Filed 8/1/16 P. v. Delara CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E064419

v.                                                                      (Super.Ct.No. INF1301675)

ROBERTO SOLIS DELARA,                                                   OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Anthony R. Villalobos,

Judge. Affirmed.

         Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U.

Le, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Defendant Roberto Solis Delara appeals from an order denying his motion for

resentencing pursuant to Penal Code section 1170.18.1 We find no error and affirm.

                                              I

                                STATEMENT OF FACTS

       On August 29, 2013, defendant withdrew his plea of not guilty and pleaded guilty

to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and

admitted a prior “strike” conviction alleged under Penal Code section 667,

subdivisions (c) and (e)(1). He received the agreed term of six years at sentencing, at

which time seven prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) were

dismissed.

       Shortly after the adoption of Proposition 47 and section 1170.18, defendant filed a

petition for resentencing under that statute with respect to the 2013 conviction. The

petition set out three of his prior felony convictions as also qualifying for reduction.2

       The district attorney opposed the petition and requested a hearing on the issue of

whether defendant posed an unreasonable risk of danger to public safety. (§ 1170.18,

subdivision (b).) Eventually the district attorney filed a formal opposition in which they

listed defendant’s extensive criminal history. As related, this history began in 1993 and

consisted of petty theft (1993), burglary (1993), petty theft (1993), felony assault under

       1 All subsequent statutory references are to the Penal Code unless otherwise
specified.

       2 Two additional possession charges under Health and Safety Code section 11377
and a conviction for receiving stolen property under Penal Code section 496.


                                              2
section 245 (1994), grand theft (1994), escape (1995), driving under the influence (DUI)

causing injury (1996, two years state prison), spousal battery (1997, two years state

prison), another spousal battery (1998, two years state prison), bringing a controlled

substance into jail and resisting an officer (1999, two years state prison; defendant twice

violated parole after that prison commitment), two first degree burglaries (that is,

“strikes”) (2001, two years state prison), possession of a controlled substance (2003, 16

months state prison), disturbing the peace (2004), receiving stolen property (2008, five

years state prison; two more violations of parole), criminal threats (2012, also noted as a

“strike”), and the current drug conviction from 2013.

       At the hearing counsel for defendant argued that his prior history did not indicate

that he was at risk of committing a super strike and that his age of approximately 45 years

made violence less likely. The trial court disagreed and denied the motion.

                                             II

                                      DISCUSSION

       If a defendant establishes that he qualifies for resentencing under section 1170.18,

the court must resentence the defendant unless it “determines that resentencing the

petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.18,

subd. (b).) Subdivision (c) describes the type of risk that will disqualify a defendant: “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.”

(§ 170.18, subd. (c).)



                                             3
       That provision lists what are known as “super strikes” (see People v. Johnson

(2015) 61 Cal.4th 674, 682) and includes those offenses considered to be most

heinous or violent.3 A catch-all provision also includes “[a]ny serious and/or violent

felony offense punishable in California by life imprisonment or death.”4 (§§ 667,

subd. (e)(2)(C)(iv)(VIII), 1170.12, subd. (c)(2)(C)(iv)(VIII).) Hence, defendant was

entitled to be resentenced unless the court properly found that he presented an

unreasonable risk of committing such an offense.

       The first issue raised by defendant concerns the appropriate standard of proof. He

argues that the prosecution was required to establish his dangerousness within the

meaning of the statute under the “beyond a reasonable doubt” standard.5 He argues that

once a defendant establishes his basic eligibility for resentencing, he should be

considered as in fact subject only to that shorter term unless the prosecution proves

dangerousness beyond a reasonable doubt. He therefore analogizes “dangerousness” to

an enhancement factor or a factor used to impose a sentence above the minimum. (See

Apprendi v. New Jersey (2000) 530 U.S. 466, 490.)


       3 The specifically listed offenses are any “ ‘sexually violent offense’ ” within the
meaning of Welfare and Institutions Code section 6600, subdivision (b), certain child sex
offenses, any homicide offense, solicitation to commit murder, assault with a machine
gun on a peace officer or firefighter, and possession of a weapon of mass destruction.

       4 One specific example would be a conviction for aggravated kidnapping under
sections 209 and 209.5.

       5  It is not disputed that the burden is on the People to establish dangerousness and
disqualification from resentencing.


                                             4
       This argument was rejected in People v. Superior Court (Kaulick) (2013) 215

Cal.App.4th 1279, 1301-1305 (Kaulick). The court there reasoned that “dangerousness is

not a factor which enhances the sentence imposed when a defendant is resentenced under

the Act; instead, dangerousness is a hurdle which must be crossed in order for a

defendant to be resentenced at all. If the court finds that resentencing a prisoner would

pose an unreasonable risk of danger, the court does not resentence the prisoner, and the

petitioner simply finishes out the term to which he or she was originally sentenced.” (Id.

at p. 1303; accord, People v. Blakely (2014) 225 Cal.App.4th 1042, 1060-1062.)

Pertinently, the Kaulick court relied on Dillon v. United States (2010) 560 U.S. 817, 828-

829 which found that decisions made under a statute designed to give prisoners the

benefit of later-enacted reductions to a sentencing scheme did not implicate the Sixth

Amendment right to have essential facts found by a jury beyond a reasonable doubt.

       We agree with Kaulick and reject defendant’s assertion that once he established

basic eligibility, his sentence immediately became that for a misdemeanor. (Obviously

there was no such actual resentencing.) He was not entitled to resentencing until the

court concluded that he was not dangerous, and the court could make that yea-or-nay

decision based on a preponderance of the evidence.




                                             5
       The next question is whether the trial court’s decision was correct. We review for

abuse of discretion, which in this context also implicates the “substantial evidence” rule.

(See People v. Esparza (2015) 242 Cal.App.4th 726, 744-745 (Esparza).)6

       In this context defendant first argues that the trial court improperly considered the

hearsay recitation of his criminal history. No objection was made in the trial court and

defendant does not here even argue that he had not suffered those priors. Hence, we

deem the issue waived and any error not prejudicial. (See People v. Panah (2005) 35

Cal.4th 395, 476.)

       The People point out that if defendant commits any serious or violent felony in the

future, he will be subject to a sentence of 25 years to life as a third striker. (§ 667,

subd. (e)(2)(A).) Hence, in the People’s view, he falls within the catch-all of

section 1170.18, subdivision (c), even if he is unlikely to commit a super strike.

       The People do not address the potential problem that this would in effect create

two classes of inmates seeking to have prior felony convictions reduced to misdemeanors

and resentencing thereon. That is, the dangerousness analysis for defendants with one or

no prior “strikes” would be limited to whether they were likely to commit a super strike;

those with two strikes would be evaluated with respect to whether they were likely to

commit any serious or violent felony within the meaning of sections 1192.7 or 667.5.

Arguably the distinction would be valid because those with two prior serious or violent


       6The court in that case also agreed with Kaulick on the “preponderance of the
evidence” point. (Esparza, supra, 242 Cal.App.4th at p. 741.)


                                               6
felony strikes are presumptively more likely to commit very serious crimes than

defendants who have no such convictions, and may therefore properly be denied

resentencing based on a lesser additional showing of dangerousness.

       However, we need not resolve the question because we find the trial court’s

decision was supported by substantial evidence even as to the super strikes.

       While it is quite true that defendant has not committed a super strike in the past, he

has committed several crimes of violence and, most recently, the offense of making

criminal threats of violence. Defendant’s multiple convictions for spousal abuse are

perhaps the most troubling.7 It is common knowledge that such situations are incendiary

and subject to escalation. It is also obvious that such offenses often revolve around

sexual relationships. The trial court was not required to find that defendant had

committed a fatal assault or a violent sexual assault against a spouse or cohabitant in the

past before concluding that he represented an unreasonable risk of doing so in the future.

We also note that defendant has been convicted of DUI with injury, and that vehicular

homicide under section 191.5 is included as a super strike. Given defendant’s continued

abuse of narcotics, the risk of such an offense is also of legitimate concern. Finally, we

note that defendant’s consistent and uninterrupted8 history of lawlessness reflects a lack

of ability or intention to conform or change his approach to life and society. There was

substantial evidence to support the finding of dangerousness.

       7   The record does not reflect who the victim of the criminal threats offense was.

       8   Except during periods of incarceration (and not always even then).


                                              7
                                     III

                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                               McKINSTER
                                                           Acting P. J.
We concur:



MILLER
                       J.



CODRINGTON
                       J.




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