People v. Guzman
| Decision Date | 06 June 2016 |
| Docket Number | B262276 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. BRIAN JOHNATHAN GUZMAN, Defendant and Appellant. |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA107404)
APPEAL from an order of the Superior Court of Los Angeles County, Tia Fisher, Judge. Reversed and remanded.
Trenton C. Packer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
____________________ Defendant and appellant Brian Johnathan Guzman appeals the trial court's order denying his petition for resentencing pursuant to Proposition 47, the Safe Neighborhoods and Schools Act. The trial court determined Guzman was eligible for resentencing, but denied the petition based on its discretionary finding that resentencing would pose an unreasonable risk of danger to public safety. Because the trial court employed an incorrect standard and relied on facts not supported by the record before it, we reverse and remand for a new hearing.
On October 1, 2014, pursuant to a negotiated disposition, Guzman pleaded no contest to a felony violation of Health and Safety Code section 11377, subdivision (a), possession of a controlled substance, methamphetamine. Guzman also admitted suffering a 2010 conviction for making criminal threats in violation of Penal Code section 422, a "strike" offense.1 (§§ 667, subd. (d), 1170.12, subd. (b).) In accordance with the agreed upon sentence, the trial court sentenced Guzman to 32 months in prison.
Just over a month later, on November 4, 2014, the electorate enacted Proposition 47, which went into effect the following day. (People v. Diaz (2015) 238 Cal.App.4th 1323, 1328; People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 reclassified certain drug and theft offenses to misdemeanors, unless committed by ineligible defendants. (People v. Shabazz (2015) 237 Cal.App.4th 303, 308; People v. Diaz, supra, at pp. 1327-1328.) As pertinent here, Proposition 47 reduced possession of methamphetamine in violation of Health and Safety Code section 11377 from a "wobbler" to a misdemeanor, unless the defendant is required to register as a sex offender pursuant to section 290 or has one or more prior convictions for an offense enumerated in section 667, subdivision (e)(2)(C)(iv), sometimes known as "super strikes." (See People v. Lynall (2015) 233 Cal.App.4th 1102, 1108-1109.) Proposition 47 also enactedsection 1170.18, which created a procedure whereby an eligible defendant who has suffered a felony conviction of one of the reclassified crimes can petition to have it redesignated a misdemeanor. (People v. Sherow (2015) 239 Cal.App.4th 875, 879; People v. Lynall, supra, at p. 1109.) Section 1170.18 lists Health and Safety Code section 11377 as an offense eligible for resentencing. (§ 1170.18, subd. (a).)
On December 22, 2014, the public defender's office filed a petition on Guzman's behalf requesting that he be resentenced as a misdemeanant pursuant to Proposition 47. The petition averred Guzman had no disqualifying prior convictions, had never been convicted of an offense requiring sex offender registration, and resentencing did not present an unreasonable risk Guzman would reoffend. On December 31, 2014, Guzman, acting in propria persona, filed a second petition for recall and resentencing.
At the January 14, 2015 hearing on the petitions, Guzman was present and represented by counsel. The trial court determined, without objection from the People, that Guzman was eligible for resentencing. It then turned to the issue of whether resentencing posed an unreasonable risk of danger to public safety. On its own motion, the court had obtained a copy of Guzman's "rap sheet"; it also had before it a copy of the plea agreement and the 2014 preplea report. During the hearing, the court stated,
The trial court's review of Guzman's criminal history, based on the preplea report and the Criminal Investigation and Identification (CII) "rap sheet," was as follows. In August 2004, Guzman had a sustained juvenile petition for making unlawful 911 calls (§ 653x, subd. (a)), and was placed in camp community placement. In November 2005 he was placed home on probation after a juvenile petition alleging felony vandalism was sustained. (§ 594, subd. (a).) In March 2007, another petition alleging felony vandalism was sustained and Guzman was again placed in camp community placement.
In April 2008 Guzman was convicted of misdemeanor battery upon a current or former spouse, fiancé, cohabitant, or child's parent (§ 243, subd. (e)(1)). He was placed on three years summary probation and ordered to serve 20 days in jail. On April 24, 2008, he was convicted of robbery (§ 211), placed on three years formal probation, and ordered to serve 134 days in jail. At the January 2015 resentencing hearing, the court reasoned that the 2008 robbery was likely not serious and did not involve the use of a weapon, given the grant of probation.
On July 10, 2010, Guzman was convicted of making criminal threats (§ 422) and sentenced to two years in prison. At the January 2015 resentencing hearing, the trial court observed, based on its review of the CII rap sheet, that the 2010 matter had been resolved by a "plea disposition." Two other charges, for assault with a firearm and felon in possession of a firearm, as well as a section 186.22 gang enhancement, had been dismissed. At the resentencing hearing, the court opined that "what . . . concerns me the most in terms of the dangerousness assessment" was the 2010 criminal threats case. The court stated: "It's that plea disposition, clearly charges were dismissed, but based on the CII it appears as if in addition to the 422 that [Guzman] may well have admitted - couldn't tell by looking, but well may have admitted the 186.22 allegation." (Italics added.)
In December 2010, probation was revoked in the robbery case as a result of the criminal threats conviction. The court imposed a five-year prison sentence on the robbery, to run concurrently with the sentence on the criminal threats conviction. Guzman was released on parole in April 2014. Due to a violation he was returned to custody and released on September 2, 2014. The 2014 preplea report indicated that while on parole Guzman had had several parole violations, including "gang association, use of narcotics, failure to report, [and] possession of alcohol." He had also tested positive for narcotics and was removed from a drug rehabilitation program due to a curfew violation.
At the January 2015 resentencing hearing, the trial court also noted, apparently in regard to the 2014 preplea report: "Probation records, relative to the gang membershipthat the People have addressed, poor supervision on parole." The rap sheet listed Guzman's monikers as "Snipes" and "Spooks."
Four days after being released on parole, Guzman committed the current offense. According to the 2014 preplea report, on September 6, 2014, at approximately 10:00 p.m., officers observed Guzman holding a beer in violation of a municipal code provision. Upon conducting a parole search they discovered 0.28 grams of methamphetamine in the lining of Guzman's cap.
Based on the foregoing, the prosecutor argued that Guzman's gang membership precluded resentencing. The prosecutor averred that the preplea report stated Guzman was a gang member, and Guzman was was a strong indication Guzman was likely to commit a "super strike" offense if resentenced. Defense counsel countered that the tattoos were old; Guzman had not been involved in gang activity for five years; his priors were run-of-the-mill; and it was a "very large leap" to reason that because "at some point" Guzman was a gang member, he was likely to commit a super strike offense if released.
The trial court determined that resentencing Guzman posed an unreasonable risk to public safety and denied the petition. It declined to consider Guzman's tattoos as evidence of gang membership, reasoning that tattoos were ubiquitous and did not "connect" to the dangerousness assessment.
However, the trial court viewed Guzman's criminal history as "unique." It observed that Guzman had been arrested for the current crime within four days of his release on parole. He had also violated parole. (Italics added.) The court noted that Guzman had a supportive family and a drug problem. But, the court further reasoned: ...
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