Filed 1/12/18 P. v. Thompson CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(San Joaquin)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO DAVID THOMPSON,

Defendant and Appellant.


C082237

(Super. Ct. Nos. STKCRFE20000007229, SF080227A)


Defendant Mario David Thompson appeals from the trial court’s denial of his petition for resentencing under the Three Strikes Reform Act of 2012 (the Act). (See Pen. Code, § 1170.126.) He contends (1) the trial court erred in finding that resentencing him posed an unreasonable risk of danger to public safety and (2) the trial court should have applied section 1170.18’s definition of unreasonable risk of danger to public safety, and any failure of trial counsel to preserve this contention constitutes ineffective assistance. We conclude the trial court’s finding was not an abuse of discretion and it applied the appropriate definition of danger to public safety. Accordingly, we affirm.
BACKGROUND
We take the facts of defendant’s crimes from our opinion affirming his conviction.
“Stockton Police Officers Crawford and Chraska saw a blue 1981 Oldsmobile Cutlass fail to stop at the stop sign or flashing red light controlling the intersection at Airport Way. The car proceeded on at a speed of approximately 70 miles per hour. Officer Crawford activated the red and blue lights on his patrol car, but the Cutlass failed to slow down. The car finally stopped after Crawford turned on the siren.
“Using his spotlight, Officer Crawford illuminated the interior of the Cutlass and observed that its driver was the only occupant of the car. As Crawford started to get out of his patrol car, the Cutlass sped away. The officers resumed their pursuit. The driver of the Cutlass lost control as he turned at approximately 40 miles per hour, and the car slid sideways, nearly hitting a pedestrian.
“The Cutlass ultimately struck another car, went through a chain link fence, and came to rest against a tree in the front yard of a residence. When defendant crawled out through the driver’s side window (the tree prevented the driver’s door from opening), Officer Crawford grabbed him. But defendant broke loose and ran.
“Defendant eventually was captured as he crouched at the side of a nearby house. From the time the officers initially stopped the Cutlass until it crashed into the tree, the car was never out of their sight. No one emerged from the car except defendant.
“When defendant was arrested and booked, he falsely identified himself as Mario Adams and gave a false date of birth.
“Defendant testified at trial. He admitted being in the Cutlass but claimed he was a passenger in the back seat. According to defendant, the driver and front seat passenger fled after the crash. Defendant explained that he gave a false name when he was apprehended because he had a warrant for his arrest.
“Richard Black lived in the house where the Cutlass crashed. He testified that he went outside after hearing the crash, saw the empty Cutlass with its passenger door open, and observed two men running away. Black acknowledged that his recollection of the incident was vague and that there had been several car crashes in the neighborhood.” (People v. Thompson (Oct. 8, 2003, C041256) [nonpub. opn.] (Thompson).)
Defendant was convicted of evading a peace officer with wanton disregard for others (Veh. Code, § 2800.2, subd. (a)), failing to stop at the scene of an accident resulting in property damage (Veh. Code, § 20002, subd. (a)), and resisting, obstructing, or delaying a peace officer (§ 148, subd. (a)(1)). (Thompson, supra, C041256.) The trial court sustained six strike allegations (§§ 667, subds. (b)-(i), 1170.12) and sentenced defendant to serve 25 years to life in prison. As previously noted, we affirmed his conviction on appeal. (Thompson, supra, C041256.)
On September 27, 2013, defendant filed a section 1170.126 petition for resentencing. The People filed a response that included evidence of his criminal record and behavior in prison.
At the time he was sentenced on his current offenses, defendant’s adult criminal record consisted of 8 prior felony convictions, 3 prior misdemeanor convictions, and 11 probation or parole violations. His 6 prior strikes came from a set of robberies committed by defendant and 2 others, whereby the group robbed a total of 5 adults at gunpoint in two incidents, one at a Stockton motel room and another at an AM/PM market. Two children were present at the motel robbery, during which one of the robbers pistol whipped a 22-year-old woman, put a gun into her vagina, took her to the bathroom, and raped her. Defendant’s extensive juvenile record included sustained petitions for burglary (§ 459) and grand theft (§ 487) in 1984 and four counts of robbery in 1985. According to the probation report, at the time he was sentenced on his current offenses, defendant was a member of the North Side Gangster Crips gang in Stockton.
Defendant’s extensive prison disciplinary record included: possession of drugs or drug paraphernalia in 2014, being in an unauthorized area in 2014 and 2013, fighting in 2013 and 2004, participating in a prison riot in 2010, willfully delaying an officer in performing his or her duty in 2011, refusing a direct order in 2011, failing to do his assigned job in 2009, possession of pornographic material in 2009, gambling in 2009, possession of contraband in 2009, possession of alcohol in 2004, breach of an/or hazard to facility security in 2004, refusing a cellmate assignment in 2004, and participation in a work stoppage in 2002.
At the May 2016 hearing on the petition, defendant presented evidence that a California Static Risk Assessment report categorized his risk of reoffending as “moderate,” a level 2 out of 5. In 2013, he completed a class on victim awareness, and another on mindfulness and coping skills. He participated in Narcotics Anonymous (NA) meetings, attending one of three meetings in 2013, two of nine from January 1, 2014 to March 31, 2014, and seven of nine meetings from April 1, 2014 to June 30, 2014.
Defendant submitted numerous letters from members of the community in support of his release. One letter from a small business owner promised defendant a job upon his release. Defendant wrote a letter to the court apologizing for his behavior at the trial in 2002.
Hector Roach was a pastor at the Greater White Rose Church of God who had worked with at-risk youths for over 25 years. He knew defendant since he was a little boy. Pastor Roach believed defendant could be a productive member of the community and help young people from following a wrong path.
Rodney Lee was a counselor for a support group for homeless veterans and for a support group for early release inmates. He knew defendant his entire life, and his wife is defendant’s first cousin. Lee would take an active role in defendant’s life when he was released. He believed defendant would be able to be a productive member of society.
Michael Cayton, a childhood friend of defendant, opined defendant would succeed if released. Cayton, a vice principal and teacher, described his work since 2000 getting minority students into college. He had helped defendant’s brother turn his life around for the last five years.
Marlene Coilton-White, defendant’s aunt, was willing to be a part of defendant’s support system, and would help him financially upon release.
Defendant’s fiancée, Sodonis Fowler, knew defendant over 20 years ago and came into contact with him again while he was in prison. She currently worked and lived in Fairfield, but if defendant was released, they would marry and live wherever most convenient with the terms of his supervision.
Defendant testified that he participated in anger management classes not found in his prison record, and had received training in culinary arts, landscaping, janitorial services, and warehousing. He admitted to once being a member of the North Side Gangster Crips gang. He was no longer involved in gang activity, did not engage in any gang conduct, and had no gang-related write-ups in prison.
Regarding the 2013 fighting incident, defendant explained he owed another inmate money and they started fighting. The matter was resolved after the fight and no one was injured. His failure to attend all of his NA meetings was due to prison lockdowns or scheduling conflicts.
Defendant had a great deal of remorse for those whom he hurt during his involvement with “the street life” and gangs. He now had no desire for this life or to be involved with gangs. If released, he would rely on his ample support system, and rehabilitate his life through his Christian values. Defendant did not want to have his parents pass away while he was in prison, or to disappoint his family and friends.
In a lengthy oral ruling, the trial court detailed defendant’s criminal and juvenile history, prison disciplinary record, rehabilitative program, risk assessment, and postrelease plans. It also noted the letter defendant wrote to the court as well as letters written on defendant’s behalf by other people.
The court was concerned with defendant’s history of serious crimes and lapses of judgment at the age of 31. It noted the number of defendant’s convictions and parole or probation violations, as well as the nature of the multiple robberies he committed. Defendant’s numerous rules violations in prison, including nine in the last three years, were also noteworthy. The court believed defendant had not shown much remorse for his past crimes or recognized the harm he had done to others. The court expressed concern that although defendant’s earlier crimes involved drug and alcohol problems, he sporadically attended NA meetings.
The trial court concluded releasing defendant would pose an unreasonable risk to public safety and denied the petition.
DISCUSSION
I
Resentencing Determination
Defendant contends the trial court erred in determining that resentencing him would pose an unreasonable risk to public safety. We reject this contention.
Following the Act, a defendant convicted of a felony with two or more prior strike allegations is subject to a 25-year-to-life sentence if the current conviction is a serious or violent felony but is subject only to a two-strike sentence if the current felony is not serious or violent. (§§ 667, subd. (e)(2)(A), (C), 1170.12, subd. (c)(2)(A), (C); People v. Yearwood (2013) 213 Cal.App.4th 161, 170.) Section 1170.126 allows a person presently serving a three-strike sentence for a felony that is neither serious nor violent to petition for resentencing as a second-strike offender subject to certain disqualifying exceptions not relevant here. (§ 1170.126, subds. (a), (e).) If the prisoner is not subject to one of the disqualifying factors, then the trial court shall resentence him or her under the two-strike provision “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).)
“In exercising its discretion in subdivision (f), 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).)
Section 1170.126 vests the trial court with discretion to determine whether resentencing the defendant poses an unreasonable risk to public safety (see People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1303 (Kaulick).) We review the trial court’s decision under the familiar abuse of discretion standard. Using this standard, we consider whether the ruling “exceeds the bounds of reason or is arbitrary, whimsical or capricious. [Citations.] This standard involves abundant deference to the trial court’s rulings. [Citations.]” (People v. Jackson (2005) 128 Cal.App.4th 1009, 1018.)
Defendant compares his situation to that of the defendant in Kaulick, supra, 215 Cal.App.4th 1279 arguing his case for resentencing is more favorable than that of the defendant in that case. As defendant admits, Kaulick did not address whether resentencing the defendant would pose an unreasonable danger to public safety. The Court of Appeal in Kaulick reversed the trial court’s grant of a resentencing petition without a hearing because no notice was provided to the People and the People did not have an opportunity to establish that resentencing the defendant would pose an unreasonable risk of danger to public safety. (Kaulick, supra, 215 Cal.App.4th at p. 1286.) The matter was remanded to the trial court to provide notice and hold a hearing to determine whether resentencing the defendant posed an unreasonable risk of danger to public safety. (Ibid.) Since the Court of Appeal in Kaulick did not make a resentencing determination, the facts of the defendant’s case for resentencing are irrelevant. (See People v. Jones (1995) 11 Cal.4th 118, 123, fn. 2 [“cases are not authority for propositions not considered”].)
Defendant argues his prison disciplinary record pales in comparison to his criminal record, showing “diminishing sense of seriousness in the nature of the violations” with which he had been charged. He notes the comparatively low risk indicated by his Static Risk Assessment score and claims the trial court did not give it sufficient weight. Defendant additionally claims the court did not give enough weight to the supporting testimony of his family and friends at the resentencing hearing. From this, he concludes the prosecution failed to meet its burden of proving by a preponderance of the evidence that resentencing him would pose an unreasonable risk of danger to public safety.
Defendant has an extensive criminal and juvenile record that includes numerous violent felony convictions. His behavior in prison is consistent with his criminal past, showing numerous rules violations, including three related to violence. The trial court was within its discretion to conclude defendant’s numerous violations in the few years before the petition were particularly troubling. While the probation report noted defendant had an extensive history of drug and alcohol abuse with defendant admitting his strong cravings for both, defendant’s attendance at NA meetings was sporadic.
In light of defendant’s extensive criminal record, substantial and recent prison disciplinary record, and mixed efforts at rehabilitation, it was not an abuse of discretion for the trial court to deny his petition on the grounds of unreasonable risk of danger to public safety.
II
Definition of Unreasonable Risk of Danger to Public Safety
In his opening brief, defendant contended the definition of unreasonable risk of danger to public safety in the resentencing provision of Proposition 36 (§ 1170.18, subd. (c)) should apply to section 1170.126 resentencing proceedings.
After his opening brief was completed, the California Supreme Court determined the section 1170.18 definition did not apply to section 1170.126 proceedings. (People v. Valencia (2017) 3 Cal.5th 347, 352.) Defendant concedes the point in his reply brief. Based on the Supreme Court’s opinion, this claim is without merit. Thus, we do not address the contention trial counsel was ineffective for failing to preserve this claim.
DISPOSITION
The judgment (order) is affirmed.



/s/
HOCH, Acting P. J.



We concur:



/s/
RENNER, J.



/s/
NICHOLSON, J.