Filed 1/27/15 P. v. Khrone 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Lassen)
                                                            ----




THE PEOPLE,                                                                                  C075881

                   Plaintiff and Respondent,                                     (Super. Ct. No. CH020984)

         v.

THEODORE DWAYNE KHRONE,

                   Defendant and Appellant.




         Defendant Theodore Dwayne Khrone appeals from the trial court’s denial of his
petition for resentencing pursuant to Penal Code section 1170.126.1 He contends the trial
court abused its discretion when it found that he posed an unreasonable risk of danger to
public safety if resentenced. Disagreeing, we affirm.




1   Further undesignated statutory references are to the Penal Code.

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                   FACTUAL AND PROCEDURAL BACKGROUND
       Defendant is currently serving a sentence of 25 years to life in prison for a 2005
conviction for two counts of battery by a prisoner on a nonconfined person. (§ 4501.5.)
The 2005 sentence runs consecutive to a 2001 sentence of 35 years to life for burglary
with two strikes. Defendant’s criminal record encompasses 30 years and includes five
separate state prison terms for felony convictions and two parole violations.
       Defendant’s Current Offense
       The facts of the 2005 conviction are follows: On November 22, 2003, Officers
Nelson and Hooven were escorting defendant from a lower tier shower to the lockdown
shower program. After the shower door opened, defendant pulled his right hand from the
handcuffs and tried to strike Nelson in the face, but Nelson blocked the punch with his
left arm. Nelson then seized defendant by the head and upper body while Hooven
grabbed defendant’s left arm. Defendant grabbed Nelson’s baton and tried to hit Hooven
with it, missing once before hitting his right thigh.
       After his conviction by jury, defendant told the probation officer that he was not
properly represented by his attorney and he should have represented himself, adding that,
because he was attacked by the correctional officers and did not try to hit anyone, he was
falsely accused.
       Defendant’s Section 1170.126 Hearing
       At defendant’s hearing on his section 1170.126 petition, associate warden Harold
Wagner testified to defendant’s disciplinary record during his recent incarceration.
Defendant had rules violation reports for: delaying a peace officer in 2013; fighting in
2012; threatening staff in 2011; possession of altered personal property in 2010; refusing
a cellmate in 2009; battery on a peace officer and refusing a direct order in 2008; two
violations for obstructing a peace officer in 2005; battery on a peace officer resulting in
the current conviction, destruction of state property, possession of inmate manufactured
alcohol, two violations for each refusing a direct order and refusing to obey orders, and

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for over familiarity, all in 2003; refusal to obey orders in 2002; and willfully delaying an
officer and refusal to obey orders in 2001.
       Defendant was in a level four classification, reserved for the most dangerous
inmates. Defendant’s classification score was 141; 60 was the minimum score for level
four classification. Inmates serving indeterminate life terms are not necessarily classified
level four.
       Defendant’s file also contained documents reflecting positively on his behavior
while incarcerated, reflecting his participation in continuing education, anger
management courses and therapy, leadership at Narcotics Anonymous, religious groups,
work, and trade courses.
       The prosecutor argued that defendant’s high security level indicated unreasonable
risk, and signaled that defendant continued to commit crimes while in prison, including
the current offense of battery on the guards and other rule violations not resulting in
convictions, including fighting, inciting, and obstructing. Defense counsel argued that
the “unreasonable risk” classification was unconstitutionally vague. The evidence did not
contain a “threat assessment” or “psychological testimony,” so there was no way of
knowing whether defendant was a threat. He added that threat should be measured
relatively as to other inmates and that defendant’s rule violations (listed ante) were
minimal.
       After hearing the evidence and argument on the petition, and asking follow-up
questions during argument, the trial court ruled:
       “Troublesome case and I would make the following findings:
       “If I were to look solely at the custody record of the defendant, it might be
difficult to define that it’s an unreasonable risk, but the issue that has not been seriously
in my view argued, which is the most compelling to this court, is the criminal conviction
which occurred while the defendant was in custody which is the subject matter of this
hearing. It certainly cannot be underestimated that the conviction occurring for a charge

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of battery on a peace officer is an extremely serious offense while committed by an
inmate. And to me, that is a highly probative item for the Court to base [its] ruling upon.
Because that crime has been charged and proved beyond any reasonable doubt, it is not
subject to any kind of interpretation. It’s a very serious offense, in my judgment, to
attack a guard if you’re an inmate. I can’t think of anything that’s more serious, really,
and based upon that, I’m going to find that the granting of the motion to re-sentence
would constitute an unreasonable risk to the public, safety of the public and therefore, the
motion to re-sentence is hereby denied.”
                                      DISCUSSION
       A defendant serving a three strikes sentence for a crime that is neither a serious or
violent felony may petition for recall of sentence in the court where he or she was
originally sentenced. (§ 1170.126, subd. (b).) If factors related to the crime or
defendant’s criminal history do not render defendant ineligible for resentencing (see
§ 1170.126, subd. (e)), then “the petitioner shall be resentenced pursuant to paragraph (1)
of subdivision (e) of Section 667 and paragraph (1) of subdivision (c) of Section 1170.12
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).)
       Defendant contends the trial court abused its discretion when it found that he
posed an unreasonable risk of danger to public safety if released, because it relied
“solely” on the current offense in finding unreasonable risk.
       “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).)

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        Defendant notes that the trial court had much information available to it, as we
have described at length ante, the consideration of which is contemplated by section
1170.126, subdivision (f), and yet it focused on the nature of the 2005 case. He adds that
the court declined to review the probation report prepared in the 2005 case, and argues
that it contained evidence of defendant’s denial that he hit the guards as well as proof that
the guards were not injured.
        First, we note that the trial court heard evidence of all the factors described by
defendant as well as argument discussing certain points made by counsel. The record
shows full consideration of the evidence presented, even though the trial court may have
emphasized the 2005 offense in explaining the reasons for its finding of unreasonable
risk.
        Second, even assuming the record reflects the 2005 case took center stage in the
trial court’s finding--and resulted in diminished consideration of other appropriate
factors--we find no abuse of discretion. Under the plain language section 1170.126, the
trial court may consider certain factors, but it is not mandated to consider any of them. It
may consider any evidence it “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)(3).) On this record, where the relevant statutory considerations were presented
as evidence at a hearing and then argued to the trial court, that court was well within its
discretion to find the facts surrounding defendant’s current offense were the “most
compelling” factors to its determination of unreasonable risk.




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                                    DISPOSITION
     The trial court’s order denying the petition for resentencing is affirmed.




                                                      DUARTE                , J.



We concur:



     RAYE                 , P. J.



     ROBIE                , J.




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