Filed 3/18/21 P. v. Piper CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR
THE PEOPLE, B301332
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA047666)
v.
CHARLES MAURICE PIPER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, William C. Ryan, Judge. Affirmed.
Jared G. Coleman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, and Michael J. Wise,
Deputy Attorney General, for Plaintiff and Respondent.
____________________________________________________
INTRODUCTION
Appellant Charles Maurice Piper was convicted of a
series of crimes between 1991 and 2001, including robbery,
arson of an inhabited property, attempted arson, criminal
threats, battery on a peace officer, and -- most recently --
unlawful possession of ammunition and evasion of a police
officer. Since 2001, he has been serving concurrent prison
terms of 25 years to life, imposed under the three strikes
law. In 2013, appellant filed a petition for resentencing
under Penal Code section 1170.126, which had recently been
enacted by Proposition 36, the Three Strikes Reform Act of
2012. The trial court initially denied the petition, concluding
that appellant was ineligible for resentencing. We reversed,
and remanded with instructions to the court to exercise its
discretion in determining whether appellant was suitable for
resentencing, i.e., whether his resentencing would pose an
unreasonable risk of danger to public safety. (People v. Piper
(2018) 25 Cal.App.5th 1007, 1015-1016.)
On remand, the court held an evidentiary hearing on
appellant’s suitability for resentencing, receiving numerous
exhibits from both parties. The People submitted evidence of
appellant’s prior crimes, his California Department of
Corrections and Rehabilitation (CDCR) placement scores,
and nine rules violations for which appellant had been
2
disciplined by CDCR. The rules violations included
appellant’s active participation, at the age of 40, in a 2017
prison riot, during which he punched one victim in the back
of the head and joined three other men in assaulting a
second victim. Appellant submitted a number of corrections
officers’ reports that appellant had been well-behaved under
their observation, records of his completion of educational
programming (mostly after he filed his petition for
resentencing), and letters of support from family members,
friends, and community members.
The court denied the petition. In an 11-page
memorandum of decision, the court recognized that the
burden of proof was on the People, and -- with extensive
references to the parties’ exhibits -- considered the relevant
factors set forth in Penal Code section 1170.126. Principally
relying on appellant’s history of violating rules in prison and
committing dangerous crimes when free from incarceration,
the court determined that resentencing appellant would pose
an unreasonable risk of danger to public safety.
On appeal, appellant contends the court abused its
discretion in denying his petition. We disagree and affirm.
The court’s decision was well within the bounds of reason,
particularly considering appellant’s history of dangerous
crimes and active participation in the 2017 prison riot.
3
BACKGROUND
A. Appellant’s Prior and Instant Convictions
In June 1991, a juvenile court found appellant had
committed robbery (Pen. Code, § 211), and placed him in a
youth home for nine months. In 1993, in connection with
appellant’s threatening a victim’s life and throwing a
burning Christmas tree through a window of the victim’s
home, appellant pled no contest to one count of arson of an
inhabited property (id., § 451, subd. (b)), one count of
attempted arson (id., § 455, subd. (a)), and four counts of
criminal threats (id., § 422, subd. (a)). He was sentenced to
eight years in prison. On February 25, 1998, he was
released on parole.
On March 10, 1998 (about two weeks after his release
on parole), appellant fled from an approaching police officer,
climbed a 12-foot fence, and kicked the pursuing officer off
the fence and onto the ground. He was convicted of battery
on a peace officer. (Pen. Code, § 243, subd. (c)(2).) He was
sentenced to two years and eight months in prison, and
released on parole in March 2000.
In January 2001, less than a year after his release and
while still on parole, appellant was stopped by a police
1
officer while driving. After backup arrived and the officer
1
The facts regarding appellant’s January 2001 offenses are
taken from our unpublished 2003 opinion affirming the judgment
and our published 2018 opinion reversing the initial denial of the
petition for resentencing.
4
directed appellant to exit the car, appellant abruptly drove
off, pursued by two police cars. Appellant drove on the
wrong side of the road, went through stop signs and a red
light, and drove about 40 to 45 miles per hour in a 25-mile-
per-hour zone. He was eventually apprehended and found to
be in possession of eight live rounds of ammunition.
A jury convicted appellant of being a felon in
possession of ammunition (former Pen. Code, § 12316, subd.
(b)(1)) and evading a police officer by driving with a willful or
wanton disregard for the safety of persons or property
2
(Veh. Code, § 2800.2, subd. (a)). The trial court found
appellant had incurred five prior convictions for serious or
violent felonies within the meaning of the three strikes law.
The court sentenced appellant to two concurrent prison
terms of 25 years to life. We affirmed. (People v. Piper
(Oct. 28, 2003, B162352) [nonpub. opn.].)
B. Prior Proceedings on Appellant’s Petition
In January 2013, appellant filed a petition for
resentencing under Penal Code section 1170.126. After an
evidentiary hearing, the trial court determined the People
had proven appellant was armed with a firearm during the
commission of his January 2001 offenses, rendering him
ineligible for resentencing. In 2018, we reversed, concluding
2
The jury acquitted appellant of possessing a firearm, and
found not true an allegation that appellant was armed with a
firearm while evading the police.
5
the jury’s verdict and findings precluded a determination
that appellant was armed with a firearm. (People v. Piper,
supra, 25 Cal.App.5th at 1015-1016.) We remanded with
instructions to the trial court to exercise its discretion in
determining whether appellant was suitable for
resentencing, i.e., whether his resentencing would pose an
unreasonable risk of danger to public safety. (Id. at 1016.)
C. The Suitability Hearing
In June 2019, the court held an evidentiary hearing on
appellant’s suitability for resentencing. No witnesses
testified, but both parties moved numerous exhibits into
evidence.
1. Prosecution Evidence
The People submitted records of appellant’s prior
convictions, which (as described in more detail above)
included convictions for robbery, arson of an inhabited
property, attempted arson, criminal threats, and battery on
a peace officer. The People further submitted nine rules
violation reports (RVRs) documenting discipline imposed on
appellant by CDCR for violating various rules.
In January 2017, according to one RVR, appellant
participated in a prison riot.3 Surveillance videos showed
3
A riot, as defined by the statute cited in the RVR, is “[a]ny
use of force or violence, disturbing the public peace, or any threat
to use force or violence, if accompanied by immediate power of
(Fn. is continued on the next page.)
6
that immediately after two prisoners began to fight each
other in a visiting room where appellant was present,
appellant repeatedly punched another prisoner “in the back
of the head and upper torso, knocking him to the ground.”
Appellant then joined three other men in punching a
different prisoner. Shortly thereafter, corrections officers
used pepper spray to quell the riot. When charged with
participation in the riot, appellant denied that he had
punched anyone. At the time of the riot, he was 40 years old,
and his petition for resentencing was pending.
Appellant committed four other rules violations during
the pendency of his petition for resentencing. In May 2014,
appellant reached into a visitor’s skirt with both hands and
grabbed her buttocks. In June 2014, he possessed three
contraband cell phones. In August 2017, he possessed two
more contraband cell phones. Finally, in December 2017,
appellant conspired with a visitor to smuggle marijuana into
4
the prison.
execution, by two or more persons acting together, and without
authority of law . . . .” (Pen. Code, § 404, subd. (a).)
4
Appellant also committed the following rules violations
before filing his petition: (1) in April 2004, appellant engaged in
mutual combat with his cell mate; (2) in May 2004, he verbally
encouraged other prisoners to join him in disobeying a corrections
officer’s order to return to their cells; (3) in October 2008, he
possessed a contraband cell phone; and (4) in November 2012, he
publicly mocked a welding instructor’s admonition to another
prisoner regarding his behavior.
7
The People also submitted records of appellant’s CDCR
placement scores from 2002 to 2019. (See Cal. Code Regs.,
tit. 15, § 3375 subd. (d) [“a higher placement score indicates
greater security control needs”].) Appellant’s placement
score gradually dropped from 73 to 27 between 2002 and
2013 (the year he filed his petition), rose to 35 in 2015, and
dropped to 21 in 2016. As a result of his rules violations in
2017 (participation in the riot, possession of contraband cell
phones, and conspiracy to smuggle marijuana into the
prison), his score rose to 43 in 2018. His score was 39 at the
time of the June 2019 suitability hearing.
2. Defense Evidence
Appellant submitted eight “laudatory chrono[s]” signed
by corrections officers, four signed in December 2012 and
5
four signed in November 2018. The officers who signed in
2012 attested that they had observed appellant for various
periods of time (ranging from three to seven years), during
which appellant had been polite to staff and had not
presented as a management concern. The officers who
signed in 2018 attested that they had observed appellant for
unspecified periods of time, during which appellant had been
similarly well-behaved. None of the chronos addressed or
5
Each laudatory chrono was a “General Chrono,” meaning a
“CDC Form 128-B (Rev. 4-74) which is used to document
information about inmates and inmate behavior.” (Cal. Code
Regs., tit. 15, § 3000.)
8
reflected awareness of appellant’s criminal or disciplinary
history.
Appellant also submitted records of his completion of
educational programming within prison. In February 2011,
before appellant filed his petition for resentencing, he
completed the Centinela Desert Institute’s core curriculum.
In 2014, after he filed his petition, he completed various
workshops on conflict resolution, and enrolled in a
years-long program designed to prepare participants for
ministry work.
Finally, appellant submitted letters from family
members, friends, and community members (including the
executive director of a nonprofit organization devoted to
assisting formerly incarcerated and gang-involved people)
pledging to support appellant in obtaining housing and
employment upon his release.
3. Counsel’s Arguments
Before hearing argument, the trial court observed that
appellant’s instant offenses (unlawful possession of
ammunition and evading a police officer) were not egregious,
and that it believed it ordinarily would grant relief on a
similar record. But the court expressed concern about
appellant’s recent rules violations.
The prosecutor summarized appellant’s criminal
history, including his convictions for arson of an inhabited
property and battery on a peace officer. She observed that
most of appellant’s educational programming had been
9
completed after he filed his petition for resentencing. She
further observed that appellant’s CDCR placement score had
risen since 2016, which she attributed to his recent rules
violations. The prosecutor pointed out that appellant had
punched one victim in the back of the head and joined other
men in assaulting a second victim during the 2017 prison
riot, and characterized these acts as especially disturbing
because they occurred in the presence of prison visitors. She
acknowledged that appellant had been offered opportunities
for work outside prison and had substantial offers of support
from family members and others, including an offer to live
with his fiancée.
Appellant’s counsel implied that appellant had not
actively participated in the 2017 riot, suggesting that he had
been disciplined merely because CDCR typically disciplines
everyone present during a riot. In response, the court
observed that the relevant RVR specifically found appellant
had assaulted other prisoners. Appellant’s counsel claimed
that appellant did so only after a prisoner had approached
and threatened appellant, and that the videos cited in the
RVR confirmed this. But counsel admitted he had not
viewed the videos. He reminded the court of the support
available to appellant upon release, the certificates of
appellant’s completion of educational programming, and the
laudatory chronos. After the prosecutor declined to present
a rebuttal, the court took the matter under submission.
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D. The Suitability Ruling
On August 19, 2019, the trial court determined that
appellant was unsuitable for resentencing and denied his
petition. In an 11-page memorandum of decision, the court
recognized that the burden of proof was on the People, and
reviewed the relevant statutory factors. (See Pen. Code,
§ 1170.126, subd. (g) [court may consider defendant’s
“criminal conviction history,” defendant’s “disciplinary
record and record of rehabilitation while incarcerated,” and
any other relevant evidence].)
The court observed that appellant’s criminal conviction
history was “extensive,” and that it included violent crimes,
such as arson of an inhabited property and battery on a
peace officer. The court further observed that appellant had
“consistently violated [the requirements of] every parole or
probationary period after serving a prison sentence . . . .”
The court acknowledged that most of appellant’s prior
convictions were fairly remote, but found “there continues to
be a nexus between his previous criminal history and his
current risk of danger to public safety because of his very
recent disciplinary history.”
The court observed that appellant had been found
guilty of nine rules violations, and added, “The court finds it
particularly troubling that some of petitioner’s most serious
rules violations have occurred in the last two to five years
[i.e., since 2014], a period of time after he filed his
Proposition 36 petition and while awaiting his suitability
hearing; a time when he should have been on his best
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behavior.” With respect to appellant’s record of
rehabilitation, the court observed that appellant had
completed most of his educational programming after he
filed his petition for resentencing, causing the court to
question his sincerity, particularly in light of his recent rules
violations. Even assuming appellant’s sincerity, the court
found the record of rehabilitation insufficient to suggest that
appellant would not pose an unreasonable risk of danger to
public safety if resentenced.
Finally, the court considered other factors it deemed
relevant, including appellant’s CDCR placement scores and
6
age. The court acknowledged that appellant’s most recent
placement score (39) was not extremely high, but observed
that his score had increased over the previous two years,
suggesting he would be unable to conform his conduct to
legal requirements if released early. Citing In re Stoneroad
(2013) 215 Cal.App.4th 596, 634 & fn. 21 and an academic
article cited therein, the court observed that appellant’s age
(43 at the time of the suitability hearing) “typically” would
be a factor in his favor, “as studies show criminality declines
drastically after age 40 . . . .” But the court found this
statistical generalization inapplicable to appellant in light of
his recent rules violations.
6
The court identified appellant’s laudatory chronos as
additional relevant evidence, noting they attested to appellant’s
good behavior at specific times.
12
The court concluded, “[T]he totality of the evidence
contained in the record demonstrates that resentencing
Petitioner at this time would pose an unreasonable risk of
danger to public safety due to his criminal history and recent
disciplinary record while incarcerated. Petitioner’s recent
rehabilitative programming is solid but is contradicted by
his recent prison misconduct.”
DISCUSSION
Appellant contends the trial court abused its discretion
in determining that resentencing him would pose an
unreasonable risk of danger to public safety, rendering him
unsuitable for resentencing under Penal Code section
1170.126. We disagree.
A. Principles
A trial court may deny a defendant’s petition for
resentencing under Proposition 36 if the court, “in its
discretion, determines that resentencing the petitioner
would pose an unreasonable risk of danger to public safety.”
(Pen. Code, § 1170.126, subd. (f).) In exercising this
discretion, the court may consider (1) the petitioner’s
criminal conviction history; (2) the petitioner’s “disciplinary
record and record of rehabilitation while incarcerated”; and
(3) any other evidence the court, in its discretion, determines
to be relevant. (Id., § 1170.126, subd. (g).) “‘“[T]he facts
upon which the court’s finding of unreasonable risk is based
13
must be proven by the People by a preponderance of the
evidence.”’” (People v. Piper, supra, 25 Cal.App.5th at 1016.)
On appeal, the court’s determination that resentencing
would pose an unreasonable risk of danger to public safety is
7
reviewed for an abuse of discretion. (People v. Buford (2016)
4 Cal.App.5th 886, 895.) We will find such an abuse only if
the court exercised its discretion in an arbitrary, capricious,
or patently absurd manner -- in other words, in a manner
falling outside the bounds of reason. (Id. at 895, 901.)
B. Analysis
The trial court acted within its discretion in finding
that resentencing appellant would pose an unreasonable risk
of danger to public safety. The court reasonably relied on
appellant’s history of violating rules in prison and
committing dangerous crimes while at liberty. Appellant’s
criminal history included multiple offenses involving actual
or potential violence, viz., battery on a peace officer, arson of
an inhabited property, attempted arson, criminal threats,
and robbery. His disciplinary history included recent acts of
violence. In 2017, at the age of 40, appellant participated in
a prison riot by punching one victim in the back of the head
7
Though appellant asserts that the court’s suitability
determination was unsupported by substantial evidence, he does
not challenge the evidentiary support for any of the factual
findings underlying the determination, and he acknowledges that
the determination itself is reviewed for an abuse of discretion.
14
and joining three other men in assaulting a second victim.
These recent acts of violence supported a reasonable
inference that the dangerous tendencies reflected in
appellant’s criminal history had survived the passage of
time.
We reject appellant’s challenges to the court’s reliance
on his participation in the 2017 riot. First, no evidence in
the record supports appellant’s claim that his violent acts
during the riot were committed in self-defense. Appellant
did not claim self-defense when charged with participation
in the riot; instead, he claimed that he had not punched
anyone, despite video evidence to the contrary. Indeed, the
videos reportedly showed that immediately after two
prisoners began to fight each other, appellant punched his
first victim in the back of the head -- contradicting
appellant’s claim on appeal that he assaulted his victims
only after another prisoner had approached and threatened
8
him. Second, contrary to appellant’s implications, the court
was not compelled to speculate that appellant’s motives for
his violent acts in 2017 were unique to a custodial setting.
There is no evidence in the record of appellant’s motives.
Moreover, as noted, appellant has a history of committing
8
Appellant’s reliance on his counsel’s representations during
the suitability hearing does not assist him, as his counsel
admitted he had not viewed the videos and, in any event, his
counsel’s representations were not evidence.
15
actually and potentially violent crimes outside any custodial
setting.
We also reject appellant’s contention that the court
arbitrarily discounted the “most important” evidence, which
appellant identifies as the laudatory chronos signed by
corrections officers in 2012 and 2018. It was well within the
court’s discretion to give these chronos little weight in
determining whether resentencing appellant would pose an
unreasonable risk of danger to public safety -- an issue the
chronos did not address. The chronos were based solely on
the officers’ personal observations of appellant at particular
times, and reflected no knowledge of appellant’s criminal or
disciplinary history. None addressed appellant’s violent
participation in the 2017 riot; indeed, half were signed years
before the riot. Thus, the chronos did not show the court
acted arbitrarily or capriciously in finding that resentencing
appellant would pose an unreasonable risk of danger to
public safety, in reliance on appellant’s history of dangerous
behavior both inside and outside prison.
We decline to address the academic sources cited
throughout appellant’s briefs in support of various factual
generalizations, as none of these sources were presented to
the trial court. (See People v. JTH Tax, Inc. (2013) 212
Cal.App.4th 1219, 1253 [disregarding academic literature
cited by appellant: “‘[s]tatements of alleged fact in the briefs
on appeal which are not contained in the record and were
never called to the attention of the trial court will be
disregarded’”].) Appellant argues that fundamental fairness
16
entitles him to rely on these sources in response to the trial
court’s purported reliance on academic sources. Not so. The
court cited only one academic source, for a proposition
potentially favorable to appellant, viz., the statistical
generalization that criminality declines drastically after age
40. The court’s citation to a single, potentially favorable
academic source does not entitle appellant to fault the court
for failing to address a multitude of additional sources that
he neglected to draw to the court’s attention.
Appellant’s non-academic citations do not assist him.
The single case he identifies as analogous -- In re Palmer
(Sept. 13, 2018, A147177) rev. granted and opn. ordered
nonpub. Jan. 16, 2019, rev. dismissed April 30, 2020,
S252145 -- is unpublished and therefore may not be relied
on. (Cal. Rules of Court, rule 8.1115(a), (e)(3).) Appellant
cites other cases only for general principles that the trial
court recognized and reasonably applied.
In sum, the trial court acted well within its discretion.
Its discussion of the relevant statutory factors in its
memorandum of decision was thorough and reasonable. In
light of appellant’s past and recent history of dangerous
behavior, there was nothing arbitrary, capricious, or
patently absurd in the court’s determination that
resentencing appellant would pose an unreasonable risk of
danger to public safety.
17
DISPOSITION
The order denying appellant’s petition for resentencing
is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
18