Filed 1/8/18 P. v. Huffman CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR


THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN EDWARD HUFFMAN,
Defendant and Appellant.
A147980

(Del Norte County
Super. Ct. No. 96-056-C)


I. INTRODUCTION
This appeal is from an order denying appellant’s petition to recall his sentence under Penal Code section 1170.126, a provision of the Three Strikes Reform Act of 2012 that was enacted pursuant to Proposition 36 (the Act or Proposition 36). Proposition 36 “created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126.)” (People v. Yearwood (2013) 213 Cal.App.4th 161, 168.) In the present case, appellant contends the trial court erred by finding that resentencing him under the Act would create an unreasonable risk of danger to public safety. We affirm the challenged order.
II. STATEMENT OF FACTS
A. Appellant’s Current Sentence
On January 27, 1996, at approximately 11:00 p.m., a police officer observed appellant back a car out of a driveway without turning on the vehicle headlights. Appellant drove for a while before turning on the headlights and then drove through several stop signs. When the officer conducted a traffic stop, appellant said he did not have a license and had to lean against the car for balance. He acknowledged he had been drinking but refused to submit to a chemical test. After appellant was arrested, police determined that the car appellant had been driving was stolen from the owners’ driveway, the wallet in his pocket belonged to the car owner, and he had an outstanding warrant for his arrest in Oregon.
Following a jury trial, appellant was convicted of auto theft (§ 666.6/Veh. Code, § 10851); driving under the influence of alcohol (Veh. Code, § 23151, subd. (a)); driving without a license (Veh. Code, § 12500, subd. (a)); and refusing to submit to a chemical test (Veh. Code, § 23157). In a bifurcated proceeding, the jury also found that appellant suffered three prior strike convictions (§§ 667, subds. (b)–(i); 1170.12) and two prior prison terms (§ 667.5, subd. (b)). Appellant was sentenced to a term of 27 years to life.
On March 31, 1997, the Court of Appeal modified appellant’s sentence by striking two one-year prior prison term enhancements, but otherwise affirmed the judgment. (People v. Huffman (Mar. 31, 1997, A074731).) Thus, appellant is currently serving a third strike sentence of 25 years to life under the Three Strikes Law.
B. Appellant’s Prior Strike Convictions
Appellant’s prior strikes are for convictions he suffered in Oregon. On October 25, 1991, appellant was convicted of seven counts of second degree burglary; one count of first degree attempted rape; four counts of first degree attempted sexual abuse; two counts of first degree attempted sodomy; and two counts of second degree attempted sex abuse. A presentence report summarized the following pertinent events that gave rise to these convictions:
In 1990, appellant went into a furniture store, ostensibly as a customer, and met a woman who worked there (the victim). Later that day, he called the store and asked her on a date, explaining he was “too shy” to ask earlier. The victim declined that offer, and declined a few more times when he called asking for dates. Later, appellant was in prison when he sent the victim a letter addressed to the furniture store. The letter was filled with “filth” and the victim threw it away. In July 1991, appellant appeared at the store and told the victim he had been released from prison a few weeks earlier. He asked for a cup of water and when the victim returned with it, appellant had moved further into the store. His shirt and fly were unbuttoned and he was not wearing underwear. The victim walked past him to the front of the store and he followed. He asked for more water and the victim went to get it from the bathroom. When she turned around, appellant was blocking the door. His pants were pulled down, he was fully exposed and he was stroking himself. He said he had been thinking about her for six months, and forced her back against the wall. He tried to get her to touch him, to look at him, and to have intercourse with him. She repeatedly said no, but thought he was going to rape her. She engaged him in conversation and used various ploys to evade his physical advances. Eventually she was able to contact a friend by making appellant think it was a business call and at that point appellant left the store.
During a presentence interview following his convictions, appellant blamed others for his crimes. He claimed that his attorney failed to call witnesses who would have testified that the victim had exposed herself to appellant and that she made “nasty” public speeches about how she wanted him. He also said that the police manufactured his confession and suggested that he was convicted because the district attorney did not like him and somebody might have been paid off. During his interview, appellant acknowledged that prior to his arrest he was using heroin several times a week and that he had injected methamphetamine on the day of his arrest. According to the presentence report, appellant had a long history of alcohol and drug abuse, committed many crimes while he was intoxicated, and had failed to engage in treatment programs.
C. Appellant’s Petition for Resentencing under Proposition 36
On April 7, 2014, appellant initiated the present proceeding by filing a petition to recall his sentence under Proposition 36. Appellant argued he was eligible to be sentenced as a second strike offender because his 1996 conviction was not a serious or violent felony as defined by the Act, and he had not been convicted of any disqualifying offenses. (See § 1170.126, subd. (e).)
On August 13, 2014, the trial court denied appellant’s petition on the ground that he posed a threat of danger to public safety. However, on October 19, 2015, this court vacated the August 2014 order after determining the trial court erroneously concluded that appellant had waived his right to appear at the hearing on his petition. Accordingly, the matter was remanded “for a rehearing, either with appellant present, or with his waiver duly noted and filed with the court.” (People v. Huffman (Oct. 19, 2015, A142785).)
D. The People’s Opposition
On March 16, 2016, the People filed formal opposition to appellant’s resentencing petition. Conceding appellant was eligible for resentencing, the People urged the court to exercise its discretion to deny the petition because resentencing appellant would pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).) In their opposition brief, the People argued that appellant’s extensive criminal history was largely due to substance abuse, sexual deviancy, and mental illness and that these problems have never been satisfactorily addressed or resolved.
The People attached a CD to their opposition brief, which contained pdf files of the following exhibits: (1) the reporter’s transcript (RT) from the Oregon trial that resulted in appellant’s 1991 strike convictions; (2) the clerk’s transcript (CT) from appellant’s appeal of the 1996 judgment resulting in his current sentence; (3) the supplemental CT from appellant’s appeal of the 1996 judgment; (4) the RT from appellant’s appeal of the 1996 judgment; (5) the RT of an in limine proceeding that was conducted in connection with the trial resulting in the 1996 judgment; (6) appellant’s “California State Prison C-file”; and (7) appellant’s “California State Prison Medical File.” The People attached printed excerpts from several of these exhibits to their opposition brief.
In their opposition brief, the People provided the trial court with a detailed summary of appellant’s history with the criminal justice system in California and Oregon. Significant parts of that summary were based on the CD of exhibits that was filed with the People’s opposition. For example, the People summarized testimony from appellant’s Oregon trial about the sex offenses he committed against the furniture store employee. That evidence showed, among other things, that a January 1991 letter that appellant sent to the victim while he was in prison expressed appellant’s interest in dating her and discussed sexual matters, such as “69 is best for ever [sic].” Appellant also described watching the victim when she was out with friends and correctly described her clothes. The trial evidence also showed that on the day appellant committed his offenses, he called the furniture store and asked the victim on a date, which she declined. Shortly before the store closed for the day, appellant arrived, exposed his erect penis to the victim; masturbated in front her; grabbed her hand and attempted to force her to touch him; and advanced on her at least three times, despite her verbal and physical resistance. He used foul language to describe fantasies he had about her “for the past six months.” At one point, he stopped struggling with her and complained that she did not like him. When she said that appellant scared her, he grinned and started advancing on her again.
The printed attachments to the People’s opposition brief also contained extensive information about appellant’s criminal history in California and Oregon, which we only partially summarize here. In addition to the sex offenses discussed above, appellant’s Oregon records document convictions for multiple thefts and drug offenses, assault, and menacing. Appellant continued to use illegal drugs and engage in sexual misconduct while he was on parole in Oregon. During that time, he “repeatedly failed” to participate in sex offender treatment or drug treatment programs. He also engaged in “repeated sexual oriented inappropriate conduct,” and ultimately sustained another conviction in 1994, after he exposed himself to the wife of his nephew.
While serving his current sentence in California, appellant continued to behave inappropriately toward women. In August 1997, a library coordinator from the Oregon Department of Corrections contacted the superintendent of Pelican Bay State Prison because appellant was writing “frequently,” ostensibly to request that she send material to him that he left behind. The woman, whose last name was Fox, responded that she did not have his material, but he would not stop writing. One of appellant’s letters, which is included in the record, is very difficult to decipher but referred to a woman by “her two lips,” and stated that women seemed to stare at him “with evil eyes.” The letter included a hand drawn picture of flowers surrounding the words “Fox is Lady.”
In February 2002, a female teacher at Pelican Bay State Prison expressed concern that appellant’s behavior toward her was escalating into “stalking.” The behavior included leaving her hand drawn pictures and pages from magazines; watching her; and laughing and pointing at her. In February 2002, a male teacher at the prison reported concerns about appellant, including that he appeared to be stalking a female staff member. The teacher also reported that appellant was angry that he could not be in the female teacher’s class, and it appeared as though he was creating opportunities to walk by her room and stare at her. Appellant denied his teacher’s allegations, but they were confirmed after a formal investigation.
In 2013, appellant wrote letters to prison officials complaining that, among other things, an inmate had raped his daughter; somebody “made sex crimes on me”; and the prison staff were “focus sex minded,” and stared at females. In 2015, appellant sent letters to the California Attorney General in which he complained about various prison conditions including the presence of women employees. Appellant stated “To [sic] many women with out [sic] cameras or guards present,” and “Less females in a Mans [sic] Prison.”
While serving his current sentence, appellant was often referred for mental health services. In 2002, he was diagnosed with a delusional disorder. In 2005, he complained that prison employees were stalking his family. In 2012, he complained that a “government agent” had been harassing his family since 1999. During a mental health interview in December 2012, appellant denied that he committed the Oregon sex offenses. In 2015, another mental health evaluation resulted in a diagnosis of a delusional disorder. Evaluators noted that appellant’s paranoid delusions adversely affected his interactions with staff and other inmates and that appellant had a “complete” lack of insight about his mental health problems. Further, appellant refused to take medication or participate in treatment to address these problems. In December 2015, a staff psychiatrist evaluated appellant and confirmed that he had a delusional disorder. Appellant told that doctor that he never had a drug problem.
E. The Hearing and Trial Court Ruling
On April 7, 2016, the court held a hearing on the merits of appellant’s Proposition 36 petition. Preliminarily, the court stated that it had reviewed and considered appellant’s petition and moving papers “as well as [the] responsive pleadings,” noting that the People’s opposition included a stack of papers that was “probably several inches thick.” Then both parties confirmed that appellant was eligible for resentencing under the Act, and that the dispositive issue before the court was whether to exercise its “discretion to resentence pursuant to the act or conclude that petitioner poses an unreasonable risk of danger.”
The People argued that the evidence submitted with their opposition demonstrated that appellant poses a current risk of danger to public safety because of his “paraphi[lia], . . . his current diagnosis of delusions and paranoia, . . . [and] his criminality which stems from his paraphi[lia] and delusions and psychotic symptoms.”
Appellant’s trial counsel objected that some evidence attached to the People’s opposition brief contained hearsay. Counsel stated that she was not objecting to documents pertaining to appellant’s prior criminal history because that information was “clearly part of the C file,” but that she was objecting to the “medical records” and “118 write ups” that included multiple levels of hearsay. The trial court overruled appellant’s hearsay objection on two independent grounds. First, the objection was vague because appellant did not identify the specific statements that she wanted excluded. Second, the court found that it was authorized by the Act to consider hearsay and that the evidence in this case appeared to be accurate and reliable.
At the hearing, appellant supported his petition with documentation of his participation and achievement in a few prison education programs and with his own testimony. Appellant testified that while he was in prison, he “tried [his] best” to participate in programs, but was often prevented from doing so because other prisoners committed “violations” against him; he was “not well liked no matter where [he] go[es]”; he did not like to be around other people; and he was scared of people because he had been attacked in the past. When appellant’s counsel asked whether he had medical issues that prevented him from taking classes, he responded “Yes, I got several medical issues,” and proceeded to testify that he had a neck problem that prevented him from lifting, twisting, or bending.
Appellant offered this explanation as to why he had not participated in Alcoholics Anonymous or Narcotics Anonymous: “Well, there again I’m around people that—some of them I just didn’t get along with. I was never told—I never figured it was really important. My counselor never told me you got to go. I never thought it was. They told me it[’]s your choice. You don’t have to go.” Appellant also testified that he was “cured” of drugs and alcohol, explaining that his prior drug use had left him with a heart condition and that he had to stop drinking so he could take medication for his hepatitis C.
Appellant acknowledged that he had been diagnosed with paranoia, but testified that “[t]he way I figure I don’t have any paranoia.” Appellant explained that he had been injured and had deaths in his family. He testified that he “wasn’t hallucinating,” and that his real problem was lack of education and poor handwriting. Appellant also testified that he has never taken any medication for mental health issues, just attended meetings. Appellant was under the impression that the only reason his mental health was questioned was because officials misunderstood letters he had written. He also explained that he did not complete sexual offender counseling because when he was on probation and parole in Oregon he was still drinking and doing drugs, and he was not aware if the California prison system offered sexual offender treatment. Appellant also testified that he started a 12-step program while in California, but he had trouble remembering information in the booklet.
After the matter was submitted, the court found that the People met their burden of proving by a preponderance of the evidence that appellant “still” posed an unreasonable risk of danger to public safety and denied the petition on that ground. The court stated that it had “reviewed [appellant’s] prior record as well as prior to his incarceration.” The court also highlighted several facts that appeared in those records, including the following: appellant has a “plethora of convictions”; the absence of recent substance abuse is due to appellant’s incarceration; there is no evidence that appellant received treatment for substance abuse or chose to “deal” with that problem; appellant suffers from mental health problems, but is in denial about this and has no insight into these problems; appellant’s mental health problems have not been treated because appellant refused to take medication or participate in treatment; appellant “never” completed any kind of sex offender treatment; and, “when given the opportunity he still does prey upon women, although it’s in a confined situation.”
III. DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion
As noted, there is no dispute that appellant is statutorily eligible for resentencing. Thus, the dispositive issue on appeal is whether the trial court abused its discretion by denying appellant’s petition.
If a petitioner meets statutory eligibility requirements for resentencing under Proposition 36, he or she must be resentenced to a second strike term unless the trial 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).)
Because section 1170.126 vests broad discretion in the trial court, the “ ‘exercise of that discretion “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]” ’ [Citations.]” (People v. Williams (2013) 58 Cal.4th 197, 270–271.) Applying this standard, we conclude that the trial court properly exercised its discretion in this case. The court considered the relevant evidence under section 1170.126, subdivision (g), including appellant’s extensive criminal history in Oregon and California, and his prison records. Evidence presented to the court supports the conclusion that appellant is currently dangerous due to his failure to participate in treatment or to take any steps to resolve the problems that resulted in his extensive criminal history, including his obsessive, sexually aggressive and inappropriate behavior toward women; his addictions to illegal drugs and alcohol; and his mental health issues.
Appellant contends that the trial court did abuse its discretion because there is insufficient evidence that he is currently dangerous. There are two parts to this argument. First, appellant disregards evidence in the appellate record that he claims was not before the trial court. Then, he contends that the court made findings about him that are based on an unreasonable interpretation of the relevant evidence. For the sake of clarity, we separately address these two sets of claims, although appellant weaves them together in his briefs.
B. Appellant’s Assumptions About the Scope of the Evidence
First, appellant intimates that all of the People’s evidence should be disregarded because (1) the trial judge did not state that he was admitting the CD of exhibits, and (2) the court “received” the stack of documents attached to the People’s opposition but did not admit that evidence either. Appellant does not cite any authority imposing a duty on the trial court to make sua sponte rulings regarding the admissibility of evidence filed in response to a Proposition 36 petition. Furthermore, the conclusions appellant draws from statements the trial judge made are not reasonable. As our factual summary reflects, all of the People’s evidence was filed prior to the hearing; appellant’s single hearsay objection to a specific type of evidence was overruled; and the court stated—without qualification—that it reviewed and considered the evidence presented by the parties. These circumstances undermine appellant’s theory that the trial court did not admit all of the People’s evidence.
Appellant’s second assumption is that this court’s review is limited to specific items of evidence that the trial court referenced when it announced its ruling. Thus, for example, appellant takes the position that the facts of his 1991 sex crimes should not be considered because “[t]he judge did not say anything about this now 25-year-old occurrence in giving his reasons for finding that appellant is presently dangerous.” Again appellant provides no legal support for his premise that the trial court was required to list every piece of evidence supportive of its decision. Such a requirement would be unreasonable and counterproductive when a prisoner has a lengthy history of criminal convictions and time spent in prison. Furthermore, appellant’s specific contention that the trial court did not consider or rely on his Oregon convictions (and prison records) is demonstrably false. That evidence was filed with the court; described in detail in the People’s opposition; and discussed at the hearing.
Finally, in his reply brief, appellant contends that his Oregon prison records (and other unspecified evidence) constituted inadmissible hearsay. Appellant forfeited this claim of error for at least three reasons. First, his trial counsel did not make a hearsay objection to the Oregon prison records. (See People v. Trujillo (2015) 60 Cal.4th 850, 856 [ “. . . a defendant generally must preserve claims of trial error by contemporaneous objection as a prerequisite to raising them on appeal”].) Rather, his trial counsel conceded that prison records could be considered and limited her hearsay objection to medical records and writeups. Second, appellant did not present this claim in his opening brief. (See People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [claims omitted from opening brief are waived].) Third, appellant fails to cite any legal authority precluding the consideration of hearsay evidence by a court exercising its discretion under Proposition 36. Generally, trial courts may consider hearsay in sentencing proceedings so long as the hearsay is reliable. (People v. Arbuckle (1978) 22 Cal.3d 749, 754, fn. 2; People v. Sledge (2017) 7 Cal.App.5th 1089, 1095; People v. Lamb (1999) 76 Cal.App.4th 664, 683.) Furthermore, as discussed above, section 1170.126, subdivision (g) affords courts discretion to determine what evidence is relevant to the inquiry whether a petitioner is currently dangerous. Indeed, as our Supreme Court recently confirmed, the Legislature conferred broad authority on the trial court to “ ‘consider any evidence it determines is relevant, such as the offender’s criminal history, behavior in prison, and participation in rehabilitation programs.’ [Citation.]” (People v. Valencia (2017) 3 Cal.5th 347, 354.)
For all of these reasons, we conclude that the trial court’s discretionary ruling is supported by all of the People’s evidence, regardless of whether appellant acknowledges that evidence in his appellate briefs.
C. Appellant’s Objections to the Trial Court’s Reasoning
Appellant parses the trial court’s determination that he poses an unreasonable risk to public safety into “nine factors,” and then argues that these factors “do not reasonably show that he poses a current danger—or any danger at all.” (Italics omitted.) We find no authority for appellant’s piecemeal critique. Nor are we persuaded by it. Arguments challenging isolated, out of context words or phrases that the trial judge used do not alter our conclusion regarding the substance of the court’s ruling. Furthermore, to the extent appellant addresses the substantive record, his opinions about the weight of the evidence or how it should be interpreted do not demonstrate that the trial court abused its discretion by reaching different conclusions with respect to these matters.
Appellant contends that his criminal record does not justify denying his petition because there is no “[r]ational [n]exus to [c]urrent [d]angerousness.” According to this argument, the fact that appellant has “a lot” of convictions is irrelevant because the 1991 sex crimes are the only offenses that could possibly be characterized as dangerous, and “[t]he immutable facts of this 1991 incident do not provide a rational nexus to the likelihood that appellant would be a danger to the public in 2016.”
Appellant bases this rational nexus argument on People v. Esparza (2015) 242 Cal.App.4th 726, 746, which establishes the following rule: “[A] trial court may properly deny resentencing under the Act based solely on immutable facts such as a petitioner’s criminal history ‘only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. [Citation.]’ [Citation.] ‘ “ [T]he relevant inquiry is whether [a petitioner’s prior criminal and/or disciplinary history], when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years [later]. This inquiry is . . . an individualized one, and cannot be undertaken simply by examining the circumstances of [the petitioner’s criminal history] in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude. [Citation.]” [Citation.]’ [Citation.]” (Italics omitted.)
In the present case, the record establishes that appellant’s criminal recidivism is attributable to three primary factors: (1) sexual misconduct towards women; (2) illegal drug and alcohol abuse; and (3) untreated mental illness. There is ample evidence that appellant failed to participate in treatment or otherwise address any of these three problems, each of which could make a person dangerous. In addition to his prior convictions, appellant’s ongoing stalking and inappropriate behavior towards women employed in the prisons where he has been housed certainly support the lower court’s concern that he poses an unreasonable risk to women if released. Thus, when considered in light of other facts in this record, appellant’s past crimes do continue to be predictive of his current dangerousness many years later.
D. The Trial Court Did Not Apply the Wrong Legal Standard
Appellant makes the separate argument that the trial court erred by failing to apply the definition of “unreasonable risk of danger to public safety” set forth in section 1170.18, subdivision (c) (section 1170.18(c)), which 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.”
Section 1170.18(c) was added to the Penal Code as part of Proposition 47, which “makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).” (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108; see also People v. Diaz (2015) 238 Cal.App.4th 1323, 1328; People v. Contreras (2015) 237 Cal.App.4th 868, 891.)
After appellant filed his opening brief in this case, our Supreme Court held that “. . . Proposition 47 did not amend the Three Strikes Reform Act.” (People v. Valencia, supra, 3 Cal.5th at p. 352.) The court also concluded that section 1170.18(c)’s definition of an unreasonable risk of danger to public safety applies “only to the resentencing proceedings that are authorized under Proposition 47.” (Id. at pp. 373–375.) Thus, the trial court did not err by failing to apply section 1170.18(c) when it adjudicated appellant’s petition for resentencing under Proposition 36.
IV. DISPOSITION
The order denying appellant’s petition for resentencing is affirmed.









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RUVOLO, P. J.


We concur:


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STREETER, J.


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REARDON, J.