People v. Valencia, F067946

• Court: California Court of Appeals
• Writing for the Court: DETJEN, J.
• Citation: 232 Cal.App.4th 514,181 Cal.Rptr.3d 229
• Parties: The PEOPLE, Plaintiff and Respondent, v. David John VALENCIA, Defendant and Appellant.
• Docket Number: F067946
• Decision Date: 16 December 2014

232 Cal.App.4th 514
181 Cal.Rptr.3d 229

The PEOPLE, Plaintiff and Respondent
v.
David John VALENCIA, Defendant and Appellant.

F067946

Court of Appeal, Fifth District, California.

Filed December 16, 2014

Stephanie L. Gunther for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DETJEN, J.

232 Cal.App.4th 518

INTRODUCTION

The Three Strikes Reform Act of 2012 (hereafter Proposition 36 or the Act) created a postconviction release proceeding for third strike offenders serving indeterminate life sentences for crimes that are not serious or violent felonies. If such an inmate meets the criteria enumerated in Penal Code section 1170.126, subdivision (e), he or she will be resentenced as a second strike offender unless the court determines such resentencing would pose an unreasonable risk of danger to public safety.¹ (§ 1170.126, subd. (f); People v. Yearwood (2013) 213 Cal.App.4th 161, 168, 151 Cal.Rptr.3d 901.)

After the Act went into effect, David John Valencia (defendant), an inmate serving a term of 25 years to life following conviction of a felony that was not violent (as defined by § 667.5, subd. (c)) or serious (as defined by § 1192.7, subd. (c)), filed a petition for recall of sentence and request for

232 Cal.App.4th 519

resentencing under the Act. Following a hearing, the trial court found defendant to be an unreasonable risk to public safety and denied the petition.

We conclude the trial court did not abuse its discretion by denying the petition. In the unpublished portion of our opinion, we reject defendant's claims the

181 Cal.Rptr.3d 231

trial court used the wrong standard, failed to properly evaluate whether defendant posed an unreasonable risk to society, and had to appoint an expert to evaluate defendant regarding current dangerousness; and his claim the prosecution did not meet its burden of establishing dangerousness; his claim his sentence of 25 years to life constitutes cruel and unusual punishment; and his claim the errors violated his right to due process. In the published portion, we conclude recently enacted section 1170.18, subdivision (c) does not modify section 1170.126, subdivision (f). We affirm.

FACTS AND PROCEDURAL HISTORY

On September 13, 2009, neighbors heard an argument between defendant and his wife, Carrie Kobel. They were yelling and screaming and Kobel was crying.² Kobel was then seen coming down her driveway, with defendant following. Defendant pushed Kobel, causing her to fall to the ground, then punched her multiple times. When Kobel, who was screaming for help, asked witnesses to call the police, defendant told them to mind their own business and became aggressive and intimidating toward them. When the police arrived, Kobel related she and defendant had gotten into an argument when she went to move her truck into the driveway so friends coming over would have a place to park. Kobel's driver's license had been suspended due to a vehicle accident in which she had been under the influence of alcohol. Defendant objected to her driving because the couple had been drinking and he thought she was going to leave. Kobel told him she was only moving the truck, but when she went to do so, defendant hit her in the back of the head. Defendant denied there had been a fight; he said Kobel was intoxicated and attempting to leave, and he was only trying to stop her. Although he denied hitting Kobel, injuries to his knuckles were inconsistent with that claim. Kobel was treated for a laceration on her head that was closed with staples.

At trial, a woman who had been in a relationship with defendant in 2000 testified defendant had assaulted her by hitting her “full force” with his fist between her temple and ear. She suffered a ruptured eardrum from the incident.

232 Cal.App.4th 520

On December 2, 2009, a jury convicted defendant of felony spousal abuse (§ 273.5). He admitted suffering five felony convictions, two of which constituted strikes. On January 6, 2010, he was sentenced to prison for 25 years to life.

On May 13, 2013, defendant filed a petition to recall sentence and request for resentencing under section 1170.126.³ Defendant represented his strike record consisted of a 1995 conviction for kidnapping (§ 207, subd. (a)) and a 1996 conviction for making a criminal threat (§ 422). Appended to the petition was a letter from defendant's parents, stating their support for him and willingness to assist him in obtaining psychological help and drug/alcohol treatment; a letter from the Salvation Army Adult Rehabilitation Center in San Francisco, stating it appeared defendant was eligible for intake; letters from the Delancey Street Foundation in San Francisco, thanking defendant for his interest and explaining how to apply upon release, but stating acceptance could not be guaranteed;

181 Cal.Rptr.3d 232

⁴ an informational “chrono,” dated March 8, 2010, documenting defendant requested segregated housing because he feared for his safety after refusing to sign a petition being submitted by other White inmates, one of whom accused him of being a coward, after which defendant was told he had to stab the person who called him a coward or he would be “ ‘dealt with’ ”; and an inmate request, dated March 12, 2013, in which defendant asked to be placed on waiting lists for anger management and Alcoholics Anonymous (AA) meetings. Defendant also related he had enrolled in a mail-order anger management course. He subsequently presented a certificate, dated May 15, 2013, attesting to his completion of the “ ‘Grant me the Serenity Workbook’ ” for AA, and inmate passes showing he was issued a pass allowing him to attend AA meetings on April 24, May 8, and May 15, 2013.⁵

The People opposed the petition. They asserted that in addition to the strike convictions, defendant had felony convictions for violating section 273.5 in 2000, section 69 in 1996, and Vehicle Code section 23152, subdivision (a) in 1996, in addition to 12 misdemeanor convictions between 1987 and 2007. The People set out the comments made by the trial court when it denied defendant's request to dismiss one of his strikes for purposes of sentencing on his commitment offense, and argued circumstances had not changed. They asserted defendant's prior record documented his violence, his continuous pattern of criminal conduct, and his failure to learn despite being offered treatment and rehabilitation programs. They also asserted defendant had not

232 Cal.App.4th 521

participated in any programs while imprisoned to address his violent tendencies. Accordingly, they argued he posed an unreasonable risk of danger.

In his reply to the opposition, defendant noted his commitment offense was not for a serious or violent felony, so if he were sentenced now, the court would not have the option of sentencing him to 25 years to life; the prosecutor offered him a six-year sentence prior to trial; and the commitment offense involved him “wrestl[ing]” with his wife in an attempt to stop her from driving because she was intoxicated. Defendant argued the People had the burden of establishing he was an unreasonable risk to public safety, and his crimes from a decade earlier were insufficient. He noted he had not had any further convictions while incarcerated, and asserted his prison record did not demonstrate patterns of violent and predatory behavior.

The petition was heard August 9, 2013, before the judge who sentenced defendant to the third strike term.⁶ At the outset, the court found defendant eligible for resentencing, and placed the burden on the People with respect to whether resentencing defendant would pose an unreasonable risk of danger to public safety. Over the prosecutor's objection, the trial court admitted a document showing defendant's in-prison risk classification was one, which was low.

The defense called witnesses at the hearing. Defendant's mother testified she had not seen defendant during his most recent prison stay until the Sunday before the hearing, as she was partially disabled and unable to travel, although they communicated by letter and sporadically by

181 Cal.Rptr.3d 233

telephone. Since defendant was no longer under the influence of alcohol, his mother noticed his attitude was changing. He had apologized for being such a disappointment. If defendant were released from prison, he would be able to live with his parents in Sonora.

Defendant testified he had been in prison this last time almost four years, and he had two prior prison terms.⁷ During his current term, he had no disciplinary actions. During his previous terms, he had one write-up for brewing alcohol. Defendant related that during...