Filed 6/22/17 P. v. James CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL RUBEN JAMES,

Defendant and Appellant.
H041022
(Santa Clara County
Super. Ct. No. C9922001)
Defendant Michael Ruben James was serving an indeterminate term of 25 years to life under the Three Strikes law for a conviction of grand theft when Proposition 36 took effect in November 2012. Proposition 36, known as the Three Strikes Reform Act of 2012, added section 1170.126 to the Penal Code. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, §§ 1, 6, pp. 105, 109-110.) Section 1170.126 permits eligible persons “presently serving an indeterminate term of imprisonment” as a third strike offender for a felony offense that was not a serious felony (§ 1192.7, subd. (c)) or a violent felony (§667.5, subd. (c)) to “file a petition for a recall of sentence,” within the specified window period, for resentencing in accordance with the Three Strikes law as amended by Proposition 36. (§ 1170.126, subds. (a), (b), (c), (e).) A court receiving such petition must resentence “unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)
Defendant filed a petition for resentencing under section 1170.126, and, by order issued on May 5, 2014, the court denied it on the ground that resentencing defendant would pose “an unreasonable risk of danger to public safety” (§ 1170.126, subd. (f)). Defendant appeals from that order, asserting that the trial court’s ruling constituted an abuse of discretion and a due process violation. Specifically, he contends that (1) the court’s finding that resentencing him would pose such an unreasonable risk was arbitrary and capricious and (2) the definition of “unreasonable risk of danger to public safety” set forth in section 1170.18, subdivision (c), now governs petitions for resentencing under section 1170.16 and applies retroactively to his petition.
The issue whether the definition of ‘unreasonable risk of danger to public safety” set forth in subdivision (c) of section 1170.18 (added by Proposition 47 in 2014) applies retroactively to resentencing under section 1170.126 (added by Proposition 36 in 2012) is pending before the California Supreme Court. We conclude that the definition of “unreasonable risk of danger to public safety” set forth in section 1170.18, subdivision (c), does not apply to petitions for resentencing under section 1170.126. We also conclude that the court acted within its discretion in finding that resentencing defendant would pose an unreasonable risk of danger to public safety. Accordingly, we will affirm the order denying defendant’s petition for resentencing under section 1170.126.
I
Evidence
Without objection, the court considered all the exhibits attached to the parties’ papers in ruling on defendant’s petition. The following facts were shown by the evidence.
In 1981, when defendant was 18 years old, defendant and another person committed armed robbery at the fast-food restaurant where defendant worked. His accomplice held a knife to the female manager’s throat, and defendant, who was wearing a mask, grabbed another female employee by the hair and dragged her into an office. Defendant was convicted of robbery (§ 211) and sentenced to state prison.
Defendant obtained his GED in 1982 at the Susanville correctional facility.
Defendant was paroled in June 1982, and during 1982 and 1983 he was released and returned to custody on multiple occasions. He was released on parole in March 1983, and in July 1983 he was caught driving a vehicle that had been reported stolen. Defendant pleaded guilty to a violation of former Vehicle Code section 10851, and he was sentenced to state prison.
Defendant was paroled in April 19, 1984, but he was returned to custody for a parole violation in early May 1984. He was released again on May 11, 1984, but less than two weeks later he committed a new offense.
On May 19, 1984, defendant and a woman were discovered in a parked vehicle and determined to be under the influence of phencyclidine (PCP) and in possession of a half-smoked PCP joint. Defendant pleaded guilty to a violation of former Health and Safety Code section 11377, subdivision (a), and a violation of former Health and Safety Code section 11550, subdivision (b), and he was sentenced to state prison.
Defendant was paroled in 1985, but he was returned to custody on multiple occasions in 1986, 1987, and 1988. He committed multiple misdemeanor offenses in 1988, including battery (§ 242). He was discharged from parole and released from local custody in November 1988.
On February 3, 1989, defendant was found in possession of a small amount of crack cocaine. His blood sample tested positive for cocaine. Defendant pleaded guilty to a violation of former Health and Safety Code section 11350, subdivision (a), and a violation of former Health and Safety Code 11550, and he was sentenced to state prison.
Defendant was paroled in November 1989, but he was arrested the same day for committing battery. He was convicted of three counts of misdemeanor battery and sentenced to county jail. Defendant was released on parole on March 7, 1990.
In April 1990, defendant took a wallet and a cigarette from a fellow bus passenger who had fallen asleep. When the victim awoke, the victim recovered his property, whereupon defendant took the victim’s briefcase and exited the bus. The victim followed defendant and confronted him. Defendant demanded $20 for the briefcase, and after the victim offered $10, defendant punched him in the face. A nearby police officer arrested defendant, and defendant’s blood sample showed a blood alcohol content of .20 percent. Defendant pleaded guilty to attempted robbery (§§ 211-212.5, 664) and grand theft (former §§ 484-487.2), and he was sentenced to state prison.
Defendant’s disciplinary history in prison includes a 1991 rules violation for possession of a sharpened instrument. Defendant received a nine-month term in a SHU (Security Housing Unit) for possession of a sharp metal stabbing instrument. This rules violation appears to have been gang-related.
Defendant was paroled in July 1995. In August 1995, he was arrested for domestic violence, and his blood sample tested positive for methamphetamine, benzodiazepine, and PCP. He was arrested again in November 1995, and his blood sample tested positive for cocaine. In 1995, defendant was convicted of a misdemeanor violation of former Health and Safety Code section 11364 (possession of controlled substance paraphernalia). Defendant was returned to custody on multiple occasions in 1995, 1996, and 1997.
In 1997, defendant was validated as an associate of the “Northern Structure” (NS) prison gang by the California Department of Corrections (CDC).
Defendant was convicted of a violation of former section 273.5, subdivision (a) (corporal injury upon a spouse or cohabitant) and battery (§§ 242, 243, subd. (e)) and, in February 1998, he was sentenced to 365 days in county jail.
Defendant was released on parole in 1998, and soon thereafter committed a new offense. In February 1999, while on parole, defendant took four aluminum rails from his employer, A Tool Shed, and sold them to a recycling business. His employment was terminated, and in March 1999, defendant stopped reporting to his parole agent and was reported as a “parolee at large.” In 1999, defendant was convicted of grand theft (former §§ 484, 487, subd. (a)).
The presentence probation report on the 1999 grand theft conviction indicated that defendant’s available criminal record dated back to 1981 and that defendant had six felony convictions, including two strikes under the Three Strikes law, and 21 misdemeanor convictions, including nine that were related to substance abuse, six that were violence related, and four that were traffic related. In February 2000, defendant was sentenced under the Three Strikes law to a prison term of 25 years to life for this conviction.
According to a Board of Prison Terms report, defendant arrived at the CDC on March 20, 2000. A gang status update in October 2000 determined that sufficient documentation existed to consider defendant to be an associate of the NS prison gang. Defendant had admitted that he was “an associate of the Nuestra Family/Northern Structure Prison Gangs over a period of fourteen years of incarceration.”
In 2001, an “Administrative Segregation Unit Placement Notice” advised defendant that he was being housed “in SHU on an indeterminate SHU term” as a result of his validation as an associate of the NS prison gang.
In 2002, defendant was validated as an inactive associate of the NS prison gang. A memorandum from the CDC, Pelican Bay State Prison, to the Classification Services Unit recommended that defendant be transferred to another state prison. It noted that defendant’s original validation as an associate of the NS prison gang had been based on various documents revealing that defendant had been an NS “wing leader” at Deuel Vocational Institution, that an address book containing the names and locations of NS prison gang members had been found in defendant’s personal property, that he was in a leadership position with the NS, and that he had admitted to being an associate of the NF (Nuestra Familia) and NS prison gangs. But the latest source document was from 1995. In late 2002, defendant was transferred from Pelican Bay State Prison to Mule Creek State Prison.
In 2003, an “Administrative Segregation Unit Placement Notice” informed defendant that he would remain in administrative segregation for safety and security reasons pending investigation because, on October 1, 2003, he had engaged in gang-related mutual combat on the “Facility ‘C’ yard in front of the Gym.” Custody in the SNY (sensitive needs yard) was recommended.
A rules violation report (RVR), dated April 3, 2004, alleged that defendant committed a battery on an inmate without serious injury. According to defendant, he had been accused of cheating while playing backgammon and was called out by the other inmate. After they had taken a fighting stance, the other inmate said that they “could go to the hole.” Defendant began to walk away, but when the other inmate said, “That’s what I thought,” defendant turned back and “clocked him.” The other inmate suffered a cut on the left eyelid and bruising below the eye. Defendant was found guilty of an amended charge of mutual combat.
An RVR, dated November 15, 2005, alleged that defendant had failed to provide a urine sample. A urine sample was requested after officers performed an unclothed body search of defendant and observed puncture wounds on defendant’s forearm and bicep that were consistent with the injection of controlled substances with a syringe. Defendant refused to provide a urine sample to test for the presence of controlled substances. He pleaded guilty to the charge. He was ordered to undergo mandatory random drug testing for a year.
A RVP, dated November 30, 2005, alleged that defendant had engaged in disruptive behavior. An officer observed an inmate taking an aggressive stance toward defendant in the day room and then saw defendant lying on the floor. Both inmates stated that they had settled their differences. Defendant pleaded guilty to disruptive behavior, but he indicated that the behavior was merely horseplay that got out of hand.
An RVP, dated November 2, 2006, alleged that defendant had possessed tobacco. Defendant admitted that the approximately 40.5 grams of tobacco and the rolling papers found hidden in his personal property belonged to him. He said that he could sell a rolled tobacco cigarette for $3.00. Defendant was found guilty of the charge.
An RVP, dated December 22, 2006, alleged that defendant had committed attempted murder. On that date, defendant assaulted his cellmate, who was found lying on their cell floor in a pool of blood.
At the time of the incident, defendant refused to answer any questions. According to defendant’s later statement, the December 2006 incident began when cellmate asked him whether he had ever been with a man, to which defendant replied, “[N]o! And never would.” Defendant said that his cellmate then struck him on the back of his head, which caused him to fall from where he had been sitting to the floor. Defendant claimed that the cellmate, who was standing a few feet away from defendant, told defendant to stay down, and the cellmate held his penis in his hand and stroked it. According to defendant, defendant jumped up, and he and his cellmate began exchanging blows. Defendant claimed that, when defendant went to the cell door to call a correctional officer (C.O.) to get him out of the cell, the cellmate cut the back of defendant’s right knee with a razor blade and said that he was going to take defendant out. Defendant rushed his cellmate and they exchanged blows. As they were fighting, his cellmate said, “[Y]ou better not let me get up,” and so defendant “socked him up” until he was sure that his cellmate could do nothing to harm him. Defendant then called a C.O. and said, “[G]et this punk M. Fucker out of here.”
As a result of the incident, defendant’s cellmate suffered severe facial wounds, cuts and bruises to the back of his head, and bruises to his chest area, and he lost several teeth. The cellmate indicated that he had been stomped in the face by defendant. The cellmate was taken by “Life Flight” to U.C. Davis Medical Center. Defendant had “a slash” on the back of his right knee. A razor blade was found in the cell.
Evidence that prison-made wine or “pruno” was being manufactured in their cell was found in the cell, and defendant’s cellmate indicated that they had been drinking pruno before the incident. A urine sample was collected from defendant on December 23, 2006, but the test results were negative for controlled substances and alcohol.
A complaint filed in the Amador County Superior Court in 2007 alleged that defendant violated section 4500 (assault with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury, by a life prisoner with malice aforethought) on December 22, 2006, that defendant had personally inflicted great bodily injury in committing that offense (§ 12022.7, subd. (a)), that defendant had two prior strike convictions within the meaning of the Three Strikes law, and that defendant had served five prior prison terms within the meaning of section 667.5, subdivision (b). In 2008, pursuant to a plea agreement, defendant pleaded guilty or no contest to a violation of former section 4501 (assault with a deadly weapon or by any means of force likely to produce great bodily injury by a prisoner) and admitted one prior strike conviction. He was sentenced to an eight-year prison term to be served consecutively to the prison term of 25 years to life that he was serving.
In the prison disciplinary proceeding arising from defendant’s 2006 assault upon his cellmate, defendant was ultimately found to have committed battery causing serious injury and assessed penalties, including the loss of 360 days of behavioral credit.
An RVR, dated August 12, 2011, alleged that defendant, then housed at “SCC III,” had a positive urinalysis for methamphetamine. A urine sample had been collected from defendant after the receipt of confidential information that he was under the influence of a controlled substance. Defendant entered a plea of guilty to the charge, and he was assessed a credit forfeiture and other penalties. He was required to submit to mandatory random drug testing at least once per month for a year.
An RVR, dated March 5, 2012, alleged that defendant had a positive urinalysis for morphine. A urine sample had been collected from him on February 25, 2012. Defendant pleaded guilty to the charge, and he was assessed a credit forfeiture and other penalties. He was required to undergo one year of mandatory drug testing (at least twice per month) through March 15, 2013 and to attend “AA/NA” meetings, or a substance abuse education program if available.
The only documentation of attendance to an “AA/NA” (Alcoholics Anonymous/Narcotics Anonymous) meeting presented to the court considering defendant’s petition showed that defendant had attended a total of four meetings of an NA recovery program between January 15, 2013 and February 26, 2013.
In a letter dated December 17, 2013 to Judge Hastings, Gary Lewis, the program coordinator of Destiny Re-Entry Resource Center (Destiny), stated that he had met with defendant. Lewis explained that Destiny was a faith-based program that offered support and resources for vocational training and job readiness and that Destiny was sponsored by the Bible Way Christian Center. Lewis indicated that defendant had agreed to join Destiny upon his release, that defendant would receive employment-related assistance from Destiny, and that defendant would participate in a support group at the Bible Way Christian Center.
At the April 28, 2014 hearing on defendant’s petition for resentencing, the defense called two witnesses: Richard J. Subia and defendant. Subia, a public safety consultant, testified as an expert on the policies and procedures of the California Department of Corrections and Rehabilitation (CDCR or Department), its classification of prisoners, prison gangs, and risk assessment for custodial placement and placement upon release. Subia had interviewed defendant and reviewed his “C file,” which was maintained by the CDCR and contained information concerning, among other things, an inmate’s prison placement and his disciplinary and behavioral history.
In Subia’s opinion, defendant no longer posed an unreasonable risk to public safety. He discounted the significance of defendant’s frequent parole violations in the past because defendant previously had been a drug addict. Subia acknowledged, however, that defendant had two positive urinalysis tests in recent years, one in 2011 and the other in 2012, while housed in the SNY. Subia seemed to accept defendant’s explanation for one of his drug violations, specifically that when defendant was injured, he that taken a pill that his cellmate had given him. Subia pointed out that defendant had not had any positive drug tests since 2012 while on random drug testing.
Subia recognized that there was evidence of defendant’s past gang activity or association and that, earlier in his criminal history, defendant had been validated as an associate of the NS. Subia took that information into account, but he also observed that in approximately 2002, the Department had found that defendant was an inactive gang member based on defendant’s nonparticipation in the gang. But Subia acknowledged that defendant never had been formally debriefed from the “Norteno Structure” with which he had been affiliated.
Subia stated that defendant was Filipino Hispanic, and suggested that defendant’s validation as an associate of the NS was merely a geographical distinction. He explained that if an inmate does not want to be housed with a “southerner” because he is from northern California, the CDCR’s records will list the inmate as a northerner from that point forward.
Subia believed that defendant became a victim of retaliation because of his past gang association. Subia stated that, when an inmate is released from a SHU into the general prison population, active gang members view the inmate as someone who “can do work for them.” According to Subia, as the result of defendant’s placement in the general population, defendant had problems with active gang members. Subia testified that defendant asked for sensitive needs housing and that in approximately 2003 defendant was removed from the general population and placed in a sensitive needs facility. Subia indicated that sensitive needs facilities often provide more programs for inmates than facilities serving the general population.
Subia had spoken to defendant about the 2006 assault incident. He noted that defendant had not used any weapons, whereas defendant’s cellmate had slashed the back of defendant’s leg with a razor. Subia found that defendant’s account of self-defense was a “plausible story.” According to defendant’s statement, his cellmate had struck him in the back of the head, his cellmate had made an unwanted sexual advance toward him, his cellmate had slashed the back of his leg while defendant was trying to get the correctional staff’s attention, defendant had feared for his life, and he had defended himself.
It was Subia’s understanding that, in the prison disciplinary proceeding arising from the 2006 incident, defendant had been initially charged with a rules violation based on attempted murder, but the charge had been reduced to assault with serious injury. He acknowledged that defendant had been charged with a violation of section 4500 in a separate criminal prosecution and that defendant had pleaded to a violation of former 4501 pursuant to a plea deal. Subia also acknowledged that in the 2006 incident defendant’s cellmate sustained significant injuries, including facial wounds, broken and missing teeth, cuts and bruises to the back of his head, and bruising to the chest area, and that the cellmate was taken by flight to U.C. Davis Medical Center.
Subia acknowledged that defendant had been involved in two incidents of mutual combat, but stated that in both instances there was no serious injury, the combatants signed a “compatibility chrono,” which indicated they could “get along,” and they were returned from administrative segregation to the SDY. One incident occurred in a facility’s exercise yard. Another incident stemmed from a backgammon game.
As to rehabilitation, Subia testified that defendant had obtained a vocational certificate in “office services and techniques” while in the SNY and that he had learned computer skills, Excel, Microsoft, and Access. Subia pointed out that rehabilitative programs were unavailable to defendant while he was identified as a gang member and housed in a SHU. But Subia acknowledged that, specifically as to rehabilitation focused on drug use, defendant had participated in only AA/NA. He indicated that there was documentation of defendant’s participation during his incarceration in the Sierra Conservation Center (SCC). According to Subia, the Department had eliminated most substance abuse programs due to funding cuts. In addition, he testified that AA/NA meetings are typically held “after hours” when “lifer inmates” cannot leave their cells.
Subia did not know whether defendant had been accepted into any program to assist him in transitioning into the community upon release. Subia believed that defendant understood that he had to attend AA/NA to assist with his recovery and transition to the community since he had been locked up for most of his life.
As to classification scores, Subia indicated that they were used for housing placement and he did not focus on them unless a significant change occurred. At the time of the hearing, defendant was a level three inmate and was in a level three institution. He previously was at Mule Creek State Prison, which was a level-four institution.
Defendant testified in his own behalf. He indicated that he had been using drugs his entire life, beginning when he was 12 years old. He started with marijuana and alcohol, and he later began smoking PCP and using cocaine as well. He blamed his criminal history on drug addiction, stating, “I would get drunk, use drugs, black out and catch crimes.”
Defendant testified that while he was in custody in 1982, he obtained a GED.
In 1999, defendant had obtained certificates for completing certain curricula of the Friends Outside, include the Framework for Recovery component of its substance abuse recovery program (S.A.R.P.) and 180 hours of the S.A.R.P. Defendant confirmed that he also had taken anger management classes while in county jail in 1999 and obtained a certificate.
According to defendant, he did not use drugs from the time of his incarceration in 1999 until he tested positive for methamphetamine in 2011. He asserted that he was not using drugs when he punched an inmate over a backgammon game in 2004, when he engaged in disruptive behavior in 2005, or when he sent his cellmate to the hospital in 2006. He said that he relapsed with methamphetamine in August of 2011. Defendant admitted that he had also tested positive for morphine. He said that he used morphine because he was “laid up on [his] rack and [he] couldn’t move” and that, when his “cellie handed [him] a 10 milligram morphine,” he took it. He acknowledged that he had been diagnosed with Hepatitis C.
At the hearing in April 2014, defendant claimed that he had been “doing NA” for almost four years and that he was working on the seventh of 12 steps. When asked what prompted him to begin going to NA meetings if, at that time, he had not yet relapsed and he had supposedly been clean for years, defendant indicated a change in motivation. He claimed that he was in the midst of taking NA classes when he had a positive drug test in 2011.
Defendant indicated that, upon his release, he wanted to go to Villa Nueva, which would provide a four-month sober living environment. He also wanted to participate in the Destiny re-entry program coordinated by Lewis, who had already interviewed him.
As to the backgammon incident (2004), defendant testified that the other inmate had become mad after losing three games straight and that when the other inmate took a swing at him, he had instinctively swung back. As to the rules violation for disruptive behavior (2005), defendant recalled that a man nicknamed Diesel, who was 280 pounds and over six feet tall, had been engaging in “horseplay” and “manhandling” him by pulling and dragging him and that they had been written up for disruptive behavior.
With respect to the 2006 assault against his cellmate, defendant testified that his “cellie . . . pulled his pants down and tried to do something that was not nice.” Defendant stated that they fought and then they stopped, but while defendant was trying to get out of the cell, his cellmate used a razorblade to cut him. Defendant indicated that he “made sure [his cellmate] stayed down by beating him up” after his cellmate said, “[I]f you let me up, I’ll kill you.” Defendant testified that they had been cellmates for three weeks at the time of the assault and that the cellmate had claimed to have killed somebody. His cellmate had been drinking “pruno.”
Defendant explained that, on the advice of counsel, he had pleaded guilty or no contest to a violation of former section 4501 pursuant to a plea bargain. He had been sentenced to an eight-year prison term.
Defendant said that the danger of a prison inmate appearing weak is that other inmates will take advantage of him. According to defendant, the risk of aggression was worse in the SNY than in the general population because an SNY inmate could fight whoever, whenever, and for whatever reason he wanted to because the inmate did not need “permission from the groups that you are in” and there were no gang repercussions.
Defendant testified that in 2011 or 2012, he obtained several vocational certificates for completing course curricula for the following programs: entry-level office administrative assistant, administrative assistant, and advanced office specialist. His skills included Word, Excel, Access, PowerPoint, and typing. In 2013, defendant obtained a certificate for his participation in a program regarding the impact of crime on victims.
Defendant said that he was 52 years old. He indicated that, subsequent to the current commitment offense, he had started to take responsibility by working the steps of NA. He planned to stay on the “straight and narrow” path if he was released by using NA, family support, and Lewis.
Defendant stated that his current classification score was 38 points. He anticipated that in October of 2014 he would receive a four-point reduction and be transferred to a level-two institution.
Defendant admitted that he was currently serving his sixth prison commitment and that in between those commitments, he had returned to prison multiple times for parole violations. He had never been released on parole without returning to prison on a parole violation. Only once had he succeeded in being discharged from parole before returning to prison on a new commitment offense.
At the end of the hearing, the trial court denied defendant’s petition for resentencing. The court found that defendant’s crimes reflected a willingness to use physical violence to get what he wanted. The court concluded that defendant had failed to take responsibility for his “very deliberate violent actions” when he attributed past crimes to using drugs, drinking alcohol, blacking out, and “catch[ing] crimes.” It found that defendant had not expressed remorse to the victims of his violent crimes.
The court further found that defendant’s current account of the 2004 incident was inconsistent with the reported version. In 2004, defendant did not say that the other inmate took a swing at him. Rather, defendant said that the other inmate called him out for cheating, they had faced off, the other inmate indicated that they “could do time in the hole for this,” and then defendant had begun to walk away. But when the other inmate said, “[T]hat’s what I thought,” defendant had turned back and “clocked him.”
The court impliedly disbelieved defendant’s claim of self-defense in connection with the 2006 incident, noting that the self-defense claim did not match up with the evidence. The cellmate was lying in a pool of blood and had lost multiple teeth, whereas defendant had a cut on the back of his leg and injured knuckles. The court observed that, although defendant had claimed that the cellmate was masturbating in his presence, the cellmate’s pants were “fully up in the photographs of [the cellmate] lying in a huge pool of blood with blood spatter throughout that cell.” The court questioned when the cellmate had “had a chance to pull his pants back up” in defendant’s scenario.
The court found that the level of brutality displayed by defendant in the 2006 incident went far beyond self-defense. It concluded that force used and the level of violence signified defendant’s willingness to use violence to accomplish his own ends. In the court’s opinion, the assault reflected defendant’s increasing willingness to use violence.
With regard to substance abuse, the court found that defendant’s choice to take morphine for pain instead of getting medical treatment was more than a simple mistake in judgment; it found that the use of morphine was indicative of substance abuse. The court noted that defendant had not addressed his failure to submit to drug testing in his testimony.
The court also noted that the courses offered by the Santa Clara County Friends Outside were taken while he was in local custody or awaiting trial or sentencing (on the 1999 grand theft offense). The court observed that defendant had not undertaken any programming or rehabilitation in prison after attending an orientation and numbers course in 2003 until he began participating in an office services program in 2010. Although the court understood that programming was extremely limited in certain facilities, defendant’s own expert had indicated that SNY inmates have fewer restrictions and greater access to programs than inmates in the general population.
The court observed that defendant had not documented his claim that he had attended AA/NA for the past four years. Moreover, although defendant had attended four NA meetings in early 2013, the court commented that attendance occurred only after the filing of the petition for resentencing (dated January 11, 2013). The crime victims class also had been taken in 2013. In the court’s view, defendant had not demonstrated a genuine desire for rehabilitation and reform.
The court concluded that resentencing of defendant would pose an unreasonable risk of danger to public safety.
III
Discussion
A. Legal Background
Before Proposition 36 was approved by the voters in 2012, the California Supreme Court observed: “One aspect of the [Three Strikes] law that has proven controversial is that the lengthy punishment prescribed by the law may be imposed not only when such a defendant is convicted of another serious or violent felony but also when he or she is convicted of any offense that is categorized under California law as a felony. This is so even when the current, so-called triggering, offense is nonviolent and may be widely perceived as relatively minor. [Citations.]” (In re Coley (2012) 55 Cal.4th 524, 528-529.) The proposition “reduced the punishment to be imposed with respect to some third strike offenses that are neither serious nor violent, and provided for discretionary resentencing in some cases . . . .” (People v. Johnson (2015) 61 Cal.4th 674, 679.)
More specifically, by approving Proposition 36, “[t]he electorate . . . authorized persons ‘presently serving’ an indeterminate term of life imprisonment imposed under the prior version of the law to seek resentencing under the amended penalty scheme by filing a petition for recall of sentence. (Pen. Code, § 1170.126, subd. (a).)” (People v. Conley (2016) 63 Cal.4th 646, 651 (Conley).) “Under the Act, a court must grant a recall petition [filed by an eligible petitioner] unless it determines that resentencing the petitioner ‘would pose an unreasonable risk of danger to public safety.’ (§ 1170.126, subd. (f).)” (Id. at pp. 651-652.)
Section 1170.126 provides that in exercising its discretion in deciding 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; 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.” (§ 1170.18, subd. (g).) As evidenced by the court’s statutory authority to consider any relevant evidence and the absence of any other statutory limitation, section 1170.126 originally gave courts considering a petition for recall of sentence broad discretion to decline to resentence based upon the risk to public safety.
The California Supreme Court has recently observed that the “apparent intent of the electorate that approved section 1170.126” was “to create broad access to resentencing for prisoners previously sentenced to indeterminate life terms, but subject to judicial evaluation of the impact of resentencing on public safety, based on the prisoner’s criminal history, record of incarceration, and other factors.” (Conley, supra, 63 Cal.4th at p. 659.) It stated that [t]his public safety requirement must be applied realistically, with careful consideration of the Reform Act’s purposes of mitigating excessive punishment and reducing prison overcrowding.” (Ibid.)
In 2014, after the trial court had denied defendant’s petition for resentencing under section 1170.126, the voters approved Proposition 47, known as “the Safe Neighborhoods and Schools Act.” (Voter Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, pp. 70-74.) That initiative measure “reduced certain drug-related and property crimes from felonies to misdemeanors.” (People v. Morales (2016) 63 Cal.4th 399, 403.) “The measure also provided that, under certain circumstances, a person who had received a felony sentence for one of the reduced crimes could be resentenced and receive a misdemeanor sentence.” (Ibid.)
Proposition 47 added section 1170.18 (Voter Guide, Gen. Elec., supra, text of Prop. 47, § 14, p. 73-74), a provision similar to section 1170.126 insofar as it allowed eligible persons to petition for recall of sentence and resentencing but gave a court discretion to not resentence where “the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).) In exercising such discretion, a court may consider the same evidence as does a court exercising its discretion under section 1170.126. (Compare § 1170.18, subd. (b) with § 1170.126, subd. (g).)
But unlike section 1170.126, section 1170.18 contains a specific, very narrow definition of “unreasonable risk of danger to public safety.” Section 1170.18, subdivision (c), 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.” The felonies listed in that provision are sometimes referred to as “super strikes” (People v. Hoffman (2015) 241 Cal.App.4th 1304, 1310), and the list includes, for example, any homicide offense, certain sex crimes, possession of a weapon of mass destruction, and serious or violent felonies punishable by death or life imprisonment.
B. Definition of “Unreasonable Risk of Danger to Public Safety” Inapplicable
Defendant asserts, based on the phrase, “[a]s used throughout this Code,” that section 1170.18’s definition of “unreasonable risk of danger to public safety” now governs the judicial exercise of discretion in deciding whether resentencing would pose an unreasonable risk of danger to public safety under section 1170.126, a completely separate resentencing scheme. He also claims that section 1170.18’s definition applies retroactively to this court’s review of an order denying a petition under section 1170.126.
The People maintain that the definition of “unreasonable risk of danger to public safety” set forth by section 1170.18 (Prop. 47) does not apply to resentencing under 1170.126 (Prop. 36). They point out that the Voter Information Guide for Proposition 47 makes absolutely no mention of section 1170.126 or Proposition 36. Nothing in Proposition 47’s statement of purpose and intent, the legislative analysis of Proposition 47, or the arguments in favor of or against Proposition 47 suggests that the definition set forth in section 1170.18, subdivision (c), would apply to or have any effect on a petition for resentencing under section 1170.126. The People also call our attention to the fact that, when the electorate voted on Proposition 47, resentencing under section 1170.126 “was set to sunset within days.”
In our view, the People have the better argument concerning the intent of the voters. “The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.] In order to determine this intent, we begin by examining the language of the statute. [Citations.] But ‘[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the [legislative body] did not intend.’ [Citations.] Thus, ‘[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.’ [Citation.] Finally, we do not construe statutes in isolation, but rather read every statute ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.’ [Citation.]” (People v. Pieters (1991) 52 Cal.3d 894, 898-899.)
Although section 1170.126 and section 1170.18 have somewhat parallel resentencing provisions, from which we may infer that the latter was modeled on the former, they are aimed at entirely different criminal populations. Section 1170.126 is generally aimed at repeat felony offenders who have two or more serious and/or violent felony convictions and are presently serving an indeterminate sentence as a third strike offender for a felony that is not a violent or serious felony. The only restriction on the court’s exercise of discretion in determining whether “resentencing the petitioner would pose an unreasonable risk of danger to public safety” under section 1170.126, subdivision (f), as enacted, was the inherent one, namely that judicial discretion must be exercised within the bounds of reason under the applicable law and the relevant facts. (See People v. Williams (1998) 17 Cal.4th 148, 162 (Williams).) Such very broad discretion is consistent with the target population. In contrast, section 1170.18 focuses on apparently much less dangerous inmates who are currently serving a sentence for a felony offense that under current law would be a misdemeanor.
We first observe that a number of circumstances suggest that section 1170.18’s language, ostensibly making the definition of “unreasonable risk of danger to public safety” applicable throughout the Penal Code, can be attributed to drafting error. First, the phrase “unreasonable risk of danger to public safety” is used in only two Penal Code sections: section 1170.126 and section 1170.18. Second, Proposition 47 amended many code sections, and it could easily have amended section 1170.126 as well if that had been the drafters’ true intent. Third, as indicated, nothing in the Voter Information Guide for Proposition 47 informed voters that section 1170.18’s very narrow definition of “unreasonable risk of danger to public safety” would impact implementation of Proposition 36, which voters had approved years earlier. Fourth, when Proposition 47 was approved in November 2014, the window period for filing a petition for resentencing under section 1170.126 was virtually closed. That window period expired on November 7, 2014, except as to petitioners able to establish good cause for untimely filing. Since section 1170.18 makes multiple references to “unreasonable risk of danger to public safety,” the drafters may have meant throughout this code section.
In any event, we agree with the People’s view of legislative intent. Ascribing a literal meaning to section 1170.18’s innocuous phrase “[a]s used throughout this Code” (which was buried in the lengthy and complicated text of Proposition 47) would result in absurd consequences that the voters did not actually intend. The 2012 ballot materials explained to the voters that if Proposition 36 was approved, a court “would be required to resentence eligible offenders unless it determines that resentencing the offenders would pose an unreasonable risk to public safety.” (Voter Information Guide, Gen. Elec., supra, Analysis of Prop. 36 by Legis. Analyst, p. 50.) The voters were informed, however, that “[i]n determining whether an offender poses such a risk, the court could consider any evidence it determines is relevant, such as the offender’s criminal history, behavior in prison, and participation in rehabilitation programs.” (Ibid.) The ballot materials assured the voters that “[o]ffenders whose requests for resentencing are denied by the courts would continue to serve out their life terms as they were originally sentenced.” (Ibid.) The rebuttal to the argument against Proposition 36 reassured voters that “Prop. 36 prevents dangerous criminals from being released early.” (Id., p. 53.) As enacted, section 1170.126 afforded courts broad discretion to find that resentencing would pose an unreasonable risk of danger to public safety. (See People v. Esparza (2015) 242 Cal.App.4th 726, 739.)
As stated, Proposition 47 was aimed at an entirely different prisoner population than Proposition 36. Also, as we have said, nothing in the ballot materials for Proposition 47 or the proposition’s statement of purpose and intent alerted voters that the broad judicial discretion to deny resentencing to third strike offenders under section 1170.126 on public safety grounds would be radically reduced if they approved Proposition 47. Voters were not informed that, if section 1170.18’s narrow definition of the phrase “an unreasonable risk of danger to public safety” applied to petitions filed under section 1170.126, that definition would fundamentally alter the limited lenity extended by Proposition 36 to persons already serving an indeterminate term of imprisonment under the Three Strikes law and erect an exceedingly high bar to denying resentencing on public safety grounds.
It is our determination that ascribing a literal meaning to section 1170.18’s phrase “[a]s used throughout this Code” would result in absurd consequences that the voters never intended. If that phrase were given a literal meaning, a court considering a petition under section 1170.126 could not decline to resentence on public safety grounds even if it found that resentencing posed an unreasonable risk of danger to public safety due to the likelihood that the petitioner would feloniously reoffend, unless the potential offense involved a so-called super strike felony. Consequently, we conclude that section 1170.18’s definition of “unreasonable risk of danger to public safety” does not now govern resentencing proceedings under section 1170.126.
In light of our conclusion, we do not reach defendant’s further contention that section 1170.18’s definition of “unreasonable risk of danger to public safety” retroactively applies to the denial of his petition under section 1170.126 and governs this appeal.
C. No Abuse of Discretion in Denying Petition
While defendant concedes that he has a lengthy criminal history, he maintains that it did not establish that he was still dangerous when the court ruled on his petition for resentencing. He pins much of that history on his previous addictions. Citing general research connecting substance abuse with domestic violence, which was not presented to the court below, defendant attacks the trial court’s remark that his offense of corporal injury on a spouse or a cohabitant had little to do with abuse of intoxicating substances. He maintains that the record is devoid of evidence that he was using drugs before or after 2011 and 2012 and that the court placed too much weight on an instance of relapse.
Defendant contends that his prison rules violations that involved mutual combat and disruptive behavior did not support an inference that he was engaging in increasing violence or that resentencing him would pose an unreasonable risk of danger to public safety. Defendant insists that the 2006 assault was “a fluke”, and that the court made an unreasonable finding that his violent conduct was increasing. Defendant concedes that the 2006 assault was his worst instance of violence, but he argues that the court irrationally failed to take into account that he was confined in a cell with a cellmate who was armed with a razorblade while he had no weapon, that his cellmate had claimed to have killed before and threatened to kill him, that his cellmate had ample opportunity to pull up his pants assuming they were down, and that his cellmate could have slashed his throat if he had not defended himself. He argues that the trial court’s “lack of a realistic understanding of the male prison environment . . . was simply arbitrary.” He asserts that the trial court unreasonably rejected the testimony of the defense expert. He concedes, however, that he “did not act in reasonable self-defense” during the 2006 assault.
Defendant asserts that the trial court “myopically saw [him] entirely through the lens of his past without regard to his more recent years of change, progress, and release plans.” He focuses on the absence of violence in his prison record since 2006, and he asserts that the two positive drug test results do not support a finding that he was still a substance abuser. He suggests that the risk of danger to public safety will be minimal because he will be on parole after he serves his sentence for assault (§ 4501). According to defendant, the court’s finding that resentencing him posed unreasonable risk of danger to public safety was not supported by substantial evidence. Rather, it was an arbitrary determination that fell outside the bounds of reason under the law and facts and violated due process.
The abuse of discretion standard is deferential. (Williams, supra, 17 Cal.4th at p. 162.) “[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].” (Ibid.) “When applying the differential abuse of discretion standard, ‘the trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.’ (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712; see Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)” (In re C.B. (2010) 190 Cal.App.4th 102, 123) In determining the sufficiency of the evidence, “it is not a proper appellate function to reassess the credibility of the witnesses.” (People v. Jones (1990) 51 Cal.3d 294, 314-315.) “[W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court lacks power to substitute its deductions for those of the trial court. [Citations.]” (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598; see People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978 (Alvarez).) “A merely debatable ruling cannot be deemed an abuse of discretion. [Citations.]” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.) “[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.)
On appeal, the burden is on the party complaining of an abuse of discretion to show that the court acted irrationally or arbitrarily. (See Alvarez, supra, 14 Cal.4th at pp. 977-978; Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) A reviewing court will defer to a court’s exercise of discretion absent a manifest abuse of that discretion. (See People v. Moran (2016) 1 Cal.5th 398, 402.)
Defendant has not demonstrated that the trial court’s finding, that resentencing defendant would pose unreasonable risk of danger to public safety, was arbitrary or irrational or unsupported by the evidence. It is undisputed that defendant has spent most of his adult life in custody, and he is the epitome of an entrenched recidivist. He repeatedly violated parole during those limited periods when he was released from prison on parole. Although further felonious conduct could adversely affect his prospects for parole, defendant committed an aggravated assault in prison in 2006.
The trial court could infer from the repeated instances of fighting and assault while in custody that resentencing posed an unreasonable risk of danger to public safety in that defendant would likely commit violence in the future. The court could disbelieve defendant’s version of the brutal 2006 assault on his cellmate as self-serving and lacking in credibility. At the time of the incident, defendant had not claimed self-defense or indicated that his cellmate had pulled down his pants or made a sexual advance. The court could further infer from the evidence of the assault that defendant was not able to curb his violent behavior, even in a controlled institutional setting. Defendant admits that this assault was his most violent crime to date, which supports the court’s view that defendant’s willingness to use violence was on the upswing.
Defendant indicates that his 2011 use of methamphetamine was a temporary relapse and discounts his 2012 use of morphine, claiming he took a morphine pill because he was in pain. He minimizes the significance of his drug-related rule violations. But the trial court could reject defendant’s testimony that he had not abused drugs for years aside from those incidences, that he had been participating in NA for almost four years, and that he was working on the seventh step of the 12-step program since those claims were not substantiated except by his own self-serving testimony, which the court impliedly found not credible. His only documentation showed that he had attended a total of four NA meetings in early 2013, and he failed to explain his lack of earlier or later documentation. The court could reasonably infer from the drug-related rule violations that he continued to struggle with substance abuse and an inability to conform himself to the law. It could also reasonably conclude that he had not meaningfully engaged in substance abuse rehabilitation. Defendant himself suggests a potential connection between substance abuse and violence, and case law recognizes a general causal relationship between illegal drug use and criminal activity, including crimes of violence. (See Harmelin v. Michigan (1991) 501 U.S. 957, 1002-1003 (opn. of Kennedy, J., concurring in part and concurring in the judgment).)
The trial court could reject the testimony of defendant or his expert that minimized or rationalized defendant’s crimes and rules violations. A trier of fact may ordinarily reject in whole or part a witness’s testimony, even if the witness is not contradicted or is an expert, so long as the rejection is not arbitrary. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890; see also Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67-68.) In this case, the court’s finding that resentencing defendant posed an unreasonable risk of danger to public safety did not fall outside the bounds of reason, and it was supported by substantial evidence. The finding was certainly not so arbitrary or irrational that it violated due process.
DISPOSITION
The order denying defendant’s petition for resentencing under section 1170.126 is affirmed.




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ELIA, ACTING P.J.

WE CONCUR:



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BAMATTRE-MANOUKIAN, J.



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MIHARA, J.












People v. James
H041022