Filed 4/29/22 P. v. McKinney CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of the County of Los Angeles, William C. Ryan, Judge. Affirmed.

Nancy L. Tetreault, by appointment of the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant filed a petition for resentencing under the Three Strikes Reform Act,[1] which, after an evidentiary hearing, the trial court denied. On appeal, defendant contends that the court abused its discretion “by failing to undertake a particularized assessment of [defendant’s] overall circumstances in concluding [that] he currently pose[d] an unreasonable risk of danger to public safety.” (Formatting omitted.) We affirm.

II. FACTUAL BACKGROUND

A. Third Strike Offense[2]

“In the early morning hours of February 24, 1998, [an eyewitness] observed a man using either a crowbar or a tire iron to pry up a roll down metal security screen that covered the entrance to a liquor store near 79th Street and Van Ness Avenue in Los Angeles. [The eyewitness] called the police.

“[A] Los Angeles Police Officer . . . responded to the call, observed [defendant] in front of the liquor store, pursued him as he fled into a nearby alley and apprehended him as he attempted to jump over a wall in the alley. . . .

“The next day, the owner of the liquor store noticed that the metal roll down door was damaged and the glass door and windows behind the metal door were broken. This damage was not present when he closed the door the night before.”

Following trial, the jury found defendant guilty of attempted second degree commercial robbery in violation of Penal Code sections 459 and 664.[3] The jury also found true the allegation that defendant had suffered three prior serious or violent felony convictions within the meaning of sections 667, subdivisions (b) through (i) and section 1170.12. The trial court sentenced defendant to a prison term of 25 years to life (the current conviction).

B. Adult Criminal History[4]

In November 1976, defendant pleaded guilty to misdemeanor grand theft in violation of former section 487.1 and driving a vehicle without the owner’s consent in violation of Vehicle Code section 10851.

In May 1977, defendant was convicted of robbery in violation of section 211 and assault with force likely to cause great bodily injury. The convictions were based on an incident during which two women were robbed of their purses in a supermarket parking lot and one of them was assaulted. Defendant was observed by both victims participating in the crime.

In February 1979, defendant was convicted of bank robbery in violation of section 2113 of title 18 of the United States Code.

In April 1985, defendant was convicted of robbery in violation of section 211. The conviction was based on an incident during which defendant opened the victim’s car door, held a knife to his throat, and stole his watch.

In January 1992, defendant was convicted of second degree burglary in violation of section 459.

In May 1993, defendant was arrested following an incident in the parking lot of a department store in Westchester. A jury found defendant guilty of robbery and the trial court sentenced him to 16 years in prison. But, in December 1996, the Court of Appeal reversed the conviction.

In October 2000, while in prison for the current offense, defendant, after refusing to change cells and then refusing to be handcuffed, threw a metal chair at a custodial officer. Defendant then picked up the chair and swung it at the officer, striking him in the left hand and right forearm. In December 2002, defendant pleaded guilty to battery against a custodial officer in violation section 243.1 and was sentenced to a term of three years to run concurrent to the current conviction.

B. Prison Disciplinary History

While serving his prison term for the current conviction, defendant committed multiple violations of prison disciplinary rules that were reported and adjudicated through an administrative process.[5] His prison records show that he committed the following serious and administrative rules violations:

1. Disobeying Direct Order

In July 1999, defendant was ordered to move to a cell in a different facility of the prison. He refused, claiming he should not “‘be at this institution’” and stating that he would be a threat to other inmates because of the stress from being in prison and his need for immediate psychological attention. Defendant was found guilty of disobeying a direct order, a Division F serious violation.

2. Threatening Staff

In May 2000, after being advised by an officer that he was being moved to a double cell, defendant stated, “‘You are not going to [d]ouble [c]ell me up with anyone. I’m a lifer, I have too much to do. f you put someone in my cell I’ll fight him, I’ll kick the shit out of him. . . . I’ll kick the shit out of anyone who tries to double cell me’ . . . .” Defendant was found guilty of threatening staff, a Division F serious violation.

In May 2014, an officer informed defendant, who was then in a single cell that he would be moving cells. Defendant stated that he was not moving cells and, when the officer gave him a direct order to move to a new cell, defendant refused. Defendant was found guilty of delaying a peace officer/refusing assigned housing, a Division D [i]serious violation.

12. Contraband: Unauthorized Window Coverings

In January 2015, defendant had unauthorized window coverings, privacy curtains, and clothes lines in his cell. Defendant had been previously counseled that the items were contraband and unacceptable. He was found guilty of an administrative violation.

13. Failure to Meet Work Expectations

In March 2017, an instructor reported that defendant had failed to report to his assigned GED class. Defendant subsequently came to class and explained that he did not have time to attend because he had pending court filings and was exempt. When the instructor told him he needed to take a seat and attend class, defendant called him a white racist and left. Defendant was issued an administrative violation for failure to meet work expectations and subsequently was found guilty.

14. Refusal to Perform Assigned Work

In July 2017, an instructor reported that defendant was absent from his assigned GED class. Defendant subsequently came to class, but informed the instructor that he was refusing to attend. The instructor asked defendant to sign in on the class roster, but defendant again refused. When the instructor then gave defendant a direct order to sign in and take a seat, he refused and walked out. Defendant was found guilty of failure to perform assigned work, a Division F serious violation.

15. Refusal to Perform Work Assignment

In January 2018, an instructor reported that defendant came to his class for the first time since he was assigned two weeks earlier and following a disagreement with the instructor, walked out of the class. When a supervisor informed defendant that he either needed to report to class or submit to the disciplinary process, defendant said he was not going back to class. Defendant was found guilty of refusal to perform work assignment, a Division F serious violation.

C. Rehabilitation

Defendant concedes that, other than a recent COVID-19 education program, he did not, during his long term of incarceration, participate in offered education courses or other available self-help programs, claiming that he was too busy researching, writing, and filing legal motions and writs. He also claimed that he spent time assisting other inmates with their legal cases.

D. Classification Score

Beginning in 1999, when he entered prison on the current offense, defendant received annual security classification scores that rated the level of security risk he posed in prison based on recent behavior. “‘Prisoner classification scores play a significant role in determining where, within the state’s many prison facilities, a prisoner will be sent to serve his/her term of incarceration. (See Cal. Code Regs., tit. 15, § 3375.1.) As a general rule, a prisoner’s classification score is directly proportional to the level of security needed to house the inmate. . . . (See Cal. Code Regs., tit. 15, §§ 3375.1 & 3377.)’ [Citation.]” (In re Jenkins (2010) 50 Cal.4th 1167, 1173–1174, fns. omitted.) Thus, the higher the classification score, the higher the level of security to house the inmate. (Ibid.)

When defendant entered prison, he was assigned a classification score of 39. His score increased consistently in the following years, peaking at a high of 99 in 2006, followed by a score of 97 in 2009. In 2013, the year defendant petitioned for resentencing, his score had been lowered to 71. According to defendant’s expert, at the time of the hearing on his petition, defendant’s score had been lowered to 33.

E. Postrelease Plans

Defendant’s expert advised that defendant had been in contact with Playa Vista Job Opportunities and Business Services (PVJOBS) and that organization had committed to assisting him in securing a job in the construction industry. Defendant also informed the expert that he wanted to relocate to San Diego to avoid the environment that had contributed to his criminal conduct. Until he secured a job, defendant planned to reside with his sister and obtain money through social security benefits. Defendant’s sister submitted a letter which confirmed his plans upon release and her commitment to support his transition back into society.

F. Expert Testimony

Defendant’s attorney retained Robert Ayers, who had extensive work experience in the California prison system and had provided expert witness services since 2008, to provide expert opinion “regarding [defendant’s] potential risk to public safety should he be released from prison. To prepare his report, Ayers reviewed defendant’s prison file, police reports, probation reports, and criminal history reports. He also interviewed defendant[6] and his sister by telephone.

1. Original Report

Defendant filed Ayers’s June 18, 2020, report, which stated: “‘Will [defendant] pose an unreasonable risk to public safety if he is released from prison?’ The answer is somewhat equivocal. On one hand [defendant] has demonstrated little acceptance of responsibility for his actions, little concern with participating in self[-]help programs, hasn’t always used good judgment, and doesn’t seem to have a solid release plan. [¶] On the other hand, [defendant’s] behavior over the last 6 years has been MUCH better than when he began his current sentence . . . [H]is infractions during that 6-year period have involved his unwillingness to attend school because he wanted to do legal work. He has also been able to reduce his Classification Score to Level III status which is probably the best example for compliant behavior. He has put some thought into where he will live immediately upon release and how he will support himself. He has also cited a realistic goal to associate with PVJOBS so that he can eventually become self-sufficient. Lastly, he seems to recognize that a new geographic environment might well be a key in helping him with a successful transition to the community. [¶] [Defendant] knows what he must do to make a successful transition from prison to the community. He has emotional, familial, and transitional housing support from his sister. At 62 years old he has reached an age at which, if he secures the resources available to him, he will probably not be inclined to predatory or criminal behavior. Therefore, in my opinion, he will likely not be an unreasonable risk to public safety IF he takes advantage of his sister’s assistance and the aforementioned services. [¶] I reserve the right to alter this opinion should additional information come to my attention.”

2. Supplemental Report

On June 30, 2020, defendant filed a supplemental report from Ayers in which he further opined: “I have received new information which I believe is relevant to [defendant’s] decision making and, therefore, COULD be of significance to the Court.” Ayers explained that he had been concerned that defendant was uncooperative with his court appointed attorney, who had instructed defendant to “channel all documents intended for the Court’s attention” through the attorney. Although Ayers understood that many inmates understandably become impatient with their attorneys, most inmates responded appropriately when admonished to cooperate with counsel. But defendant had failed to heed advice from his attorney and from Ayers and had directly filed two documents with the court. Although the documents could benefit defendant’s petition, defendant did not provide an explanation for the filings or describe their relevance for the court. In Ayers’s view, such conduct demonstrated a concerning lack of judgment. He elaborated, “These are current examples of a stubborn lack of judgement which I fear could translate into how [defendant] will respond in the community. My concern is that [defendant’s] past violence, coupled with his current stubborn resistance to assistance could negatively impact public safety. For example, upon release from prison [defendant] will need to access many services for assistance. Many of those services, especially those providing housing and job assistance are not overly tolerant of individuals who are uncooperative or unwilling to heed supportive advice. The result would likely be a withdrawal of service assistance. Of concern is how [defendant] would react to withdrawal of needed services. [¶] I am not necessarily opining that [defendant] would react with violence nor am I predicting that he will be uncooperative. But he does have a history of not fully accepting responsibility for his actions and not heeding supportive advice. This is a history which is counter-productive to his best interests and I believe needs to be brought to the attention of the Court.” (Italics added.)

III. PROCEDURAL BACKGROUND

In February 2013, defendant filed a petition for resentencing under section 1170.126. In March 2013, the trial court issued an order to show cause on the petition and an order appointing counsel. In November 2013, the prosecution filed an opposition, arguing that defendant’s criminal history showed that his release would pose an unreasonable risk of danger to the public.

In November 2017, the prosecution filed a supplemental opposition to the resentencing petition, arguing that the attached prison records, among others, showed that he was unsuitable for resentencing because he posed an unreasonable risk of danger to the public.

In April 2020, defendant filed a petition for writ of mandate in the Court of Appeal seeking an order directing the trial court to hold a hearing on his petitions under section 1170.126 and 1170.18. In response, this court issued a Palma notice (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180) indicating that it was considering the issuance of a peremptory writ directing the trial court to rule on the petitions. Upon receipt of the Palma notice, the trial court issued an order to the parties to schedule a hearing on whether the court should set an immediate hearing on the petitions.

In June 2020, the prosecution filed an opposition with attached exhibits to defendant’s resentencing petition under section 1170.18, and defendant filed his reply to the opposition to his section 1170.126 petition that attached the report of Ayers discussed above. Approximately two weeks later, defendant filed the supplemental expert report of Ayers also discussed above.

In July 2020, the prosecution filed its exhibits for the suitability hearing under section 1170.126, including a CLETS criminal history report and defendant’s prison rules violation reports.

On September 16, 2020, the trial court held a hearing on defendant’s section 1170.126 petition and took the matter under submission.

On September 28, 2020, the trial court issued a memorandum of decision in which it detailed its reasons for and the evidence supporting its ruling denying the petition, including defendant’s criminal history, his prison disciplinary history and rehabilitative programming, his classification score and age, and his record of programming/rehabilitative plans. Based on its analysis of the “totality of the evidence in the record,” the court concluded that “resentencing [defendant] at this time would pose an unreasonable risk to public safety due to his criminal history, recent disciplinary record while incarcerated, lack of any significant rehabilitative programming, and lack of realistic release plan.”

IV. DISCUSSION

A. Proposition 36 and Section 1170.126

“In November 2012, California voters enacted Proposition 36, the Three Strikes Reform Act of 2012 (Proposition 36 or Three Strikes Reform Act). With some exceptions, Proposition 36 modified California’s ‘Three Strikes’ law to reduce the punishment imposed when a defendant’s third felony conviction is not serious or violent. [Citation.] It also enacted a procedure governing inmates sentenced under the former Three Strikes law whose third strike was neither serious nor violent, permitting them to petition for resentencing in accordance with Proposition 36’s new sentencing provisions. (§ 1170.126, subd. (e) . . . .) The resentencing provisions provide, however, that an inmate will be denied resentencing if ‘the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.’ (§ 1170.126, subd. (f). . . .)” (People v. Valencia (2017) 3 Cal.5th 347, 350 (Valencia).)

“In exercising its discretion to deny resentencing, the court has broad discretion to 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) his or her ‘disciplinary record and record of rehabilitation while incarcerated’; and (3) ‘[a]ny 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)(1)–(3).) Thus, as the Legislative Analyst explained . . . , ‘n determining whether an offender poses [an unreasonable risk of danger to public safety], the court could consider [i]any evidence it determines is relevant, such as the offender’s criminal history, behavior in prison, and participation in rehabilitation programs.’” (Valencia, supra, 5 Cal.5th at p. 354.)

“The determination whether a defendant poses an unreasonable risk of danger to public safety is discretionary (§ 1170.126, subd. (f)), and several Courts of Appeal have properly concluded that ‘[t]he facts upon which the court’s finding of unreasonable risk is based must be proven by the People by a preponderance of the evidence . . . and are themselves subject to [appellate] review for substantial evidence.’” (People v. Frierson (2017) 4 Cal.5th 225, 239.)

B. Analysis

Defendant contends that the trial court abused its discretion by, among other things, mischaracterizing his criminal and prison disciplinary history,[7] failing to give adequate weight to his improved behavior in prison over the last 12 years, and finding a nexus between defendant’s remote criminal history and his recent, nonviolent disciplinary violations. We disagree.

The trial court’s memorandum of decision reflects that the court made a comprehensive review of a variety of relevant factors bearing on the dangerousness issue and came to a reasoned conclusion based on the substantial evidence of current dangerousness in the record. That decision demonstrates that the court did not abuse its discretion in denying defendant’s petition.

Defendant’s criminal history included multiple convictions based on violent behavior, including a bank robbery, two robberies during which the victims were assaulted,[8] another robbery during which he held a knife to the victim’s throat, and a battery in prison during which he hit a custodial officer with a metal chair. The trial court acknowledged that this history was remote in time, but nevertheless found a nexus between it and a current risk of dangerousness due to defendant’s recent and continued prison disciplinary violations, his failure to participate in rehabilitative programming, and his “poor release plans.” Substantial evidence supported that finding.

It is undisputed that, during his first decade in prison, defendant continued to engage in violent and disruptive behavior, including the assault and battery on a custodial officer mentioned above, another battery on a custodial officer, making threats to kill staff and assault inmates, attempting to kick down his cell door, and mutual combat with another inmate. That serious misconduct persisted until at least 2008—as evidenced by defendant’s 2009 classification score of 97—and clearly showed a nexus between defendant’s violent criminal history and his conduct in prison to that point. Although defendant’s misconduct in prison after 2008 became less serious—as evidenced by his progressively lower classification scores—his conduct remained disruptive and included repeated incidents during which defendant refused to perform assigned work and to comply with direct orders, refused to move cells when ordered, possessed contraband, and refused to comply with orders concerning the condition of his cell.

Moreover, as the trial court noted, much of this conduct occurred after defendant had filed his petition in 2013, which demonstrated that he lacked a present ability to conform his conduct to prison rules, even while his petition seeking release back into society was pending decision. Further, during his entire 23-years of imprisonment, defendant refused to participate in any self-help or rehabilitative programming designed to assist him in transitioning from an adult life spent mostly in prison. Defendant’s prison conduct therefore served to undermine the viability of his stated plan to secure employment in the construction industry.

In addition, defendant’s own expert reports suggested that he may pose a current risk of dangerousness. In the expert’s initial report, he admitted that defendant’s behavior made the issue of dangerousness an “equivocal” one, noting that defendant had demonstrated “little acceptance of responsibility for his actions, little concern for participating in self[-]help programs, [had not] always used good judgment, and [did not] seem to have a solid release plan.” And, less than two weeks after the expert issued his equivocal report, he submitted a supplemental report that emphasized defendant’s recent “concerning lack of judgment,” which the expert “fear[ed] could translate into how [defendant would] respond in the community” and caused him concern that defendant’s “past violence, coupled with his current stubborn resistance to assistance[,] could negatively impact public safety.”

We conclude there was substantial evidence to support the trial court’s conclusion that defendant posed a current risk of danger to the public; and the court therefore did not abuse its discretion when it decided not to resentence him.

V. DISPOSITION

The order denying defendant’s petition for resentencing under section 1170.126 is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

BAKER, Acting P. J.

MOOR, J.

[1] “Under the Three Strikes Reform Act of 2012 (Proposition 36), an inmate who has been sentenced under the ‘Three Strikes’ law for a nonserious, nonviolent felony may petition the trial court for resentencing. (Pen. Code, § 1170.126, subd. (f), added by Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012); . . . .)” (People v. Perez (2018) 4 Cal.5th 1055, 1059.)

[2] The facts and procedure related to defendant’s third strike offense are taken from the unpublished opinion in his direct appeal from the judgment of conviction, case number B128645.

[3] All further statutory references are to the Penal Code unless otherwise indicated.

[4] According to the parties, other than the expert’s report that defendant was expelled from high school in the 11th grade for truancy and had juvenile petitions sustained for burglary and marijuana possession, there is no evidence in the record of defendant’s juvenile criminal history.

[5] By statute, the Secretary of the California Department of Corrections and Rehabilitation has the authority to “prescribe and amend . . . regulations for the administration of the prisons . . . .” (§§ 5050, 5058, subd. (a)(1).) Under those regulations, “[w]hen [inmate] misconduct is believed to be a violation of law or is not minor in nature, it shall be reported on a Rules Violation Report . . . .” (Cal. Code Regs., tit. 15, § 3312, subd. (a)(3).) Reports are required to “be classified as administrative or serious pursuant to sections 3314 and 3315.” (Id., § 3313, subd. (a).) An administrative rules violation is not a “serious’’ rules violation. (Id., §§ 3313, subd. (a), 3314.) Serious rules violations are classified as Division A to Division F, from most serious to least serious. (Id., §§ 3315, 3323.) An offense punishable as a misdemeanor or felony is a serious rules violation under the regulations regardless of whether the offense is prosecuted. (Id., § 3315, subd. (a)(1).)

[6] Ayers interviewed defendant on May 13, 2020, and not March 13, 2000, as asserted by defendant.

[7] Defendant asserts that, in ruling on his petition, the trial court referenced criminal offenses and a rules violation that he did not commit. Specifically, the court found that defendant had been: (1) convicted on two counts of burglary, but the record showed that he had only been convicted on one count (the second count had been dismissed in the interests of justice); (2) convicted on two counts of grand theft auto, but the record showed that one charge of grand theft auto had been dismissed in exchange for a plea to a lesser offense and, although defendant had been arrested and charged for another grand theft auto offense, it was not prosecuted; (3) convicted of possessing a weapon in prison, but the record showed the District Attorney declined to prosecute the matter; and (4) been found guilty of committing a serious rules violation for participating in a prison riot, but the record showed no violation had been issued.

We have not included those inaccurate findings in our analysis of the evidence in support of the trial court’s dangerousness determination and conclude that the discrepancies, when compared to the overall record on the seriousness of defendant’s conduct, were minor and could not have been material to the trial court’s ultimate conclusion on the issue.

[8] As noted, one of those robbery convictions was reversed by the Court of Appeal.