People v. Strother ( 2021 )

Filed 12/9/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B307522
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA055347)
v.
EDWARD STROTHER,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, William C. Ryan, Judge. Affirmed.
Nancy L. Tetreault, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and David A. Wildman, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
In 2003 appellant Edward Strother was convicted of second
degree burglary (Pen. Code, § 459)1 and theft of access card
information (§ 484e, subd. (d)). Under the Three Strikes law, he
was sentenced to two consecutive terms of 25 years to life in
prison. In 2013, appellant filed a petition to recall his entire
sentence pursuant to Proposition 36 (§ 1170.126), and in 2014 he
filed a petition to recall his sentence for theft of access card
information pursuant to Proposition 47 (§ 1170.18). The trial
court issued an order to show cause why relief should not be
granted for both petitions and in February 2020, found appellant
eligible for relief under both propositions. Following a July 2020
hearing on both petitions, the trial court found appellant posed
an unreasonable risk of danger to public safety and was not
suitable for resentencing. The trial court denied both petitions.
Appellant appeals, contending the trial court abused its
discretion in finding he posed an unreasonable risk of committing
one of the “super strikes” identified in Proposition 47 (§ 1170.18)
because the trial court 1) failed to consider that his two prior
convictions involving violence and firearm use occurred almost
30 years ago with no evidence he was the shooter; 2) failed to
consider his prison fighting from 2016 through 2019 was the
result of his gang renunciation in 2016; and 3) erroneously found
that his conflict resolution and anger management programming
and parole plans were inadequate. He makes essentially the
same argument about the trial court’s denial of his Proposition 36
petition. We affirm the trial court’s order.
1 Undesignated statutory references are to the Penal Code.
2
BACKGROUND
Appellant’s juvenile record began in 1979, when he was 14
years old, with a sustained petition for robbery with the use of a
deadly weapon, a knife. In 1980, a petition was sustained
against him for attempting to take a vehicle without the owner’s
consent; a second petition was sustained against him for escaping
from camp.2 He was committed to the California Youth Authority
(CYA) and released on parole in 1981. In 1982, a petition was
sustained against appellant for robbery and attempted robbery
with the use of a firearm; he was still on parole at the time.
Appellant was committed to the CYA and released on parole in
January 1985.
In July 1985, appellant was convicted of assault with a
firearm as an adult and sentenced to two years in prison; the
victim was attempting to escort his sister away from a group of
drug dealers when appellant and another man shot at but did not
hit the victim. In 1986, appellant was convicted of possession of a
controlled substance in prison.3 In 1988, appellant violated
parole and was returned to prison. In 1989 appellant again
violated parole and was returned to prison.
2 Appellant contends the 1979 robberies and the attempted
vehicle taking are not shown on the CLETS printout. As
respondent points out, both are shown in a subsequent Probation
Officer’s Report filed in Alameda County in 1985.
3 Appellant complains the prosecutor’s summary of crimes
listed the assault and drug possession multiple times. The trial
court did not make the same mistake.
3
In 1990 and 1991, appellant was arrested five times (for
giving false information to a police officer; possession of a firearm
silencer; use of a controlled substance; attempted murder; and
driving a vehicle without the owner's consent), but, as the trial
court noted, was not convicted of any of those offenses.4
In 1991, appellant was convicted of residential burglary
with personal gun use and assault with a firearm on a police
officer. In 1992, appellant was charged with murder but pled
guilty or no contest to voluntary manslaughter.
Appellant was convicted of the commitment offenses of
second degree burglary and theft of access card information in
2003. He entered a Fry’s Electronics store and attempted to
purchase a computer using a credit card. The cashier discovered
a problem with the credit card, and appellant fled, leaving the
computer and credit card at the store, along with his driver’s
license.
From May 2004 through October 2019, appellant was found
guilty of 34 serious rules violations documented on a California
Department of Corrections and Rehabilitation (CDCR) Form 115
(RVR). Twenty-seven of the RVRs were received after appellant
filed his Proposition 36 petition. Seventeen came after appellant
renounced his association with the KUMI 415 gang in November
4 The trial court admitted this arrest evidence as part of the
third factor identified by both propositions: any evidence the trial
court deems relevant. There is no indication it played any
significant role in the trial court’s ultimate decision, which
focused on appellant’s 1991 and 1992 convictions and his parole
violations.
4
2016. The majority involved violence. None of the acts of
violence were against a prison staff member and none involved
the reported use of a weapon. No RVR includes a report that
appellant caused an injury requiring medical attention.
Appellant’s CDCR classification score was 174 in April
2020, up from 58 shortly after he was admitted to prison. The
higher the score, the more security controls the prisoner needs.
In contrast, his static risk score (CSRA) used to predict
recidivism was 1-low.
Appellant’s post-release plans involved the Partnership for
Re-Entry Program (PREP) which would provide transitional
housing, vocational classes, an AA support group, assistance in
securing employment, and other support. Appellant also had the
opportunity to enter residential treatment for substance abuse,
with follow-on sober living housing. Appellant’s brother, who
resided in northern California, stated he would offer appellant a
job which appellant could perform from home. Appellant’s wife,
who also lived in northern California, supported his release.
Following a hearing, the trial court issued a Memorandum
of Decision denying both petitions.
As to the Proposition 47 petition, the trial court found:
“Petitioner has an extensive criminal record beginning in 1979,
when Petitioner was only 14 years old . . . . Petitioner’s history
shows a tendency to revert back to crime as soon as he is released
from custody. . . . Petitioner’s criminal history includes
significant violence and weapons, including a conviction for
assault with a firearm on a police officer in 1991, where
Petitioner shot at a police officer and his vehicle, as well as a
5
conviction for voluntary manslaughter in 1992, where Petitioner
executed the victim by shooting him in the back of the head.
While a history of recidivism alone is an insufficient basis for a
court’s finding that a petitioner poses an unreasonable risk of
danger to public safety, the multiplicity of prior convictions and
the failure to comply with conditions of intervening periods of
probation or parole give rise to a valid concern about a danger to
public safety. [Citation.] In order for this concern to support a
finding of unsuitability for resentencing, however, the concern
must be presently relevant and cannot, absent some additional
evidence, stand alone to support a finding that a petitioner
currently poses an unreasonable risk to public safety.
[Citations.]”
“Therefore, the multiplicity of Petitioner’s prior convictions
and his inability to refrain from re-offending while in the
community constitute present and relevant concerns only if other
evidence in the record provides a nexus between Petitioner’s
criminal past and current dangerousness. [Citation.] While
Petitioner’s criminal history may be remote in time, there
continues to be a nexus between his previous criminal history
and his current risk of danger to public safety because of his
significant disciplinary history, elevated classification score, and
insufficient meaningful rehabilitative programming.”
As the trial court then explained: “The record indicates that
Petitioner has engaged in significant institutional misconduct
while incarcerated. . . . Most notably is the fact that 26 of [his 34]
RVRs were incurred after the filing of his Proposition 36 petition
for resentencing and 16 [of the 26] were incurred after the filing
6
of his Proposition 47 petition for resentencing, a time when the
court would expect Petitioner to be on his best behavior. The
majority of these 26 RVRs involved serious misconduct, including
12 RVRs for fighting, three RVRs for battery, five RVRs for
controlled substances including heroin and two RVRs for cell
phones. Petitioner claims to have been the victim of batteries
and that he had expressed safety concerns to prison staff, stating
that he was ‘tired of prison politics.’ [Citation.] This explanation,
however, hardly accounts for all of Petitioner’s RVRs involving
violence, many of which indicated that he was the aggressor,
including one incident where he assaulted a wheelchair-bound
inmate.” The trial court noted that appellant “has only taken a
single conflict resolution course in 2014 and has failed to engage
in any anger management programming despite the pattern of
aggressive and violent conduct in his criminal and disciplinary
history.”
The court summarized its finding: “In other words,
Petitioner’s RVRs containing significant violence and lack of
rehabilitative programming, couple with his extensive criminal
history, show that Petitioner is likely to commit a ‘super strike’ if
resentenced. (§ 1170.18, subds. (c) & (i).)” The court added that
appellant’s current classification score was 174, which was high,
and had increased from his initial score of 58, “which reflects that
Petitioner has engaged in serious misconduct for a consistent
amount of time.” The court also added that it recognized that
appellant’s current “CSRA score of 1-low and his advanced age of
55 would typically be factors indicating that he no longer poses
an unreasonable risk of danger to society . . . . [Citation.]
7
Petitioner’s CSRA score and these statistics, however, are
contradicted by Petitioner’s disciplinary record, which shows
numerous incidents involving violence after the age of 50. This
amplifies the court’s concern that resentencing Petitioner would
pose an unreasonable risk of danger to public safety. [¶] Finally,
the court finds Petitioner’s post-release plans . . . tenuous at
best.”
Turning to appellant’s Proposition 36 petition, the court
stated: “Considering relevant factors and [the] same evidence
discussed above in connection with Petitioner’s Proposition 47
petition for resentencing, the court finds that the evidence
presented in this case shows a Petitioner who has continually
committed crimes despite severe repercussions, whose aggressive
behavior continued and escalated while he was in custody, and
who has failed to make efforts toward meaningful rehabilitation
while in prison. . . . Petitioner, at this time, poses an
unreasonable risk of danger to public safety if resentenced under
Proposition 36.”
DISCUSSION
Proposition 36 applies to any inmate serving a life sentence
under the Three Strikes law for a non-serious, non-violent felony
commitment offense. Once a petitioner shows that his
commitment offense was a non-serious, non-violent felony, “the
petitioner 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).) Section 1170.126 provides that the court
may consider “(1) The petitioner’s criminal conviction history,
8
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)(1)–(3).)
Proposition 47 applies to any inmate serving a felony
sentence for certain non-serious, non-violent offenses; the law
provides that such offenses shall be reduced to misdemeanors
“unless the court, in its discretion, determines that resentencing
the petitioner would pose an unreasonable risk of danger to
public safety.” (§1170.18, subd. (b).) The law directs the court to
consider the same categories of evidence as Proposition 36 does:
“(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. [¶] (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.” (§1170.18, subd. (b)(1)–(3).) Proposition
47, however, states that an “ ‘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,” often called super strikes. (§1170.18, subd. (c).)
9
We review a trial court’s decision under both sections
1170.126 and 1170.18 for abuse of discretion. “In reviewing for
abuse of discretion, we are guided by two fundamental precepts.
First, ‘ “[t]he burden is on the party attacking the sentence to
clearly show that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial
court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.” ’ [Citations.]
Second, a ‘ “decision will not be reversed merely because
reasonable people might disagree. ‘An appellate tribunal is
neither authorized nor warranted in substituting its judgment for
the judgment of the trial judge.’ ” ’ [Citation.] Taken together,
these precepts establish that 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, 376–377 (Carmony).)
“[A]ll discretionary authority is contextual.” (People v.
Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.) Thus, we
cannot determine whether a trial court has acted irrationally or
arbitrarily without considering the legal principles and policies
that should have guided the court’s actions. (See Carmony,
supra, 33 Cal.4th at p. 377.) Further, “ ‘[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.’
[Citations.]” (People v. Frierson (2017) 4 Cal.5th 225, 239.)
10
A. Proposition 47 Petition
Appellant contends the trial court failed to establish a
nexus between his current circumstances and the court’s
conclusion he poses an unreasonable risk of committing a super
strike, and so abused its discretion in denying his petition for
resentencing. More specifically, appellant contends the trial
court abused its discretion in 1) finding that his prison rules
violations alone showed he posed an unreasonable risk of
committing a super strike; 2) finding that his 30-year-old
criminal convictions for assaulting a police officer with a firearm
and voluntary manslaughter were probative of his current
dangerousness; 3) relying on his prison misconduct as a nexus to
his past convictions without considering the details of and
reasons for his prison misconduct; 4) finding that his lack of
rehabilitative programming predicted he would commit a super
strike; and 5) finding his rehabilitative plans inadequate.
1. Criminal convictions
Appellant contends that his criminal history does not prove
he currently poses a risk of committing a super strike. He claims
his 1991 conviction for assaulting a police officer with a firearm
does not establish that he was an actual shooter, and so does not
show he poses an unreasonable risk of committing the super
strike of assaulting a police officer with a machine gun. He also
claims that his plea bargain to the 1992 conviction for voluntary
manslaughter shows the District Attorney must not have had
sufficient evidence to prove that he drove the victim around in
the trunk of a car and then killed him in an execution style
shooting. Thus, he concludes, this conviction does not show he
11
poses an unreasonable risk of committing the super strikes of
murder or attempted murder.5
Appellant’s conviction for assaulting a police officer was
affirmed on appeal, and the facts on that appeal show that
appellant was holding an “uzi-style” firearm when he got into the
cab of a truck with two other men, one of whom was also armed.
Immediately before the shooting began, the rear window of the
truck cab was opened. The officer in the patrol car behind the
truck saw two muzzle flashes. A nearby officer stated he saw
muzzle flashes coming from two different points in the truck: one
on the driver’s side and one on the passenger’s side. The truck
sped away, crashing on the freeway. Of the four men arrested
nearby who were connected to the truck, only appellant and one
other man had gunshot residue on their hands. Thus, it is
reasonable to infer appellant was one of the shooters.
As for the voluntary manslaughter conviction, there was
evidence at the preliminary hearing that the victim was put into
the trunk of a car with a pillowcase over his head. It was
5 In his reply brief, appellant contends for the first that the
trial court failed to consider that his criminal offenses before
1990 were committed when he was under the age of 26, when he
still had the hallmarks of youth. Although we do not consider
arguments made for the first time in a reply brief, we note the
trial court clearly focused on the more serious acts appellant
committed after he turned 26: his 1991 conviction for assaulting a
police officer, his 1992 conviction of voluntary manslaughter, and
his multiple parole violations between those offenses and the
current commitment offense. The trial court also clearly
distinguished between appellant’s offenses as a juvenile and his
convictions as an adult.
12
undisputed that the victim was later found on the grounds of a
school with two close-contact gunshot wounds to the back of his
head. A friend told police appellant admitted to taking the victim
to the school, and because the victim knew too much about
appellant’s criminal activities, “executed him.” There was
evidence from another friend that appellant believed the victim
was a drug dealer, intended to rob him, accidentally shot him,
and was not sure if the victim died. While these inconsistent
accounts of appellant’s incriminating statements may have
prompted the prosecutor to offer a plea deal, both accounts show
appellant was involved in a crime of great violence, whether he
shot, or intended to shoot, the victim.6
We cannot agree with appellant that these convictions do
not support a finding (when considered with his intervening
conduct) that he poses an unreasonable risk of committing a
super strike. Appellant has twice gone right to the edge of
committing a super strike. Shooting at a police officer with a
semi-automatic firearm is as close as one can get to committing
the super strike of assaulting a police officer with a machine gun
without actually committing the super strike. Similarly,
voluntary manslaughter where the victim presented a threat to
one’s continued criminal activity is as close to committing the
super strike of felony murder or the super strike of first degree
6 Even without the shooting, kidnapping for robbery would
be a super strike, as it is punishable by life in prison. (§ 209,
subd. (a).) Killing the victim during the course of a robbery or
kidnapping would be felony murder regardless of the shooter’s
intent. (§ 189, subd. (a).)
13
premeditated murder as one can get without actually committing
the super strike. Any farther and he would not be eligible for
resentencing at all. (See People v. Hall (2016) 247 Cal.App.4th
1255, 1266 [Proposition 47 expressly excludes offenders who have
committed a super strike from resentencing and so trial court’s
discretion to deny petition not limited to offenders who have
already committed a super strike].)
The trial court explicitly recognized that these criminal
convictions standing alone were not sufficient to show that
appellant posed a current risk of committing a super strike, but
ultimately found that these convictions, considered with several
other factors, did demonstrate such a risk. The trial court did not
abuse its discretion.
2. RVRs alone
Appellant has misunderstood the trial court’s remark about
the effect of his prison rules violations standing alone. The court
stated, correctly: “Petitioner’s recent disciplinary history reflects
a pattern of violent and aggressive conduct, evidencing his
inability or unwillingness to comply with rules, respect authority,
and refrain from fighting, 15 years into his current incarceration
period. Regardless of the remoteness of petitioner’s commitment
offense, serious rules violations in prison constitute powerful
evidence of an inmate’s current willingness to engage in serious
rule-breaking behavior and are probative of recidivist tendencies
and the danger to public safety. (In re Rozzo (2009)
172 Cal.App.4th 40, 60; In re Bettancourt (2007) 156 Cal.App.4th
780, 805.)” Concluding that evidence is “probative of . . . danger
to public safety” is not equivalent to concluding that the evidence
14
alone demonstrated appellant poses a risk of committing a super
strike, as the trial court makes clear in the following paragraph.
There, the trial court sums up its finding: “In other words,
Petitioner’s RVRs containing significant violence and lack of
rehabilitative programming, coupled with his extensive criminal
history, show that Petitioner is likely to commit a ‘super strike’ if
resentenced. (§ 1170.18, subds. (c) & (i).)”
3. The Probative Value of the RVRs as a Nexus
Appellant next contends that his RVRs do not “transform”
his prior convictions into evidence that he currently poses a risk
of committing a super strike because the RVRs do not involve
assaults on prison staff or use of a weapon and did not result in
reported injuries. He further contends that his RVRs for fighting
showed that he was forced to fight in order to survive. He
contends his environment became unsafe in 2016, after he
renounced his membership in KUMI 415, and that it is
reasonable to infer the fights were either the result of the gang
withdrawing its protection of him, or of the gang targeting him
for retaliation. He contends the trial court failed to evaluate his
RVRs through the “lens” of his gang renunciation and therefore
failed to consider his overall circumstances.
We find it insignificant that the RVRs did not involve
assaults on prison staff. There can be many motives for an
individual to attack a police officer. Appellant’s prior conviction
suggests he fired at the patrol car because he was attempting to
escape from the police; assaulting prison staff to escape from
them would have been futile in that regard. Similarly, that
15
appellant did not use weapons in prison has limited significance
at best, since weapons are more difficult to acquire and retain
inside prison than outside of it, particularly firearms. As far as
lack of reported injuries is concerned, the RVRs all involved
fights which were observed and stopped by prison staff fairly
quickly after they began, reducing the opportunity for appellant
to inflict significant injuries.
Turning to appellant’s renunciation of KUMI 415
membership, appellant’s counsel argued in the trial court that he
had not been involved with KUMI 415 during his most recent
incarceration, and that even his most recent RVRs for fighting
did not have a gang nexus. In appellant’s September 2018
Proposition 47 reply brief, appellant’s counsel stated: “There is no
evidence in petitioner’s record that he has been involved with the
415 KUMI during his current prison term. Primarily, none of
petitioner’s write-ups denote that petitioner’s behavior was in
any way related to a Security Threat Group.”7 In appellant’s July
2020 supplemental reply brief for both petitions, his counsel
contended that “none” of the 2018 and 2019 RVRs for fighting
“involved [a gang] nexus.” Counsel elaborated: “[T]hroughout
petitioner’s 16-years of incarceration, there has never once been a
report that he was actively involved with the KUMI 415. This
was further confirmed by the fact that none of petitioner’s RVRs
contained [a gang] nexus, including the most recent fights and
7 Counsel pointed out that the most recent evidence of
petitioner’s membership in KUMI 415 came from a prior
incarceration dated in 2000, which in turn was based on
information from 1994.
16
batteries.”8 At the July 2020 hearing, counsel noted that
appellant “had signed a renunciation of his association with”
KUMI 415, and was placed in the sensitive needs yard at the end
of 2016. Counsel noted that most of his RVRs occurred in 2018
and implied they occurred after appellant was removed from that
yard.9 Counsel did not suggest that the 2018 fights were related
to his gang renunciation. She also did not suggest that the fights
were due to KUMI 415 withdrawing its protection of appellant
after his renunciation. We cannot find the trial court abused its
discretion by failing to consider a theory which appellant’s
counsel effectively argued should be not considered.
Further, the record does not show that, on balance,
appellant was the victim in the majority of the fights which
prompted the RVRs, or that he was “forced” to fight in order to
survive. Appellant has identified two instances where the
fighting involved two inmates on his enemies list attacking him
together: September 11 and 15, 2016. In another instance, two
inmates were observed attacking appellant unprovoked in the
dining hall on September 28, 2019. This accounts for a total of
3 RVRs. (Appellant also reported he was attacked by his
8 While the term “nexus” may have a specific definition in
prison disciplinary matters which is not discussed in the briefing,
it remains true that appellant’s counsel made no attempt to
argue that appellant’s fights were the result of his gang
renunciation.
9 We see no explanation in the briefing for appellant’s
removal, or any indication of when precisely it occurred.
17
cellmate on April 1, 2018, although this does not appear to have
resulted in a RVR for appellant.)
In contrast, the record does not show appellant as a victim
in 10 other RVRs. In five instances, appellant was clearly the
aggressor: 1) July 4, 2018 [appellant walked up to an inmate
leaving the medical facility and began hitting him]; 2) July 6,
2018 [appellant struck a seated inmate receiving care in medical
facility]; 3) July 30, 2018 [appellant left shower and struck porter
without provocation]; 4) August 16, 2018 [appellant initiated a
battery on another inmate without provocation]; and 5) October
4, 2018 [appellant walked up to wheelchair-bound inmate and
began hitting him]. It also appears appellant was the aggressor
in a March 13, 2018 fight [staff heard sound of stool being
knocked over, looked up and saw appellant standing over and
striking an inmate lying on the ground]. In four other instances,
it was unclear who started the fighting, but appellant did not
claim to be the victim: 1) April 1, 2018; 2) August 4, 2018; 3)
October 3, 2018; and 4) May 9, 2019.
The trial court did not abuse its discretion in treating
appellant’s RVRs from 2016 through 2019 as evidence that he
currently posed an unreasonable risk of committing a super
strike. As the trial court indicated, it is particularly troubling
that these incidents occurred after the passage of Proposition 36
and Proposition 47 “when one would expect eligible inmates to be
on their best behavior.” It is reasonable to view appellant’s
continued fighting at such a time as evidence that he was unable
to control his violent tendencies or to resolve conflicts peacefully.
Considered together with appellant’s pre-incarceration use of
18
firearms and a knife, the RVRs are evidence indicating appellant
would be equally unable to control his violent tendencies outside
prison and would be likely to resort to the use of a firearm to
resolve disputes or solve problems, as he has done in the past.
4. Rehabilitative Programming
Appellant contends the trial court erred in faulting him for
taking only one conflict resolution course and no anger
management courses in prison. He points to the trial court’s
statement that “If Petitioner is unable to refrain from such
conduct and to abide by the rules and regulations of the CDCR, it
is unlikely that he will be able to do so once released into the free
community” as an indication the trial court misunderstood the
high standard required for an unsuitability finding under
Proposition 47. He suggests that the court found only that
appellant posed an unreasonable risk of committing some other
offense.
As we pointed out in section 2 above, later in the same
paragraph, the trial court summed up its finding: “In other
words, Petitioner’s RVRs containing significant violence and lack
of rehabilitative programming, coupled with his extensive
criminal history, show that Petitioner is likely to commit a ‘super
strike’ if resentenced. (§ 1170.18, subds. (c) & (i).)” As we
pointed out in section 3 above, firearms are not readily available
in prison, but appellant had resorted to the use of firearms pre-
incarceration to resolve problems. It would be reasonable to infer
that appellant’s lack of conflict resolution and anger management
programming makes it particularly likely he will resort to the use
19
of firearms once back in the community where they are readily
obtainable.
5. Post-Release Plans
Appellant contends that by finding his parole plans
“tenuous at best,” the trial court neglected its duty to determine
if the plans were realistic or if any perceived deficiencies could be
addressed with parole conditions. The trial court accurately
noted a disconnect between the goals of the PREP/Clear Skies
program, which agreed to support appellant “until he secures a
job and affirms him in his return to society in the community of
Los Angeles” and the fact that appellant’s “entire support
system” and best job prospect were in northern California. The
court noted appellant had not indicated what support he had in
southern California.
Appellant has not addressed this disconnect on appeal, but
simply assumes he could relocate to northern California at some
point after release. It is not clear this would be such a simple
matter. In any event, however, appellant’s parole plan was the
last factor discussed by the court in its memorandum of decision,
and does not appear to have played a significant role in the
court’s denial of the petition. Specifically, the trial court
mentioned the tenuous nature of the parole plans after
concluding that appellant posed an unreasonable risk of
committing a super strike. Thus, even if appellant’s parole plans
were adequate, we see no reasonable probability or possibility
that the trial court would have granted appellant’s petition and
resentenced him.
20
B. Proposition 36
In ruling on the Proposition 36 petition, the trial court
considered the same evidence presented in connection with
appellant’s Proposition 47 petition. The list of factors for the
court to consider in deciding both petitions is the same.
(§§ 1170.126, subd. (g)(1)–(3); 1170.18 subd. (b) (1)–(3).) The
primary difference between the two resentencing provisions is
that Proposition 36 effectively sets a lower standard of
dangerousness than does Proposition 47.
Appellant expressly relies on his arguments concerning the
trial court’s Proposition 47 ruling to show that the trial court
abused its discretion in denying his Proposition 36 petition. He
states: “Those same arguments show the flaws in the trial court’s
analysis under Proposition 36.” We see no abuse of discretion in
the trial court’s ruling on the Proposition 36 ruling for the same
reasons we found no abuse of discretion in the trial court’s
Proposition 47 ruling.
C. Federal Due Process
Appellant contends, without elaboration, that the trial
court’s “improper findings violated state statutory law, and
appellant’s constitutional due process rights to a fair trial.” We
have found that the trial court’s findings were proper under
California law. Appellant has not explained how findings that
are proper under state law would violate his federal
constitutional right to due process. Accordingly, we reject his
claim.
21
DISPOSITION
The orders are affirmed.
CERTIFIED FOR PUBLICATION
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
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