People v. Valdez
| Decision Date | 28 April 2016 |
| Docket Number | G052105 |
| Citation | 201 Cal.Rptr.3d 569,246 Cal.App.4th 1410 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. John Jeffrey VALDEZ, Defendant and Appellant. |
Jamie Popper, Alameda, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
John Jeffrey Valdez appeals from an order denying his petition for recall of his indeterminate life sentence and resentencing in accordance with the Three Strikes Reform Act, commonly referred to as Proposition 36. Although the trial court determined appellant was eligible for resentencing, it denied his petition based on a discretionary determination that "resentencing the petitioner would pose an unreasonable risk of danger to public safety." (Pen.Code, § 1170.126, subd. (f) ; all further undesignated statutory references are to this code.) Appellant argues the court erred because: (1) Proposition 36 establishes a presumption in favor of resentencing eligible inmates, and authorizes denial of a resentencing petition on the basis of dangerousness only in extraordinary circumstances; (2) the definition of what constitutes "an unreasonable risk of danger to public safety" that was adopted by the electorate in the Safe Neighborhoods and Schools Act—commonly referred to as Proposition 47—must also be applied to resentencing petitions filed pursuant to Proposition 36; (3) if the Proposition 47 definition is not applied, then the "unreasonable risk of danger to public safety" standard used in Proposition 36 must be deemed void for vagueness. Appellant also contends he was entitled to a jury trial on the issue of his dangerousness and that the factual findings underlying the court's determination he posed an unreasonable risk of danger to public safety were unsupported by substantial evidence.
The Attorney General counters by asserting the trial court erred when it denied the prosecution's earlier motion to dismiss the petition on the basis appellant was ineligible for resentencing relief. Specifically, the Attorney General claims the evidence demonstrated appellant was ineligible to be resentenced because he was armed during the commission of his current offense of heroin possession. We conclude that issue cannot be raised for the first time on appeal from the trial court's subsequent ruling that resentencing should be denied on the basis appellant poses an unreasonable risk of danger to public safety.
As to that subsequent order, we agree with appellant's contention that the more specific definition of "an unreasonable risk of danger to public safety" contained in Proposition 47 is the appropriate standard to apply to resentencing petitions under Proposition 36. Section 1170.18, subdivision (c), adopted as part of Proposition 47, plainly states that its definition of " ‘unreasonable risk of danger to public safety’ " applies "throughout this Code." Moreover, applying that standard to Proposition 36 petitions is in no way inconsistent with either the language or purpose of Proposition 36. To the contrary, prohibiting resentencing for only those inmates who pose an unreasonable risk of committing the types of offenses which currently justify an indeterminate life term under Proposition 36 is entirely consistent with the goals of Proposition 36.
Having concluded the appropriate standard for assessing appellant's dangerousness is the one found in Proposition 47, we reverse the judgment and remand the case to the trial court with directions to reconsider the issue in accordance with that standard. We reject appellant's contention that he is entitled to a jury trial on the issue.
In October 1999, appellant was charged with one count of possession of a controlled substance (heroin) and one count of possessing a firearm by a felon. He had a lengthy prior record, stemming back to when he was a juvenile. As this court previously characterized it: (People v. Valdez (Sept. 17, 2002, G028006), 2002 WL 31066082 [nonpub.opn.].)
In September 2000, appellant was sentenced to a term of 25 years to life in prison on the current drug and weapons possession charges.
While in prison, appellant was found in possession of heroin and syringes in 2001 and 2004, respectively. In 2006, he was twice convicted of being in possession of a weapon, and he was again found in possession of a weapon in 2008. However, there was no evidence he had ever used any weapon or otherwise been violent while in prison. As late as 2006, when appellant was transferred to a new prison, he admitted being a "Sureno," and specifically to membership in "an Orange County Street Gang called Santa Nita." But while there was evidence appellant had associated with gang members while in prison, there was no evidence he had ever associated with Santa Nita members. There was no evidence he had participated in gang activity while in prison.
In May 2013, appellant petitioned for resentencing in accordance with Proposition 36. The prosecutor responded with a motion to dismiss the petition on the ground appellant was ineligible for resentencing relief under subdivision (e)(ii) of section 1170.126 because he was "armed" with the firearm he possessed during his crime of possessing the heroin.
The trial court (per Judge Willaim F. Froeberg, who imposed the original sentence) rejected this argument in November 2013, and found appellant was eligible for resentencing. In September 2014, just before Judge Froeberg retired, the prosecutor asked him to reconsider his prior eligibility ruling in light of new case law bearing on the issue, and find appellant ineligible for resentencing. Judge Froeberg considered the additional case law, but concluded it did not warrant any change in the court's eligibility ruling. The prosecutor did not challenge either of those adverse eligibility rulings in this court and the case was thereafter set for a hearing before a different judge to address the second prong of the Proposition 36 resentencing analysis, i.e., whether resentencing appellant would "pose an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).)
At the hearing, the prosecutor relied on evidence of appellant's criminal history, drug and weapons activity in prison, a report by the California Department of Corrections and Rehabilitation on the recidivism rates of inmates released from prison, and the testimony of a gang expert. The expert opined, based on appellant's tattoos, the fact he had identified himself to prison officials as a Santa Nita gang member and the lack of any evidence he had formally disassociated from that gang, that he was likely a "veterano" of the Santa Nita gang, and thus would reassociate with the gang if released from prison. The expert also stated that a veterano of the Santa Nita gang "may" have a role as a leader and exercise influence within the gang. The expert acknowledged, however, that he was aware of no evidence appellant had ever tried to communicate with Santa Nita gang members outside of prison during his 15 years of incarceration, or had participated in gang activities during that period.
Appellant's argument was essentially that, at age 60, his criminal days were over. He claimed his criminal history had largely been inspired by his drug addiction, and while his drug use had continued for a period after his incarceration, he had been drug-free for over a decade. Random drug tests during appellant's incarceration supported that assertion. His disciplinary record in prison was also remote in time, and he had no involvement with prison gang activity. Most significantly, appellant introduced evidence that he was suffering from various ailments, including end-stage liver disease, chronic Hepatitis C, liver cancer, and cirrhosis. In early 2015, appellant was transferred to the California Medical Facility where he is being treated. His remaining lifespan was estimated by a medical expert to be anywhere from six months to a year and a half if he maintained his treatment regimen, and would likely be a mere two months if he did not. A forensic psychologist who evaluated appellant also testified, and estimated he had a 1.9 percent chance of reoffending, based on factors such as his age, his remorse for his criminal past, his cessation of drug use, his sincere desire to turn his life around in the short time he has left, and his appreciation of his own mortality.
Appellant also offered evidence of strong family support, including financially well-off siblings who could provide him with a place to live outside of Santa Ana, the territory of the Santa Nita gang. Appellant's sister, who lived in Encino but was in the process of moving to Connecticut, stated appellant would live with her if released from prison, and she would...
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