Filed 2/11/14 P. v. Stuckey 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Shasta)
                                                            ----




THE PEOPLE,                                                                                  C074261

                   Plaintiff and Respondent,                                      (Super. Ct. No. 95F5542)

         v.

DONALD EUGENE STUCKEY,

                   Defendant and Appellant.




         Defendant Donald Eugene Stuckey appeals from the trial court’s denial of his
petition for resentencing under the Three Strikes Reform Act of 2012. Under the Three
Strikes Reform Act, “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.” (People v. Superior Court
(Kaulick) (2013) 215 Cal.App.4th 1279, 1286.) If a defendant such as the one here
satisfies certain criteria, “the petitioner shall be resentenced . . . unless the court, in its

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discretion, determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety.” (Pen. Code,1 § 1170.126, subd. (f).) “In exercising its
discretion in subdivision (f), 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).)
       The trial court denied defendant’s petition to recall his sentence because he “poses
an unreasonable risk of danger to public safety.” Defendant’s appeal raises seven
contentions attacking the trial court’s exercise of discretion. The People begin their
response by alleging defendant was not entitled to relief in this proceeding because he
agreed to the 25-year-to-life sentence as part of a plea agreement.
       We affirm. The People specifically waived in the trial court the contention that
defendant’s plea agreement precluded him from relief under the Three Strikes Reform
Act. As to defendant’s arguments, the court acted well within its discretion, and the
factual premises of many of defendant’s arguments are wrong. Contrary to defendant’s
arguments, the court evaluated defendant’s insight; the court articulated a rational nexus
to public safety; the court did not have to appoint an expert to conduct a risk assessment;
and the court did not place the burden of proof on defendant.




1      All further section references are to the Penal Code unless otherwise indicated.

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                   FACTUAL AND PROCEDURAL BACKGROUND
                                             A
       Defendant’s Juvenile History, Criminal History, And Misconduct In Prison
       Defendant’s contact with the juvenile justice system began when he was
approximately 12 years old. He had juvenile adjudications for car theft, burglaries,
joyriding, contempt of court, violations of probation, escape from a boys’ ranch, hit and
run, drunk in public, disturbing the peace, resisting arrest, vandalism, and petty theft. He
was confined at juvenile hall, a boys’ ranch, a boys’ treatment center, and ultimately the
California Youth Authority. He was released from the California Youth Authority in
1983 when he was approximately 19 years old and then in two separate incidents in 1984
he committed an assault with a deadly weapon and grand theft from a person. In the
grand theft, defendant stole cigarettes and punched the store clerk repeatedly in the face
while threatening to kill the clerk. He was again committed to the California Youth
Authority.
       After he was discharged from the California Youth Authority but while still on
parole, defendant committed his first strike, assault with the personal use of a deadly
weapon, that was sustained in February 1988 at the same time he also sustained a
conviction for attempted kidnapping. These crimes began when defendant was following
a 17-year-old girl in his car. He got out of his car, grabbed her arm, and she started
screaming. Defendant threatened to shoot her and told her “shut up you[‘]r[e] coming
with me.” As the girl continued to resist, a passerby intervened, and defendant fled. A
few hours later, defendant went into the apartment of another woman and held a knife to
her throat. For these crimes, defendant was sentenced to three years and eight months in
prison and paroled in March 1990.
       Defendant violated parole one month later and then again two more times from
1990 to 1991, including once because he committed an aggravated battery, and he was



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returned to prison. Two years later in 1993, he was convicted of theft and receiving
stolen property and was sentenced to one year in county jail.
       In October 1994, defendant committed his second strike, kidnapping. Defendant
and his sister forced the victims at knifepoint (defendant swung the knife at one of the
victims) to give them a ride to a liquor store in the victims’ car. When defendant and his
sister got out of the car, defendant told the victims he would kill them if they told
anybody.
       Six months later, in April 1995, defendant committed his third strike, receiving
stolen property. Using a knife, defendant robbed a convenience store clerk of money,
beer, and cigarettes. Defendant pled guilty to receiving stolen property and admitted two
prior strikes in return for a sentence of 25 years to life and dismissal of a charge of
second degree robbery and three enhancements. This term was to be served after the
conclusion of an 18-year sentence he received for the second strike.
       Defendant has been incarcerated for these last offenses from 1995 to present,
approximately 18 years. While incarcerated in July 1998, he was found to be under the
influence of alcohol. In September 1998, he failed to report to his job assignment. In
October 1998, he kicked a correctional officer in her knee and spit in her face while
under the influence of alcohol. In 2001, defendant obstructed a correctional officer from
doing the officer’s duties by refusing to remove coverings in his cell that were shielding
the officer’s view. In April 2003, he failed to report to his job assignment. In November
2004, he failed to report to that job assignment again. In January 2011, he refused to
accept his assigned housing.
                                              B
                    Defendant’s Petitions And The People’s Response
       Defendant filed a pro. per. petition to recall his sentence under the Three Strikes
Reform Act. When counsel was appointed for him, counsel filed a supplemental petition
arguing that denial of the petition would be an abuse of the trial court’s discretion,

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stressing that the statutory scheme requires the court to resentence defendant unless he
poses an unreasonable risk of danger to public safety. The People filed a response
conceding that defendant was eligible to have his sentence recalled but argued “defendant
poses a completely unreasonable risk of danger to public safety” and attached supporting
documents.
                                             C
                                        The Hearing
       Defendant was the only witness who testified. He was 48 years old. He “had a
problem with alcohol.” In prison there were a “few occasions where [he] got involved
with [pruno],” he “was given 115s,” and was “under the influence. [H]e did things.
That’s how [his] whole life has been here from using alcohol.” He was “ashamed of [his]
life,” felt “terrible” and “bad” for his victims, “made a lot of wrong choices by being
under the influence,” and was an “an alcoholic.” The 1998 episode in prison where he
kicked a correctional officer and spit in her face was because of “alcohol abuse.” He
started AA in 1996 or 1997 but did not attend AA from 1998 to 2013. He now attends
AA twice a week and explained that part of the reason he started going now was to “help
[his] situation right here.”
                                             D
                                 The Trial Court’s Ruling
       The trial court issued the following written ruling:
       “Despite [defendant’s] relatively good disciplinary record since 1999, the reasons
for denying the petition are as follows:
       “His prior criminal history began in 1976 when he was a juvenile, and continued
nearly uninterrupted for 19 years, until he was removed indefinitely from the community
by his current incarceration. His repeated criminal conduct often involved the use of
weapons and the threat of great bodily injury and death. Although [defendant] concedes
that alcoholism underlie[s] his criminal conduct, he failed to participate in treatment for

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that condition for nearly 15 years of his 18 years of incarceration. The petitioner incurred
a number of disciplinary actions early in his incarceration, including one for battering an
officer. Finally, and most significantly, he lacks any history of remaining free of criminal
conduct for an extended period of time after prior releases from custody. These facts lead
this court to conclude that upon resentencing and release from custody the defendant
would pose an extremely high risk of re-offense in the violent criminal manner of his past
criminal conduct, and therefore, poses an unreasonable risk of danger to public safety.”
                                      DISCUSSION
                                              I
The People Have Waived Their Argument That Defendant Cannot Petition To Modify His
Sentence Because They Specifically Declined To Raise This Argument In The Trial Court
       We begin by addressing the People’s argument that defendant “is entitled to no
relief in this proceeding” because he is “serving a stipulated sentence he agreed to as part
of a plea agreement.” This contention is based on an argument that defendant “should be
estopped from petitioning to modify or recall a sentence he freely and voluntarily agreed
to” and that “[t]he People are completely entitled to the benefit of and enforcement of
that plea bargain and [defendant] here cannot be now heard attempting to undo that
bargain.” The People have waived this issue by specifically declining to argue it in the
trial court.
       At the hearing, the trial court on its own raised the issue of “how much should it
play into the Court’s decision that we have a negotiated disposition . . . ?” Defense
counsel responded, “the People have not complained in their papers that they have not
received the benefit of the bargain, so they have not made that prayer . . . . .” The People
responded, “It is the People’s position that the issue was not necessarily ripe yet, whether
the People have received their bargain. If this . . . resentencing does not happen, then I
don’t think it is necessarily something to argue.” The court then asked the following:
“Well, then, why don’t we do this? Sounds like both of you are agreed that . . . at least up

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until this point it is not a factor the Court should consider in determining whether . . .
resentencing would pose an unreasonable risk of danger to public safety. So we’ll
narrow the scope of this proceeding to that issue. If the court determines it will
resentence the petitioner, then we can go from there. If the People want to make another
motion, we’ll take it one step at a time, okay?” The People responded, “Thank you” and
the court said, “All right.”
       The People’s deliberate decision to forgo an argument that the court entertaining
the recall petition to determine defendant’s unreasonable risk of danger to public safety
deprived the People of the benefit of its bargain waives this argument on appeal. (See
People v. Burgener (2003) 29 Cal.4th 833, 886 [a defendant’s failure to raise an issue in
the trial court waives the issue on appeal]; People v. Saunders (1993) 5 Cal.4th 580, 590,
fn. 6. [waiver is the “ ‘intentional relinquishment or abandonment of a known right.’ ”].)
                                              II
                      The Trial Court Was Well Within Its Discretion
                               To Deny Defendant’s Petition
       Defendant raises seven contentions claiming the trial court abused its discretion.
One contends the trial court failed to recognize and exercise the full extent of its
discretion, because it failed to evaluate his insight into his criminal and antisocial
behavior to determine his risk to public safety. Four contend the trial court failed to
articulate a rational nexus to public safety when citing four factors it selected (criminal
history, prison misconduct, alcohol abuse, criminal history that began as a youth). One
contends the trial court should have appointed an expert to conduct a forensic assessment
of defendant’s risk to public safety. And the last contends the trial court misplaced the
burden of proof on defendant. We address these contentions below.




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                                               A
                                            Insight
       Defendant contends the trial court failed to recognize and exercise the full extent
of its discretion, because it failed to evaluate his insight into his criminal and antisocial
behavior, including his insight into his “lengthy juvenile criminal history” to determine
his risk to public safety. In defendant’s view, “the record is barren of any evidence of
[his] present insight and acceptance of responsibility into his prior criminal behavior,
both of which are important factors in determining current dangerousness.” Defendant’s
argument is a nonstarter because its factual premise is wrong. As we explain, the court
heard defendant’s testimony on his insight into his criminal behavior and actually based
its ruling not on lack of insight but defendant’s failure to meaningfully address his
problems.
       In its written ruling, the court noted that “[a]lthough [defendant] concedes that
alcoholism underlie[s] his criminal conduct, he failed to participate in treatment for that
condition for nearly 15 years of his 18 years of incarceration, including one for battering
an officer.” At the hearing on the petition, defendant testified he “had a problem with
alcohol.” He was “ashamed of [his] life,” felt “terrible” and “bad” for his victims,
“made a lot of wrong choices by being under the influence” and described himself as “an
alcoholic.” When asked about how he addressed his alcohol-related issues, defendant
explained he started AA in 1996 or 1997, but acknowledged that in 1998 he kicked an
officer in her knee and spit in her face when he was under the influence of alcohol. He
did not attend AA from 1998 to 2013. He now attends AA twice a week and explained
that part of the reason he started going now was to “help [his] situation right here.”
       This testimony and the court’s ruling show the court did hear evidence on
defendant’s insight into his criminality and considered this evidence in its ruling.




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                                             B
                   The Court Explained Why The Factors It Articulated
                        Showed A Rational Nexus To Public Safety
       Defendant contends the trial court failed to articulate a rational nexus to public
safety when citing four factors it relied on to deny defendant’s petition (criminal history,
prison misconduct, alcohol abuse, criminal history that began as a youth). As to the last
factor, defendant further contends it is actually a mitigating factor because minors bear
lower moral culpability for their crimes than adults. Again, as we explain, defendant’s
contention is a nonstarter because its factual premise is wrong. The court considered
these factors and explained why their existence posed an unreasonable risk of danger to
public safety.
       As the court noted, defendant’s juvenile record and criminal history was
significant because his crimes were not isolated or aberrant, i.e., they “continued nearly
uninterrupted for 19 years until he was removed indefinitely from the community by his
current incarceration.” The court explained their nexus to current dangerousness as
follows: “His repeated criminal conduct often involved the use of weapons and the threat
of great bodily injury” and he “lacks any history of remaining free from criminal conduct
for an extended period of time after prior releases from custody.” As to his juvenile
record, defendant is wrong that the court abused its discretion by failing to view it as a
mitigating factor because, as the court explained, it was the beginning of defendant’s
essentially uninterrupted life of crime. It was not a situation where defendant’s youth
could be blamed for his bad acts because here those bad acts continued uninterrupted
through adulthood.
       Finally, defendant’s prison misconduct was significant because it included a 1998
incident where he battered a correctional officer while under the influence of alcohol.
The court explained the nexus to current dangerousness as follows: he “concedes that



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alcoholism underlie[s] his criminal conduct, [yet] he failed to participate in treatment for
that condition for nearly 15 or his 18 years of incarceration.”
       Based on the trial court’s written ruling, defendant is wrong the court failed to
articulate a rational nexus to public safety.
                                                C
                            The Court Was Within Its Discretion
                 Not To Appoint An Expert To Prepare A Risk Assessment
       Defendant contends the court abused its discretion by not appointing an expert to
prepare a forensic assessment of his risk to public safety. As we explain, defendant’s
argument is based on two laws that do not apply to him, and there is no requirement that
a risk assessment be prepared for a hearing on a defendant’s petition for resentencing
under the Three Strikes Reform Act.
       Defendant first cites the requirement that with certain exceptions, “[p]rior to a life
inmate’s initial parole consideration hearing, a Comprehensive Risk Assessment will be
performed by a licensed psychologist employed by the Board of Parole Hearings.” (Cal.
Code Regs., tit. 15, § 2240, subd. (a).) Defendant argues that “[g]iven that public safety
is the paramount consideration in determining a recall petition, and that somewhat
similarly situated life-term inmates seeking parole are entitled to receive psychological
evaluations for performance of comprehensive risk assessments, it would seem to follow
that before deciding whether a recall petitioner poses an unreasonable risk of danger to
society, the court should appoint an expert to perform a comprehensive forensic risk
assessment--as in the case with life-term inmates seeking parole.” The problem with
defendant’s argument is that this regulation applies only to inmates being considered for
parole and that unlike in that situation, the Legislature has not required the appointment
of an expert to conduct a risk assessment on a petition to recall a sentence under the
Three Strikes Reform Act.



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       Defendant second cites the requirements that in “[a] trial . . . of the question of
mental competence,” “[t]he court shall appoint a psychiatrist or licensed psychologist . . .
to examine the defendant” and, among other things, “[t]he examining psychiatrists or
licensed psychologists shall . . . address . . . whether the defendant is a danger to self or
others.” (§ 1369, subd. (a).) Defendant claims that under this Penal Code section, the
court had authority to appoint experts to determine whether he was a danger to himself or
others. Defendant’s claim is wrong because this section of the Penal Code applies only to
“[a] trial . . . of the question of mental competence” and not to the proceeding here.
       In summary, the regulation and the Penal Code section defendant cites do not
apply to him and there is nothing in the Three Strikes Reform Act that requires a trial
court to appoint an expert to conduct a risk assessment.
                                               D
            The Trial Court Did Not Place The Burden Of Proof On Defendant
       Defendant contends the court abused its discretion by improperly placing the
burden of proving lack of dangerousness on him. Defendant’s contention is based on a
colloquy between the court and defense counsel at the beginning of the hearing as
follows:
       THE COURT: [W]ho would the burden fall on? Let me see if I printed out --
what does the code specify?
       [DEFENSE COUNSEL]: Well, Judge, my -- Mr. Stuckey is a petitioner.
       THE COURT: So the burden should be on him.
       [DEFENSE COUNSEL]: Right. And, um --
       THE COURT: Would you like to present some evidence?
       [DEFENSE COUNSEL]: I would -- I will be calling Mr. Stuckey . . . .
       This colloquy did not indicate the court was placing the burden of proof as to the
question of dangerousness on defendant. Rather, consistent with defense counsel’s
position, it was placing the burden of going forward with the evidence on defendant.

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This interpretation of the colloquy (that the court did not place the burden of proof on
defendant) is supported by the parties’ pleadings, which the court reviewed. Defense
counsel’s supplemental petition argued that a denial of the petition would be an abuse of
the trial court’s discretion, stressing that the statutory scheme requires the court to
resentence defendant unless he posed an unreasonable risk of danger to public safety.
The People filed a response arguing “defendant poses a completely unreasonable risk of
danger to public safety” and then supported that argument with evidence. Thus,
defendant’s argument is based on the faulty factual premise that the court placed the
burden of proof (as opposed to the burden of going forward) on him.
                                       DISPOSITION
       The judgment is affirmed.



                                                          ROBIE                 , J.



We concur:



      BLEASE                 , Acting P. J.



      BUTZ                   , J.




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