People v. Hanson CA5 ( 2016 )

Filed 6/3/16 P. v. Hanson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F069682
Plaintiff and Respondent,
(Kern Super. Ct. No. SC068162A)
v.
RANDY CYRIL HANSON, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Michael G. Bush,
Judge.
Jonathan E. Berger, 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, Catherine Chatman and
Kevin L. Quade, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P.J., Franson, J. and Smith, J.
INTRODUCTION
The Three Strikes Reform Act of 2012 (hereinafter Proposition 36 or the Act)
permits third strike offenders serving indeterminate life sentences for crimes that are not
serious or violent felonies to petition for resentencing. (Pen. Code, § 1170.126 et seq.)1
If a petitioning offender satisfies the statute’s eligibility criteria, they are resentenced as a
second strike offender “unless the court, in its discretion, determines that resentencing …
would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)
Following the enactment of Proposition 36, defendant Randy Cyril Hanson filed a
petition for recall of sentence. The trial court found defendant posed an unreasonable
risk to public safety, however, and denied the petition. On appeal, defendant contends:
(1) the definition of “unreasonable risk of danger to public safety” included in section
1170.18, subdivision (c), applies to Proposition 36; (2) the trial court abused its discretion
by denying defendant’s petition for resentencing; (3) defendant was entitled to have his
dangerousness proven beyond a reasonable doubt, or at least by clear and convincing
evidence; and (4) defense counsel was ineffective for failing to object to the trial court’s
use of a preponderance of the evidence standard of proof. We affirm.
FACTS
On October 10, 1997, a jury found defendant guilty of one count of vehicle theft
(Veh. Code, § 10851). The jury also found defendant had two prior strikes: a 1989
conviction for first degree burglary (§ 460.1), and a second conviction for first degree
burglary from 1992. Defendant was sentenced as a third strike offender to a term of 25
years to life in prison.
On January 9, 2013, defendant filed a petition for recall of his third strike sentence
pursuant to Proposition 36. Defendant argued he was eligible for resentencing because
1 Unless otherwise indicated, all statutory references are to the Penal Code.
2
he was not convicted of a serious or violent offense, and he was not subject to any of the
Act’s statutory exclusions.
The People filed opposition and did not dispute defendant’s statutory eligibility to
be resentenced. However, the People argued he was excluded from resentencing because
his release would pose an unreasonable risk to public safety. The People noted
defendant’s criminal record contained 15 adult convictions, including two convictions for
first degree burglary, two convictions for misdemeanor spousal abuse, and a conviction
for driving under the influence. The People also noted defendant had committed several
rule violations during his incarceration, including violations for possession of drug
paraphernalia and refusing a cellmate, multiple violations for manufacturing alcohol,
multiple violations for fighting, and one violation for battery with a weapon after he was
found to have sliced an inmate with a razor blade. The People also stated that
defendant’s mental health records showed a history of poly-substance abuse, mood
problems, paranoia, depression, and homicidal ideations.
Defendant’s hearing testimony
On June 13, 2014, a hearing was held on defendant’s petition for recall.
Defendant was the only witness. He was 55 years old. Defendant testified his first adult
conviction was in 1977 for second degree burglary. He was sentenced to county jail but
escaped, and received a misdemeanor conviction for that offense. He had a misdemeanor
conviction for grand theft in 1981 when he stole a battery because his car was dead. He
had a misdemeanor conviction for spousal abuse because he and his wife were both on
alcohol and drugs, and they fought outside a bar. In 1985, he had another misdemeanor
conviction for walking away from a hospital while he was already serving time in county
jail.
Defendant testified his current conviction was for stealing a car, after he bought a
stolen vehicle for $500. His first trial ended in a hung jury; he was convicted after a
second jury trial, and sentenced to the third strike term. He committed the prior strike
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convictions for residential burglary in 1989 and 1992 while he was using alcohol and
“speed.” In the 1989 burglary, he broke into someone’s house and took “a little jewelry”
so he could get drugs; he admitted the total loss was $1,825. He committed the 1992
burglary after he bought “weed” from a neighbor and the neighbor “burnt me on the
weed.” He broke into the neighbor’s house because he “just wanted my money back,” he
took a boom box, and he figured it was “worth $200 he gave me.” Defendant had
additional misdemeanor convictions for spousal abuse and resisting in 1995, when he ran
away from the police after an argument with his wife about their daughter.
On cross-examination, defendant admitted he also had a juvenile record and
committed burglary in 1974 and was sent to the California Youth Authority. In 1975, he
was found to have obstructed an officer and recommitted to CYA. He was paroled in
1977, and had his first adult conviction that year.
Defendant testified that he had suffered from substance abuse in the past, but he
had not consumed any drugs or alcohol since 2002. However, he admitted he was cited
for prison rule violations for possession of alcohol in 2005 and possession of a syringe in
2007. Defendant stated the syringe belonged to his cellmate, and another cellmate made
the alcohol for inmates but defendant did not drink anything.
Defendant testified he did not have any violent prison rule violations until after he
agreed to provide the police with information on a prison murder he witnessed in 2006.
Defendant stated he began refusing cellmates and getting into confrontations and fights
with other inmates as a result of the hostility and anger he faced as a known informant.
He denied slicing another inmate with a razor blade, even though he received a prison
rules violation for battery on an inmate with a weapon. Defendant insisted the injured
inmate inflicted the injury on himself as part of the retaliation against defendant for being
an informant.
On cross-examination, defendant was asked about several mental health reports
generated by prison experts. A report from 2009 stated he had a history of adjustment
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disorder, mood problems, antisocial problems, depression, and polysubstance
dependence. A report from 2010 stated he had poor impulse control, a history of
homicidal ideation, and he admitted being paranoid. In 2012, defendant told a prison
therapist that he had difficulty controlling himself and felt like hitting people.
Defendant testified he was currently taking psychiatric medications. He was
depressed because of what he was going through in prison, and he was addicted to drugs.
He did not think about killing other people, but he was scared and depressed about the
murders that happened around him. He was paranoid that something would happen to
him. Defendant testified he no longer suffered from Hepatitis C, but said he had a tumor
in his neck and a spinal injury which limited his physical activity.
Defendant testified that aside from one time, he did not attend any drug or
treatment programs, anger management programs, or take any educational classes,
because he was afraid of being attacked and had to watch his surroundings. Instead, he
studied books and paperwork on these subjects.
Defendant testified that if he was released, he would continue taking his
psychiatric medications because they helped him, and he would see “some kind of
psychologist” to get them. If he had nowhere to go, he would go to “a chaplain, to some
kind of church or somewhere.” Defendant was asked if he had anything arranged with
family members. Defendant testified his ex-wife and one of his three daughters were
present at the hearing. “We ain’t got it worked out but my daughters and my ex-wife said
that they’ll make sure I’m not homeless, yes.” When asked if he had arranged to enter a
post-release program, defendant said he wrote to eight or nine programs and only two
wrote back. Defendant testified he could not be accepted until he was released because
“[y]ou have to go out to them.” He planned to work any possible job.
After hearing defendant’s testimony, the court took the matter under submission.
The court’s ruling
On July 1, 2014, the trial court orally denied defendant’s petition.
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“I have considered the petition, the prior probation report, all the paperwork
that both sides filed. I also considered the testimony at our hearing… [¶] I
believe the People have met their burden that the defendant would pose an
unreasonable risk to the safety, public safety – let me get the exact
terminology. The petitioner would impose a[n] unreasonable risk of danger
to the public safety. Therefore, the petition is denied.”
Defense counsel asked the court to outline the reasons for its finding. The court replied:
“I think given the overall circumstances, including those – it was a
while ago so I don’t want to limit myself, but his mental health issues. In
listening to him testify, he had – I’ve got to look at my notes. I was just
prepared, honestly, to deny this. I have to look at my notes. It was
definitely mental health issues, his refusal to take cellmates.
“There is just a lot of different factors. There is a lot in the mental
health area. Back in ’08, I believe he slashed an inmate with a razor. I
don’t have all my notes because it’s so thick.
“I appreciate you want to know why, but I just don’t have everything
right in front of me. [¶] The release plans … there were really no release
plans, even though he would be on post-release community supervision.
But that’s just kind of a general reason. But I’d be looking at everything
involved.”
DISCUSSION
I. Proposition 47’s Definition of “Unreasonable Risk of Danger to Public Safety”
Does Not Apply to Defendant’s Petition
Defendant contends the definition of “unreasonable risk of danger to public
safety” included in Proposition 47 (§ 1170.18, subd. (c)), applies to Proposition 36. We
disagree.
On November 4, 2014, voters enacted the Safe Neighborhoods and Schools Act
(Proposition 47). Under Proposition 47, certain offenses that were previously sentenced
as felonies or “wobblers” were reduced to misdemeanors, and individuals serving felony
sentences for those offenses were permitted to petition for resentencing. (§ 1170.18,
subd. (a).) Assuming the petitioning inmate meets the statutory eligibility requirements,
the trial court must resentence the inmate in accordance with Proposition 47 “unless the
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court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).)
Unlike Proposition 36, Proposition 47 specifically defines “unreasonable risk of
danger to public safety.” That definition reads as follows: “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.” (§ 1170.18,
subd. (c).)
Section 667, subdivision (e)(2)(C)(iv) enumerates eight felonies or classes of
felonies:
“The defendant suffered a prior serious and/or violent felony
conviction, as defined in subdivision (d) of this section, for any of the
following felonies:
“(I) A ‘sexually violent offense’ as defined in subdivision (b) of
Section 6600 of the Welfare and Institutions Code.
“(II) Oral copulation with a child who is under 14 years of age, and
who is more than 10 years younger than he or she as defined by Section
288a, sodomy with another person who is under 14 years of age and more
than 10 years younger than he or she as defined by Section 286, or sexual
penetration with another person who is under 14 years of age, and who is
more than 10 years younger than he or she, as defined by Section 289.
“(III) A lewd or lascivious act involving a child under 14 years of
age, in violation of Section 288.
“(IV) Any homicide offense, including any attempted homicide
offense, defined in Sections 187 to 191.5, inclusive.
“(V) Solicitation to commit murder as defined in Section 653f.
“(VI) Assault with a machine gun on a peace officer or firefighter,
as defined in paragraph (3) of subdivision (d) of Section 245.
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“(VII) Possession of a weapon of mass destruction, as defined in
paragraph (1) of subdivision (a) of Section 11418.
“(VIII) Any serious and/or violent felony offense punishable in
California by life imprisonment or death.” (§ 667, subd. (e).)
On appeal, defendant asserts that this definition of “unreasonable risk of danger to
the public safety” also applies to petitions for resentencing under Proposition 36. We
disagree.2
“ ‘ “When statutory language is clear and unambiguous, there is no need for
construction and courts should not indulge in it.” [Citations.]’ [Citation.]” (People v.
Hendrix (1997) 16 Cal. 4th 508, 512.) However, “the language of a statute should not be
given a literal meaning if doing so would result in absurd consequences that the [voters]
did not intend.” (In re Michele D. (2002) 29 Cal. 4th 600, 606.)
Here, it appears clear that the phrase “[a]s used throughout this Code,” employed
in section 1170.18, subdivision (c), refers to the entire Penal Code, not merely the
provisions contained in Proposition 47. (See People v. Bucchierre (1943) 57 Cal. App. 2d
153, 164–165, 166; see also Marshall v. Pasadena Unified School Dist. (2004)
119 Cal. App. 4th 1241, 1254–1255; People v. Vasquez (1992) 7 Cal. App. 4th 763, 766.)
We conclude defendant’s proposed interpretation of Proposition 47, and its
purported application to Proposition 36, would lead to consequences the voters did not
intend when they enacted it. By its provisions, Proposition 47 reduces the sentences of
inmates serving felony sentences for specified offenses that are now classified as
misdemeanors. Nowhere in the ballot materials on Proposition 47 were voters informed
the law would also modify the resentencing provisions of Proposition 36, which concerns
recidivist inmates serving sentences for felony offenses that remain classified as felonies.
2This issue is currently pending review by the California Supreme Court. (See
People v. Valencia (2014) 232 Cal. App. 4th 514, review granted Feb. 18, 2015, S223825;
People v. Payne (2014) 232 Cal. App. 4th 579, review granted Mar. 25, 2015, S223856.)
8
The official title and summary, legal analysis, and arguments for and against
Proposition 47 are all silent on what effect, if any, Proposition 47 would have on
Proposition 36. As we cannot conclude the voters intended an effect of which they were
unaware, we decline to conclude the voters intended for Proposition 47’s definition of
“unreasonable risk of danger to public safety” to apply to Proposition 36 in section
1170.126, subdivision (f).
Further, while we are aware “[i]t is an established rule of statutory construction ...
that when statutes are in pari materia similar phrases appearing in each should be given
like meanings”, we are not persuaded that Propositions 36 and 47 are in pari materia.
(People v. Caudillo (1978) 21 Cal. 3d 562, 585, overruled on another ground in People v.
Martinez (1999) 20 Cal. 4th 225, 229, 237, fn. 6.) Two “ ‘[s]tatutes are considered to be
in pari materia when they relate to the same person or thing, to the same class of person[s
or] things, or have the same purpose or object.’ ” (Walker v. Superior Court (1988) 47
Cal. 3d 112, 124, fn. 4, quoting 2A Sutherland, Statutory Construction (Sands, 4th ed.
1984) § 51.03, p. 467.)
Here, Proposition 47 deals with individuals sentenced as felons for crimes that are
now misdemeanors, while Proposition 36 deals with inmates with at least two violent or
serious felonies who are currently serving indeterminate life sentences for a third felony
conviction. These laws deal with very different levels of punishment, and very different
severity of offenses. Even if the statutes are in pari materia, however, canons of statutory
instruction are not dispositive, and serve as “mere[] aids to ascertaining probable
legislative intent.” (Stone v. Superior Court (1982) 31 Cal. 3d 503, 521, fn. 10.)
Given our review of Proposition 47, we must conclude that voters intended the law
to apply to the sentencing and resentencing of the misdemeanor offenses enumerated
within that law, and not to the previously enacted provisions of Proposition 36.
Accordingly, defendant is not entitled to remand that would subject his resentencing
9
under Proposition 36 to the definition of “unreasonable risk of danger to public safety”
contained in Proposition 47.3
II. The Trial Court Did Not Abuse its Discretion by Denying Defendant’s Petition
Defendant next argues the trial court abused its discretion by finding defendant’s
release would pose an unreasonable risk of danger to public safety. We again disagree.
As noted above, under Proposition 36, statutorily eligible petitioners “shall be
resentenced ... unless the 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, “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).) “[A] trial court does not abuse its discretion
unless its decision is so irrational or arbitrary that no reasonable person could agree with
it.” (People v. Carmony (2004) 33 Cal. 4th 367, 377.)
Defendant contends the court’s statements when it denied the petition for recall, as
cited above, demonstrates that the reasons for the denial were so vague as to preclude
appellate review. We note, however, that nowhere in Proposition 36 is the trial court
required to make express findings in support of its determination that a petitioning inmate
poses an unreasonable risk of danger to public safety. Instead, the determination is
3 In a supplemental brief on appeal, defendant argues that if the definition of
“unreasonable risk of danger to public safety” found in Proposition 47 applies to
Proposition 36, then it must apply both retroactively and prospectively. As we find the
definition found in Proposition 47 does not apply to Proposition 36, we need not address
defendant’s argument regarding retroactive and prospective application.
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merely left to the discretion of the trial court. (§ 1170.126, subd. (f); cf. § 1385,
subd. (a).)
In any event, when reviewing a lower court’s discretionary acts, we reverse only if
“the court exceeds the bounds of reason, all of the circumstances being considered.
[Citations.]” (People v. Giminez (1975) 14 Cal. 3d 68, 72.) Here, those circumstances
include the record before the trial court at the time of its dangerousness determination,
and that record provides us with ample grounds for carrying out appellate review of the
trial court’s exercise of discretion.
The entirety of the record demonstrates defendant’s history of criminality,
violence, and substance abuse. Indeed, defendant’s criminal record began as a juvenile,
and even after defendant’s incarceration as a third strike offender, he committed multiple
prison rule violations involving the manufacturing of alcohol, possession of narcotics
paraphernalia, violence, and refusal to follow staff orders. The record also shows
numerous mental health issues, including homicidal ideation, polysubstance abuse, mood
problems, paranoia, and depression. These issues are not only reflected in defendant’s
mental health records, but are also evidenced by the nature of defendant’s criminal
history and defendant’s record of prison rule violations.
At the hearing, defendant sought to minimize his prior convictions, prison
violations, and failure to address his mental health and substance abuse problems. He
blamed most of this behavior on the alleged retaliation against him for being an
informant. However, his testimony was refuted by the records of his prior and current
conduct.
While defendant argues his violent prison behavior was a reaction to the danger he
faced as a known prison informant, even with the mitigating circumstances created by
defendant’s cooperation in a prison murder investigation, we cannot state the trial court’s
decision to deny defendant’s petition was “so irrational or arbitrary that no reasonable
person could agree with it.” (People v. Carmony, supra, 33 Cal.4th at p. 377.) There was
11
ample evidence to support the trial court’s finding that defendant posed an unreasonable
risk of danger to public safety and, accordingly, defendant is not entitled to relief.
III. Defendant was Not Entitled to Have His Dangerousness Proven Beyond a
Reasonable Doubt
Next, defendant contends his due process rights were violated because the
prosecution only had the burden of proving the factual basis for a finding of unreasonable
risk of danger to the public by a preponderance of the evidence. However, an inmate
seeking resentencing pursuant to Proposition 36 does not have a Sixth Amendment right
to a jury determination, beyond a reasonable doubt, on the question of conduct
constituting a disqualifying factor. (People v. Blakely (2014) 225 Cal. App. 4th 1042,
1059–1063; People v. Osuna (2014) 225 Cal. App. 4th 1020, 1038–1040; People v.
Superior Court (Kaulick) (2013) 215 Cal. App. 4th 1279, 1303.)
We agree with the holdings in these opinions. “[A] court’s discretionary decision
to decline to modify the sentence in (a petitioner’s) favor can be based on any otherwise
appropriate factor (i.e., dangerousness), and such factor need not be established by proof
beyond a reasonable doubt to a jury.” (People v. Superior Court (Kaulick), supra, 215
Cal.App.4th at p. 1303.) Instead, “once a defendant is eligible for an increased penalty,
the trial court, in exercising its discretion to impose that penalty, may rely on factors
established by a preponderance of the evidence. [Citation.]” (Id. at p. 1305.)
Defendant acknowledges the holding in Kaulick but argues it was wrongly
decided. He contends he has a constitutional right to have his dangerousness proven
beyond a reasonable doubt because a determination of dangerousness deprives defendant
of his liberty, and defendant has a greater interest in his liberty than the People have in
keeping him incarcerated.4 (See In re Marriage of Peters (1997) 52 Cal. App. 4th 1487,
4 Defendant did not object to the standard of proof below. However, as defendant
argues in the alternative that his counsel was ineffective for failing to lodge such an
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1490 [“The burden of proof thus serves to allocate the risk of error between the parties,
and varies in proportion to the gravity of the consequences of an erroneous resolution.
[Citations.]”].) In making this argument, defendant analogizes his situation to that of
involuntarily committed addicts or disabled individuals, who cannot have their
involuntary commitments extended without the protections of a jury trial and proof
beyond a reasonable doubt. (See People v. Thomas (1977) 19 Cal. 3d 630, 637;
Conservatorship of Roulet (1979) 23 Cal. 3d 219, 225; Conservatorship of Hofferber
(1980) 28 Cal. 3d 161, 178.) We find this argument is without merit.
Unlike the situations cited by defendant, the denial of a petition for recall of
sentence does not extend a defendant’s term of imprisonment; it merely denies the
defendant a downward modification of a validly imposed indeterminate term of life in
prison. If the denial of defendant’s petition subjected him to an increased sentence, then
he would indeed be entitled to the protections of a heightened standard of proof. But
since defendant has already been subjected to an indeterminate term of life in prison –
following a jury trial where he was found guilty of the charges beyond a reasonable doubt
and properly sentenced to that term pursuant to the laws in effect at that time –
defendant’s constitutional rights were not violated by the use of a bench trial and lowered
burden of proof in a proceeding concerning a potential downward modification of that
properly imposed sentence. (People v. Superior Court (Kaulick), supra, 215 Cal.App.4th
at pp. 1305–1306.)
Further, defendant’s claim that he has a greater interest in his liberty than the
People have in keeping him incarcerated is misplaced. While defendant certainly has
great interest in his freedom, the People have a similarly serious interest in preventing
harm to citizens at the hands of dangerous inmates who would, absent the resentencing
objection, and we must reach the merits of this argument to evaluate his ineffective
assistance claim, we decline to address the issue of waiver.
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provisions of Proposition 36, remain incarcerated. As such, a standard of preponderance
of the evidence correctly reflects “the gravity of the consequences of an erroneous
resolution. [Citation.]” (In re Marriage of Peters, supra, 52 Cal.App.4th at p. 1490.)
Defendant also contends that, even if proof beyond a reasonable doubt is not
constitutionally required, this court should hold that a showing of dangerousness still
must be made beyond a reasonable doubt or, in the alternative, by clear and convincing
evidence. We decline to make such a holding.
In support of his argument, defendant cites federal cases requiring heightened
standards of proof for facts that would dramatically increase a defendant’s sentence. (See
United States v. Jordan (9th Cir. 2001) 256 F.3d 922, 930; United States v. Pineda-Doval
(9th Cir. 2010) 614 F.3d 1019, 1041.) However, a finding of dangerousness does not
increase an inmate’s sentence; it merely enforces an inmate’s preexisting sentence, which
was imposed for offenses proved beyond a reasonable doubt at trial. Accordingly,
defendant’s arguments do not apply to dangerousness determinations, and there is no
need for a heightened standard of proof in such determinations. (See People v. Superior
Court (Kaulick), supra, 215 Cal.App.4th at p. 1305.)
IV. Defendant was Not Denied the Effective Assistance of Counsel
Defendant argues his trial counsel was ineffective for failing to object to the
standard of proof applied by the trial court. We disagree.
In order to prevail on a claim of ineffective assistance of counsel, a defendant
must establish: (1) that counsel’s representation fell below an objective standard of
reasonableness; and (2) that there is a reasonable probability that a determination more
favorable to defendant would have resulted in the absence of counsel’s unprofessional
errors. (People v. Kipp (1998) 18 Cal. 4th 349, 366.)
Here, as the trial court applied the correct standard of proof to the determination of
defendant’s dangerousness, defense counsel’s failure to raise a meritless objection to that
standard of proof was neither unreasonable nor prejudicial. (People v. Ochoa (1998)
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19 Cal. 4th 353, 463 [“Representation does not become deficient for failing to make
meritless objections.”].)
DISPOSITION
The order is affirmed.
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