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Unreasonable risk of danger to public safety justifies denial of resentencing

People v. Strother (2021) 72 Cal.App.5th 563

Summary: Strother was convicted of second degree burglary (Pen. Code, § 459)1 and theft of access card information (§ 484e, subd. (d)). Under the Three Strikes law, he was sentenced to two consecutive terms of 25 years to life in prison. In 2013, Strother filed a petition to recall his entire sentence pursuant to Proposition 36 (§ 1170.126), and in 2014 he filed a petition to recall his sentence for theft of access card information pursuant to Proposition 47 (§ 1170.18). The trial court issued an order to show cause why relief should not be granted for both petitions and in found Strother eligible for relief under both propositions. Following a July 2020 hearing on both petitions, the trial court found appellant posed an unreasonable risk of danger to public safety and was not suitable for resentencing. The trial court denied both petitions.

Strother appeals, contending the trial court abused its discretion in finding he posed an unreasonable risk of committing one of the “super strikes” identified in Proposition 47 (§ 1170.18) because the trial court 1) failed to consider that his two prior convictions involving violence and firearm use occurred almost 30 years ago with no evidence he was the shooter; 2) failed to consider his prison fighting from 2016 through 2019 was the result of his gang renunciation in 2016; and 3) erroneously found that his conflict resolution and anger management programming and parole plans were inadequate. He makes similar claims about the trial court’s denial of his Proposition 36 petition. The Court of Appeal affirmed  the trial court’s order.

Proposition 36 applies to prisoners serving a life sentence under the Three Strikes law for a non-serious, non-violent felony commitment offense. Upon a showing that his commitment offense was a non-serious, non-violent felony, “the petitioner shall be resentenced … unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126 subd. (f).) Section 1170.126 provides that the court may consider:

“(1) The petitioner’s criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes;

(2) The petitioner’s disciplinary record and record of rehabilitation while incarcerated; and

(3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (g)(1)–(3).)

Proposition 47 applies to any inmate serving a felony sentence for certain non-serious, non-violent offenses; the law provides that such offenses shall be reduced to misdemeanors “unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).) The court considers the same categories of evidence as Proposition 36 does: “(1) The petitioner’s criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes.  (2) The petitioner’s disciplinary record and record of rehabilitation while incarcerated.

(3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b)(1)–(3).)

Proposition 47states that an “ ‘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,” often called super strikes. (§ 1170.18, subd. (c).)

Review a trial court’s decision under both sections 1170.126 and 1170.18 for abuse of discretion

The  burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. A decision will not be reversed merely because reasonable people might disagree. A trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376–377, 14 Cal.Rptr.3d 880, 92 P.3d 369 (Carmony).)

Risk of commuting a super strike

Strother’s criminal history included acts that were close to the edge of committing a super strike. He was convicted of shooting  at a police officer with a semi-automatic firearm and voluntary manslaughter where the victim presented a threat to one’s continued criminal activity. His acts were is as close to committing the super strike of felony murder or the super strike of first degree premeditated murder as one can get without actually committing the super strike. Any farther and he would not be eligible for resentencing at all. (See People v. Hall (2016) 247 Cal.App.4th 1255, 1266, 203 Cal.Rptr.3d 83 [Proposition 47 expressly excludes offenders who have committed a super strike from resentencing and so trial court’s discretion to deny petition not limited to offenders who have already committed a super strike].)

The trial court recognized that these criminal convictions standing alone were not sufficient to show that appellant posed a current risk of committing a super strike, but  found that these convictions, considered with his prison disciplinary history demonstrated a risk.

 Prison Rules Violations

 Serious rules violations in prison are evidence of an inmate’s current willingness to engage in serious rule-breaking behavior and are probative of recidivist tendencies and the danger to public safety. (In re Rozzo (2009) 172 Cal.App.4th 40, 60, 91 Cal.Rptr.3d 85; In re Bettencourt (2007) 156 Cal.App.4th 780, 805, 67 Cal.Rptr.3d 497.)” Strother’s  Rule Violation Reports showing significant violence and lack of rehabilitative programming, coupled with his extensive criminal history, show he is likely to commit a ‘super strike’ if resentenced. (§ 1170.18, subds. (c) & (i).)

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