People v. Rodriguez CA2/7

Filed 12/8/22 P. v. Rodriguez CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B315484
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA035695)
v.
ANTHONY CASTRO RODRIGUEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, William C. Ryan, Judge. Affirmed.
Arielle Bases, 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, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Lindsay Boyd, Deputy Attorney General,
for Plaintiff and Respondent.
_____________________________
INTRODUCTION
Anthony Castro Rodriguez appeals from an order denying
his petition for resentencing under Proposition 36, the Three
Strikes Reform Act of 2012. The superior court denied the
petition because the court found Rodriguez posed an
unreasonable risk of danger to public safety under Penal Code
section 1170.126, subdivision (f).1 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Rodriguez Lives a Life of Crime
Rodriguez has spent much of his life committing serious
crimes, serving prison sentences, and—often soon after his
release from prison—violating parole. Rodriguez’s extensive
criminal history began in 1974, when he was 15 years old and the
juvenile court sustained a petition for drug-related crimes. The
juvenile court subsequently sustained petitions alleging robbery,
driving under the influence, and shoplifting. (People v. Rodriguez
(Oct. 15, 2018, B280078) [nonpub. opn.] (Rodriguez I).)
Rodriguez committed his first serious crime as an adult in
1981, when he robbed a store with a rifle, and was sentenced to
four years in prison. He was released early in 1984, but violated
his parole in 1985, when he was convicted of being under the
influence of a controlled substance. (Rodriguez I, supra.)
In 1988, two years after he was released from prison,
Rodriguez and an accomplice killed a man by stabbing him in the
eye. Rodriguez was charged with murder, pleaded guilty to
1 Statutory references are to the Penal Code.
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voluntary manslaughter, and was sentenced to a prison term of
eight years. Less than two months after his release from prison
on parole in 1992, Rodriguez and a confederate tried to rob
someone and, in the attempt, ripped off the victim’s earlobe.
Rodriguez was convicted of attempted second degree robbery and
sentenced to prison for six years four months. He was released
on parole again in 1995. (Rodriguez I, supra.)
Two months after his release from prison, Rodriguez was
arrested after he beat up his girlfriend outside a police station to
prevent her from entering the station. He was convicted of
inflicting corporal injury on a spouse or cohabitant and placed on
probation for 36 months on the condition he serve a jail term.
Shortly after his release in 1996, however, he was arrested again,
this time for committing forcible sexual penetration with a
foreign object on a minor (who was intoxicated). The court
returned Rodriguez to prison for violating the terms of his parole
for his voluntary manslaughter conviction. (Rodriguez I, supra.)
B. Rodriguez Commits Another Crime and Is Sentenced
Under the Three Strikes Law
On April 13, 1998 Rodriguez and two confederates stole
items from a department store. A jury convicted Rodriguez of
petty theft with a prior theft-related conviction, and the court
found true allegations he had three prior serious felony
convictions: the 1981 robbery conviction, the 1988 voluntary
manslaughter conviction, and the 1992 attempted robbery
conviction. The court sentenced Rodriguez to a prison term of 25
years to life under the three strikes law. (§§ 667, subds. (b)-(i),
1170.12.)
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C. Rodriguez Violates the Rules in Prison
By January 2015 Rodriguez had received over 18 Rules
Violation Reports (RVRs) for serious violations of prison rules
and regulations,2 ranging from violence against correctional
officers and other inmates and the manufacture or possession of
contraband (such as alcohol) to disobedience and other
misconduct. (Rodriguez I, supra.) In 2017 Rodriguez received
another RVR for taking a shower on a day he was not authorized
to do so, after a correctional officer told Rodriguez it was not his
shower day.
D. Rodriguez Participates in Some Rehabilitative
Programs
Rodriguez started participating in rehabilitative programs
in 2016. He began an educational and self-improvement course,
completed a program titled Alternatives to Violence and an anger
management program, and participated in a self-help support
group and a bible group. Rodriguez also attended adult school,
wrote a letter of support and guidance to a youth group,
completed a victim awareness course, and attended Alcoholics
Anonymous/Narcotics Anonymous meetings. In addition,
2 “[A]n RVR is issued for a serious rules violation. The
California Code of Regulations gives a non-exhaustive list of
examples of serious rules violations to include such
circumstances as: use of force or violence against another person,
a breach of or hazard to facility security, a serious disruption of
facility operations, manufacturing a controlled substance, and
willfully inciting others to commit an act of force or violence.”
(Quiroz v. Horel (N.D.Cal. 2015) 85 F.Supp.3d 1115, 1143; see
Cal. Code Regs., tit. 15, §§ 3312, subd. (a)(3), 3315, subd. (a); In re
Martinez (2012) 210 Cal.App.4th 800, 805.)
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Rodriguez completed a conflict resolution program and
workshops on domestic violence, battling impulsive behavior, and
other topics.
E. Rodriguez Files Petitions for Resentencing
In 2013 Rodriguez filed a petition for resentencing under
Proposition 36, and in 2015 he filed a petition for resentencing
under Proposition 47, the Safe Neighborhoods and Schools Act
(§ 1170.18). In 2016 the superior court denied Rodriguez’s
petition under Proposition 47 without addressing his petition
under Proposition 36.
In 2018 we affirmed the order denying Rodriguez’s
Proposition 47 petition, concluding the superior court did not
abuse its discretion in ruling Rodriguez posed an unreasonable
risk of danger to public safety. We also held the superior court’s
failure to rule on Rodriguez’s Proposition 36 petition was
harmless because the superior court’s finding Rodriguez posed an
unreasonable risk of danger to public safety under Proposition 47
necessarily satisfied the broader standard of dangerousness
under Proposition 36. (Rodriguez I, supra.)
F. The Superior Court Rules on Rodriguez’s
Proposition 36 Petition
On April 12, 2019 the superior court issued an order to
show cause regarding whether Rodriguez’s petition under
Proposition 36 should be dismissed or set for a hearing. In
response, the People, pursuant to the new district attorney’s
policy on resentencing, conceded Rodriguez was eligible and
(contrary to their prior position) suitable for resentencing.
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The superior court, after considering the original and
additional evidence submitted by the parties, denied Rodriguez’s
Proposition 36 petition, finding Rodriguez posed an unreasonable
risk of danger to public safety under section 1170.126,
subdivisions (f) and (g). The court stated it had considered
Rodriguez’s entire criminal history and his conduct in prison,
including his most recent prison conduct. The court found that
Rodriguez’s “relatively recent misconduct, considered in
conjunction with the 18 serious RVR’s noted in the court’s
previous order, continues to provide evidence of current
dangerousness.” Rejecting Rodriguez’s argument that his 2017
prison rule violation was not indicative of current dangerousness,
the court found even such “minor misconduct indicates that
[Rodriguez] is either unable or unwilling to conform to the
requirements of the law and may provide evidence that
[Rodriguez] is a current danger to public safety.” Finally, the
court found Rodriguez’s recent rehabilitative programming,
“while encouraging, is not sufficient to cause the court to
effectively reverse its previous order, . . . especially in light of
[Rodriguez’s] continued misconduct in prison and past
misconduct as indicated in the court’s 2016 order.” Rodriguez
filed a timely notice of appeal from the order denying his petition
under Proposition 36.
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DISCUSSION
A. Proposition 36
Proposition 36 authorizes an inmate currently serving an
indeterminate prison term under the three strikes law to petition
the court for resentencing. (§ 1170.126, subds. (a), (b); People v.
Perez (2018) 4 Cal.5th 1055, 1062; People v. Stewart (2021)
66 Cal.App.5th 416, 425.) When a defendant petitions for
resentencing under Proposition 36, “the trial court ‘shall
determine whether the petitioner satisfies the criteria’ for
resentencing eligibility, including whether the petitioner’s third
strike offense was neither serious nor violent.” (Perez, at p. 1062;
see § 1170.126, subds. (e), (f); People v. Estrada (2017) 3 Cal.5th
661, 666 [Proposition 36 “amended the Penal Code to permit
recall of sentence for some inmates sentenced for third strike
offenses that were neither serious nor violent felonies”].)
The court must resentence an eligible petitioner under
Proposition 36 “unless the court, in its discretion, determines
that resentencing the petitioner would pose an unreasonable risk
of danger to public safety.” (People v. Perez, supra, 4 Cal.5th at
p. 1059; see People v. Strother (2021) 72 Cal.App.5th 563, 570.)
In exercising its discretion in determining whether resentencing
the petitioner would pose an unreasonable risk of danger to
public safety, the resentencing 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
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court deems relevant. (§ 1170.126, subd. (g); see People v.
Frierson (2017) 4 Cal.5th 225, 231.)
We review a superior court’s ruling on a Proposition 36
petition, including a dangerousness finding under section
1170.126, subdivision (f), for abuse of discretion. (People v.
Strother, supra, 72 Cal.App.5th at p. 571; People v. Jefferson
(2016) 1 Cal.App.5th 235, 242.) The “burden is on the party
attacking the sentence to clearly show that the sentencing
decision was irrational or arbitrary.” (Strother, at p. 571,
internal quotation marks omitted.)
B. The Superior Court Did Not Abuse Its Discretion in
Ruling That Resentencing Rodriguez Would Pose an
Unreasonable Risk of Danger to Public Safety
Rodriguez contends that, during his most recent several
years in prison, he has participated in various rehabilitative
programs and has only received one RVR for violating a prison
rule (the unauthorized-shower incident). According to Rodriguez,
the superior court abused its discretion in ruling he posed an
unreasonable risk of danger to the public because, in the past five
years, he had only the one “minor rule violation.” He also argues
that he has been in prison for 24 years and that, now that he is
63 years old, he has “grown even older and pose[s] even less of a
risk of re-offending.” The superior court, however, did not abuse
its discretion in ruling Rodriguez posed an unreasonable risk of
danger to the public.
Rodriguez’s extensive criminal history included committing
violent crimes and using firearms and other dangerous or deadly
weapons, often soon after his release from prison. (See
§ 1170.126, subd. (g)(1) [court may consider “the type of crimes
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committed” by the petitioner].) For example, Rodriguez killed
one victim by stabbing him in the eye and, in the course of
robbing another victim, used enough force to tear off his victim’s
earlobe. Later, during one of his (brief) prison interregna, he
attacked his girlfriend by repeatedly hitting and kicking her to
prevent her from entering a police station. Then, while on parole
(again), he sexually assaulted an intoxicated teenage girl.3 The
superior court properly considered the violent manner in which
Rodriguez committed these crimes. The court also properly
considered the injuries Rodriguez inflicted on his victims,
including death; disfigurement; corporal injury on his girlfriend’s
face, arms, and back; and penetration of the teenage girl’s vagina.
(See § 1170.126, subd. (g)(1) [court may consider “the extent of
injury to victims” of the petitioner].) And the court properly
considered Rodriguez’s prison sentences, which included eight
years for manslaughter and six years four months for attempted
robbery. (See § 1170.126, subd. (g)(1) [court may consider “the
length of prior prison commitments” of the petitioner].)
It is true, as Rodriguez argues and the People acknowledge,
some of his crimes were remote. (See § 1170.126, subd. (g)(1)
[court may consider “the remoteness of the crimes” committed by
the petitioner].) But that is primarily because he has been in
3 The People initially charged Rodriguez with violating
section 289, forcible sexual penetration with a foreign object on a
minor. Had the People proceeded to prosecute Rodriguez on that
charge (rather than proceeding on the probation violation) and
obtained a conviction, Rodriguez would have been ineligible for
relief under Proposition 36. (See §§ 667, subd. (e)(2)(C)(iv)(I),
(IV), 1170.126, subd. (e)(3); Welf. & Inst. Code, § 6600, subd. (b);
People v. Hernandez (2017) 10 Cal.App.5th 192, 196 & fn. 2;
People v. Jernigan (2014) 227 Cal.App.4th 1198, 1204.).
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prison most of his adult life and almost continuously since his
1988 voluntary manslaughter conviction. And, during the brief
periods of time between incarcerations, Rodriguez was out in the
public committing more crimes. The trial court did not abuse its
discretion in finding that, when Rodriguez is not in prison and
separated from the public, he is dangerous and commits crimes.
Just as he was unable to follow the rules of society and the
laws governing public safety when he was out of prison,
Rodriguez was unable to follow the rules when he was in prison,
as evidenced by the numerous RVRs and other rule violations he
has accumulated throughout the two decades he has been
incarcerated. Rodriguez’s most recent prison violation was in
2017, which occurred after the superior court denied his
Proposition 47 petition, when he violated a prison rule by
insisting, after a warning, on showering on a non-shower day (an
RVR). Such misconduct, combined with Rodriguez’s many other
violations of prison rules and regulations, constituted “powerful
evidence” of his “current willingness to engage in serious rule-
breaking behavior” and is “probative of recidivist tendencies and
the danger to public safety.” (People v. Strother, supra,
72 Cal.App.5th at p. 573; see In re Reed (2009) 171 Cal.App.4th
1071, 1085 [“petitioner’s inability to follow an express direction to
comply with the rules of the institution” is evidence that, “when
released, petitioner will be unable to follow society’s laws”].)
Rodriguez argues he participated in rehabilitation courses
to address the issues identified in the superior court’s order
denying his petition under Proposition 47, including programs on
“anger management, alternatives to violence, and victim
awareness.” Participation in rehabilitative programs is a factor
“the court may consider” when ruling on a Proposition 36
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petition. (§ 1170.126, subd. (g)(1).) Participation in such
programs, however, does not guarantee resentencing; other
factors may outweigh such participation. (§ 1170.126 subd. (g);
see People v. Buford (2016) 4 Cal.App.5th 886, 899 [“[t]he reasons
a trial court finds resentencing would pose an unreasonable risk
of danger, or its weighing of evidence showing dangerousness
versus evidence showing rehabilitation, lie within the court’s
discretion”].) Here, the superior court acknowledged Rodriguez’s
participation in rehabilitative programs, but ruled such recent
efforts did not outweigh other factors that indicated he was
dangerous, including his criminal history and years of prison
misconduct. The superior court did not abuse its discretion in
considering and weighing these factors. (§ 1170.126 subd. (g); see
People v. Bradford (2014) 227 Cal.App.4th 1322, 1329 [“the court
may consider a broad range of evidence”].)4
4 Rodriguez asserts the superior court’s failure “to properly
apply state law at sentencing violates the Due Process clause of
the Fourteenth Amendment and the California Constitution.”
Because the superior court properly applied state law, and
Rodriguez does not make any other due process argument, he has
not shown a due process violation. (See People v. Strother, supra,
72 Cal.App.5th at p. 578 [due process challenge to an order
denying petitions under Proposition 36 and Proposition 47 failed
where the petitioner did not explain “how findings that are
proper under state law would violate his federal constitutional
right to due process.”].)
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DISPOSITION
The order is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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