California Cases May 22, 2020: People v. Taylor

Case Description

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. YA069378)

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed.

Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan S. Pithey, Acting Senior Assistant Attorney General, Noah P. Hill, Acting

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Supervising Deputy Attorney General, Amanda V. Lopez, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Michael Taylor, who had two prior convictions as defined in the three strikes law, was sentenced in 2008 to an indeterminate term of 25 years to life following his conviction for unlawfully setting fire to an inhabited dwelling. (Pen Code, § 452, subd. (b).) After the 2012 passage of Proposition 36 (the "Three Strikes Reform Act," hereafter "the Act"), defendant filed a petition under section 1170.126 to recall his indeterminate sentence and to be resentenced as a second strike offender. The trial court denied the petition, finding that defendant posed an unreasonable risk of danger to public safety.

Defendant contends the trial court abused its discretion and violated his right to due process by improperly relying upon non-credible witness testimony and his past criminal history, while disregarding his faultless prison record.

We affirm the trial court's order denying defendant's petition for resentencing. We conclude that the trial court did not abuse its discretion or violate due process when it found that defendant posed an unreasonable risk of danger to public safety, and affirm.

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Strike Convictions

Defendant's first strike conviction was for an attempted first degree burglary (§§ 459; 664) in 1988, for which he was sentenced to two years in state prison. In that case, the victim saw defendant in his carport. Defendant told the victim that he was looking for clothes to wear to his grandmother's funeral. The victim told defendant to leave, but later observed defendant rifling through his luggage. He again told defendant to leave. Defendant became upset, grabbed the victim, threw him against the wall, and left. A few minutes later, defendant was observed removing a window screen from a nearby apartment window.

Defendant's second strike conviction was for a first degree burglary (§ 459) he committed in 1994, for which he was sentenced to four years in prison. Defendant attempted to break into a residence unsuccessfully. He then entered the detached garage of a nearby home and stole a bicycle.

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The Commitment Offense

Evidence at Trial

On August 31, 2007, defendant and his fiancée, J.W, were living in a triplex on Vermont Avenue. The other two units in the triplex were also occupied. At approximately 1:00 a.m. on August 31, 2007, defendant and J.W. had a loud argument regarding the payment of bills. The couple ultimately went to sleep, but resumed arguing the following morning. When J.W. ignored defendant, he set a shirt that she bought for him on fire, and held the flaming shirt in his hand as he moved back and forth. The shirt fell on the couch, igniting it. Defendant tried to put out the fire with a towel while J.W. ran to the kitchen for water. They were unable to extinguish the fire, and had no telephone to call the fire department. The entire triplex caught on fire. Defendant, J.W., and the other residents escaped the flames, but the triplex was destroyed.

Michelle McDoniel lived in the unit adjacent to defendant and J.W. She could hear them talking because the apartments shared a wall. At approximately 1:00 a.m. on August 31, 2007, McDoniel heard screaming and several loud thuds against the wall of defendant and J.W.'s apartment. J.W. said, "No, stop, don't." McDoniel thought

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the thuds sounded like someone was being pushed against the wall. She could hear J.W. crying. She had often heard defendant and J.W. fighting.

The following morning, McDoniel heard fighting and banging coming from defendant and J.W.'s apartment again. It sounded as though someone was being thrown up against the wall.

The fire occurred soon afterward. McDoniel told the sheriff's deputies and arson detective who responded to the scene what had occurred the previous night and that morning. She had also heard defendant threaten to burn the building down before. On that occasion, McDoniel had called the sheriff's department but defendant had not answered the door when the deputies arrived; after the deputies had gone, defendant came outside and said, "Call the police again, bitches, and I'll torch the place." On yet another occasion when defendant and J.W. were fighting, McDoniel heard defendant say: "I live here. If I can't live here, nobody is going to live here, bitch. I'll burn it down." Defendant also made similar comments on a third occasion.

Los Angeles County Sheriff's Detectives Michael Cofield and Tania Owen interviewed J.W. at the scene. She stated that she and defendant had an argument late at night, which started up again in the morning. Defendant accused her of having an affair with someone. He told J.W. that if she ever left him, he would hurt her and burn the house down.

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Detectives Cofield and Owen interviewed defendant on September 1, 2007. He told the detectives that he and J.W. had been arguing. He was frustrated because J.W. would not acknowledge him, so he lit a towel on fire. Once it began burning, he dropped it on the floor next to the couch. He returned to the bedroom and told J.W. he started the fire to make a statement to her and get her attention. He tried to extinguish the fire, but could not. Eventually he and J.W. escaped the flames.

Sentencing

Defendant was convicted by jury of unlawfully setting a fire to an inhabited dwelling. (§ 452, subd. (b).) He admitted that he suffered two prior serious or violent felony convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court denied defendant's motion to dismiss his prior strikes pursuant to People v . Superior Court (Romero) (1996) 13

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Cal.4th 497, and defendant was sentenced to 25 years to life in prison pursuant to the Three Strikes law. We affirmed the judgment in 2010.

Petition for Resentencing under Proposition 36

The Petition and Opposition

On December 12, 2012, defendant filed a petition seeking recall of his three strikes sentence and a new sentencing hearing pursuant to section 1170.126. He disputed that his commitment offense and his underlying strikes constituted serious or violent felonies. Further, he argued that there was no evidence that he would pose an unreasonable risk of danger to public safety if released. In support of his petition, defendant submitted the following exhibits: the reporter's transcripts from the preliminary hearing, trial, and sentencing hearing; the minute order reflecting the jury's verdict; a probation report for his 1983 burglary conviction; the expert witness report by Richard Subia; participation certificates from various prison programs; letters from PREP (the partnership for re-entry program) and family members; and a transcript of J.W.'s interview by DA investigator in 2018.

On February 19, 2013, the trial court issued an order to show cause why the requested relief should not be granted.

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On March 13, 2015, the People opposed the petition on the basis that defendant was not suitable for resentencing due to his extensive criminal history, the dangerous nature of the commitment offense, and evidence of repeated threatening phone calls he made to the victim while in prison. In support of their opposition, the People submitted the following exhibits: the abstract of judgment from defendant's commitment offense; the Court of Appeal opinion; a California Law Enforcement Telecommunications System (CLETS) report; the probation reports and abstracts of judgment from defendant's prior convictions; an affidavit from the custodian of records from the California Department of Corrections; an institutional staff recommendation summary; and transcripts from the 2014 and 2018 interviews with J.W.

On July 3, 2018, defendant replied, reiterating that he would not pose an unreasonable risk of danger if released.

Section 1170.126 Hearing

On December 6, 2018, the court conducted a hearing on defendant's section 1170.126 petition. The People's exhibits and defendant's exhibits were admitted into evidence.

Richard Subia

The first witness called was defendant's expert, Richard Subia, a former director of corrections at the

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California Department of Corrections. The parties stipulated to Subia's qualifications as an expert. Prior to the hearing, Subia reviewed defendant's prison records and conducted a personal interview with defendant. He also reviewed documents relating to the numerous phone calls that J.W. alleged defendant made while in prison.

Subia testified that defendant had a significant number of arrests throughout his life, dating back to when he was 14, which were consistent with a history of substance abuse. However, defendant sufficiently addressed his substance abuse and anger issues while in prison, and there was no evidence that defendant used any drugs while incarcerated. While in prison, defendant received the lowest possible risk assessment score, he participated in adult education, and he did not violate any department rules or regulations. Defendant's release plan involved participation in a transition program, after which defendant's sister had offered to allow him to live with her and her husband.

While there were no reports of defendant using a telephone while in prison, Subia acknowledged that cell phones are readily available. Subia concluded that defendant "does not pose an unreasonable risk of dangerousness to public safety." On cross-examination,

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Subia provided reasons why the reports of J.W. that she had been threatened by defendant from prison were inaccurate, including that the victim did not appear to have reported the threats to law enforcement over a number of years. Subia conceded, however, that his opinion regarding dangerousness might change if there were corroboration that defendant called the victim and threatened her.

J . W .

J.W. testified that, while they were living together prior to the fire, defendant repeatedly threatened her. Specifically, she recalled him saying that "[h]e was going to kill me." After defendant went to jail, J.W. wrote him a letter stating that she no longer wanted to be in a relationship with him, because it was very abusive. Despite J.W.'s decision to end their relationship, defendant continued to call her from prison. J.W. testified that defendant called her as recently as three weeks prior to the resentencing hearing. During these calls he frequently said, "Tell Super Dave I'm coming home. I'm going to get you." J.W. testified that she did not know anyone referred to as Super Dave. She believed that Super Dave was "[s]omebody [defendant] made up in his mind."

In 2014, J.W. spoke to a District Attorney investigator. She informed the investigator that defendant had been calling her and "[said] he was going to kill me when he got out, he's going to finish the job."

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In 2017, J.W. spoke with another investigator. She told the investigator that defendant had "been calling me, saying he was going to get out, he was going to come get me, and I was very scared for my life."

J.W. eventually moved because she was afraid of defendant. She claimed that "[e]very time a hearing comes up, that's when he starts making his phone calls." When asked if she currently felt scared, she answered, "Yes. I'm shaking right now." She believed that defendant would harm her if he got out of prison. J.W. had been a victim of prior acts of violence by defendant. He hit her with a two-by-four, and had thrown crates and TVs at her.

J.W. admitted that during the preliminary hearing and at trial, she lied to detectives and lied in court, because she was scared.

Gary Cooper

Gary Cooper, a private investigator hired by the County of Los Angeles, testified that he met with J.W. in 2017. J.W. informed Cooper that she had received "about a hundred calls" from defendant. During these calls, defendant would make threatening statements, such as, "When I get out, I'm going to kill you and your family," and "When I get out, I'm going to finish the job."

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Trial Court's Ruling

On February 11, 2019, the court issued its memorandum of decision detailing the evidence adduced at the hearing.

The court chronicled defendant's prior criminal history. As a juvenile, defendant was charged with two counts of shoplifting (§ 484), public intoxication (§ 674, subd. (f)), two counts of commercial burglary (§ 459), burglary of an automobile (§ 459), possession of PCP (Health & Saf. Code, § 11377), and attempted commercial burglary (§§ 459, 664).

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As an adult, in addition to the underlying strikes and commitment offense, defendant was convicted of grand theft person (§ 487.2), three burglaries (§ 459), possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and possession of cocaine for sale (Health & Saf. Code, § 11351.1).

The trial court found that defendant's criminal history was serious, extensive, and included instances of violence. Although the offenses were remote, the record supported the finding that defendant was currently dangerous.

While in prison, defendant had no serious rule violations. He participated in institutional programming, such as Alcoholics Anonymous and Narcotics Anonymous, and self-help programming. He participated in academic programs and was on track to obtain his GED. The trial court found that defendant's security classification and risk scores while in prison indicated that defendant's classifications had steadily decreased and he was considered low risk. Defendant had post-release plans to enter a

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transitional program, and then live with his sister. The court found that these factors were mitigating.

However, the allegations that defendant made threatening phone calls to J.W. while in prison weighed strongly against release. The court was troubled by J.W.'s testimony that defendant had been making threatening phone calls using an illegally obtained cell phone. The court found J.W. credible—her story was consistent, she was visibly shaken during testimony, and Cooper corroborated her statements.

In evaluating the record as a whole, the court found that the evidence weighed in favor of a finding that defendant posed an unreasonable risk of danger to public safety, if released. His criminal record and history of substance abuse were concerning to the court. Although he had been a model prisoner, the evidence of his actions toward J.W. demonstrated that he posed an unreasonable risk to public safety. The court denied defendant's petition.

Defendant timely appealed.

Abuse of Discretion

Defendant contends that the court's determination that he posed an unreasonable risk of danger to public safety was an abuse of discretion. We disagree.

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"Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" ( People v . Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

As relevant to the current appeal, the Three Strikes Reform Act includes a resentencing provision, which "'provides a procedure by which some prisoners already serving third strike sentences may seek resentencing in accordance with the new sentencing rules. (§ 1170.126.)' [Citation.] An inmate who is serving a third strike sentence that would have yielded a second strike sentence under Proposition 36's new sentencing rules 'shall be resentenced' as a second strike offender '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).)

"In exercising its discretion to deny resentencing, the court has broad discretion to consider: (1) the inmate'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) his or her 'disciplinary record and record of rehabilitation while incarcerated'; and (3) '[a]ny other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable

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risk of danger to public safety.' (§ 1170.126, subd. (g)(1)-(3).) Thus, as the Legislative Analyst explained in the Voter Information Guide, '[i]n determining whether an offender poses [an unreasonable risk of danger to public safety], the court could consider any evidence it determines is relevant, such as the offender's criminal history, behavior in prison, and participation in rehabilitation programs.' [Citation.]" ( People v . Valencia (2017) 3 Cal.5th 347, 354.)

Here, the trial court considered all of these factors and found defendant's conduct strongly indicated that he would pose an unreasonable risk of danger to public safety if released. The court considered defendant's prior criminal history, both as a juvenile and an adult, and his struggles with substance abuse. It reasonably found that although the crimes were remote, his convictions were still relevant in light of his subsequent conduct in prison. Although defendant appeared to be a model prisoner on paper, J.W.'s testimony revealed that defendant had been making threatening phone calls to her throughout the term of his imprisonment. The court acknowledged that defendant appeared to have a strong transitional plan and family support, but found this an insufficient basis to find that he did not pose an unreasonable risk of danger to public safety. The court concluded that there was no reason to believe that the assistance of his family would keep defendant from harming J.W. in the future as he had threatened numerous times.

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"'It is an established principle that the credibility of witnesses and the weight to be given their testimony are matters within the sole province of the trier of fact . . . .' [Citation.]" ( People v . Hamlin (2009) 170 Cal.App.4th 1412, 1463.) "'Where there is conflicting testimony, reviewing courts recognize that the trier of the facts has the better opportunity to judge the credibility of witnesses. In such a case the trial court's findings of fact, to the extent that they rest upon an evaluation of credibility, should be regarded as conclusive on appeal.' [Citation.]" ( Ibid .)

Appellant also argues that the court abused its discretion by finding J.W.'s testimony to be credible. Appellant lists numerous reasons why the trier of fact should not have believed J.W., including that J.W. testified inconsistently during the preliminary hearing and trial; she did not report many of the threats to law enforcement; and that there was no corroboration for defendant's access to cell phones to call her from prison to make such threats. In pointing to this evidence, defendant simply ignores other record evidence which, when considered, provides ample support for the trial court's finding that J.W.'s testimony was credible. In particular, the record before the trial court included prior reports by J.W. of threats, and Subia acknowledged that cell phones were readily available in prison. Further, the trial court observed J.W.'s testimony, subject to cross examination, noted her demeanor, and specifically observed that she was visibly shaken. We see no

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basis to second guess the trial court's finding of credibility on this record.

In light of defendant's ongoing pattern of threatening behavior toward J.W., his criminal record, and his history of violence and substance abuse, we cannot say that the trial court abused its discretion when it found defendant currently posed an unreasonable risk of danger to public safety, if released.

Due Process

Defendant contends that his right to due process was violated because the trial court denied his petition although the prosecution failed to present "some evidence" demonstrating that he posed a current unreasonable risk of danger to public safety. In making this argument, defendant simply attempts to restate his abuse of discretion claim as one of constitutional dimension; it is not, but simply an appeal to this court to re-weigh evidence and re-evaluate

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witness testimony, which is not an appellate court's role. ( People v . Lindberg (2008) 45 Cal.4th 1, 27 ["A reviewing court neither reweighs evidence nor reevaluates a witness's credibility"].) Here, the trial court properly considered the appropriate factors under section 1170.126, subdivision (g). As noted above, the court understood that it was tasked with determining defendant's current risk of danger to the public, and clearly articulated that specific duty in its ruling, stating "the proper focus is on whether the petitioner currently poses an unreasonable risk of danger to public safety if resentenced." J.W.'s testimony alone was sufficient to support a finding of unreasonable risk. ( People v . Smith (1995) 31 Cal.App.4th 1185, 1190 [the testimony of one witness is sufficient to constitute substantial evidence].) She testified that as recently as a few weeks before the hearing, defendant had called her from illegal cell phones and threatened to harm her if he was released. He had made these kinds of threats to her multiple times over many years, and she had reported the threats to the District Attorney. J.W. testified that she was frightened of defendant and had moved to a different residence because of her fear. She was shaking from fear at the suitability hearing. Other evidence supported J.W.'s testimony. At the commitment offense trial, a neighbor corroborated J.W.'s testimony that defendant was threatening, and, at the section 1170.126 hearing, Cooper corroborated J.W.'s testimony that she had reported the calls to the District Attorney. There was evidence—including defendant's own admission—that

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defendant had burned down an occupied building simply to get J.W.'s attention. This constitutes ample substantial evidence, i.e. evidence of "reasonable, credible, and of solid value," from which the trial court could, and did, conclude that defendant currently posed an unreasonable risk of danger to the public. ( People v . Lindberg , supra , 45 Cal.4th at p. 27.) The trial court followed the procedure outlined in section 1170.126 for determining defendant's risk, and acted within its discretion when it found that the risk he posed was unreasonable. There is no merit to defendant's due process arguments.

The order denying defendant's petition for recall of sentence is affirmed.

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.