People v. Clark CA2/6 ( 2024 )

Filed 6/24/24 P. v. Clark CA2/6
Reposted with correct version
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B328101
(Super. Ct. No. 2006036252)
Plaintiff and Respondent, (Ventura County)
v.
WILLIE RAY CLARK,
Defendant and Appellant.
Willie Ray Clark appeals an order denying his petition for
recall and resentencing filed pursuant to Penal Code section
1170, subdivision (d)(1)(A), and People v. Heard (2022) 83
Cal.App.5th 608, 634 (juvenile offender serving de facto sentence
of life without parole may petition for recall and resentencing).1
We conclude that the trial court did not abuse its discretion by
denying the recall and resentencing petition because Clark’s
sentence of 25 years to life plus six years (31 years to life) is not
the functional equivalent of life without parole. We affirm.
1 All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL HISTORY
On February 22, 1996, then 17-year-old Clark entered a
laundromat and concealed himself inside the janitor’s room.
After the female custodian closed the laundromat for the evening,
Clark sexually assaulted her. A security camera filmed a person
entering the laundromat and concealing himself inside. DNA
laboratory testing years later established that Clark was the
donor of the fluids obtained from a medical-legal examination of
the victim. At a court trial, Clark testified that he had
consensual sexual intercourse with the victim that evening.
On January 14, 2008, the trial court convicted Clark of
forcible rape and forcible penetration by a foreign object. (§§ 261,
subd. (a)(2), 289.) The court also found that he committed the
criminal offenses during commission of a burglary; personally
used a dangerous or deadly weapon or a firearm during
commission of the offenses; and engaged in tying or binding the
victim. (§ 667.61, subd. (e) [special allegations].)
As a one strike offender, the trial court sentenced Clark to
25 years to life for the rape conviction and a consecutive six-year
term for the penetration by a foreign object conviction. Clark
received 428 days of presentence custody credit. We affirmed the
judgment on appeal. (People v. Clark (Dec. 3, 2008, B206382)
[nonpub. opn.].)
On March 27, 2023, Clark filed a petition for recall and
resentencing pursuant to section 1170, subdivision (d)(1)(A), and
People v. Heard, supra, 83 Cal.App.5th 608, 629 (juvenile
offender’s sentence of 103-years-to-life imprisonment a de facto
sentence of life without parole). Clark asserted that his sentence
of 31 years to life as a juvenile offender was the functional
equivalent of life without parole. His petition included many
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attachments reflecting his rehabilitation and self-improvement
efforts during imprisonment.
The trial court denied Clark’s petition without a hearing or
the appointment of counsel. The court ruled: “Nor was [Clark]
sentenced to the functional equivalent of life without parole.
Indeed, it appears that [Clark] has a tentative consultation with
the Board of Parole Hearings on April 23, 2023.” The court’s
ruling acknowledged section 1170, subdivision (d)(1)(A), and
People v. Heard, supra, 83 Cal.App.5th 608.
Clark appeals and argues that the trial court abused its
discretion by summarily denying his recall and resentencing
petition. (People v. Frazier (2020) 55 Cal.App.5th 858, 868-869
[petition to recall and resentence reviewed for an abuse of
discretion], superseded by statute as stated in People v.
McMurray (2022) 76 Cal.App.5th 1035, 1041.)
DISCUSSION
Clark asserts that the record reflects that his sentence is
the functional equivalent of life without parole. He requests that
we remand the matter for reevaluation of his petition.
Section 1170, subdivision (d)(1)(A) allows a juvenile
offender who has served at least 15 years of a sentence of life
without parole to petition for recall of the sentence and
resentencing to a term that includes an opportunity for parole.
People v. Heard, supra, 83 Cal.App.5th 608, 629, expanded the
reach of section 1170, subdivision (d)(1)(A) to juvenile offenders
serving de facto sentences of life without parole.
Clark’s sentence of 31 years to life is far less than the 103
years’ sentence imposed in Heard. It is also less than the 110-
years-to-life term imposed in People v. Caballero (2012) 55
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Cal.4th 262, 269, and the 50-years-to-life term imposed in People
v. Contreras (2018) 4 Cal.5th 349, 369.
Clark will be 50 years old in September 2028 and by then
will have served nearly 22 years of his sentence (including
presentence custody credit). He will be eligible for the Elderly
Parole Program in September 2028. (§ 3055, subd. (a) [“The
Elderly Parole Program is hereby established, to be administered
by the Board of Parole Hearings, for purposes of reviewing the
parole suitability of any inmate who is 50 years of age or older
and has served a minimum of 20 years of continuous
incarceration on the inmate’s current sentence, serving either a
determinate or indeterminate sentence”].) Clark’s first parole
consideration hearing is also tentatively scheduled for October
2028.
The Elderly Parole Program aside, Clark’s eligibility date
for parole at the time his 31-years-to-life sentence was imposed is
December 2037. Clark will then be 59 years old. This sentence is
not a de facto life without parole sentence. (People v. Franklin
(2016) 63 Cal.4th 261, 279 [youth offender parole hearing during
25th year of incarceration not functional equivalent of life
without parole sentence].) Clark’s sentence affords him an
opportunity to reintegrate into society and realize his potential to
participate as a productive member of society. (People v.
Contreras, supra, 4 Cal.5th 349, 368 [50-years-to-life sentence for
juvenile nonhomicide conviction violates Eighth Amendment].)
Clark complains that the trial court did not exercise its
discretion with an informed understanding of the issues
presented in Heard. The court’s written ruling, however, referred
to Heard and section 1170, subdivision (d)(1). Heard extensively
discussed equal protection and cruel and unusual punishment
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decisions and relevant statutes. (People v. Heard, supra, 83
Cal.App.5th 608, 639-644.) The court properly performed its
duties absent a showing of error. (People v. Duran (2002) 97
Cal.App.4th 1448, 1461, fn. 5.) On a silent record, we do not
assume the court misunderstood the scope of its discretion.
(People v. Frazier, supra, 55 Cal.App.5th 858, 868-869.)
DISPOSITION
The order denying the recall and resentencing petition is
affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
CODY, J.
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Ryan J. Wright, Judge
Superior Court County of Ventura
______________________________
James Koester, 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, Xiomara Costello and Gabriel Bradley, Deputy
Attorneys General, for Plaintiff and Respondent.
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