People v. Whiten CA3 ( 2021 )

Filed 5/18/21 P. v. Whiten CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C082202
Plaintiff and Respondent, (Super. Ct. No. 05F04876)
v.
JULIOUS RAY WHITEN, JR.,
Defendant and Appellant.
Defendant Julious Ray Whiten, Jr., appeals from the trial court’s order denying his
petition for resentencing pursuant to Penal Code section 1170.126.1 He contends the trial
court erred in denying resentencing on the ground that doing so posed an unreasonable
risk of danger to public safety.
We affirm.
1 Undesignated statutory references are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND2
Officers went to defendant’s home to investigate an assault reported by
defendant’s neighbor. (People v. Whiten (Sept. 7, 2007, C052401) [unpub. opn.] slip
opn. at p. 9.) Defendant was there initially. When the officers returned after talking to
the neighbor, they obtained consent from another resident of defendant’s home to search
a car parked in the garage and found a loaded sawed-off shotgun and a .45-caliber pistol
within the vehicle. (Id. at p. 2.) Defendant was convicted of possession of a firearm by a
convicted felon (former § 12021, subd. (a)(1)) and possession of a sawed off shotgun
(former § 12020, subd. (a)). (Whiten, at p. 1.) The trial court sustained three strike
conviction allegations and sentenced defendant to 25 years to life. (Ibid.) This court
affirmed the judgment of conviction on appeal. (Ibid.)
In April 2013, defendant filed a petition for section 1170.126 resentencing. The
People opposed the petition on the ground that resentencing defendant would pose an
unreasonable risk of danger to public safety. The People’s opposition memorandum
detailed defendant’s criminal and prison disciplinary record
Defendant had juvenile adjudications for battery and resisting an officer (§§ 242,
148) in 1983, assault with intent to commit rape or certain sex offenses (§ 220) in 1984,
and misdemeanor theft of a bicycle (§ 499b) in 1985. In November 1987, defendant
suffered his first adult conviction, for robbery with a firearm enhancement (§ 211, former
12022), resulting in a four-year state prison term. He was paroled in November 1989, but
returned to prison custody on a parole violation in July 1990. In 1991, he was convicted
of assault with a firearm (§ 245, subd. (a)(2)) and sentenced to two years in state prison.
2 We grant the Attorney General’s request to take judicial notice of our opinion in
People v. Whiten (Sept. 7, 2007, C052401). (Evid. Code, §§ 452, subd. (d), 459,
subd. (a).) On our own motion, we augment the record in this appeal with the record in
the prior appeal in Whiten. We take the facts from the opinion in that prior appeal.
2
Defendant was convicted of petty theft with a prior (§ 666) with a 16-month state prison
term in 1991. In 1992, defendant was convicted of false imprisonment (§ 236) and
domestic violence with an enhancement for personally inflicting great bodily injury
(§§ 273.5, 12022.7) and sentenced to 12 years in state prison. He was paroled in
November 1999. Parole was suspended in May 2000; defendant was returned to state
prison on a parole violation in July 2000. Defendant was paroled in June 2001, and
discharged from parole in November 2003. He was convicted of reckless driving (Veh.
Code, § 23103.5) in September 2004, and, in November 2005, was convicted of his
current offenses and sentenced to 25 years to life. In 2008, defendant was convicted of
unlawful possession of a weapon (§ 12020) and sentenced to a two-year concurrent state
prison term.
Defendant had prison rules violations for refusal to report in October 2006,
possession of a weapon in April 2007, circumventing medical emergency procedures in
May 2007, delaying a peace officer in October 2007, possession of a weapon in June
2011, fighting in June 2014, and a positive urine test for cannabinoids in June 2015. As a
result, he has lost a total of 930 days’ credit. In May 2012, the gang investigations unit
validated him as a member of a disruptive prison gang.
In his reply, defendant submitted evidence of his efforts to rehabilitate himself
while in prison, including acting as a tutor to other prisoners, completion of a reentry
program and a conflict resolution program, and obtained his GED at the Youth Authority
in 1988. He also submitted an expert witness report from a former Department of
Corrections and Rehabilitation director of adult operations setting forth an overview of
defendant’s record and the factors the court should consider in determining whether
resentencing would pose an unreasonable risk of danger to public safety. The reply
asserted defendant’s current age, 47, is associated with a decline in criminality, and that
he had a plan for reentry following his release, which included the support of his mother
and stepfather.
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After a contested hearing, the trial court ruled as follows:
“In this matter there’s a range of information and each case rests on a careful
evaluation of the record of a defendant, both remote and current, and I have to say Mr.
Whiten’s life has been characterized when he’s out of custody with pretty much
unrelenting participation in crimes including notable, serious, and violent felonies which
did result in injury or threat of serious injury to members of the community.
“Then he was incarcerated for a non-violent offense by the Court and sentenced.
And in looking at his adjustment and his participation in a prison environment, I do note
the number of violations, rule violations, violations of law, and most notable those
involving weapons and violence.
“And, therefore, based on the evidence presented at this hearing, I believe the
People have proved to the Court based on the evidence that Mr. Whiten does currently at
this time pose an unreasonable risk to public safety if he’s released, and I am denying the
request for resentencing at this time.”
DISCUSSION
Defendant contends the trial court erred in denying his petition on the ground that
resentencing him posed an unreasonable risk of danger to public safety. He asserts there
is no evidence to support this finding. We disagree.
I. Arming Exclusion
At the hearing on the petition, the parties assumed defendant was eligible for
resentencing. This assumption was incorrect. A crime that is not a serious or violent
felony is nonetheless ineligible for resentencing if the defendant was armed with a
firearm during the commission of the offense. (§§ 1170.126, subd. (e)(2), 667, subd.
(e)(2)(C)(iii).) Weapon offenses like felon in possession of a firearm are ineligible for
resentencing if the defendant was armed during the commission of the offense. That is
precisely the case here. Defendant was armed with the firearms during the commission
of the commitment offenses, possession of a firearm by a convicted felon and possession
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of a sawed-off shotgun. Although it is not clear from this court’s opinion where
defendant was when the firearms were discovered, prior to their discovery he was at the
house and thus, they were readily accessible to defendant. (See People v. Valdez (2017)
10 Cal. App. 5th 1338, 1347-1358 [state prison inmate detained in shower area was armed
with a prison weapon found in his cell and as a result, was ineligible for section 1170.126
relief]; People v. White (2016) 243 Cal. App. 4th 1354, 1362-1363, [crime of possession of
firearm by a felon precludes section 1170.126 relief under the arming prohibition where
firearm found in a garbage can near where defendant had been earlier]; People v. Elder
(2014) 227 Cal. App. 4th 1308 [defendant detained outside his home and guns found
during search inside; court held defendant was ineligible for section 1170.126
resentencing because he was armed with a firearm]; People v. Delgadillo (2005) 132
Cal. App. 4th 1570 [defendant stopped on freeway after officers followed him from his
house, guns found during search at his house; court held that guns were available for use
during commission of drug offenses at his house].)
II. Unreasonable Risk of Danger to Public Safety
Even assuming defendant is not ineligible because of the arming exclusion, the
trial court did not abuse its discretion in concluding that defendant was an unreasonable
risk of danger to public safety.
Section 1170.126 allows a person presently serving a three strikes sentence for a
felony that is neither serious nor violent to petition for resentencing as a second strike
offender. (§ 1170.126, subd. (a).) A prisoner is disqualified from resentencing if his
current conviction or criminal record come within the four disqualifying factors listed in
sections 667, subdivision (e)(2)(C), and 1170.12, subdivision (c)(2)(C). (§ 1170.126,
subd. (e).) If the prisoner is not subject to one of the disqualifying factors, then the trial
court shall resentence him under the two strikes provision “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), italics added.) In making this
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determination, “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).)
“[W]hen a court denies relief under section 1170.126 because reducing a
petitioner’s sentence entails an unreasonable risk of danger to public safety, that
discretionary determination is reviewed under the familiar abuse of discretion standard.
[Citation.] Using this standard, we consider whether the ruling ‘exceeds the bounds of
reason or is arbitrary, whimsical or capricious. [Citations.] This standard involves
abundant deference to the trial court’s rulings.’ ” (People v. Sledge (2015)
235 Cal. App. 4th 1191, 1203.)
In addition, “the factual findings upon which a court’s unreasonable risk
determination is based are themselves subject to review under the equally familiar
substantial evidence standard. Thus, we review the entire record in the light most
favorable to the court’s factual findings to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could make
those factual findings by a preponderance of the evidence. [Citation.] But if the factual
findings are not supported by substantial evidence, they cannot form the basis for an
unreasonable risk determination.” (People v. Sledge, supra, 235 Cal.App.4th at pp. 1203-
1204.)
Defendant contends the trial court did not take into account the remoteness of his
prior strikes. He claims the court overlooked the essentially minor nature of the rule
violations and did not consider his efforts at rehabilitation and plans for upon release.
Noting that the bulk of his criminal record occurred in his 20s, defendant concludes that
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his record does not support the trial court’s finding. Finally, he argues the trial court
erred in failing to look into the circumstances of each prison rule violations rather than
only the specific charge.
Defendant’s record is that of a career criminal. His adult record begins with the
robbery conviction in November 1987, a little more than two years after his last juvenile
adjudication. Between then and his current convictions in November 2005, the longest
he has spent out of incarceration was from his June 2001 release on parole until his
current conviction. The only time defendant was free from incarceration or parole was
between his November 2003 discharge from parole and the November 2005 conviction.
His time in prison is no more helpful to his case. He committed another felony
while in prison and his numerous, persistent rules violations has led to the loss of 930
days of credit, a period of incarceration longer than some felony sentences. While
defendant made commendable efforts to rehabilitate in prison, this did not stop him from
being identified as a validated gang member in May 2012, less than a year before his
petition was filed.
Defendant’s arguments go primarily to the weight the trial court should afford his
evidence. While section 1170.126 lists various types of evidence for the trial court to
consider in determining whether resentencing poses an unreasonable risk of danger to
public safety, it does not instruct the court on how to consider that evidence or what
weight to afford it. Indeed, quite the contrary, the statute specifically states the decision
of whether a defendant poses an unreasonable risk of danger to public safety is to be
made within the court’s discretion (§ 1170.126, subd. (f).) The evidence upon which the
trial court relied here is substantial. In light of defendant’s lengthy criminal record and
persistent misbehavior in prison, it was not an abuse of discretion to deny his petition.
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DISPOSITION
The judgment (order) is affirmed.
/s/
MURRAY, J.
We concur:
/s/
RAYE, P. J.
/s/
ROBIE, J.
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