Filed 1/20/16 P. v. Delgado CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO


THE PEOPLE,                                                          B262394

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA064484)
         v.

ERIK DELGADO,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County.
Christopher G. Estes, Judge. Affirmed.


         Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Erik Delgado (defendant) appeals from an order after
judgment denying his petition to recall his sentence and for resentencing his narcotics
conviction as a misdemeanor. He contends that the trial court abused its discretion in
finding that he was unsuitable for Proposition 47 relief. Finding no abuse of discretion,
we affirm the order.
                                    BACKGROUND
       In October 2014, defendant was charged with the possession of methamphetamine
in violation of Health and Safety Code section 11377, subdivision (a). The felony
complaint alleged that defendant had two prior serious or violent felony convictions or
juvenile adjudications within the meaning of the “Three Strikes” law (Pen. Code, §§ 667,
subd. (b)-(i), 1170.12, subd. (a)-(d)),1 and that he had served one prior prison term within
the meaning of section 667.5, subdivision (b). On November 4, 2014, after defendant
entered a no contest plea to the charge and admitted one of the two prior strike
allegations, the trial court sentenced him to a term of 32 months in prison.
       Defendant filed a petition for resentencing under Proposition 47, which the
prosecution opposed. On March 2, 2015, after two days of hearing, the trial court denied
defendant’s petition upon finding defendant unsuitable for resentencing. Defendant filed
a timely notice of appeal from the order.
                                      DISCUSSION
       Defendant contends that the trial court abused its discretion in finding that he was
unsuitable for resentencing under Proposition 47.
       Proposition 47 amended Health and Safety Code section 11377 to reduce
possession of methamphetamine and other similar offenses to misdemeanors, unless
committed by a defendant ineligible for the relief. (People v. Lynall (2015) 233
Cal.App.4th 1102, 1108.) Proposition 47 enacted section 1170.18, which provides in
subdivisions (a) and (b) that a person currently serving a sentence for a such a felony may
petition for a recall of his sentence and request resentencing to a misdemeanor, “unless

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

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the court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.” Subdivision (c) of the statute defines
“‘unreasonable risk of danger to public safety’” as “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,” which are
sometimes referred to as “super strike offenses.” (People v. Lynall, supra, at p. 1109.)
       “In exercising its discretion, the court may consider all of the following: [¶] (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.” (Health & Saf. Code, § 1170.18, subd. (b).)
       Whenever “a discretionary power is inherently or by express statute vested in the
trial judge, his or her exercise of that wide 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.]”
(People v. Jordan (1986) 42 Cal.3d 308, 316.)
       Here, the materials reviewed by the court prior to ruling were summarized on the
record. In addition to the court’s file in this case, the court reviewed the files in Los
Angeles Superior Court case Nos. MA048153, 3AV04897, and 0AV00725. The court
read portions of the probation report dated March 10, 2010, in case No. MA048153,
regarding events which occurred in January 2010:
              “‘They [defendant and mother of his children Priscilla Cruz] got into
       an argument. He pulled her down the stairs causing her to injure herself on
       the stucco. He then pulled out a box cutter, and went after victim
       Coronado.’ Victim Coronado was . . . not Priscilla Cruz. It’s a separate
       individual who apparently interceded in the altercation. The probation
       report goes on to say: ‘. . . pulled out a box cutter went after victim
       Coronado. He cut and stabbed him numerous times with the box cutter. He
       then jumped into victim Cruz’s vehicle while her nine-year-old daughter

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       was sitting in the back seat. He forced victim Cruz into the car, as she let
       her daughter out. He drove up to the gate, and nobody would let him
       through. She jumped out of the car and ran. He drove off in her vehicle.
       They called 911.’”

       The report noted that 11 staples were required to close Coronado’s cuts, and that
Cruz told responding officers defendant was a member of the C.K.F. gang, with the
moniker “Chuckie.”
       It was also noted that defendant entered into a plea agreement under which he pled
only to the assault with a deadly weapon, admitted a prior juvenile robbery as a strike
offense, and was sentenced to the low term of two years, doubled as a second strike to
four years. Defendant also pled to a prior domestic violence misdemeanor committed in
2009. In 2013, while on parole for the assault with a deadly weapon, defendant was
again charged with a crime of domestic violence, pled no contest to misdemeanor assault,
and was placed on probation, but failed to complete a required domestic violence
counseling program.
       The trial court also reviewed defendant’s juvenile record for 2002 and 2003, but
focused on the violent nature of his adult conduct, particularly the nature of the attack
upon victim Coronado with a box cutter. Coronado’s injuries were located behind his left
ear, upper forehead, and upper torso, suggesting that the attack could have resulted in
further great bodily injury or death. The court found that defendant’s subsequent
domestic violence conviction, although a misdemeanor, also indicated that defendant
posed a risk to public safety. The trial court found by a preponderance of the evidence
that defendant’s pattern of violent conduct demonstrated an unreasonable risk that
defendant would commit a super strike such as murder, attempted murder, or other
serious or violent felony punishable by life in prison or death.
       Defendant disagrees. He contends that there is no likelihood that he will commit a
super strike in the future because there was no evidence that he remained emotionally
involved with his ex-girlfriend. We quote defendant’s reasoning in full as follows: “The
crimes that the court used were all crimes that involved his ex-girlfriend. The court

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found that because the crimes were against the same victim, that escalated the future risk.
However, the contrary is true. While not condoning [defendant’s] criminal offenses
against his ex-girlfriend, he had not been violent against anyone else with the exception
of an armed robbery he committed as a juvenile 12 years ago.” Defendant’s reply to
respondent’s correct statement of the facts considered by the trial court is unclear. His
argument appears to be that the trial court should not have considered the 2010 box cutter
attack because defendant committed a less serious violent crime more recently, and
because defendant believed that the victim of the box cutter attack had been sleeping with
his ex-girlfriend. He concludes that because the prosecution did not prove that he was
still emotionally involved with his ex-girlfriend, the trial court’s decision was speculative
and arbitrary.
       Facts which merely afford an opportunity for a difference of opinion do not
establish an abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 655.) Moreover,
defendant has misstated the facts in the record. Defendant’s criminal history includes
crimes of violence against three victims, not one, despite defendant’s effort to discount
the armed robbery and the box cutter attack; and all were considered by the trial court.
Further, even if defendant had recited the facts correctly, it cannot seriously be argued
that multiple acts of domestic violence against a single victim somehow show a lessened
likelihood that in the future defendant would attack that victim, his next girlfriend, the
next person who attempted to protect her, or anyone else who made him angry or
intervened while he was acting out.
       The trial court did not exercise its discretion in an arbitrary, capricious or patently
absurd manner in concluding that such crimes demonstrated an unreasonable risk that
defendant’s next violent episode will result in murder, attempted murder, or other crime
punishable by life in prison or death. We thus conclude that the trial court properly
exercised its discretion.




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                                   DISPOSITION
      The order denying defendant’s petition under Proposition 47 is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                               ____________________________, J.
                                               CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.
ASHMANN-GERST




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