People v. Mizner
| Decision Date | 21 December 2016 |
| Docket Number | H040421 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ROBERT MIZNER, Defendant and Appellant. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Benito County Super. Ct. No. CR-08-01656)
Appellant Anthony Robert Mizner appeals from the October 18, 2013 order denying his petition for resentencing pursuant to Penal Code section 1170.126.1 Section 1170.126 was part of Proposition 36, known as "the Three Strikes Reform Act of 2012" (Proposition 36 or Act), enacted by the voters in November 2012. (See Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, §§ 1, 6, 10, effective Nov. 7, 2012.) One of the purposes of Proposition 36 was to "[r]estore the Three Strikes law to the public's original understanding by requiring life sentences only when a defendant's current conviction is for a violent or serious crime." (Id., § 1, subd. (2).)
Appellant was sentenced to an indeterminate life term for possession of methamphetamine under the Three Strikes law before it was amended by Proposition 36.2 He filed a petition for resentencing under section 1170.126, asserting that his current offense was not a violent or serious felony. (See §§ 667.5, subd. (c), 1192.7, subd. (c), see also § 1170.125; People v. Johnson (2015) 61 Cal.4th 674, 683 (Johnson) [].) The court found that resentencing appellant "would pose an unreasonable risk of danger to public safety" (§ 1170.126, subd. (f)), which disqualified him from resentencing.3
He now raises multiple contentions. We find no basis for reversal and affirm.4
In May 2013, appellant filed a petition for resentencing pursuant to section 1170.126. The petition indicated that he had been sentenced as a third strike offender and that he was serving a state prison term of at least 25 years to life based on a conviction of possession of methamphetamine (Health & Saf. Code, § 11377). The petition listed two prior strikes: arson (§ 451) and intimidating a witness (§ 136.1).
Appellant waived his right to personally appear at the hearing on his petition for resentencing.
A hearing on the petition was held on October 18, 2013. The prosecutor submitted on the probation report, which included appellant's criminal history. The report briefly described the facts underlying appellant's 1992 convictions of arson and robbery and his 2000 assault conviction, and mentioned the disciplinary violations contained in appellant's "C-file."
The probation report recommended against resentencing because appellant would pose an unreasonable risk to the community based on the entirety of his criminal record. It indicated that appellant had been in the criminal justice system since the age of 15, that appellant had 15 prior felony convictions, and that appellant had "violated his probation and parole numerous times." As to appellant's current offense, the probation report stated that "after being given the chance at Proposition 36, he failed quickly and was sent to prison." It noted that appellant had been proven "capable of violence."
As to rehabilitation efforts, the probation report stated:
Appellant did not appear or testify on his own behalf at the hearing on his petition. His counsel called Jay Curtis, who testified that he was "a certified criminal justice rehabilitation specialist/chemical dependency specialist." Curtis testified to the following facts.
In December 2008, Curtis worked for San Benito County Behavioral Health (Behavioral Health). Curtis conducted the intake interview of appellant, who was referred to Behavioral Health by probation. The interview involved a two-hour addiction severity index assessment, and appellant was cooperative. Curtis scheduled an appointment with appellant to develop a treatment plan to address his methamphetamine addiction and behavioral issues, such as lack of personal motivation and lack of educational and job skills, and to set some goals. Curtis was appellant's primary counselor, and he worked with appellant on relapse prevention, early-stage recovery, individual counseling, and "phone support." Appellant was Curtis's patient until appellant was discharged from the program on April 6, 2009 because appellant was being held in custody.
On April 30, 2009, Curtis wrote a letter on behalf of appellant. The letter stated that, in the early stage of the recovery process, appellant was attending his groups and did participate. But "[a]fter having some difficulty with his sobriety," appellant was upgraded to IOP level, which impliedly was a more intensive program of treatment. Appellant was attending his groups and individual counseling consistent with his treatment plan. But appellant appeared "to be having problems with personal boundaries and old friends that prompt negative actions that result in using." The letter recommended that appellant be returned to treatment rather than be placed in custody.
During the four-month period of his treatment at Behavioral Health, Curtis did not see appellant threaten or use physical force on anybody. Appellant did, however, show signs of agitation. According to Curtis, most people who abruptly stop using stimulants after a long period of using them show signs of agitation, irritability, and discontentment because they are not getting their "fix" and are not feeling well. Appellant nevertheless expressed a desire to continue treatment. Curtis had last spoken with appellant in April 2009, prior to writing the letter in support of appellant's continued treatment.
In support of the petition for resentencing, appellant's counsel proffered some prison records, which were dated between 2010 to 2012 and which generally related to his classification in prison, had them marked for identification, and discussed them in some detail. But apparently they were never admitted into evidence. Defense counsel argued that there was nothing remarkable in appellant's file to indicate that he would pose an unreasonable risk to public safety. He pointed out that, other than a 2001 disciplinary violation for a prison fight, appellant had an unremarkable prison record.
The prosecutor contended that appellant posed an unreasonable risk of danger to public safety based on his extensive criminal history, which included multiple counts of arson against multiple victims and an assault with great bodily injury. According to the prosecutor, appellant broke the nose of a woman who was going to testify against him. The prosecutor also told the court that after an arrest for violating Vehicle Code section 14601 (), appellant, who had been placed in the rear of a patrol vehicle, began screaming obscenities and hitting his head against the patrol vehicle cage and window.5 He alsoindicated that appellant had "submitted tap water instead of urine in a recent chemical test that he took in prison." The prosecutor asserted that appellant had done almost nothing to help himself during incarceration; he had not attended substance abuse programs or participated in vocational training.
The trial court agreed that appellant had an unremarkable prison record. The court nevertheless denied appellant's petition for resentencing, concluding that he would pose an unreasonable risk of danger to public safety (§ 1170.126, subd. (f)). The court's determination was based on appellant's "extensive criminal conviction history," "the nature of the crimes committed," and "his inattentiveness to rehabilitation" in prison.
Appellant asserts that the evidence was insufficient to show that resentencing him as a second strike offender would pose "an unreasonable risk of danger to public safety" as that phrase is now defined by section 1170.18, which was part of a 2014 initiative measure approved by the voters. (See Voter Information Guide, Gen. Elec. (Nov. 4, 2014), text of Prop. 47, § 14.) Subdivision (c) of section 1170.18 provides: "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" (italics added), which specifies certain crimes.6
Appellant argues that, as a matter of statutory construction, section 1170.18's narrow definition of "unreasonable risk of danger to public safety" applies to petitions filed under section 1170.126 and that definition retroactively governs our review, even though his petition for resentencing under section 1170.126 was filed and denied before section 1170.18 was enacted. We reject those contentions.
Before the voters approved Proposition 36, the California Supreme Court observed: ...
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