Filed 9/8/16 P. v. Carrillo CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


                                                                       B263195
THE PEOPLE OF THE STATE OF
CALIFORNIA,                                                            (Los Angeles County
                                                                       Super. Ct. No. GA090378)
         Plaintiff and Respondent,

         v.

LINO CARRILLO,

         Defendant and Appellant.



         APPEAL from order of the Superior Court of Los Angeles County, Honorable
Dorothy L. Shubin, Judge. Affirmed.


         Nancy L. Tetreault, 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 David A.
Voet, Deputy Attorneys General, for Plaintiff and Respondent.

                                            _____________________
                                   INTRODUCTION
       Lino Carrillo was convicted of second degree burglary, a felony, for stealing
$128.89 worth of clothing from a Walmart store and was sentenced to a 32-month prison
term. (Pen. Code, § 459.)1 Subsequent to his conviction, the electorate approved the
Safe Neighborhoods and Schools Act, commonly referred to as Proposition 47, which
reduced certain drug and theft offenses to misdemeanors and created a process for
resentencing persons serving felony sentences for those offenses. (§ 1170.18). Carrillo
filed a petition to reduce his conviction to a misdemeanor, which the trial court denied on
the ground that he would pose an unreasonable risk of danger to public safety if
resentenced. (§ 1170.18, subds. (b)-(c).) We conclude the trial court acted within its
discretion based on the evidence of Carrillo’s past criminal convictions. We affirm.
                   FACTS AND PROCEDURAL BACKGROUND
       On July 16, 2013, Carrillo was arrested for stealing $128.89 worth of clothing
from a Walmart store. He admitted guilt. On October 11, 2013, Carrillo was convicted
of second degree burglary and sentenced to 32 months in state prison.
       On January 23, 2015, Carrillo petitioned the court for resentencing under
Proposition 47 (§ 1170.18, subd. (a)). The People opposed the petition. The People
acknowledged Carrillo was eligible for resentencing, as his burglary conviction would
now constitute misdemeanor shoplifting under Proposition 47 and he had no
disqualifying prior convictions. Nevertheless, the People maintained he was unsuitable
for resentencing because he posed an unreasonable risk of danger to public safety. The
People relied exclusively on Carrillo’s criminal history, which included misdemeanor
offenses and two prior felony convictions for kidnapping in 2002 and possession of a
firearm by a convicted felon in 2010. Additionally, the People asserted that, in 2002,
Carrillo had been charged with kidnapping in the commission of a carjacking, but the
charge had been dismissed in exchange for his guilty plea to simple kidnapping.




1
       Undesignated statutory references are to the Penal Code.

                                             2
       On April 1, 2015, the trial court held a suitability hearing. The People reasserted
that Carrillo’s criminal history demonstrated he posed an unreasonable risk of danger to
public safety if his sentence were reduced. Carrillo argued the People had failed to
establish he was likely to commit a disqualifying felony, emphasizing that his current
offense did not involve violence and that he had not committed a violent felony since his
2002 kidnapping conviction.
       The trial court denied the petition. In addition to the 2002 felony kidnapping
conviction, the court noted that Carrillo’s probation report listed several misdemeanor
convictions, including two convictions for violent offenses: a 2007 misdemeanor
conviction for infliction of corporal injury on a spouse or cohabitant and a 2010
misdemeanor conviction for battery against a former spouse. Additionally, the court
observed that Carrillo had a sustained juvenile petition in 1995 for assault with a deadly
weapon, not a firearm, with great bodily injury. And, there was the second felony
conviction for possession of a firearm by a convicted felon in 2010, as well as two more
non-violent misdemeanor convictions in 2013. The court concluded with the following
remarks: “I think this is a rather close case, but I do find that the defendant presents a
danger if resentenced given the totality of the criminal history and, more specifically, the
case in which he was originally charged with the 209.5, kidnapping in the commission of
carjacking. [¶] I understand, of course, it was ultimately resolved as a kidnapping
charge, but given those circumstances, combined with the rest of the criminal history, the
court’s determination is that, although Mr. Carrillo is eligible, he’s unsuitable for
resentencing because he poses an unreasonable risk to public safety.” Specifically, the
court determined there was an unreasonable risk that Carrillo would commit a serious or
violent felony punishable by life imprisonment.




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                                       DISCUSSION
       A.     Proposition 47 and Standard of Review
       “Proposition 47 makes certain drug- and theft-related offenses misdemeanors,
unless the offenses were committed by certain ineligible defendants. These offenses had
previously been designated as either felonies or wobblers (crimes that can be punished as
either felonies or misdemeanors).” (People v. Lynall (2015) 233 Cal.App.4th 1102.) As
relevant here, Proposition 47 effected this change by adding section 490.2, which
provides: “Notwithstanding Section 487 or any other provision of law defining grand
theft, obtaining any property by theft where the value of the money, labor, real or
personal property taken does not exceed nine hundred fifty dollars ($950) shall be
considered petty theft and shall be punished as a misdemeanor.” (§ 490.2, subd. (a).)
Proposition 47 also enacted section 1170.18, which created a resentencing procedure for
persons serving felony sentences for crimes that were now misdemeanors after the
initiative. (People v. Hall (2016) 247 Cal.App.4th 1255, 1261.)
       “Under section 1170.18, a person ‘currently serving’ a felony sentence for an
offense that is now a misdemeanor under Proposition 47, may petition for a recall of that
sentence and request resentencing in accordance with the statutes that were added or
amended by Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in
section 1170.18 shall have his or her sentence recalled and be ‘resentenced to a
misdemeanor . . . unless the court, in its discretion, determines that resentencing the
petitioner would pose an unreasonable risk of danger to public safety.’ (§ 1170.18, subd.
(b).)” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1092.) “Section 1170.18 thus
provides a two-step mechanism . . . . First, the trial court must determine if the petitioner
is eligible for resentencing under section 1170.18 based on a preponderance of the
evidence. [Citations.] If the court finds the petitioner eligible, the trial court must
determine the factual issue of whether the petitioner presents an unreasonable risk of
danger to public safety if resentenced.” (People v. Bush (2016) 245 Cal.App.4th
992, 1001.)



                                              4
       “Subdivision (c) of section 1170.18 defines the term ‘unreasonable risk of danger
to public safety,’ and subdivision (b) of the statute lists factors the court must consider in
determining ‘whether a new sentence would result in an unreasonable risk of danger to
public safety.’ (§ 1170.18, subds. (b), (c).)” (People v. Rivera, supra, 233 Cal.App.4th at
p. 1092.) “ ‘[U]nreasonable risk of danger to public safety’ means an unreasonable risk
that the petitioner will commit a new violent felony within the meaning of [section 667,
subdivision (e)(2)(C)(iv)].” (§ 1170.18, subd. (c).) Among the disqualifying violent
felonies (colloquially known as “super strikes”) is “[a]ny serious and/or violent felony
offense punishable in California by life imprisonment or death.” (§ 667, subd.
(e)(2)(C)(iv)(VIII).) “The critical inquiry . . . is not whether the risk is quantifiable, but
rather, whether the risk would be ‘unreasonable.’ ” (People v. Garcia (2014)
230 Cal.App.4th 763, 769.) “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.” (§ 1170.18, subd. (b).)
       “The trial court’s decision on a section 1170.18 petition is inherently factual,
requiring the trial court to determine whether the defendant meets the statutory criteria
for relief.” (People v. Contreras (2015) 237 Cal.App.4th 868, 892, italics added.)
Evidence to support such a finding may come from within or outside the record of
conviction, or from undisputed facts acknowledged by the parties. In some cases, the
record of a petitioner’s conviction may suffice to establish a prima facie case for or
against resentencing. (People v. Hall, supra, 247 Cal.App.4th at p. 1263.)




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       Consistent with section 1170.18, subdivision (b)’s repeated references to the trial
court’s discretion, we review the trial court’s denial of Carrillo’s petition for abuse of
discretion. (See People v. Flores (2014) 227 Cal.App.4th 1070, 1075; People v. Hall,
supra, 247 Cal.App.4th at pp. 1263-1264.) 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.
(People v. Rodrigues (1994) 8 Cal.4th 1060, 1124–1125.) The burden is on the party
attacking the sentence to clearly show that the sentencing decision was irrational or
arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 376.) An abuse of discretion is
shown when the trial court applies the wrong legal standard. (Costco Wholesale Corp. v.
Superior Court (2009) 47 Cal.4th 725, 733.) But, “[w]here there is substantial evidence
in support of a finding of fact, and there is no abuse of discretion on the part of the court,
a reviewing court is not empowered to disturb the finding of fact.” (People v. Fite (1956)
141 Cal.App.2d 768, 770.)
       B.     The Trial Court Did Not Abuse Its Discretion; The Court Applied the
              Correct Legal Standard and Substantial Evidence Supported Its Finding
       Carrillo contends the trial court erred by considering the purported 2007 charge for
kidnapping in commission of a carjacking, which was dismissed pursuant to a plea
agreement.2 Carrillo emphasizes the People failed to present any evidence concerning
that supposed charge, stressing that the only reference to the charge in the record was the
District Attorney’s bald assertion that aggravated kidnapping had been charged but
ultimately dismissed. Absent the trial court’s consideration of that charge, Carrillo
argues the court could not have found that resentencing would pose an unreasonable risk

2
       Carrillo argues the trial court erred by regarding a sentence enhancement of an
indeterminate life term under the Three Strikes Law to be a disqualifying felony under
Proposition 47. We see nothing in the record to suggest this was the basis for the court’s
determination that Carrillo posed an unreasonable danger of committing a violent felony
punishable by life in prison if resentenced. Carrillo has failed to present an adequate
record establishing the claimed error.

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of danger to public safety. The People disagree, arguing Carrillo’s history of convictions
for violent offenses constitutes substantial evidence supporting the trial court’s finding,
and the court applied the correct legal standard in determining resentencing posed an
unreasonable risk that Carrillo would commit a serious felony punishable by life in
prison. We conclude the trial court erred insofar as it considered the unadjudicated
charge, but the error was harmless because Carrillo’s criminal convictions supported the
court’s unsuitability determination.
       “A defendant in a criminal action is presumed to be innocent until the contrary is
proved.” (§ 1096.) This fundamental precept undergirds our criminal justice system and
ensures no citizen can be found guilty of a punishable criminal offense on the basis of a
charge unsupported by evidence of guilt beyond a reasonable doubt. (Ibid.) Consistent
with this principle, criminal juries are instructed as follows: “The fact that a criminal
charge has been filed against the defendant[s] is not evidence that the charge is true. You
must not be biased against the defendant[s] just because (he/she/they) (has/have) been
arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is
presumed to be innocent. This presumption requires that the People prove a defendant
guilty beyond a reasonable doubt. . . . [¶] . . . [¶] . . . Unless the evidence proves the
defendant[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an
acquittal and you must find (him/her/them) not guilty.” (CALCRIM No. 220; People v.
Anderson (2007) 152 Cal.App.4th 919, 944 [“The function of CALCRIM No. 220 is to
inform the jury of the presumption of innocence and the People’s burden to prove guilt
beyond a reasonable doubt. Consistent with this function, the instruction tells the jury
that the fact the defendant has been arrested, charged with a crime, or brought to trial may
not be considered against him. These factors relate directly to the presumption of
innocence.”].)




                                               7
       As Carrillo correctly argues, the People improperly asserted that the mere charge
of aggravated kidnapping established that Carrillo posed an unreasonable risk of
committing a similar disqualifying violent felony if resentenced. To rely on this
dismissed charge in opposing Carrillo’s petition, the People bore the burden of
introducing evidence of the facts underlying the charge to show Carrillo committed the
crime and that he would likely commit a similar crime in the future if resentenced.
Absent such evidence, the People’s bald assertion that the charge was filed should have
had no bearing on the trial court’s determination of whether resentencing Carrillo posed
an unreasonable risk of danger to public safety. To the extent the court considered the
dismissed charge in making its determination, this was error.
       That said, our Constitution precludes this court from setting aside a judgment “for
any error as to any matter of procedure, unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) And, our Supreme
Court has instructed that a miscarriage of justice should be declared only when the court,
after an examination of the entire cause, including the evidence, is of the opinion that it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Under this standard, our determination “must necessarily be based upon reasonable
probabilities rather than upon mere possibilities; otherwise the entire purpose of the
constitutional provision would be defeated.” (Id. at p. 837.)
       Here, we cannot conclude that it is reasonably probable the trial court would have
reached a different conclusion had it declined to consider the purported aggravated
kidnapping charge. While the trial court did regard the petition as a “rather close case,”
and referred to the aggravated kidnapping charge, the entire record suggests the trial court
was most concerned with “the totality of [Carrillo’s] criminal history.” In that regard, the
trial court rejected Carrillo’s attempt to characterize his convictions as non-violent,
rebutting the assertion by stressing he had two misdemeanor convictions for violent
offenses following his four-year prison term for felony kidnapping. The court also


                                              8
emphasized Carrillo’s sustained juvenile petition for assault with a deadly weapon
resulting in great bodily harm, and his more recent felony conviction for possession of a
firearm by a convicted felon. In sum, the trial court was very conversant with Carrillo’s
prior criminal history of violence and articulated its conclusion that Carrillo posed an
unreasonable risk of committing a serious or violent felony punishable by life
imprisonment. Given Carrillo’s ongoing criminality and his repeated failures to
rehabilitate, the trial court reasonably inferred that he presented an elevated, and
escalating, risk of committing a violent offense, including one punishable by a life
sentence. Though the trial court should not have considered a dismissed charge without
evidence of the underlying facts, we conclude the error was harmless in view of the
compelling evidence supporting the court’s determination that resentencing Carrillo
posed an unreasonable risk of danger to public safety as defined by Proposition 47. (See
§§ 1170.18, subd. (c), 667, subd. (e)(2)(C)(iv)(VIII).)




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                                    DISPOSITION
      The order is affirmed.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                STRATTON, J.*

We concur:




                    EDMON, P. J.




                    LAVIN, J.




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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