Filed 8/9/17 P. v. Sterns CA5





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

PHILLIP HERBERT STERNS,

Defendant and Appellant.

F071361

(Super. Ct. Nos. SC075046A, SC075100A)


OPINION

APPEAL from an order of the Superior Court of Kern County. Michael G. Bush, Judge.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant Phillip Herbert Sterns is serving life sentences in two Kern County Superior Court cases, numbers SC075046A and SC075100A. He appeals an order from the superior court that denied his applications for resentencing in both cases pursuant to Proposition 36, the Three Strikes Reform Act of 2012 (Proposition 36). In case number SC075046A, the superior court determined that appellant was not eligible for resentencing because he had been armed with a deadly weapon at the time of the underlying offense. In case number SC075100A, the court ruled that appellant was eligible for resentencing but denied the petition, determining his release would pose an unreasonable risk of danger to public safety.
On appeal, appellant argues he is eligible for resentencing in both cases and the trial court erred. He further contends that the definition of “unreasonable risk of danger to public safety” must be analyzed under Proposition 47, the Safe Neighborhoods and Schools Act, and not Proposition 36. Finally, he claims a jury, and not the superior court, should have decided the facts in both cases. We affirm the superior court’s order.
BACKGROUND
On September 22, 2014, appellant filed petitions to recall his sentences of 25 years to life in Kern County Superior Court case numbers SC075046A and SC075100A. Below is a summary of the relevant facts from these underlying convictions.
I. The underlying conviction in case number SC075046A.
In 1998, appellant was serving a sentence in prison and correctional officers conducted a search of his cell. Appellant was removed from his cell and officers discovered a pair of boxer shorts under appellant’s mattress. A small piece of sharpened metal was found in the fly of the boxers. Officers subsequently searched appellant. He was wearing boxers and a pair of shoes. An approximate nine and a half inch long metal instrument was located in the fly of his boxer shorts. The bottom end was wrapped in cotton material and the other end had a blade or sharpened portion.
In 1998, a jury convicted appellant of two felony counts of being a prisoner in possession of a sharp instrument. (Pen. Code, § 4502, subd. (a).) Two strike priors (felony convictions for first degree burglary (§ 459) in 1987 and 1991) were found true.
II. The underlying conviction in case number SC075100A.
In 1997, appellant became combative with correctional officers at a hospital after he had been transported for observation following concerns of a drug overdose. He told an officer, “I’m going to kill your punk ass.” Appellant got off the hospital bed after he was ordered to remain there. When officers attempted to push him back on the bed, appellant tried to hit one of the officers in the stomach and to bite another officer on the neck. Appellant spat in the face of a third officer.
In 1998, appellant was at a courthouse. The court found appellant in contempt of court and ordered him removed from the courtroom. While being placed in a holding cell, appellant told an officer, “You’re lucky I can’t get out of these cuffs.” Appellant then took a step forward and spat on the officer.
In 1998, a jury convicted appellant of felony gassing (placing or throwing bodily fluids on a peace officer while in prison) (§ 4501.1, subds. (a) & (b)) and felony battery by a prisoner (§ 4501.5). The same two strike priors found true in case number SC075046A were also found true in this case.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion In Case Number SC075046A.
Appellant argues he is eligible for resentencing in case number SC075046A and he contends the lower court erred in finding he was armed with a deadly weapon. He asserts the prosecution neither pled nor proved the disqualifying facts, and he maintains a jury was required to determine the facts mandating his continued three strike sentence. He requests that we vacate the superior court’s order.
A. Background.
In case number SC075046A, appellant was convicted of violating section 4502, subdivision (a). This statute prohibits, in part, a prison inmate from possessing or carrying any weapon, such as a dirk, dagger, or sharp instrument. (§ 4502, subd. (a).)
B. Standard of review.
Section 1170.126, subdivisions (f) and (g), vest the superior court with discretion to determine if a petitioner satisfies the criteria for resentencing under Proposition 36. When discretionary power is statutorily vested in the superior court, we will not disturb the lower court’s ruling on appeal unless the court exercised its discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)
C. Analysis.
1. Background of Proposition 36.
On November 6, 2012, California voters approved Proposition 36, which amended the three strikes law. (People v. Yearwood (2013) 213 Cal.App.4th 161, 167 (Yearwood).) Under the original version of the three strikes law, a recidivist was subject to a life sentence of 25 years if he or she had two or more prior strikes and was convicted of any new felony. (People v. White (2014) 223 Cal.App.4th 512, 517 (White); Yearwood, supra, 213 Cal.App.4th at p. 167.) Proposition 36, however, reserved a life sentence of 25 years for cases where the current offense is a serious or violent felony, or the prosecution has pled and proved one of four disqualifying factors. (People v. Chubbuck (2014) 231 Cal.App.4th 737, 745.) In all other cases, the recidivist is sentenced as a second strike offender. (White, supra, 223 Cal.App.4th at p. 517; Yearwood, supra, at pp. 167-168.) One of the four disqualifying factors is that “[d]uring the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)
In addition to reforming three strikes sentencing for defendants convicted after the effective date of Proposition 36, the initiative also added section 1170.126 to provide for retroactive reform of existing three strikes sentences imposed before the effective date of the initiative. (White, supra, 223 Cal.App.4th at p. 517.) Section 1170.126 provides a mechanism for a prisoner currently serving a life sentence under the three strikes law based on a nonserious or nonviolent felony to petition for resentencing as if he or she only had one prior serious or violent felony conviction. (White, supra, 223 Cal.App.4th at p. 517.)
2. It is the superior court, and not a jury, that determines the facts regarding a petition for resentencing under Proposition 36.
Generally, any fact increasing the penalty for a crime must be submitted to a jury and proved beyond a reasonable doubt. (Alleyne v. United States (2013) ___U.S.___ [133 S.Ct. 2151, 2155] (Alleyne); Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).) However, the rule under Alleyne and Apprendi does not apply to a determination of eligibility for resentencing under Proposition 36. (People v. Perez (2016) 3 Cal.App.5th 812, 822, fn. 10.) Section 1170.126, subdivision (f), expressly provides that it is the superior court that shall determine whether a petitioner satisfies the criteria for resentencing. (People v. Blakely (2014) 225 Cal.App.4th 1042, 1059.) Moreover, a jury’s determination is not required because a finding that an inmate is not eligible for resentencing under Proposition 36 leaves in place the original sentence and does not increase the penalty. (People v. Perez, supra, 3 Cal.App.5th at p. 822, fn. 10.)
In determining eligibility for resentencing under Proposition 36, the superior court’s factual determination is not limited to the inmate’s statutory offenses and enhancements. (People v. Arevalo (2016) 244 Cal.App.4th 836, 848.) Instead, the superior court examines the inmate’s record of conviction to determine whether the inmate’s conduct “[d]uring the commission of the current offense” disqualifies him or her from Proposition 36 resentencing. (§ 1170.12, subd. (c)(2)(C)(iii); People v. Arevalo, supra, 244 Cal.App.4th at p. 848.)
Moreover, the prosecution is not required to plead and prove the resentencing eligibility factors in section 1170.126. (People v. Arevalo, supra, 244 Cal.App.4th at p. 847; People v. Chubbuck, supra, 231 Cal.App.4th at p. 747; People v. Brimmer (2014) 230 Cal.App.4th 782, 803.) Although a pleading and proof requirement exists for prospective sentencing under Proposition 36 (§ 1170.12, subd. (c)(2)(C)(i)-(iv)), nothing in the language of the statute regarding an inmate’s petition for resentencing requires the prosecution to plead and prove the disqualifying facts. (§ 1170.126, subd. (e)(2); People v. Chubbuck, supra, 231 Cal.App.4th at p. 747; White, supra, 223 Cal.App.4th at pp. 526-527.)
Here, we reject appellant’s various claims. The prosecution was not required to plead and prove that appellant was ineligible for Proposition 36 resentencing. (People v. Arevalo, supra, 244 Cal.App.4th at p. 847; People v. Chubbuck, supra, 231 Cal.App.4th at p. 747; People v. Brimmer, supra, 230 Cal.App.4th at p. 803.) Moreover, a jury was not required to determine the facts regarding appellant’s petition for resentencing under Proposition 36. (People v. Perez, supra, 3 Cal.App.5th at p. 822, fn. 10; People v. Blakely, supra, 225 Cal.App.4th at p. 1059.) Instead, the superior court was required to look to appellant’s record of conviction, which was not limited to appellant’s statutory offenses and enhancements. (People v. Arevalo, supra, 244 Cal.App.4th at p. 848.)
Appellant’s record of conviction in case number SC075046A establishes that he possessed a sharpened instrument that was approximately nine and a half inches long. The sharpened metal was found in the boxer shorts that appellant was wearing while in prison.
3. Appellant possessed a deadly weapon.
To be armed with a weapon, a defendant must have “the specified weapon available for use, either offensively or defensively.” (People v. Bland (1995) 10 Cal.4th 991, 997.) CALCRIM No. 875 defines a “deadly weapon” as “any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.”
Some objects, such as dirks and blackjacks, are deadly weapons as a matter of law because “the ordinary use for which they are designed establishes their character as such. [Citations.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury.” (People v. Aguilar (1997) 16 Cal.4th 1023, 1029.) The trier of fact may consider the nature of the object, the manner in which it was used, and all other relevant facts to determine if an object was a deadly weapon. (Ibid.)
Here, we reject appellant’s contention that the nine and a half inch sharpened metal concealed on his person was not a deadly weapon. Appellant either created or obtained that sharpened instrument, and he concealed it on his person while in prison. The circumstances reflect that the sharpened instrument was designed to inflict great bodily injury, and appellant possessed it either for offensive or defensive use. The facts from appellant’s record of conviction amply support the superior court’s determination that appellant possessed a deadly weapon during the commission of his offense in case number SC075046A. As such, appellant was not eligible for resentencing. (§§ 1170.126, subd. (e)(2); 1170.12, subd. (c)(2)(C)(iii).) The lower court’s ruling was not arbitrary, capricious or patently absurd resulting in a manifest miscarriage of justice. Accordingly, the superior court did not abuse its discretion and this claim fails.
II. Proposition 47 Did Not Apply To Appellant’s Petitions.
On November 4, 2014, voters enacted Proposition 47, “the Safe Neighborhoods and Schools Act” (hereafter Proposition 47). As is relevant here, Proposition 47 reduced to misdemeanors certain drug- and theft-related offenses that previously were felonies or “wobblers,” unless they were committed by certain ineligible defendants. Proposition 47 also created a new resentencing mechanism, section 1170.18, by which a person currently serving a felony sentence for an offense that is now a misdemeanor, may petition for a recall of that sentence and request resentencing in accordance with the offense statutes as added or amended by Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in subdivision (a) of section 1170.18 shall have his or her sentence recalled and be “resentenced to a misdemeanor … unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (Id., subd. (b).)
Appellant contends that, in denying resentencing in case number SC075100A, the trial court erred in determining that he posed an unreasonable risk of danger to public safety. His initial argument asserts that the trial court should have relied on Proposition 47 to determine this issue, and not Proposition 36. We can quickly dispose of this issue.
In People v. Valencia (July 3, 2017, S223825, S223676) 3 Cal.5th 347 (Valencia), our Supreme Court recently held that Proposition 47 did not amend the Three Strikes Reform Act. (Valencia, supra, 3 Cal.5th at p. 352.) As such, the phrase “unreasonable risk of danger to public safety” contained in section 1170.18, subdivision (c), only applies to resentencing proceedings authorized under Proposition 47. (Valencia, supra, 3 Cal.5th at p. 375.) Accordingly, Proposition 47 did not apply to appellant’s petition.
III. The Trial Court Did Not Abuse Its Discretion In Denying Appellant’s Petition In Case Number SC075100A.
Appellant contends that the trial court erred in denying his petition for resentencing in case number SC075100A. He argues that the prosecution failed to show he posed an unreasonable risk of danger to public safety. He further asserts the judgment must be reversed because he was denied a jury during his resentencing proceeding. He seeks a remand for resentencing.
A. Background.
1. Appellant’s testimony at the hearing.
Appellant testified at the hearing on his petition to recall his sentence. He was adopted as a baby. He recalled that his adopted father used to take him to bars when appellant was a minor. His adopted father died when appellant was about 12 years old, and his adopted mother died when he was about 15 years old. Appellant and his younger sister were placed in a foster home, and he began taking drugs and drinking alcohol. Appellant’s foster dad began raping appellant’s younger sister. As a teenager, appellant began to hang out with older kids, and he started to commit burglaries “and stuff like that.” He said he broke into cars and houses to pay for drugs.
Appellant admitted that he had been convicted of possessing weapons in prison, but claimed he used the weapons for self-defense. He acknowledged that he had received over 50 rules violations in prison since 1999. He agreed that he had a history of causing damage to his cell in order to make weapons.
Appellant said he had been diagnosed with schizophrenia while in prison and had entered a mental health program. He voluntarily took medication that kept him from hearing voices and acting delusional. He said he had stopped possessing weapons over the last five years.
2. Appellant’s criminal and incarceration history.
From 1979 to and including 1989, appellant had convictions in 15 separate criminal matters. Some of those convictions included: first degree burglary (§ 459) in 1986 and 1989; drawing or exhibiting a firearm (§ 417, subd. (a)(2)) in 1989; second degree burglary (§ 459) in 1988; battery (§ 242) in 1986; two separate instances of resisting, delaying or obstructing a peace officer (§ 148) in 1986; and trespass (§ 602, subd. (l)) in 1986.
From 1999 until the time of this hearing in 2015, appellant had received over 50 California Department of Corrections (CDC) rules violations, ranging from fighting with other inmates, attempted battery of a correctional officer, and possession of weapons. In 2013, he incurred three rules violations for separate incidents of fighting with other inmates.
3. The court’s ruling in case number SC075100A.
In case number SC075100A, the prosecutor argued that appellant had a lengthy criminal record “and he’s continued that type of behavior while in prison.” The prosecutor emphasized appellant’s numerous violations, including his three “pretty recent” ones for fighting in 2013. The prosecutor also raised concern over appellant’s need to remain on medication and whether he would continue to medicate himself outside prison. The prosecutor submitted that appellant was too dangerous to release.
The superior court found appellant eligible for resentencing under Proposition 36. However, the court denied appellant’s petition to recall his sentence, determining that appellant’s release would pose an unreasonable risk of danger to public safety. In rendering its decision, the court stated: “I’ve considered the evidence and the argument and all the paperwork. I haven’t gone through the envelopes piece by piece but I reviewed the documents. [¶] I think [appellant] had a very unfortunate childhood and it’s horrible, but I don’t know that I’ve seen over 50, [CDC rules violations] in any of the [Proposition] 36 resentencings I’ve done. I’ve done I don’t know, 100, 120—150. I don’t know. It’s an amazing amount. [¶] I think he’s a danger. I think the People have met their burden. So the petition is denied.”
B. Standard of review.
We review for an abuse of discretion the superior court’s decision to grant or deny a petition for resentencing under Proposition 36. (See § 1170.126, subds. (f) & (g); People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)
C. Analysis.
Under section 1170.126, if the superior court determines that the defendant is eligible for resentencing, the court shall resentence the defendant “unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subds. (e)(1)-(3) & (f).) A court may deny a section 1170.126 petition based on the prisoner’s criminal history, disciplinary record while incarcerated, and any other relevant evidence. (Yearwood, supra, 213 Cal.App.4th at p. 176.)
We reject appellant’s contention that a jury was required to determine whether he posed an unreasonable risk of danger to public safety. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1304-1305; see also Dillon v. United States (2010) 560 U.S. 817, 828-829 [a defendant’s Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt do not apply to downward sentence modifications due to intervening laws].) To the contrary, the superior court is required to resolve this issue (§ 1170.126, subds. (e)(1)-(3) & (f)) using a preponderance of the evidence standard. (People v. Superior Court (Kaulick), supra, 215 Cal.App.4th at p. 1305; accord People v. Osuna (2014) 225 Cal.App.4th 1020, 1040 [citing Evidence Code section 115, which imposes a burden of proof by a preponderance standard except otherwise provided by law].)
Here, since 1999, appellant had over 50 CDC rules violations, ranging from fighting with other inmates, attempted battery of a correctional officer, and possession of weapons. Appellant was involved in three separate fights in 2013. Based on a preponderance of the evidence, appellant’s ongoing misconduct in prison supported the superior court’s determination that he posed an unreasonable risk of danger to public safety. The lower court’s ruling was neither arbitrary, capricious, nor patently absurd. A manifest miscarriage of justice is not present. Accordingly, the superior court did not abuse its discretion and we will not disturb its ruling on appeal.
DISPOSITION
The order denying the petitions is affirmed.


LEVY, Acting P.J.
WE CONCUR:



POOCHIGIAN, J.



DETJEN, J.