, the prosecutor presented evidence regarding the issue of dangerousness. Several witnesses testified, including multiple sheriff’s deputies and a systems security threat group investigator, who was assigned to investigate the Aryan Brotherhood in Corcoran State prison. He testified that defendant was validated as an Aryan Brotherhood associate in 2012. The prosecutor submitted into evidence several exhibits, including photographs of defendant’s tattoos, reports from defendant’s past cases, West Valley Detention Center reports, defendant’s disciplinary records from county jail, and his criminal record.
Defendant’s sister testified and said defendant first went into the California Youth Authority when he was about nine years old. She did not see him until he was 14 years old, and then did not see him again until about 2008 (when defendant was about 30 years old). She testified that if defendant were to be released from custody, he could live with her and be employed with her janitorial company. Defendant also testified on his own behalf.
After hearing testimony, the court heard argument from counsel. It then cited defendant’s prior convictions, which included robbery, assaults, and criminal threats. The court also noted that defendant had a long history of assaultive conduct while he was in custody, and he possessed weapons, razor blades, and other sharpened objects in custody. The court concluded that there was an ongoing, extensive pattern of activity, particularly criminal threats, which suggested that defendant currently posed an unreasonable risk of dangerousness to the community, if he were to be released from prison. The court described defendant as a “ticking time bomb,” that would take little impetus to set off. It acknowledged that there had not been any incidents in prison since the end of 2008, with the exception of the possession of a metal object in 2012. However, as the prosecutor pointed out, most of that time defendant was in the administrative segregation unit, not in the general prison population; thus, it was more difficult to become involved in incidents with other prisoners. The court therefore denied defendant’s Proposition 36 petition.
C. The Trial Court Properly Exercised its Discretion
The court properly exercised its discretion in denying defendant’s petition seeking resentencing as a second-strike offender. In exercising its discretion, a trial court may consider “[t]he petitioner’s criminal conviction history,” “disciplinary record,” and “[a]ny 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.” (§ 1170.126, subd. (g)(1)-(3).) The record shows that the trial court considered each factor, and its findings are amply supported by the record. Defendant’s criminal history dates back to 1988, when he was placed in juvenile hall for threatening a school official. (§ 71.) His juvenile record also includes the offenses of burglary (§ 459) and robbery (§ 211) in 1993, as well as assault (§ 245), which result in a California Youth Authority commitment in 1994. {ct 200} His criminal conduct continued into adulthood. In 1997, defendant was convicted of assault with a deadly weapon (§ 245, subd. (a)(1)) and was sentenced to two years in state prison. Then, in 1999, he was convicted of assault by a prisoner. (§ 4501.) Later that year, he was also convicted of criminal threats (§ 422), which resulted in another state prison sentence. While incarcerated, defendant was convicted of battery against a peace officer. (§ 243, subd. (c)(2).) In 2000 and 2003, he had convictions for assault by a prisoner (§ 4501), and possession of a weapon while in prison (§ 4502, subd. (a)). Defendant’s most recent convictions in 2008 were for possessing a weapon while in custody (§ 4502, subd. (a)), assault by means likely to produce great bodily injury (former § 245, subd. (a)(1)), and resisting an executive officer (§ 69).
In addition, the evidence showed that defendant had numerous prison violations. In 2005 and 2007, he was issued discipline for possession of a handcuff key. In 2015, while in prison, defendant was in possession of a garrote, which was a choking mechanism he made out of plastic wrap and manufactured handcuff keys. Defendant also had a history of assaultive behavior on other inmates. In 2013, when placed in a holding cell, he attacked another inmate when he learned he was gay. The officer found the inmate on his back on the ground, with defendant straddling on top of him, striking his chest and head with his fists. When the officer ordered defendant to stop, defendant looked up and then continued striking the other inmate. He complied with commands only after the officers tased him.
Furthermore, the evidence showed that, while in state prison in 2005 and 2006, defendant had a position of authority in the Aryan Brotherhood. The systems security threat group investigator testified that the Aryan Brotherhood was a white supremacist organization whose primary activities were murder, robbery, extortion, and narcotics trafficking. The investigator testified that defendant had numerous tattoos, including Nazi symbols, white power slogans, and a swastika. The investigator acknowledged that someone from the Aryan Brotherhood stabbed defendant, in an attempt to kill him. However, he opined that the attempt on defendant’s life was because he had been disrespectful to the Aryan Brotherhood leadership. The investigator testified that defendant was still currently an Aryan Brotherhood associate.
Defendant does not dispute his criminal history or disciplinary record. Instead, he argues that he does not currently pose an unreasonable risk of danger to public safety. He points out that he has never been convicted of a violent felony or any gang-related offenses with or for the Aryan Brotherhood. He asserts that he has been incarcerated since the age of 14 or 15 and adapted to the violent prison culture. He argues that his life changed dramatically in 2008 when he was reunited with his sister, who offered him a home and job, upon his release from prison. He claims that, after being given the “hope for the first time that he might lead a productive life outside prison,” he dramatically altered his behavior. Defendant further points out that he does not have a history of alcohol or substance abuse.
We acknowledge that defendant does not have any convictions for a violent felony, as defined by section 667.5, subdivision (c). However, his convictions certainly show a propensity for violence, as they include battery against a peace officer (§ 243, subd. (c)(2)), assault by a prisoner (§ 4501), and assault by means likely to produce great bodily injury (former § 245, subd. (a)(1)). Moreover, in contrast to defendant’s claim that he dramatically altered his behavior after being reunited with his sister in 2008, the evidence shows that in 2013, he attacked another inmate by straddling on top of him and striking his chest and head with his fists. Defendant ignored orders to stop and only complied after the officers tased him.
Given defendant’s long and undisputed record of criminality and history of assaultive conduct, the trial court did not abuse its discretion by concluding that he posed an unreasonable risk of danger to public safety within the meaning of Proposition 36. The court properly denied his petition.
DISPOSITION
On January 2, 2018, after the tentative opinion was drafted in this matter, defendant filed a notice of abandonment and request for dismissal. We grant the request. Therefore, the appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.
We concur:


MILLER
J.


FIELDS
J.