Filed 11/17/17 P. v. Mack CA4/3











NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY EUGENE MACK,

Defendant and Appellant.


G053447

(Super. Ct. No. 95NF3007)

O P I N I O N
Appeal from a postjudgment order of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Alana C. Butler and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
The trial court denied Anthony Eugene Mack’s petition for resentencing under Penal Code section 1170.126 (Proposition 36) finding “resentencing . . . would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) Mack contends the court erred in failing to apply the definition of “‘unreasonable risk to public safety’” contained in section 1170.18, subd. (c) (Proposition 47), which “means an unreasonable risk that the petitioner will commit a new violent felony” within the meaning of section 667, subdivision (e)(2)(C)(iv). After the parties’ briefs were submitted, our Supreme Court decided People v. Valencia (2017) 3 Cal.5th 347 (Valencia), which held Proposition 47’s definition of unreasonable risk of danger to public safety does not apply to resentencing under Proposition 36. Mack also contends he was entitled to have a jury determine whether he posed an unreasonable risk to public safety under Proposition 36. As Mack notes, the Court of Appeal has consistently rejected this argument. Accordingly, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
In September 1996, a jury convicted Mack (born in 1969) of possession of cocaine base for sale (Health & Saf. Code, § 11351.5), and found he had suffered two prior residential burglary convictions within the meaning of the Three Strikes law (§§ 667, subd. (d)(e)(2), 1170.12, subd. (b), (c)(2)). The trial court imposed a prison sentence of 25 years to life.
In November 2012, Mack filed a petition for resentencing. (§ 1170.126.) He sought imposition of a new sentence of 84 months, comprised of the 36-month low term for possession of cocaine base for sale, doubled to 72 months based on the prior burglary convictions (§ 667, subd. (e)(1)), plus a one-year section 667.5, subdivision (b), enhancement the court previously had stricken in 1996. He sought immediate release because he had served 204 months in actual custody.
In May 2013, Mack withdrew his petition. In October 2014, Mack filed a second resentencing petition. After a lengthy delay, the prosecution opposed Mack’s petition. In support, the prosecution submitted Mack’s prison records to the trial court, which showed Mack was a level IV maximum security prisoner with a lengthy criminal history beginning as a juvenile. He had prior gang affiliations and had threatened violence against fellow inmates and prison staff. He repeatedly violated prison rules, and received frequent stints in administrative segregation. He had been incarcerated or on penal supervision for most of his adult life and had limited employment experience. Prison records reflected Mack suffered from mental illness and engaged in sexually deviant behavior in custody. According to the prosecutor, Mack indecently exposed his penis, masturbating and waving it at females and other staff on more than 30 separate occasions. Counseling and other efforts to curtail Mack’s behavior failed. The prosecutor argued “[d]espite years of attempted corrective action, counseling and treatment, [Mack] continues to persist in ‘bizarre,’ [threatening], violent and sexually offensive behavior.” The prosecutor concluded there was “no indication that Mack can, or would, act any differently if prematurely released now.”
In the hearing on Mack’s petition, the trial court admitted Mack’s prison records after overruling Mack’s hearsay and Sixth Amendment confrontation clause objections.
Mack presented testimony from his younger brother, Adrian Whitaker. Whitaker testified Mack could live with him and his five-year-old son in their two-bedroom Long Beach condominium upon his release from prison. Whitaker agreed to provide Mack with food, financial assistance, and transportation, and would help him find employment, stating “[a]s long as he’s trying, I’ll be there.” He had spoken with his supervisor at a company that hauled hazardous waste for the federal government, which employed felons, about finding a job for Mack. Whitaker described himself as a standout employee who would have an inside track to getting Mack a job. Whitaker, a registered sex offender who had suffered a conviction for residential burglary and indecent exposure and served time in prison (Super. Ct. Orange County, 2001, No. 01NF0459), did not find it significant his brother made threats or fought in prison because “[p]rison and outside life is two different lives. There [are] things that you have to do in prison that you wouldn’t do outside.” Mack’s acts of indecent exposure in prison surprised him, but Whitaker stated he would help Mack “[o]ccupy his time with other things,” including volunteer activities, and ensure Mack took his medication. Whitaker had succeeded in becoming a productive member of society after his release from custody and expressed confidence he could help his brother employ the same strategy.
The trial court noted Mack’s last indecent exposure incident occurred in 2012, and most of the incidents occurred before 2008. But the court found resentencing Mack as a second strike offender would pose an unreasonable risk of danger to public safety. The court cited Mack’s extensive record of criminal activity as a juvenile and adult, his numerous probation and parole violations, his limited educational and employment experience, and his custodial behavior. The court noted Mack had a “a lifestyle and a history of failure to follow the rules,” and even though Mack had no indecent exposure incidents since 2012, he continued to violate prison rules by engaging in a fight with a cellmate in 2014.



II
DISCUSSION
A. “Unreasonable Risk to Public Safety”
Mack first contends the definition of “‘unreasonable risk to public safety’” contained in section 1170.18, subd. (c) (Proposition 47) applies to petitions for resentencing under section 1170.126 (Proposition 36). Section 1170.126 provides a person who is presently serving an indeterminate term of imprisonment under the Three Strikes law (§§ 667, subd. (e)(2); 1170.12, subd. (c)(2)) for a felony that is not defined as serious or violent (§§ 667.5, subd. (c), 1192.7, subd. (c)) may file a petition for resentencing to obtain a sentence “in accordance with the provisions of subdivision (e) of Section 667, and subdivision (c) of Section 1170.12, as those statutes have been amended by the act that added this section.” Where the petitioner qualifies for resentencing, the court must resentence him or her “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).) “In exercising its discretion in subdivision (f), 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; 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); Voter Information Guide, Gen. Elec. (Nov. 6, 2012) analysis of Prop. 36, p. 50 [trial court may consider any evidence it determines is relevant].)
Section 1170.126 thus establishes a procedure permitting a person sentenced as a Third Strike offender under the former Three Strikes law for a felony that was neither serious nor violent to petition for resentencing under the amended Three Strikes law. Section 1170.126 does not define the phrase “‘unreasonable risk of danger to public safety.’” (See People v. Buford (2016) 4 Cal.App.5th 886, 913 [in deciding whether to resentence a petitioner the proper focus is on whether the petitioner currently poses an unreasonable risk of danger to public safety; relevant inquiry is whether petitioner’s prior criminal and disciplinary history considered in light of other facts in the record predict current dangerousness; inquiry is individualized one and cannot be undertaken simply by examining circumstances of the crime in isolation without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude]; People v. Flores (2014) 227 Cal.App.4th 1070, 1075 [no formula for the application of the standard].)
In 2014, the voters enacted section 1170.18 (Proposition 47), which reduced certain felonies to misdemeanors and generally authorized persons serving time for these felonies to petition for resentencing. As in Proposition 36, the court must resentence the petitioner unless the court, in its discretion, determines resentencing “would pose an unreasonable risk of danger to public safety.” Section 1170.18 provided, “As used throughout this Code, ‘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.” (§ 1170.18, subd. (c) [cited subdivision of section 667 identifies eight types of particularly serious or violent felonies, known colloquially as “super strikes”].)
In Valencia, supra, 3 Cal.5th 347, our Supreme Court held the definition of “‘unreasonable risk of danger to public safety’” contained in section 1170.18 does not apply to proceedings under section 1170.126. (Valencia, supra, 3 Cal.5th at p. 352 [Proposition 47 did not amend the Three Strikes Reform Act].) The majority concluded section 1170.18, subdivision (c)’s use of the phrase “[a]s used throughout this Code” was ambiguous, explaining Proposition 47’s ballot materials did not notify voters the measure amended the resentencing criteria of the Three Strikes Reform Act and inmates previously convicted of serious or violent felonies could be released as a consequence, and Proposition 47 provided no procedural guidance for the resentencing of Three Strike inmates under its definition of “‘unreasonable risk of danger to public safety.’” (Id. at pp. 356-357.) The court noted “neither the initiative’s text nor its supporting materials describe any intention to amend the criteria for the resentencing of recidivist serious or violent felons, and both the Attorney General, who is required by law to summarize ballot measures, and the Legislative Analyst, who is required by law to provide and explain to voters a measure’s potential impacts, did not” mention the potential effect on resentencing under the Three Strikes Reform Act. (Id. at p. 357.)
Valencia also rejected an argument that refusing to apply section 1170.18’s definition to the Three Strikes Reform Act violated Equal Protection or Due Process. Persons “resentenced under Proposition 36 are not similarly situated to those resentenced under Proposition 47. These are two very different populations of offenders. As the text of Proposition 47 indicates, that measure focused on offenders convicted of a set of low-level, nonserious, nonviolent felonies and reduced them to misdemeanors. In contrast, Proposition 36 concerned the resentencing of recidivist offenders who had two prior violent or serious felony convictions and a third nonserious, nonviolent felony conviction, and who are serving terms of 25 years to life. Obviously, those recidivists with criminal records involving serious or violent felonies, who may have already been incarcerated for a lengthy period, raise concerns for public safety different from those who committed what were previously low-level felonies.” (Valencia, supra, 3 Cal.5th at p. 376.)
Valencia disposes of Mack’s claim the definition of “‘unreasonable risk to public safety’” in section 1170.18, subdivision (c), applies to the same term in section 1170.126, subdivision (f). Mack’s suggestion “‘unreasonable risk of danger to public safety’” is unconstitutionally vague also fails. As noted, Valencia rejected constitutional claims concerning its interpretation of section 1170.126. The issue bears no resemblance to that posed in Johnson v. United States (2015) __ U.S. __ [135 S.Ct. 2551, 2557, 2015 U.S. LEXIS 4251], which held the definition of a “‘violent felony’” as “‘conduct that presents a serious potential risk of physical injury to another’” was unconstitutionally vague. Section 1170.126 vests the trial court with discretion to determine whether resentencing a petitioner endangers public safety. The section directs the court to consider the petitioner’s criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, the remoteness of the crimes, his or her disciplinary record and record of rehabilitation while incarcerated, and any other evidence the court determines to be relevant. Sentencing courts are well equipped to consider such factors and assess risk. (People v. Garcia (2014) 230 Cal.App.4th 763, 769-770 [meaning of “‘unreasonable risk of danger to public safety’” can be “objectively ascertained by reference to the examples of evidence the trial court may consider in making this determination”].)
Finally, Mack complains there was insufficient evidence he posed an unreasonable risk of committing a new violent “super strike” felony. (§ 667, subd. (e)(2)(C)(iv).) As Valencia holds, this is not the test. Mack does not argue the trial court abused its discretion in determining he posed an unreasonable risk of danger to public safety under section 1170.126. In any event, Mack’s precommitment criminal history and inability to live a law-abiding life out of custody, his frequent violations of probation or parole, his repeated behavioral episodes in a prison environment, including some 30 acts of indecent exposure between 1997 and 2012, an assaultive incident in 2014, and his lack of education or employment history, supports the court’s finding he posed such a risk. (People v. Cluff (2001) 87 Cal.App.4th 991, 998 [trial court did not abuse discretion where substantial evidence supports factual findings]; see People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 [under abuse of discretion standard court’s ruling will not be reversed on appeal unless the appellant demonstrates the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice].)
B. Right to Jury
Mack also argues the trial court violated his right to a jury as recognized in Apprendi v. New Jersey (2000) 530 U.S. 466, 490, which held that, other than determining the fact of a prior conviction, any fact increasing a criminal penalty beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. As Mack notes, California courts have consistently rejected the claim. As one court observed, “Reducing the sentence of an individual like the current petitioner, who is serving a valid sentence imposed more than a decade ago, is not constitutionally compelled; it would be an act of lenity. . . . [S]ection 1170.126 merely provides a limited mechanism within which the trial court may consider a reduction of the sentence below the original term. . . . [T]he potential reduction of the sentence is narrowly circumscribed by the statute. The result of a proceeding under section 1170.126 may well be that the petitioner’s originally imposed, lawful sentence remains undisturbed. Under the circumstances, the trial court’s determination of facts that affect whether the defendant will be resentenced does not implicate the right to a jury trial as described in the Apprendi cases.” (People v. Bradford (2014) 227 Cal.App.4th 1322, 1336; see People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1303 [dangerousness is not a factor enhancing the sentence imposed, but rather a hurdle to be crossed before resentencing may occur; court may base its discretionary decision on any appropriate factor, which need not be established by proof beyond a reasonable doubt to a jury]; accord Dillon v. United States (2010) 560 U.S. 817, 828 [rule that jury must determine facts warranting increased punishment does not extend to postconviction proceeding for sentencing reduction created as act of legislative lenity].) We agree with these decisions. Mack raises the issue primarily to preserve the argument for federal review.


DISPOSITION
The postjudgment order is affirmed.



ARONSON, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.