Filed 9/17/18 P. v. Howell CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. KAREEM JABBAR HOWELL, Defendant and Appellant.

H044348 (Santa Clara County Super. Ct. No. CC122266)

Defendant Kareem Jabbar Howell, is currently serving a “Three Strikes” sentence. He filed a petition for resentencing under Penal Code section 1170.126.^[1] Although he was eligible to be resentenced, the trial court exercised its discretion to find that resentencing him “would pose an unreasonable risk of danger to public safety” (§ 1170.126, subd. (f)) and denied his petition. We affirm the trial court’s order.

1. STATEMENT OF THE FACTS AND CASE

In 2002, Howell sold $20 worth of rock cocaine to an undercover police officer and was convicted of sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a).) He was sentenced to 25 years to life for the drug conviction under the Three Strikes law as it then existed. Howell’s two prior strikes were a conviction for bank robbery in 2000 (§ 212.5, subd. (c)), and a juvenile adjudication for assault with a firearm on a police officer in 1990 when he was 16 years old. (§ 245, subd. (d)(1).)

On February 25, 2013, Howell filed a petition for recall of sentence pursuant to the Three Strikes Reform Act of 2012 (§ 1170.126). The court appointed the Public Defender to represent Howell, and set the matter for a hearing. In support of his petition, Howell submitted a letter stating his desire to live a productive life if given the opportunity to do so. He also represented to the court that he was reformed and rehabilitated.

The prosecution filed an opposition to the petition conceding that Howell was eligible for resentencing under the statute, but that the petition should be denied because resentencing him would pose an unreasonable risk of danger to public safety. The prosecution submitted documentary evidence to the court detailing Howell’s strike convictions, his rule violations while in custody, and his mental health.

Regarding Howell’s record while in custody, the evidence presented by the prosecution demonstrated that he committed 102 rule violations from the time of his conviction in 2002 until January 10, 2013. The violations included assaults on correctional officers, threats to kill correctional officers, and indecent exposure. The most serious offenses occurred in 2012, during which Howell committed three batteries on correctional officers, and 2013, during which he committed two assaults on a correctional officer, four threats on a correctional officer, two acts of sexual misconduct and two indecent exposures. In addition, in 2013, he was convicted of aggravated battery by gassing (§ 4501.1)[2] and battery by a prisoner on a non-confined person (§ 4501.5), and received six years in state prison. In 2014, Howell committed another aggravated battery by gassing (§ 4501.1) and battery by a prisoner on a non-confined person (§ 4501.5). That matter was pending at the time Howell filed the petition for resentencing in this case.

Howell participated in a mental health screening in 2007 and was diagnosed with Axis I Mood Disorder NOS and Axis II Personality Disorder NOS (Antisocial, Narcissistic, and Borderline traits). In 2008, he attempted to hang himself, and in 2009 he threatened the law librarian. Howell was interviewed by a psychologist who determined that it was unlikely that he would act on his threat. During the interview, Howell told the psychologist that he was taking his medication; however, the prison records contradicted this assertion. The psychologist stated that Howell “presents as highly impulsive and admitted difficulty in controlling his behavior once he gets angry, particularly when noncompliant with psychotropic medication and treatment.”

The court conducted the evidentiary hearing on Howell’s petition for resentencing on October 14, 2016. Howell testified at the hearing that in the year leading up to that date, he was moved from prison to a state mental hospital in Stockton. There, he was able to acknowledge his mental disorder and was participating in treatment. He testified that he was taking the mood-stabilizer Zyprexa every night to address his bipolar disorder. The hospital was very different from prison, and because of the treatment and the environment, he was beginning to feel good about himself. Howell stated that he has been able to maintain his positive attitude even after he was transferred back to Pelican Bay, where he is currently housed in a mental health unit. He testified that he has an active treatment plan and remains fully compliant with a daily medication program.

In addition to issues related to his mental health, Howell testified about his criminal record and time in prison. Howell stated that he was born in Chicago and moved to Oakland when he was four or five years old. As he was growing up, he saw a lot of drug selling, shootings, robberies and violent criminal activity. When he was in junior high, Howell dropped out of school and started selling drugs, stealing cars, and hanging out with criminal gangs. He was arrested for selling drugs when he was a teenager, and spent a year in the California Youth Authority.

Shortly after his release from the California Youth Authority when he was 16 years old, Howell committed an assault on a police officer with a firearm. He was committed to the California Youth Authority until he was 25 years old. When he was released, he immediately returned to selling drugs. Shortly thereafter, he robbed a bank and was sentenced to two years in state prison.

When Howell was released from state prison, he again returned to selling drugs. In 2001, he sold cocaine to an undercover police officer, and was sentenced to 25 years to life under the Three Strikes law as it then existed.

Howell testified that during the last fifteen years, he had taught himself to read and write, had completed classes through the mail and had earned his high school diploma. He had participated in therapeutic groups and learned coping skills. Howell stated that he is not dangerous, and that if he were to be released from prison, he would not hurt anyone. He also stated that if he were to be released, he would like to make positive contributions to the community, such as becoming a motivational speaker for troubled teens. While he was in prison, Howell had completed two children’s books that he would like to publish. He believed that things would be different if he were to be released now, because he had learned coping skills, was thinking about the future, and was planning to make good choices for his life. He admitted that his behavior while he has been in prison has been unacceptable.

On November 22, 2016, the trial court denied the petition in a written order finding the following: “[T]he People point to [Howell’s] extensive record of violations while serving his present sentence. Between December 21, 2002, and January 10, 2013, there were 102 such instances. They range from property damage to threats to kill correctional officers. Some examples follow. The recitation below is not a complete list.

“On January 3, 2013, [Howell] verbally assaulted a female correctional officer. On October 12, 2013, he physically resisted a correctional officer. On August 28, 2012, he threated to make a spear and kill three correctional officers at his earliest opportunity. He also threatened to kill an officer the next time he went to court. [Howell] made a written statement stating he was a danger to himself and others and was ‘not capable of controlling my moral behavior.’ On August 22, 2012, he offered to pay anyone $1000.00 to spear and kill a correctional officer.

“On April 17, 2012, he threatened to kill three correctional officers and a nurse ‘the first chance I get.’ On April 5, 2012, he threatened to ‘get’ an officer. On February 2, 2012 he threatened to kill an officer. On December 14, 2011, he admitted threatening to break an officer’s arm and assault him if the officer worked the bottom tier. On September 11, 2011, he threatened to break an officer’s back. He also said if he didn’t get that officer he would get another officer. On February 18, 2010 he threatened to kill an officer. On January 10, 2010, he threatened to kill a nurse. On November 9, 2009, he physically assaulted an officer. On October 25, 2006, he struck another inmate. He also assaulted an officer. On October 25, 2006, he struck another inmate. He also assaulted another inmate on November 16, 2004.”

The court further stated: “[Howell] blames the attitude of correctional officers for his behavior in prison. He claims the officers thought he had a problem with authority because of his conviction for shooting an officer. He said they ‘messed’ with his food and treated him like an animal. If he followed rules, other inmates would cause problems. If he showed any compassion or kindness toward anyone, he felt others saw that as a weakness. He testified that because he was treated like an animal he began to act like one. It was different when he left the prison in which he was housed (Pelican Bay or Corcoran) and went to a different prison where he was treated for mental health issues. In that prison he was in group therapy which he described as ‘good.’ He was treated like a person and learned he was not an ‘animal.’ While in prison [Howell] completed his GED and learned to read and write. He was then able to write grievances instead of act out physically.

“He does not believe he is dangerous and states he would never hurt someone. He wants to become a motivational speaker. He wrote children’s books and two novels in prison and wants to get them published. He believes he will not return to making poor choices if he is released because he now has an education, skills, and a plan. He recognizes his behavior in prison was bad but states he is ‘not that person anymore.’ While his current aspirations are commendable, his testimony does not persuade the court he will not be a danger to society.

“[Howell] is serving a life prison term. He has a strike for shooting at a police officer and another for robbery. He has spent well over half his life incarcerated. When released following his terms in custody he returned to a life of crime almost immediately. His strike conviction for shooting at a police officer was followed by an eight-year term in CYA. He committed a bank robbery shortly after his release and served two years in adult prison. He was released and quickly arrested for selling narcotics to an undercover officer. While one could argue the age of the strikes, the argument is weak considering [Howell] has not demonstrated the ability to be crime free for any extended length of time.

“While in prison, [Howell] exhibited severe anti-social behavior. He believes the officers felt he had a problem with authority. His behavior did nothing to contradict such a belief. His time in prison has been marked by numerous threats to kill correctional officers, or pay others to kill them, and numerous instances of sexual comments and actions toward female correctional officers. His many actions, some as recent as 2013, indicate he would be a risk of danger to the public if released and that the danger includes a substantial risk of committing or attempting to commit a murder, assault to commit rape or other sexual offenses, and solicitation of murder. After a thorough consideration of all the circumstances, the court finds that resentencing [Howell] would pose an unreasonable risk of danger to the public safety whether examined under the Proposition 36 definition, which this court believes is applicable, or under the Proposition 47 definition as urged by [Howell]. The petition for resentencing is denied.”

On December 5, 2016, Howell filed a timely notice of appeal.

2. DISCUSSION

1. Proposition 36

In the November 6, 2012 election, California voters approved Proposition 36, the Three Strikes Reform Act of 2012 (hereafter the Reform Act). Prior to the passage of Proposition 36, the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) required that a defendant convicted of two prior serious or violent felonies be subject to a sentence of 25 years to life upon conviction of a third felony. As amended by the Reform Act, section 1170.12, subdivision (c)(2)(C), and section 667, subdivision (e)(2)(C), now mandate that a defendant with two or more strikes who is convicted of a felony that is neither serious nor violent be sentenced as a second strike offender unless certain exceptions apply.

The Reform Act also added section 1170.126, which allows eligible inmates who are currently subject to 25 years to life sentences under the Three Strikes law to petition the court for resentencing. “Section 1170.126, subdivisions (a) and (b), broadly describe who is eligible to file a petition and to be resentenced. Subdivision (a) of section 1170.126 states: ‘The resentencing provisions under this section and related statutes are intended to apply exclusively to persons presently serving an indeterminate term of imprisonment pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, whose sentence under this act would not have been an indeterminate life sentence.’ ” (Teal v. Superior Court (2014) 60 Cal.4th 595, 598.) “Subdivision (b) of section 1170.126 states: ‘Any person serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12 upon conviction, whether by trial or plea, of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, may file a petition for a recall of sentence . . . .’ ” (Id. at p. 599.)

An eligible prisoner “shall be resentenced” as a second strike offender unless the court determines that resentencing him or her “would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) The prosecution bears the burden to prove that petitioner poses an unreasonable risk of danger to public safety, and the prosecution must prove by a preponderance of the evidence the facts upon which the trial court bases a finding that the petitioner poses such a risk. (People v. Frierson (2017) 4 Cal.5th 225, 239; People v. Buford (2016) 4 Cal.App.5th 886, 899.)

We review those facts presented for substantial evidence (Buford, supra, 4 Cal.App.5th at p. 899.) We review the trial court’s finding that resentencing a defendant would pose an unreasonable risk of danger to public safety for an abuse of discretion. (People v. Jefferson (2016) 1 Cal.App.5th 235, 242-243.) “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)

2. Finding of Current Dangerousness

Howell argues that in finding he posed a danger to public safety, the trial court based its decision on his violent history and did not give weight to the change in his behavior over time.

Howell cites People v. Esparza (2015) 242 Cal.App.4th 726 (Esparza) for the proposition that the trial court must consider a defendant’s current dangerousness when deciding whether to grant a petition for resentencing. In denying the defendant’s petition for resentencing, the trial court in Esparza focused exclusively on the defendant’s criminal history of 41 misdemeanor driving under the influence charges, three felonies, 17 times driving on a revoked or suspended license, and a conviction for vehicular manslaughter. The trial court doubted that Esparza’s very recent attendance at Alcoholics Anonymous meetings would address his alcoholism, a fact that was not supported by substantial evidence, and did not give any weight to his 17-year history of incarceration unmarred by any disciplinary infractions.

Our court reversed, holding that the trial court erred. “[W]e believe that 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.]” (Esparza, supra, 242 Cal.App.4th at p. 746.)

Unlike the trial court in Esparza, the trial court here considered multiple factors relevant to Howell’s current dangerousness. The court reviewed not only Howell’s prior crimes, but also Howell’s multiple incidents of violent misconduct while in prison. These incidents were numerous (102 violations) and extended over a 12-year period throughout his period of incarceration. Several were recent. The incidents included many threats to kill correctional officers and other staff, solicitations to kill officers, as well as indecent exposure, sexual comments to staff and actual assaults.

Howell testified that he was currently able to control his behavior more effectively because he was receiving treatment and medication at a mental health division of the prison and would not hurt anyone in the future. That Howell is now receiving treatment is positive. However, the court was not required to accept his uncorroborated prediction of future behavior, particularly given his history of falsely reporting medication compliance and his recent history of antisocial behavior.

The court reasonably expressed concern for public safety due to the nature of Howell’s recent violent conduct in prison coupled with his history of two violent strike offenses (assault with a firearm on a peace officer followed eight years later with robbery). Additionally, the court’s finding that there was a substantial risk that Howell could commit or attempt to commit murder, rape, other sexual offenses or solicit murder also rested on Howell’s failure to remain crime free for any period of time when he was released from custody. In custody or out of custody, Howell has an unbroken pattern of behavior that endangers others.

In short, the trial court made an individualized inquiry consistent with Esparza and drew its conclusion that Howell currently poses an unreasonable risk to public safety based on a full consideration of his past and current circumstances. The trial court did not abuse its discretion in denying Howell’s petition for resentencing.

3. DISPOSITION

The order denying Howell’s petition for resentencing is affirmed.