Filed 4/10/17 P. v. Maciel CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Placer)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

JOHNNY SEBASTIAN MACIEL,

Defendant and Appellant.


C080087

(Super. Ct. No. 72002572)


Defendant Johnny Sebastian Maciel has been committing crimes for roughly 25 years. He has also escaped from the custody of the Department of Corrections and Rehabilitation on four occasions, three times as a juvenile from the former California Youth Authority and once as an adult from Mule Creek State Prison. He was sent to Mule Creek after pleading guilty to five counts of second degree burglary (Pen. Code, § 459) , two counts of receiving stolen property (§ 496, subd. (a)), and one count of petty theft with a prior (§ 666). Defendant also admitted he was previously convicted of a strike offense within the meaning of the three strikes law. (§§ 667, subd. (b)-(i), 1170.12.) Pursuant to the plea agreement, the trial court sentenced him to serve 15 years 4 months in state prison and imposed other orders.
After California voters approved Proposition 47, The Safe Neighborhoods and Schools Act (Gen. Elec., Nov. 4, 2014, eff. Nov. 5, 2014 (Proposition 47 or the Act)), defendant filed a petition pursuant to section 1170.18 to recall his sentence and reduce eligible felony convictions to misdemeanor offenses. Following a hearing on the petition, during which defendant testified, the trial court determined four of the burglary convictions and one of the receiving stolen property convictions were eligible for reduction, but nevertheless denied the recall petition because it concluded resentencing defendant would pose an unreasonable risk of danger to public safety. We conclude the trial court did not abuse its discretion and affirm the order denying defendant’s recall petition.
FACTS
Because defendant’s criminal history is relevant to the trial court’s determination that resentencing him to reduce eligible convictions to misdemeanors would pose an unreasonable risk of danger to public safety, we recount it in some detail. We do so from the trial court’s ruling since defendant’s actual records of conviction were not made part of the appellate record and defendant does not dispute the accuracy of the trial court’s summary of his criminal history. Indeed, in his testimony at the hearing on his recall petition, defendant admitted having “a horrible criminal past.”
The trial court summarized defendant’s juvenile adjudication history as follows:
“The Petitioner’s record extends back to 1989 when he was thirteen years old. Petitioner had a petty theft case that was closed at intake. Petitioner had another case for throwing objects at a vehicle also closed at intake in 1990. Petitioner’s first serious arrest was in 1992 for sexual misconduct which involved repeated acts of sexual intercourse with his younger sister. The sexual acts began when the Petitioner was six and his sister was three years old. On January 17, 1995[,] the Petitioner was adjudged as a ward of the Court and committed to the Youth Authority for a term of 7 years, 5 months, based on the following sustained petition:
“1) October 16, 1992 ― Unlawful sexual intercourse ( . . . §261.5);
“2) February 9, 1993 ― Escape ([Welf. & Inst. Code, § 871]);
“3) February 11, 1993 ― Vandalism ( . . . §594(a);
“4) March 17, 1993 ― Escape ([Welf. & Inst. Code, § 871]);
“5) May 11, 1993 ― Escape ([Welf. & Inst. Code, § 871]);
“6) September 17, 1993 ― Unlawful Taking of a Vehicle (Veh. Code §10851(a));
“7) September 17, 1993 ― Unlawful Taking of a Vehicle (Veh. Code §10851(a));
“8) September 20, 1994 ― First Degree Burglary (. . . §459).”
Turning to defendant’s adult criminal history and conduct while incarcerated, the trial court summarized:
“On November 28, 2000, the Petitioner was convicted of the following felonies committed between March 1, and March 27, 1999[:]
“1) Residential burglary (. . . §459)
“2) Residential burglary (. . . §459)
“3) Second Degree Burglary of a Vehicle (. . . §459)
“4) Second Degree Burglary of a Vehicle (. . . §459)
“5) Grand theft (. . . §487)
“6) Unlawful sexual intercourse with a 16-year old girl (. . . §261.5) committed between April 1, 1998 and April 30, 1998, which resulted in her pregnancy.
“As part of the plea to the above charges, the Petitioner entered into Harvey[ ] [w]aivers to one count of residential burglary, two counts of attempted residential burglary, five counts of burglary of a vehicle, one count of attempted burglary of a vehicle, and one count of possessing stolen [p]roperty.
“On March 6, 2001[,] the Petitioner was sentenced to a term of six years in state prison. He was paroled on November 17, 2003.
“One month after being paroled the Petitioner began committing new felonies which led to his current sentence of 15 years, 4 months. Petitioner was convicted as follows:
“1) Second Degree Commercial Burglary (. . . §459)
“2) Second Degree Commercial Burglary (. . . §459)
“3) Receiving Stolen Property (. . . §496)
“4) Second Degree Commercial Burglary (. . . §459)
“5) Petty Theft with Prior (. . . §666)
“6) Second Degree Commercial Burglary (. . . §459)
“7) Receiving Stolen Property (. . . §496)
“8) Second Degree Commercial Burglary (. . . §459)
“The Court was also provided with Petitioner’s Disciplinary Record while Incarcerated. The Court refers to pages 15 through 17 of the People’s Opposition to numerous violations committed by Petitioner while in prison. By far the most serious violation was Petitioner[’]s escape from Mule Creek State Prison.
“On September 4, 2014[,] Petitioner was charged in a Felony Criminal Complaint with the following violations:
“1) Escape from Mule Creek State Prison (. . . §4530(b));
“2) Second degree commercial burglary (. . . §459)
“3) Vandalism over $400 (. . . §594(b)(1);
“4) Vandalism of religious property (. . . §594.3)
“On January 12, 2015[,] the Petitioner was convicted on all counts. On February 23, 2015, Petitioner was sentenced to state prison for a total term of six years.”
As mentioned, the trial court denied defendant’s Proposition 47 petition to recall his sentence and reduce certain convictions to misdemeanors, concluding resentencing defendant would pose and unreasonable risk of danger to public safety. We describe the trial court’s reasoning in greater detail in the discussion portion of the opinion, to which we now turn.
DISCUSSION
Proposition 47 added section 1170.18 to the Penal Code. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Under subdivision (a) of this section, “a person who is currently serving a sentence for a felony conviction that would have been a misdemeanor under the Act may petition the court that entered the judgment of conviction to recall the person’s felony sentence and resentence the person as if he or she had been convicted of the misdemeanor. If the court determines that the defendant satisfies the criteria of section 1170.18, subdivision (a), the court is required to recall the felony sentence and resentence the defendant to the misdemeanor sentence, ‘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).)” (People v. Jefferson (2016) 1 Cal.App.5th 235, 239-240 (Jefferson).)
There is no dispute four of defendant’s burglary convictions would have been misdemeanor “shoplifting” convictions under section 459.5, also added by Proposition 47. (See Jefferson, supra, 1 Cal.App.5th at p. 239.) There is also no dispute one of his receiving stolen property convictions also qualified for reduction under the Act. (§§ 1170.18, subd. (a), 496.) Thus, the question is whether the trial court abused its discretion in determining that resentencing defendant would pose and unreasonable risk of danger to public safety. Defendant contends it did, arguing there is nothing in his criminal history to support the trial court’s conclusion resentencing him would pose such a risk. He is mistaken.
“For purposes of Proposition 47, an ‘unreasonable risk of danger to public safety’ means ‘an unreasonable risk that the petitioner will commit a new violent felony’ described in section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (c).) These violent felonies are known as ‘super strikes’ and include murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, and any serious or violent felony punishable by death or life imprisonment. [Citation.]” (Jefferson, supra, 1 Cal.App.5th at p. 242.) They also include a number of sexual offenses committed against a child who is under 14 years of age. (§ 667, subd. (e)(2)(C)(iv)(II)-(III).) “In determining whether there is an unreasonable risk that the defendant will commit a super strike, 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. [¶] (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).)” (Jefferson, supra, 1 Cal.App.5th at p. 242.) This determination is to be made using the preponderance of the evidence standard. (Id. at pp. 240-241.)
In denying defendant’s recall petition based on the danger he would commit a super strike offense, the trial court relied on the fact defendant molested his younger sister over the span of roughly 10 years, beginning when she was three years old. This conduct culminated in an act of unlawful sexual intercourse in 1992 when defendant was 16 years old, which would have made his sister about 13 years old at the time. As an adult, defendant engaged in unlawful sexual intercourse with a different minor victim (who was 16 years old). The trial court also pointed out that among the long list of crimes committed by defendant are a number of residential burglaries and attempted residential burglaries, defendant “has had few periods where he was not incarcerated since 1989,” he “has repeatedly escaped from confinement,” and he has shown “no interest in preparing himself for his ultimate release into the community.” From this, the trial court concluded defendant posed “an unreasonable danger to commit a sexual offense against a child under the age of 14” and his “determined efforts to escape from custody” indicated “he will continue to commit serious/violent felonies, including first degree residential burglaries.”
The trial court did not abuse its discretion in so concluding. While none of defendant’s prior offenses are themselves super strikes, they demonstrate both a general willingness to commit crimes and a proclivity for sexual conduct with minors. Indeed, defendant’s act of sexual intercourse with his 13-year-old sister would have qualified as a super strike if he were an adult when that crime was committed. (§ 667, subd. (e)(2)(C)(iv)(III) [“lewd or lascivious act involving a child under 14 years of age”].) Nevertheless, defendant argues neither this crime, nor his subsequent adult conviction for engaging in unlawful sexual intercourse with a 16-year-old, “support a conclusion that if released he poses an unreasonable risk [of] committing a violent sexual offense or a sexual offense against a child under the age of 14 years.” While we agree there is no evidence either prior sexual offense was violent in nature, in enacting Proposition 47, the voters intended to “ensure[] that sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed” and those convicted of such offenses “will not benefit from [the Act].” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), text of Prop. 47, §§ 2, 3, p. 70, italics added.) If repeated at defendant’s current age, the conduct engaged in with his sister would qualify as lewd or lascivious conduct with a child under the age of 14 years, a super strike. (§ 667, subd. (e)(2)(C)(iv)(III).) Given defendant’s unremitting commission of an assortment of crimes, both inside and outside of confinement, including several escapes from that confinement, it is reasonable to conclude he poses a continuing risk of committing whatever crime opportunity presents him with. From this, and from defendant’s prior demonstrated proclivity for having sex with minors, including a 13-year-old, the trial court’s conclusion he posed an unreasonable risk of committing a lewd act on a child under the age of 14 years should the opportunity present itself is not outside the bounds of reason.
The trial court did not abuse its discretion in denying defendant’s petition to recall his sentence under Proposition 47.
DISPOSITION
The order denying defendant’s petition pursuant to Penal Code section 1170.18 to recall his sentence is affirmed.



/s/
HOCH, J.



We concur:



/s/
BLEASE, Acting P. J.



/s/
DUARTE, J.