Filed 12/22/17 P. v. Williams CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Orange County, Kazuharu Makino, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Erica Gambale, 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 Butler and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

This case is uncomfortably reminiscent of one of the plot lines in To Kill a Mockingbird. If it were up to us, we might very well conclude that 60-plus year old arthritic third-striker William Blaine Williams poses no danger to public safety and thus could be successfully released from prison under the sentencing recall provisions of either Proposition 36 or Proposition 47.[1] But as an appellate court we are bound by rules that govern our review of cases; one applicable here is that determinations of dangerousness under Propositions 36 and 47 are reviewed under an abuse of discretion standard, a standard that recognizes the inevitable superiority of the trial judge’s knowledge of the case and the parties. Applying that standard, we are required to affirm the trial court’s finding that Williams poses a danger to public safety based on a 2010 prison stabbing incident in which Williams allegedly stabbed another inmate. Even so, it’s a closer case than just that description might suggest.

II. BACKGROUND

Three-striker Williams presented an excellent case for resentencing in March 2016, pursuant to his petitions to recall his sentence under Propositions 36 and 47. There is no doubt he was eligible for recall of sentence. Though Williams committed no less than six armed robberies in the 1980’s and 1990’s, the third strike that landed him a life sentence was for possession of a small amount of heroin. Since that third strike was a non-violent, non-serious felony, Williams is eligible for resentencing under Proposition 36, which modified California’s Three Strikes law. And since his third strike was also a drug-related offense later reduced to a misdemeanor under Proposition 47, he is eligible for resentencing under that proposition as well.

Williams has done much to rehabilitate himself in prison: He dropped out of the Aryan Brotherhood gang sometime in the early 2000’s and helped with a documentary on prison gangs, even though it resulted in his being stabbed twice. He has participated in programs for at-risk youth, including E.D.G.E. (Education, Diversion and Goals to Endeavor), and typed up narratives describing the “pointlessness” of gang life. He was vice-chair of the men’s advisory council of the Calipatria State Prison in 2007. He has mastered various word processing and filing management programs and has become an excellent typist. He took classes in consumer credit, and commendations as an excellent clerk.

Moreover, Williams lined up a sponsor connected with a community college who had agreed to provide housing for him. This sponsor had experience assisting parolees transition back into society. The sponsor had even found counseling for Williams upon his (prospective) release, as well as financial aid to help him attend classes with the goal of becoming a youth counselor. And on top of all that, Williams was about 60 years old, and suffering from hepatitis C, arthritis and high blood pressure, characteristics that generally do not describe likely recidivists.

As we said – he presented an excellent case for recall of sentence. Except for one thing. In July 2010 – at least according to prison rules violation records received by the trial court at the hearing on his petitions – a prison guard saw Williams “make a throwing motion toward” a certain inmate followed by the “distinctive sound of metal on metal.” Another guard discovered a metal weapon (sometimes referred to as a shank[2]) in a nearby unoccupied cell. The stab wound to the fellow inmate was serious, entailing a wound to the heart and bleeding around the heart and into the lung area.

There was an internal prison hearing about the matter. Williams asserted he was not guilty. He said he was, in fact, “a good distance away” from the stabbed inmate. Even so, Williams was found guilty of attempted murder with a deadly weapon by prison authorities, for which violation of prison rules he spent 26 months in a “Shu” or “secured housing unit.”[3]

There was an unsuccessful administrative appeal of the decision, which was “denied.” The memorandum prepared by the chief deputy warden of the prison concerning Williams’ appeal noted his various arguments in favor of his innocence but essentially denied it based on “an eyewitness report that [Williams was] the person that struck inmate [R.] in his upper left chest area while [Williams] grasped on to his waist.”

The 2010 stabbing incident followed Williams into his 2016 hearing and was the reason the trial court denied Williams’ petitions. The trial judge gave great weight to the fact “the eyewitnesses to the incident” who “identified the defendant as the person who did the stabbing” were prison guards, and therefore their statements could be “taken as reliable.” The trial judge concluded their statements were “sufficient to show that Mr. Williams did, in fact, stab another inmate.” The judge further noted there were “no other witnesses at all” who indicated there was some reason the guards’ statements were “either suspect or should not be believed.” The bottom line was that the trial court, based on the 2010 stabbing incident, found Williams to pose a danger of committing a murder (which is a super strike) if released, and so denied both his Proposition 36 and 47 petitions.[4] This appeal followed.

III. DISCUSSION

Propositions 36 and 47 are both structured in the same two-step model: First, the trial court must determine if a prisoner is eligible for resentencing.[5] If so, the trial court must determine whether the prisoner nevertheless represents a danger to public safety if released. The prosecution has the burden of showing dangerousness, but need only do so to a preponderance of the evidence standard. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301-1305.) Here, the trial court considered Williams’ petitions under both Proposition 36 and Proposition 47 at the same time, finding that even under the arguably more lenient standard for dangerousness of Proposition 47 Williams still posed a danger of committing a murder, and thus denying both petitions.

The standard of review for dangerousness under both Propositions 36 and Proposition 47 has been spelled out in those initiatives themselves: abuse of discretion as to whether the prisoner poses an unreasonable risk of public safety.[6] Obviously the finding that Williams attempted to murder a fellow inmate in 2010 supports the trial court’s discretionary finding that Williams poses such unreasonable danger, i.e., he might commit the super strike of murder or attempted murder.

Williams’ appellate argument is that the dangerousness finding based on the 2010 incident was speculative. Tested under an abuse of discretion standard, that argument is not persuasive in light of the stabbing being relatively recent in time and supported by eyewitness testimony. The trial court was not unreasonable in reasoning that someone capable of manufacturing a shank in prison (which certainly would require a modicum of planning) and then using it on another prisoner might yet resort to violence if put under some stress outside of prison.

Another point Williams makes is that the Kern County District Attorney declined to prosecute the 2010 incident. But that is not a point that carries enough heft to outweigh the eyewitness finding under an abuse of discretion standard. It is readily imaginable that a busy prosecutor’s office might not want to devote its limited resources to presenting an attempted murder case against someone already serving a life sentence. Further, while the evidentiary standard for dangerousness in a recall petition is merely preponderance of evidence, the local district attorney’s office undoubtedly evaluated prosecution under the more stringent beyond a reasonable doubt standard.

Nor does the fact no motive for the alleged stabbing was apparent from the prisoner disciplinary proceeding require reversal of the trial court’s discretionary decision. We cannot reason from the fact there was “no known rationale” for the offense (to quote a review committee’s report) to a conclusion it did not happen.

That said, we must emphasize that this case is far closer than one might imagine. To revisit our allusion to To Kill a Mockingbird, the disciplinary record shows that the prison guard who saw Williams stab the other inmate saw him stab the victim with his right hand. Williams, however, is left handed. (See Miller v. United States (D.C. 2011) 14 A.3d 1094 [reversing for Brady error where prosecution didn’t tell defense until the evening before opening statements that prosecution’s principal eyewitness saw gunman shoot pistol in his left hand where defendant was right-handed].[7])

Moreover, Williams was not found with the weapon on him. The weapon was found in an unoccupied cell. And while the absence of motive doesn’t prove Williams didn’t do it, it does raise questions about the incident. We can see why the local prosecutor didn’t think there was a case provable beyond a reasonable doubt that Williams had stabbed another inmate.

For sake of analysis, we must face the thought that lies just beneath the surface in Williams briefing – that Williams was framed by corrupt prison guards concerning the 2010 incident for their own unknown but subjective reasons.

We have no evidence of that: Other than the left-hand/right-hand dichotomy reminiscent of the framing of Tom Robinson in To Kill a Mockingbird, we have no basis for jumping to such a conclusion – to do so would be real “speculation.” The operative legal principle is that we presume official duty has been done and prison guards are not corrupt until shown otherwise. (E.g., Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 751 [“There is a presumption that state officers will obey and follow the law.”].)

Moreover, as far as the problem of left-handedness is concerned, there is nothing in this record that compels a finding that Williams could not have committed the crime. Indeed, according to the memorandum on appeal, the eyewitness officer saw Williams strike the victim twice and Williams’ “left hand was around his waist,” thus plausibly affording more leverage. As Pete Rose and Mickey Mantle demonstrated, some people are able to use their less-dominant sides to advantage, and there is nothing here that forces us to conclude Williams could not have stabbed the inmate with his right hand.

Also – and here we realize the dilemma in which Williams found himself with the prospect of criminal prosecution still hanging over his head[8] – the fact is Williams did not make the case he was framed, or even that the eyewitness prison guard was merely in error. His testimony on direct at the 2016 hearing avoided the 2010 incident, and the prosecutor on cross-examination expressly said she did not want to get “into the facts of that attempted murder accusation.” Moreover, at least in theory, Williams might have challenged in court the prison administrative proceeding by action in either administrative mandate or even ordinary mandamus after having exhausted his internal (prison system) administrative remedies. (See Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 509; see also Cal. Code Regs., tit. 15, § 3084.1 et seq.)

But he didn’t. As far as this court is concerned, it was conclusively established in prison administrative proceedings, even if only by a preponderance of the evidence, that Williams stabbed another inmate in 2010. The trial court was thus well within its discretion in denying the Proposition 36 and Proposition 47 petitions; a stabbing of an inmate could reasonably be found to outweigh all the good works Williams presented at his hearing.

There is nothing we can do for him. The trial court’s order is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

ARONSON, J.