Filed 7/7/17 P. v. Gladden 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

GIOVANNI TIREY GLADDEN,

Defendant and Appellant.


E065452

(Super.Ct.No. RIF119558)

OPINION


APPEAL from the Superior Court of Riverside County. Michele D. Levine, Judge. Affirmed with directions.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
In 2007, defendant, Giovanni Tirey Gladden, was convicted of felony drunk driving causing bodily injury (Veh. Code, § 23153, subd. (a)), driving with a blood alcohol level of 0.08 percent or more, and hit and run with injury. He was sentenced under the Three Strikes law to concurrent terms of 25 years to life, with concurrent determinate terms for felony hit and run (Veh. Code, § 20001, subd. (a)) and misdemeanor driving on a suspended license (Veh. Code, § 14601, subd. (a)). Upon passage of Proposition 36, defendant petitioned to have his Three Strikes sentence recalled, pursuant to Penal Code section 1170.126. That petition was denied upon the court’s finding that because of his alcoholism, defendant posed an unreasonable risk of danger to public safety, and defendant appealed.
On appeal, defendant argues that (1) the trial court abused its discretion by refusing to resentence defendant; (2) the abstract of judgment must be modified; and (3) the narrower definition of dangerousness found in Proposition 47 should apply to determinations of dangerousness under Proposition 36. We modify the abstract of judgment, but in all other respects we affirm.
BACKGROUND
We recite the facts from our opinion in defendant’s direct appeal, People v. Gladden (April 14, 2009, E045071) [nonpub. opn.].
“Defendant’s friend, Shannon Ross, witnessed him drink what appeared to be a glass of wine while the two were visiting at defendant’s friend’s home. Defendant then drove Ross and two other individuals away from the residence. Defendant failed to stop at an intersection with a stop sign. As he accelerated through that intersection, his vehicle collided with another car. The driver of the other vehicle suffered whiplash, abrasions, and pain to her buttocks. Her son, who was also in the car, sustained a scratch near his left eye.
“Officers arrived on the scene almost immediately thereafter. A witness pointed defendant out as he was walking away. An officer yelled at defendant to stop; at which point defendant began running away. The officers apprehended defendant.
Defendant smelled of alcohol, had red watery eyes, and slurred speech. Defendant informed one of the officers that he had been drinking. Approximately, one and one-half hours after the accident, defendant’s blood was drawn. An analysis of defendant’s blood resulted in a determination that it contained 0.21 percent alcohol.” (People v. Gladden, supra, E045071, pp. 3-4.)
“A jury convicted defendant [. . .] of driving under the influence resulting in injury (count 1—Veh. Code, § 23153, subd. (a)), driving under the influence with a blood alcohol level of 0.08 percent or more resulting in injury (count 2—Veh. Code, § 23153, subd. (b)), and hit and run with injury (count 3—Veh. Code, § 20001, subd. (a)). The jury additionally found true allegations that defendant had a blood alcohol concentration of 0.20 percent or more (Veh. Code, § 23578) and proximately caused injury to an additional victim in his commission of the count 1 and 2 offenses (Veh. Code, § 23558). Finally, the jury found true allegations that defendant had suffered two prior strike convictions (Pen. Code, §§ 667, subds. (c) & (e), 1170.12, subd. (c)(2)(A)) and two prior prison terms (Pen. Code, § 667.5, subd. (b)). After denying defendant’s Romero motion, the court sentenced defendant to an aggregate term of 25 years to life consisting of the following: 25 years to life on count 1; 180-day jail term, concurrent, on the Vehicle Code section 23558 enhancement to count 1; no additional time on the Vehicle Code section 23578 enhancement to count 1; 25 years to life, concurrent, on count 2; 180-day jail term, stayed, on the Vehicle Code section 23558 enhancement to count 2; no additional time on the Vehicle Code section 23578 enhancement to count 2; one year, concurrent, on count 3; and one year, concurrent, on each of the prior prison term findings.” (People v. Gladden, supra, E045071, p. 2.)
On direct appeal, we affirmed the trial court’s order denying defendant’s request to strike one of his prior Strike convictions (ref. People v. Superior Court (Romero) (1996) 13 Cal.4th 497), but we remanded for resentencing on count 2 because the concurrent term violated Penal Code section 654 (People v. Gladden, supra, E045071, pp. 11-12). We also remanded to allow the trial court to either impose or strike, rather than stay, the terms for two prison priors (Pen. Code, § 667.5, subd. (b)), and to either impose or strike a concurrent jail term for the additional victim enhancement to count 1 (People v. Gladden, supra, E045071 at p. 14.)
On June 12, 2009, the court resentenced defendant and ordered an amended abstract of judgment. The court struck the enhancement imposed pursuant to Vehicle Code section 23558 as to count 1, and stayed the term count 2, pursuant to Penal Code section 654, along with the enhancement for the additional victim on that count. The court also struck both prison priors. However, while the record includes minutes of this hearing and a verbatim transcript of the order, it does not include amended abstracts of judgment.
In 2012, the electorate passed Proposition 36, the Three Strikes Reform Act, which went into effect on November 7, 2012. (People v. Johnson (2015) 61 Cal.4th 674, 679, 680.) On May 28, 2013, defendant filed a petition for resentencing pursuant to Penal Code section 1170.126. On September 20, 2013, the court expressed an inclination to deny the petition on the ground defendant was a danger to the public. However, the court set the matter over for a contested hearing. At that same hearing, the court ordered amended abstracts to issue because the original sentence was modified prior to the issuance of the remittitur in the direct appeal. The court directed that the new amended abstracts should be consistent with the minutes of June 12, 2009.
However, on September 24, 2013, the amended abstract for the indeterminate sentence failed to indicate that the 25 year to life term on count 2 would be stayed pursuant to Penal Code section 654; instead, on line 6b, it reflected that the indeterminate term was imposed as to both counts 1 and 2. The amended abstract for the determinate sentence reflected a concurrent term for the hit and run conviction in count 3, with no mention of enhancements.
After numerous continuances for scheduling reasons, as well as to allow defendant to complete programs that had been unavailable to him in prison, previously hearing on the Proposition 36 petition commenced on February 6, 2015, and continued over the course of many months until January 25, 2016. At the conclusion of the hearing, after considering the witness testimony, exhibits admitted, and arguments of counsel, the trial court agreed to resentence the defendant with respect to count two, striking that sentence, but denied the petition, without prejudice, as to count 1. Nevertheless, the last amended abstract of judgment reflects that the sentence on count 2 was ordered to run concurrent to count 1.
On February 16, 2016, defendant appealed.
DISCUSSION
1. Finding of Dangerousness and Denial of Resentencing Petition Pursuant to Penal Code, section 1170.126.
Defendant argues that the prosecution failed to prove by a preponderance of evidence that defendant posed a risk of danger to public safety and that there is insufficient evidence to support the trial court’s finding of dangerous. We disagree.
The Three Strikes Reform Act of 2012 (Proposition 36, or the Act), was approved by voters on November 6, 2012, amending Penal Code sections 667 and 1170.12 and adding section 1170.126 (People v. Yearwood (2013) 213 Cal.App.4th 161, 167). The Act amended Penal Code section 667, subdivision (e)(2)(A), and section 1170.12, subdivision (c)(2)(A), to provide that if the offender has two or more prior strikes, but the new felony is not a serious or violent felony as defined in subdivision (d) of section 667 or subdivision (c)(1) of section 1170.12, the defendant must be sentenced as a second striker, with certain exceptions. (Yearwood, supra, 213 Cal.App.4th at p. 170.)
In order to be eligible for resentencing as a second strike offender under the Act, the inmate petitioner must satisfy the three criteria set out in subdivision (e) of Penal Code section 1170.126 (People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 988–989). “Those criteria are: (1) The inmate is serving an indeterminate term of life imprisonment imposed under the three strikes law for a conviction of a felony or felonies that are not defined as serious and/or violent under [Penal Code] section 667.5, subdivision (c) or section 1192.7, subdivision (c); (2) The inmate’s current sentence was not imposed for a controlled substance offense with a specified weight enhancement, an enumerated sex offense, or an offense during the commission of which, ‘the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person’ [citation]; and (3) The inmate has no prior convictions for certain offenses. [Citation.]” (People v. Superior Court (Martinez), supra, 225 Cal.App.4th at p. 989.)
However, satisfying those criteria does not mean the defendant qualifies for an automatic resentencing. (People v. Conley (2016) 63 Cal.4th 646, 661-662.) The plain language of subdivisions (f) and (g) of Penal Code section 1170.126 calls for an exercise of the sentencing court’s discretion. Allowing trial courts broad discretion to determine whether a petitioning defendant would pose an unreasonable risk of danger to public safety furthers the Act’s purpose, which was to reform the three strikes law while keeping intact that scheme’s core commitment to public safety. A defendant may seek resentencing under the Act, but it is subject to a judicial determination of whether resentencing would pose an unreasonable risk of danger to the public. (Conley, supra, 63 Cal.4th at p. 661.)
In exercising this discretion, “the court may consider: [¶] (1) The [inmate]’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 [inmate]’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.” (Pen. Code, § 1170.126, subd. (g).) A court’s discretionary decision to decline to modify the sentence in defendant’s favor can be based on any otherwise appropriate factor (i.e., dangerousness), and such factor need only be established by a preponderance of the evidence. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1303, 1305.)
Where a discretionary power is statutorily vested in the trial court, its exercise of discretion must not be disturbed on appeal except upon a showing that the court acted in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Williams (2013) 58 Cal.4th 197, 270-271, citing People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
The issue of whether Proposition 47’s definition of unreasonable risk of danger to public safety applies in Proposition 36 resentencing proceedings is currently pending before the California Supreme Court in People v. Chaney (2014), formerly at 231 Cal.App.4th 1391, review granted February 18, 2015, S223676 [whether the definition of dangerousness in Penal Code section 1170.18 applies to Prop.36 petitions, requiring a trial court to consider whether a defendant poses a risk of committing a new, serious or violent felony], and People v. Valencia (2014), formerly at 232 Cal.App.4th 514, review granted February 18, 2015, S223825. We conclude that the language of Penal Code section 1170.18 was intended to apply solely to persons eligible for resentencing pursuant to section 1170.18, based on the use of the term “the petitioner,” which can only refer to a petition filed pursuant to section 1170.18. (See Pen. Code, § 1170.18, subd. (c).) We therefore consider the statutory criteria of Penal Code section 1170.126 without reference to the definition found in Proposition 47, the Safe Neighborhoods and Schools Act. (Pen. Code, § 1170.18.)
In deciding whether to resentence a petitioning defendant, the proper focus is on whether the petitioner currently poses an unreasonable risk of danger to public safety. (See In re Shaputis (2008) 44 Cal.4th 1241, 1254 [parole hearing]; In re Lawrence (2008) 44 Cal.4th 1181, 1214 [parole hearing].) “[A] trial court may properly deny resentencing under the Act based solely on immutable facts such as a petitioner’s criminal history, [but] ‘only if those facts support the ultimate conclusion that the inmate continues to pose an unreasonable risk to public safety. [Citation.]’ [Citation.]” (People v. Esparza (2015) 242 Cal.App.4th 726, 746.)
“Public safety” is not limited to serious or violent offenses; it includes property offenses (see People v. Nasalga (1996) 12 Cal.4th 784, 796, citing In re Pedro T. (1984) 8 Cal.4th 1041, 1046), and, by extension, the risk of death or injury or property damage caused by driving while intoxicated. The inquiry into the defendant’s risk of dangerousness is an individualized one, and cannot be undertaken simply by examining the circumstances of the defendant’s criminal history in isolation, without considering the passage of time or the attendant changes in his mental attitude. (People v. Esparza, supra, 242 Cal.App.4th at p. 746.)
Here, the court considered programs in which defendant had participated, many of which were unavailable to him prior being transferred to Ironwood State Prison in 2009. Between February 2015 and January 2016, defendant completed many programs, including drug and alcohol programs, while his petition for resentencing was pending, as well as other self-help programs, and had developed a relapse prevention program. The court heard testimony from Richard Subia, a corrections expert (who testified that defendant’s risk of reoffending was low), Dr. Robert Suiter (a forensic psychologist who rendered an opinion that defendant did not pose an unreasonable risk of danger), and from coordinators of post-release programs into which defendant had been accepted if resentenced.
But the court also considered defendant’s record, consisting of a juvenile adjudication for committing an aggravated assault, and two robberies, all committed within a short period of release from each other. In between his second robbery conviction and the current offense, defendant also incurred two drunk driving convictions, in addition to an arrest for an alcohol-related offense that resulted in a parole violation, as well as a petty theft with a prior conviction for which he was sentenced to prison, and arrests for kidnapping, burglary and receiving stolen property, forgery, driving on a suspended license, and being drunk in public, between 1989 and 2005.
In addition, between 1990 and 2001, defendant’s conduct while incarcerated resulted in 33 rules violations. During defendant’s testimony, he admitted that during his earlier prison commitments, he had availed himself of “pruno,” an inmate-brewed alcoholic beverage, for which he had not been written up. During his current incarceration, he also suffered several rules violations during his present term for possessing contraband (a cell phone and a Sony PlayStation Portable charger) and disobeying orders by correctional officers.
The court was concerned about defendant’s “revolving door” alcohol-related offenses, which only stopped after he was incarcerated, characterizing him as a “liquid bullet.” Because defendant admitted using alcohol during his prior prison commitments, the court could not be sure that he had totally abstained during his current incarceration, due to the inability of the CDCR to catch every violation. The court also noted that prior to his current indeterminate sentence, defendant had returned to drinking and driving each time he was released from custody. While the court agreed that defendant was not a risk of danger of the type of violent conduct reflected in his Strike convictions because they were a thing of the past, it was deeply concerned about his drinking and driving when he was out of custody.
Absent direction from the California Supreme Court, vis-à-vis the applicability of the definition of dangerousness found in Penal Code section 1170.18, subdivision (c), which looks to the risk of danger of committing another serious or violent felony, we are compelled to review the court’s exercise of discretion in light of defendant’s risk of danger to public safety in a more global sense: the danger of driving under the influence and causing death, bodily injury, or property damage. Viewed in this light, we conclude the trial court did not abuse its discretion. While it is true that the trial court relied on defendant’s past history, it was not relying on his history of serious or violent felonies, it was referring to his nearly lifelong history of alcohol abuse and driving while intoxicated. The defendant’s willingness to give up his driving privilege was properly rejected by the court as an assurance he would not drink and drive where his license was suspended at the time of his current offense and at the time of one of his prior drunk driving offenses. The trial court properly relied on the immutable facts such as defendant’s criminal history because it did so in making the determination that defendant continues to pose an unreasonable risk to public safety, due to his history of alcohol-related crimes. (People v. Esparza, supra, 242 Cal.App.4th at p. 746.)
Defendant’s participation in alcohol treatment programs, while laudable, was of recent vintage, although that was not entirely due to lack of effort on his part. Nevertheless, because the availability of rehabilitative and treatment programs was so recent, defendant did not have a long track record of rehabilitation. The court was therefore justified in its concern that it was too early to consider resentencing defendant, which would make him eligible for release and the attendant potential for returning to alcohol. There is sufficient evidence to support the court’s finding, and there was no abuse of discretion. (See, In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.)
2. Amendment of Sentencing Minutes and Abstract of Judgment
After numerous amendments to the abstracts of judgment, the most recent abstracts do not conform to the trial court’s minutes of June 12, 2009, nor did they correctly reflect that trial court’s modification to the sentence following the denial of the petition for resentencing, or the directions provided in our original opinion on defendant’s direct appeal. In this appeal, defendant argues the abstracts should be amended, and the People agree. The trial court made clear its intention that defendant serve only one indeterminate sentence, striking the term for count 2, but the amended abstract reflects a concurrent term for that count.
The abstract of judgment constitutes the commitment and is the order sending the defendant to prison, and the process and authority for carrying the judgment and sentence into effect; no other warrant or authority is necessary to justify or require its execution. (Pen. Code, § 1213; People v. Mitchell (2001) 26 Cal.4th 181, 185, citing In re Black (1967) 66 Cal.2d 881, 890.) It goes without saying that accuracy is essential in a document that prescribes the execution of sentence and is provided to Criminal Investigation and Identification. (Pen. Code, § 1213, subd. (a).) This court has the authority to correct clerical errors at any time. (People v. Mitchell, supra, 26 Cal.4th at pp. 186-187.)
Appellant acknowledges that the trial court may not have had authority to strike a sentence, and requests that we direct the trial court to amend the abstract to stay the term, pursuant to section 654, which is what we had directed in our opinion on the direct appeal. We will direct that modification one more.
Additionally, the trial court had ordered that the enhancement that had been originally imposed pursuant to Vehicle Code section 23558, be stricken as to both counts 1 and 2, also in accordance with our original opinion. Finally, in our original opinion, we had directed the trial court to either strike or impose the terms for the prison priors. (§ 667.5, subd. (b).) Upon resentencing, the trial court directed that the priors be stricken, but the amended abstracts do not reflect that order.
We will therefore direct the court to amend the abstract of judgment as to the indeterminate sentence to reflect that the term on count 2 was stayed pursuant to Penal Code section 654, and to modify the information on line 6 of the abstract to reflect that the sentence of 25 years to life was imposed as to count 1 only. We also direct the court amend the minutes from the resentencing hearing on June 12, 2009, to reflect that the term for the enhancement pursuant to Vehicle Code section 23558 as to count 2 was stricken, not stayed. Because the fourth amended abstract of judgment as to the determinate sentence does not include any reference to prison priors or enhancements pursuant to Vehicle Code section 23558, no further amendment is required.
DISPOSITION
The trial court is directed to amend the abstract of judgment to reflect that punishment for count 2 is stayed pursuant to Penal Code section 654, to modify line 6 of the abstract to reflect that the indeterminate term was imposed as to count 1 only, and to amend the minute order from the sentencing hearing of June 12, 2009, to reflect that the enhancement imposed on count 2 pursuant to Vehicle Code section 23558 was stricken, not stayed. In all other respects, the judgment and sentence are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.


We concur:

McKINSTER
J.

MILLER
J.