People v. Perkins CA1/5 ( 2021 )

Filed 10/5/21 P. v. Perkins CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FIVE
THE PEOPLE,
Plaintiff and Respondent,
A162240
v.
JOHN PERKINS, (San Francisco County
Super. Ct. Nos. SCN 165897, CT
Defendant and Appellant. 1674512)
ORDER MODIFYING OPINION;
NO CHANGE IN JUDGMENT
BY THE COURT:
The opinion filed October 1, 2021 is modified as follows: In Section II,
on page 6, the sentence that reads “To the contrary, the court acknowledged
appellant’s age was ‘the most protective did court say protective or
predictive? Factor’ in avoiding re-offense, but the court explained in detail
why it did not consider that factor dispositive given appellant’s physical
vigor, his lack of insight, his “psychopathic traits,” and his pattern of
inappropriate contacts with female prison staff” is deleted. The following
sentence is inserted in its place: “To the contrary, the court acknowledged
appellant’s age was ‘the most protective factor’ in avoiding re-offense, but the
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court explained in detail why it did not consider that factor dispositive given
appellant’s physical vigor, his lack of insight, his ‘psychopathic traits,’ and his
pattern of inappropriate contacts with female prison staff.”
The modification does not affect the judgment.
Date: _____________________
10/05/2021 __________________________P.J.
JACKSON, P.J.
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Filed 10/1/21 P. v. Perkins CA1/5 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FIVE
THE PEOPLE,
Plaintiff and Respondent,
A162240
v.
JOHN PERKINS, (San Francisco County
Super. Ct. Nos. SCN 165897, CT
Defendant and Appellant.
1674512)
Defendant and appellant John Perkins (“appellant”) appeals following
his resentencing under Penal Code section 1170, subdivision (d)(1).1 He
contends the trial court abused its discretion in reducing his sentence to 25
years to life, rather than following the District Attorney’s recommendation to
reduce his sentence to a determinate term, which would have resulted in his
release. Appellant has not shown error.
FACTUAL BACKGROUND
We quote the factual background as stated in this court’s 1999 decision
in the underlying criminal case, People v. Perkins (May 10, 1999, A082050)
(nonpub. opn.): “On September 30, 1996, Alexander F[.] was standing on a
street in San Francisco waiting for a bus, when appellant approached him
1 All undesignated statutory references are to the Penal Code.
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and asked for money. [Alexander] said he would give appellant a quarter,
but appellant said that was not enough. He threatened [Alexander], saying,
‘I have a gun and I’ll blow your head off. I want all of your money.’
“[Alexander] gave appellant the four or five dollars he had, but
appellant demanded more. [Alexander] then gave appellant his change, but
appellant still was not satisfied and he demanded [Alexander]’s watch.
[Alexander] complied. Appellant demanded money again, but [Alexander] did
not have any so he told appellant he would have to kill him if he was not
satisfied. Finally appellant left.
“[Alexander] notified the police, who, using a description [Alexander]
provided, stopped appellant nearby. A show-up was conducted where
[Alexander] identified appellant as the man who had robbed him. Appellant
had [Alexander]’s watch in his possession.”
PROCEDURAL BACKGROUND
In December 2020, appellant was 72 years old and serving a sentence of
40 years to life for the second-degree robbery (§§ 211, 212.5, subd. (c)) that he
committed in 1996. The length of the sentence was due to the circumstance
that appellant had, at the time of the robbery, multiple prior serious felony
convictions that constituted “strikes” under the Three Strikes law (§§ 667,
subds. (a)-(i); 1170.12). The San Francisco County District Attorney
petitioned, pursuant to section 1170, subdivision (d)(1), for appellant’s
sentence to be recalled and for appellant to be resentenced to a determinate
term and released. Appellant’s counsel supported the request and provided
supporting documentation.
In January 2021, the trial court recalled appellant’s sentence and
resentenced appellant to a term of 25 years to life. The court scheduled a
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hearing for February to consider a further reduction to appellant’s sentence,
but, following the hearing, the court declined to further reduce the sentence.
The present appeal followed.
DISCUSSION
Generally, “a trial court is deprived of jurisdiction to resentence a
criminal defendant once execution of the sentence has commenced.” (People
v. Karaman (1992) 4 Cal.4th 335, 344.) Section 1170, subdivision (d) is an
exception to this rule. (Dix v. Superior Court (1991) 53 Cal.3d 442, 455 (Dix).)
It provides in relevant part that, when a defendant has been sentenced to
state prison, “the court may . . . at any time upon the recommendation of the
. . . district attorney of the county in which the defendant was sentenced,
recall the sentence and commitment previously ordered and resentence the
defendant in the same manner as if they had not previously been sentenced,
provided the new sentence, if any, is no greater than the initial sentence.”
(§ 1170, subd. (d)(1).)
Section 1170, subdivision (d) “permits the sentencing court to recall a
sentence for any reason which could influence sentencing generally, even if
the reason arose after the original commitment. The court may thereafter
consider any such reason in deciding upon a new sentence. After affording
the victim the right to attend sentencing proceedings and express his or her
views (§ 1191.1), the court may then impose any new sentence that would be
permissible under the Determinate Sentencing Act if the resentence were the
original sentence.” (Dix, supra, 53 Cal.3d at p. 463.) “The court may consider
postconviction factors, including, but not limited to, the inmate’s disciplinary
record and record of rehabilitation while incarcerated, evidence that reflects
whether age, time served, and diminished physical condition, if any, have
reduced the inmate’s risk for future violence, and evidence that reflects that
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circumstances have changed since the inmate’s original sentencing so that
the inmate’s continued incarceration is no longer in the interest of justice.”
(§ 1170, subd. (d)(1).)
We review the trial court’s resentencing determination for an abuse of
discretion. (People v. Carmony (2021) 33 Cal.4th 367, 376; People v.
McCallum (2020) 55 Cal.App.5th 202, 211.)2
I. Background
Appellant’s brief below in support of resentencing emphasized his age
and his medical conditions, including, among other conditions, that he was
blind in one eye and had hypertension that caused swelling and pain in both
of his feet. While in prison, appellant had participated in education
programs, held jobs, and completed various programs—including, among
others, programs on alternatives to violence, controlling anger, and Narcotics
Anonymous. Appellant had been “clean and sober” for 18 years. Appellant
had no rule violations in the prior three years, and no violations for 16 of 23
years in custody. Appellant had plans for re-entry into the community,
including housing, a life coach, medical care, and assistance from a social
worker.
2 We reject appellant’s contention that respondent is “estopped from
arguing that the trial court properly refused to impose” a determinate term.
Contrary to appellant’s argument, respondent’s position on appeal is not
“inconsistent” with its position below. Although the District Attorney below
recommended that the trial court impose a determinate term that would
result in appellant’s release, appellant points to nowhere in the record where
the District Attorney suggested the court was legally obligated to do so—
instead, the District Attorney effectively requested that the court exercise its
discretion in that manner. There is no inconsistency in respondent arguing
on appeal that it was not an abuse of discretion for the trial court to decline
to do so.
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Appellant’s brief acknowledged appellant’s record of multiple serious
prior offenses (including rape, rape and assault with intent to commit
murder, and attempted robbery), but argued appellant had been given a “low
risk” score of 1 on the California Static Risk Assessment for recidivism.
Appellant also pointed out that a forensic psychologist who recently
evaluated him concluded he was “a low risk for sexual reoffense” and for
engaging in violence or abusing drugs.
At the February 2021 hearing, the prosecutor identified similar factors
to those identified in appellant’s brief in requesting appellant’s release.
At the end of the February 2021 hearing, the trial court denied the
request to reduce appellant’s sentence to a determinate term. The court
noted that, despite his medical problems, appellant was “vital” and “pretty
robust” for his age, doing exercises and running several times per week. The
court observed appellant had an extensive and violent criminal history and
had been “in and out of custody, mostly in custody for his entire adult life.”
Appellant had been diagnosed with antisocial personality disorder and had
scored high on a measure of psychopathy—the court observed that in other
countries appellant’s score was high enough for him to be declared
psychopathic. The court believed appellant had not fully acknowledged his
responsibility for his offenses and lacked insight because his explanation of
his prior offenses was “truly at odds with what the victims say.” In prison,
appellant had a “persistent pattern of sexually-tinged behavior, even in an
institutional setting,” including inappropriate contacts with a female staff
member as recently as 2017. The court concluded, “for those reasons . . . I’m
not willing . . . at this point to give him a determina[te] sentence. . . . And I
certainly hope that [appellant] can present as well as he can at the parole
board and see what they have to say.”
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II. Analysis
Appellant argues that, “when [his] age is properly taken into account,
the trial court’s finding that appellant does well in an institutional setting
but poses too great a risk of reoffense out in the community is not adequately
supported by either the evidence or the policy of the law.” Appellant
primarily relies on law from the parole context, where, as the California
Supreme Court observed, “it is evident that the Legislature considered the
passage of time—and the attendant changes in a prisoner’s maturity,
understanding, and mental state—to be highly probative to the
determination of current dangerousness.” (In re Lawrence (2008) 44 Cal.4th
1181, 1219–1220.)
We need not determine to what extent the caselaw from the parole
context applies in review of a section 1170, subdivision (d) resentencing
determination, because appellant has not shown an abuse of discretion, even
assuming the reasoning in the cited authorities applies. Appellant argues
the trial court “failed to give proper consideration to the principle that
criminality drastically declines with age.” To the contrary, the court
acknowledged appellant’s age was “the most protective did court say
protective or predictive? factor” in avoiding re-offense, but the court explained
in detail why it did not consider that factor dispositive given appellant’s
physical vigor, his lack of insight, his “psychopathic traits,” and his pattern of
inappropriate contacts with female prison staff.3 Even though the trial
court’s conclusion was different than the District Attorney’s assessment, we
3Appellant disputes the trial court’s analysis of those factors, but none
of appellant’s arguments demonstrate that the court’s findings lack sufficient
support in the record or that the trial court’s ultimate determination was an
abuse of discretion.
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cannot say the court’s ruling was irrational or arbitrary. (People v. Carmony,
supra, 33 Cal.4th at p. 376.)
We similarly reject appellant’s argument that it was improper for the
trial court to rely on appellant’s lack of insight regarding his offenses.
Appellant again relies on authority from the parole context; in particular, the
court in In re Stoneroad (2013) 215 Cal.App.4th 596, stated, “it is not enough
to establish that the insight is deficient in some specific way; there must
additionally be some connection between the deficiency relied upon and the
conclusion of current dangerousness.” (Id. at p. 630.) Stoneroad is
distinguishable because the deficiency there was that the defendant was
unable “to recall commission of his crimes” and there was no explanation
“why this disability impairs his ability to understand the causes of the
offense and shows he continues to pose an unreasonable risk to public safety.”
(Ibid.) The Stoneroad decision stated it was consistent with the Supreme
Court’s decision in In re Shaputis (2011) 53 Cal.4th 192 (Shaputis), which
states, “we have expressly recognized that the presence or absence of insight
is a significant factor in determining whether there is a ‘rational nexus’
between the inmate’s dangerous past behavior and the threat the inmate
currently poses to public safety.” (Shaputis, at p. 218; see also Stoneroad, at
p. 631.) Thus, the trial court did not err in finding that the “recent evidence
of [appellant’s] degree of insight” (Shaputis, at pp. 219–220) weighed in favor
of a finding of continued dangerousness.4
4 The Shaputis decision observed, “it is difficult to imagine that the
Board and the Governor should be required to ignore the inmate’s
understanding of the crime and the reasons it occurred, or the inmate’s
insight into other aspects of his or her personal history relating to future
criminality. Rational people, in considering the likely behavior of others, or
their own future choices, naturally consider past similar circumstances and
the reasons for actions taken in those circumstances. Petitioner’s argument
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Appellant has not demonstrated the trial court abused its discretion.5
DISPOSITION
The judgment is affirmed.
SIMONS, J.
We concur.
JACKSON, P. J.
BURNS, J.
(A162240)
that the inmate’s insight should play no role in parole suitability
determinations flies in the face of reason.” (Shaputis, supra, 53 Cal.4th at
p. 220.)
5 We need not and do not address appellant’s passing assertion in a
footnote that the trial court’s ruling failed “to promote uniformity of
sentencing” (§ 1170, subd. (d)(1)) because his counsel asserted that she had
“rarely if ever seen a sentence as long as [appellant’s] for similar conduct.”
Appellant provides no authority that or reasoning why his counsel’s
anecdotal assertion provides sufficient support for his argument.
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