People v. AparicioPeople v. Aparicio
APPEAL from an order of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
In this case, we hold that the abuse of discretion standard applies when reviewing an appeal from a trial court‘s denial of a petition for resentencing under
Appellant subsequently sought rehearing arguing
FACTUAL AND PROCEDURAL BACKGROUND
In March 1985, a juvenile court found true the allegation that Luis Ramon Aparicio committed battery with serious bodily injury after he dislocated the
In June 1989, Aparicio suffered his second strike conviction after he pleaded guilty to attempted robbery after trying to rob three victims with an ice pick. While fleeing the scene, Aparicio‘s vehicle struck anоther vehicle and he was later found to be under the influence of a controlled substance. He received a two-year prison sentence. In 1992, Aparicio received a three-year prison term for possessing PCP and marijuana. In 1996, Aparicio was convicted of battery and resisting a police officer. He received probation, but probation was later revoked. In 1997, Aparicio was convicted of his commitmеnt offense after burglarizing a car. During the reading of his guilty verdict, Aparicio attacked a marshal and attempted to remove his gun. He received a 27-years-to-life prison sentence under the Three Strikes Law.
Aparicio received nine write-ups while incarcerated. In February 1998, he received administrative punishment after pinching a female prison employee on the buttocks and grabbing her thigh. In June 1998, he headbutted another inmatе. In October 1998, he flooded his cell. In February 1999, he flooded his cell and threw urine at an officer. In December 2000, he obstructed a peace officer by refusing to accept a new cellmate. In 2001, 2005 and 2007, he engaged in mutual combat with other inmates. In November 2012, he stole desserts from the dining hall.
A psychologist examined Aparicio. She found that he suffered from antisocial personality disorder and posed a low-moderate risk of сommitting a future violent offense. Nonetheless, she concluded that Aparicio did not pose an unreasonable risk to public safety if released. In November 2013, the trial court denied Aparicio‘s petition for recall of sentence after reviewing the petition, Aparicio‘s criminal history, prison history and mental health evaluation. Aparicio timely appealed.
DISCUSSION
I. General Legal Principles
“On November 6, 2012, voters approved Proposition 36, thе Three Strikes Reform Act of 2012 (the Act).” (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1285 (Kaulick).) The Act provides a means whereby prisoners currently serving sentences of 25 years to life for a third felony conviction, which was not a serious or violent felony, may seek court review of their indeterminate sentences and, under certain circumstances, obtain resentencing as if they had only one prior serious or violent felony conviction and was thus a second-strike, rather than a third-strike, offеnder. (Id. at p. 1286.)
If the inmate satisfies the statutory criteria and is eligible for resentencing (
The Supreme Court is considering whether the denial of a
II. Standard of Review
The parties dispute what standard of review we apply when reviewing a trial court‘s dangerousness finding under
Subdivision (f) of
Here,
To avoid this common sense result, Aparicio argues a dangerousness finding under
“Mixed questions of law and fact concern the application оf the rule [of law] to the facts and the consequent determination whether the rule is satisfied. If the pertinent inquiry requires application of experience with human affairs, the question is predominantly factual and its determination is reviewed under the substantial-evidence test. If, by contrast, the inquiry requires a critical consideration, in a factual context, of legal principles and their underlying values, the question is predominantly legal and its determination is reviewed independently.” (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888.) Classification of the dangerousness finding as a mixed question of law and fact, however, does not determine our standard of review. Rather, to determine the standard of review, we must focus “on the nature of the inquiry required when we apply the relevant rule of law to the facts as established.” (United States v. McConney (9th Cir.1984) 728 F.2d 1195, 1204 (McConney).)
In McConney, the Ninth Circuit developed a functional analysis as a guide to selecting the proper standard of review for mixеd questions. (McConney, supra, 728 F.2d at p. 1204.) Our high court has found the McConney analysis helpful in deciding the proper standard of review for mixed questions. (People v. Cromer (2001) 24 Cal.4th 889, 899.) The McConney court noted three steps exist in deciding mixed fact-law questions, establishing the facts, selecting the applicable rule of law and applying the law to the facts. (McConney, at p. 1200.)
What standard of review operates when reviewing a trial court‘s application of the law to the facts is more troublesome. The McConney court noted the issue may be determined by reference to the sound principles underlying settled rules of appellate review. (McConney, supra, 728 F.2d at p. 1202.) “If the concerns of judicial administration—efficiency, accurаcy, and precedential weight—make it more appropriate for a [trial] judge to determine whether the established facts fall within the relevant legal definition, we should subject his determination to deferential, [substantial evidence] review. If, on the other hand, the concerns of judicial administration favor the appellate court, we should subject the [trial] judge‘s finding to de novo review. Thus, in each case, the pivotal question is do the concerns of judicial administration favor the [trial] court or do they favor the appellate court.” (Ibid.)
Here, there is no dispute as to the facts or the law. Aparicio appears to argue that application of the facts to the law presents a mixed fact-law question and thus the default standard of review is de novo. Our high court, however, has rejected this approach. In People v. Ault (2004) 33 Cal.4th 1250, our high court addressed the mixed fact-law question whether juror misconduct was so prejudicial as to warrant a new trial under the abuse of discretion standard, concluding that de novo review need not apply even if the prejudice issue was a mixed question of law and fact. (Id. at p. 1255.) In rendering its decision, our high court noted several considerations influenced the standard of review, including the importance of the legal rights at stake and the consequences of an errоneous determination in the particular case. (Id. at pp. 1265-1266.)
Applying these considerations, we note that the resentencing permitted by
A dangerousness determination is not rooted in constitutional principles and policies, does not require that a trial court consider abstract legal
Aparicio‘s comparison of a dangerousness finding under
In People v. Adair (2003) 29 Cal.4th 895 (Adair), our high court addressed a split of authority whether a finding under
First, the People misread the footnote in Kaulick. The footnote at issue preceded the court‘s conclusion that a petitioner is not denied equal protection if the dangerousness finding under
Second, the “some evidence” standard of review applies to the review of a Board of Parole Hearings or Governor‘s decision to grant parole to an inmate serving an indeterminate sentence, “a decision vested in the executive branch, under our state Constitution and statutes.” (In re Shaputis (2011) 53 Cal.4th 192, 198-199.) As part of the judicial branch of government, courts may be called upon to review an executive branch parole suitability determination to ensure that the determination is not arbitrary or capricious (id. at p. 199), the court‘s review, however, is limited and highly deferential. (Ibid.) As our high court has cautioned, “[i]ntrusions by the judiciary into the executive branch‘s realm of parole matters may violate the separation of powers.” (In re Prather (2010) 50 Cal.4th 238, 254-255; cf. In re Dikes (2004) 121 Cal.App.4th 825, 829 [because the Legislature granted the Department of Corrections broad authority for the discipline of inmates in state prisons, we uphold any Department disciplinary decision that is supported by some evidence].) Our review of a trial court‘s dangerousness finding under
Aparicio does not dispute his nine in-custody violations during his 16 years in prison. He contends the trial court erred in denying his petition because other factors “weigh[ed]” in his favor including, completing his GED, perfecting office skills, remaining gang free while in prison, and participating in Narcotics and Alcoholics Anonymоus meetings and classes on alternatives to violence. We review the trial court‘s determination for abuse of discretion with the burden on the party attacking the sentence to show the decision was “so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Aparicio is a career criminal whose life of crime started in 1985 when he committed a battery resulting in serious bodily injury when he was 15 years old. The following year, he attacked a person with a knife. In 1988, at age 19, he suffered his first strike conviction for robbery. He suffered his second strike conviction for robbery the following year. Thereafter, he was in and out of jail until he suffered his third strike conviction in 1997. The psychological evaluator commented that Aparicio “reported limited use of alcohol and drugs,” but noted that substance abuse “was a factor in at least two arrests, suggesting a more extеnsive substance abuse history.”
While incarcerated, Aparicio was not a model prisoner. He suffered nine write-ups from 1998 to 2012, including three for mutual combat with other inmates. The evaluator expressed concern about Aparicio‘s failure to take full responsibility for his actions and tendency to minimize either the seriousness of his past actions or the harm caused to his victims. She noted that Aparicio frequently attributed responsibility tо circumstances or other people, and this pattern applied to his most recent offense while incarcerated when Aparicio stated he believed he was allowed to take food.
Aparicio can be commended for obtaining his GED, participation in vocational programs and membership in the Buddhist Meditative Program. We note, however, it was only within the last four years that Aparicio started to regularly аttend Alcoholics and Narcotics Anonymous meetings and that he did not complete an alternatives to violence program until 2011. Aparicio‘s efforts to address his substance abuse and violent tendencies are relatively recent when viewed in terms of his extensive and continuous criminal history and length of incarceration. Accordingly, we conclude the trial court did not abuse its discretion when it denied Aparicio‘s petition.
In any event, even if we were to apply a de novo standard of review, we would find that Aparicio is still a work in progress and resentencing was
IV. Issue on Rehearing
Proposition 47 created a new resentencing provision,
We requested supplemental briefing addressing whether (1) the superior court has the authority to grant relief under Proposition 47 without further action by this court, and (2) the issues raised in the petition for rehearing are more appropriately presented to the superior court in the first instance. Both parties submitted supplemental briefing, which we have considered.
We acknowledge the two issues argued by Aparicio present questions of law which we have discretion to consider. (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417 [a reviewing court has discretion to decide such an issue if it presents a pure question of law arising on undisputed facts, particularly when the issue is a matter of important public policy]; see e.g., People v. Chaney (2014) 231 Cal.App.4th 1391 [ruling that the definition of “unreasonable risk of danger to public safety” in Proposition 47 does not apply retroactively to a defendant whose petition for resentencing under the Three Strikes Reform Act of 2012 was decided before the effective date of Proposition 47]; People v. Valencia (Dec. 16, 2014, F067946) ___ Cal.App.4th ___ [2014 Cal.App. Lexis 1149] [ruling that
The order is affirmed without prejudice to appellant petitioning for relief from the superior court under
McINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.