People v. Peoples CA2/7

Filed 1/18/22 P. v. Peoples CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B309819

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA046845)
v.

HOWARD PEOPLES,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Affirmed.
Nancy L. Tetreault, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill, Supervising Deputy Attorney
General, David W. Williams, Deputy Attorney General, for
Plaintiff and Respondent.

_________________
 Following a suitability hearing under Proposition 36, the
Three Strikes Reform Act of 2012 (Pen. Code, § 1170.126),1 the
superior court found that resentencing Howard Peoples would
pose an unreasonable risk of danger to public safety, and it
denied his petition for recall of sentence and resentencing. On
appeal, Peoples contends he has ongoing mental health issues
that have not been adequately treated in prison, preventing him
from demonstrating his suitability for resentencing under
Proposition 36. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Commitment Offense
On August 8, 2000 a jury found Peoples guilty of corporal
injury to a cohabitant (§ 273.5, subd. (a)) and misdemeanor
damaging jail property (§ 4600, subd. (a)). In a bifurcated
proceeding, the jury found true that Peoples had suffered
convictions of three prior serious or violent offenses under the
three strikes law (§§ 667, subds. (b)-(i), 1170.12) and had served
two separate prison terms (§ 667.5, subd. (b)). The trial court 2
sentenced Peoples to 27 years to life in state prison, comprised of
25 years to life for the felony count as a third strike offense, plus
two 1-year terms for his prison priors. The court imposed a
concurrent term of six months in county jail on the misdemeanor
count. In 2002 we affirmed Peoples’s conviction and sentence in

1 All undesignated statutory references are to the Penal
Code.
2 Judge Karl W. Jaeger presided over the trial. He retired
prior to the filing of the petition.

2
People v. Peoples (Apr. 30, 2002, B144203) [nonpub. opn.] (Peoples
I).

B. Peoples’s Petition for Recall of Sentence and Resentencing
On May 2, 2013 Peoples filed a petition for recall of
sentence and resentencing under Proposition 36. He argued his
current and prior offenses were not serious or violent felonies
within the meaning of the three strikes law, making him eligible
for recall of his sentence. (§ 1170.126, subd. (e)(3); see §§ 667,
subd. (e)(2)(C)(iv), 1170.12, subd. (c)(2)(C)(iv).) Peoples further
argued he did not pose an unreasonable risk of danger to public
safety, and therefore, he was qualified to be resentenced to a
determinate second-strike term under Proposition 36.
(§ 1170.126, subd. (f).) On July 26, 2013 the superior court 3
issued an order to show cause why Peoples’s sentence should not
be recalled.
On November 13, 2013 the People filed an opposition to the
petition, arguing “[t]here are issues regarding [Peoples’s]
suitability for resentencing due to the nature of his prior criminal
history, his current crimes, and his extremely negative conduct
while currently serving his prison commitment.”4 The People
described Peoples’s conviction offense, prior strike offenses, two
arrests while in custody, and multiple parole violations. Further,
Peoples’s California Department of Corrections and
Rehabilitation (CDCR) file contained at least 24 serious rules

3 Judge William C. Ryan.
4 The People acknowledged that Peoples was eligible for
resentencing under Proposition 36.

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violation reports (RVR’s)5 between 2001 and 2011. When Peoples
was committed for his current offense, he was assigned a
classification score6 of 156, which rose to 261 as of February 2013.
After multiple continuances, on July 19, 2016 Peoples filed
a reply brief arguing his conduct in prison had been “somewhat
negative but not extreme” and noting Peoples at the time was
58 years old. Peoples’s attorney stated his intent to request the
superior court appoint an expert on Peoples’s conduct while in

5 “[A]n RVR is issued for a serious rules violation. The
California Code of Regulations gives a non-exhaustive list of
examples of serious rules violations to include such
circumstances as: use of force or violence against another person,
a breach of or hazard to facility security, a serious disruption of
facility operations, manufacturing a controlled substance, and
willfully inciting others to commit an act of force or violence.”
(Quiroz v. Horel (N.D.Cal. 2015) 85 F.Supp.3d 1115, 1143; see
Cal. Code Regs., tit. 15, §§ 3312, subd. (a)(3) [“Disciplinary
Methods”], 3315, subd. (a) [“Serious Rule Violations”].)
6 “Under the applicable regulations, ‘All persons entering the
[CDCR] penal system are given a classification score which
determines an inmate’s security level. . . . The score is arrived at
by tabulating points that are based on an array of objective
factors which include, among other things, length of sentence,
nature of the crime committed, criminal history, employment
history, military service, marital status, age, prior escape
attempts, and prior incarceration behavior.’” (In re Morales
(2013) 212 Cal.App.4th 1410, 1413.) “‘A higher score means the
inmate is considered a higher security risk and would be assigned
to a correspondingly higher security facility; a lower score means
the inmate is considered a lower security risk and would be
assigned to a correspondingly lower security facility.’” (In re
Nguyen (2011) 195 Cal.App.4th 1020, 1024, fn. 1; see Cal. Code
Regs., tit. 15, § 3375 et seq.)

4
prison and a second expert to evaluate Peoples in light of his
“long psychological history.”
On January 15, 20207 the superior court appointed Robert
L. Ayers, Jr., a former warden at three state prisons and career
correctional officer, as an expert for Peoples. Ayers submitted a
report dated June 13, 2020 addressing Peoples’s “in-prison
behavior” and providing an expert opinion on Peoples’s “impact
on public safety should he be released from prison.” Ayers
concluded in his report, “While I can’t say that if released from
prison Howard Peoples would definite[l]y pose a risk to public
safety, I can’t say he wouldn’t.” Peoples filed a second reply in
support of his petition on June 15, 2020, arguing that in light of
Ayers’s opinion, “there is insufficient evidence to show that
[Peoples] is among those inmates who must be denied . . . relief”
under Proposition 36.
On September 15, 2020 Ayers submitted an addendum to
his report in which he revised his opinion after reviewing
Peoples’s corrections records for the period January 2018 to April
2020. Ayers opined, “It is my opinion based on the
aforementioned new information that Mr. Peoples would pose an
unreasonable risk to public safety if he were released from
prison.”

7 Proceedings on Peoples’s petition were further delayed for
several years because Peoples refused to cooperate with his
counsel, to be interviewed by an expert, and to appear at a
hearing on his petition. In December 2018 new counsel was
appointed to represent Peoples.

5
C. Evidence at the Suitability Hearing
At the September 29, 2020 suitability hearing, the superior
court admitted the parties’ pleadings and exhibits into evidence.8
The People argued Peoples posed “an unusual risk to the public
safety” in light of his failure to cooperate during the petition
process, his 10 RVR’s in 2019 and two in early 2020, and his
classification score of 273. Peoples submitted on the papers.

1. Peoples’s criminal history
In 1973 and 1974 the juvenile court sustained allegations
Peoples committed petty theft and robbery, respectively. As an
adult, Peoples was convicted in 1976 of carrying a loaded firearm
in public; in 1977 of grand theft; also in 1977 of second degree
burglary and carrying a concealed weapon; in 1978 of loitering;
and in 1980 of carrying a switchblade. Peoples was arrested for
rape in 1978 and rape and attempted rape in 1979, but the
charges were dismissed due to insufficient evidence.
In 1980 Peoples was convicted of first degree residential
burglary with use of a firearm; robbery; and felon in possession of
a firearm, and he was sentenced to nine years eight months in
state prison. Peoples was paroled in 1988, but he violated parole
and was sentenced to an additional year in prison. Peoples was
paroled again in 1990. Less than a year later, Peoples was
convicted of armed robbery and was sentenced to 16 years in
state prison. Peoples was paroled on August 3, 1999.
The commitment offense occurred approximately five
months after Peoples was released on parole. As we described in

8 The People filed 73 exhibits, including Peoples’s criminal
court file, and his corrections records that contained 41 RVR’s
issued from January 2001 through April 2020.

6
Peoples I, supra, B144203, on December 19, 1999 Peoples got into
an argument with the woman with whom he lived, Gwendolyn
Clayburn. When Clayburn asked Peoples to move out of her
apartment, Peoples punched and choked her. At the time of the
offense, Peoples was a user of crack cocaine; a medical expert at
trial testified that addicts can suffer hallucinations and paranoia
resulting in aggressive and violent behavior. 9 While in custody
following his arrest, Peoples damaged two jail mattresses by
soaking them in the shower.

2. Conduct while incarcerated
Between January 2001 and April 2020, Peoples received
41 RVR’s. The most serious violation occurred in 2006 when
Peoples was found guilty of battery on peace officers resulting in
serious injuries. Peoples struck two correctional officers
attempting to conduct a search of his cell after Peoples had
jammed his cell door. Peoples punched one of the officers in the
face, knocking him to the ground and causing an injury that
required six stitches. Other serious violations involving violence
included attacking another inmate in 2001; threatening to
assault a correctional officer also in 2001; physically resisting a
correctional officer in 2005; threatening to assault a correctional
officer in 2007; and getting into a fist fight with another inmate
in 2019. Peoples was also found guilty of possession of
contraband or “[w]eapon [s]tock,” including a razor blade in 2001,
a four-inch metal bolt partially crafted into a weapon in 2005,

9 In Peoples I, supra, B144203, we observed that at trial the
trial court confined Peoples to a “‘stealth chair’” because he was
“assaultive and engaged in loud and abusive verbal outbursts in
the courtroom.”

7
and a cell phone in 2016. Peoples received approximately
24 RVR’s for failure to obey orders, failure to respond to notices,
and delaying correctional officers in their duties. In 2019 and
early 2020, Peoples twice refused to move cells, refused on at
least four occasions to report for medical checkups, and refused
on at least five occasions to leave his cell to attend class
assignments. Peoples also received RVR’s for covering his cell
door window (in 2001, 2005, 2007, and 2018), breaking his cell
door window (2009), and blocking his food port (2011).
At the time of the suitability hearing in 2020, Peoples’s risk
classification score had risen to 273. Ayers opined that a
classification score of 245 (Peoples’s score in 2014) was “a very
high score which reflects [Peoples’s] negative in-prison behavior
and program activity.”

3. Mental health services
Although Peoples did not argue in the superior court that
he should be found suitable for resentencing based on a chronic
mental illness, the record contains evidence of mental health
issues through 2009. In 2001 prison psychiatrist L. Thomas
wrote, “Peoples appears to have lengthy psych [history],” with
periods of noncompliance with mental health medications and
staff. Peoples was assigned follow-up case management, and
RVR’s issued to Peoples between 2001 and 2007 consistently
noted that Peoples was a participant in the Mental Health
Services Delivery System (MHSDS) through the Correctional
Clinical Case Management System.
However, an RVR issued to Peoples in 2009 for breaking
his cell door window stated he was not then a participant in the
MHSDS program, although the reporting officer initiated a call to
mental health services to extract Peoples from his cell. An RVR

8
issued in 2011 for disobeying orders (after Peoples held his food
port open while demanding to speak to a senior officer) likewise
noted Peoples was not a participant in MHSDS and “did not
demonstrate unusual, uncharacteristic or bizarre behavior” that
required a mental health assessment. An incident report related
to the same violation categorized Peoples as “Mental Health:
Clear.” More recently, Peoples’s 2017 classification report noted
he was “not a participant in MHSDS,” and his classification
reports for 2017 and 2018 both state, “No MHSDS . . . issues
noted.” (Capitalization partially omitted.)

4. Expert testimony
Ayers stated in his June 13, 2020 report based on Peoples’s
in-prison record,10 “There are multiple references in prison
documentation that Peoples has a ‘lengthy psych history.’”
Further, Peoples had been assigned to the mental health
program at the Correctional Clinical Case Management System
level of care, but he refused to participate in the program therapy
or take prescribed medication. Ayers opined, “Peoples’[s]
behavior in the community has reflected violent tendencies. He
does not appear to have any work skills, nor does he have an
apparent way to support himself in the community. So[] the
question of how he would live is unanswered. Also unanswered is
the question of where he would live. He doesn’t appear to have
family on which he could rely. There does not appear any effort
by Peoples during his incarceration to address these questions.
[¶] Ordinarily I would be inclined to say a 62-year-old long term
programming inmate would pose little threat to public safety. I
can’t really say that in this case. Peoples has refused educational

10 Peoples refused to meet with Ayers.

9
programming. He has not learned any work skills. He has not
participated in any self-help programming. He has refused to
participate in mental health programming. . . . [¶] While I can’t
say that if released from prison [Peoples] would definite[l]y pose
a risk to public safety, I can’t say he wouldn’t.”
In his addendum report, Ayers noted Peoples received
17 additional RVR’s for the period from January 2018 to April
2020, including one for being involved in a fight, and Peoples had
been confined to administrative segregation in April 2020 for
unspecified safety concerns. Ayers opined, “I find this behavior
troubling in a 62-year-old inmate who has done as much prison
time as Mr. Peoples. [¶] . . . In my experience older inmates are
involved in violence as a result of their own behavior—either by
participating in illegal activities or by exhibiting behavior
unacceptable to other inmates.” Peoples’s numerous refusals to
cooperate with orders and notices also concerned Ayers “because
if [Peoples] will not conform to simple behavior expectations in a
structured prison environment, I believe his behavior in the
outside community would be even worse.” Ayers concluded, “It is
my opinion based on the aforementioned new information that
[Peoples] would pose an unreasonable risk to public safety if he
were released from prison. I base this opinion on my belief that
he would be unable to find employment and has no viable means
of support or housing. . . . And, as he would likely be homeless
and unemployed, I don’t see any way he could survive in a
community without resorting to some type of criminal behavior.”

D. The Superior Court Order Denying Resentencing
On November 30, 2020 the superior court issued a 14-page
memorandum of decision and order denying Peoples’s petition.
The court described in detail the evidence adduced at the hearing

10
and considered the suitability factors set forth in
section 1170.126, subdivision (g).11 The court found Peoples’s
criminal history included “multiple violent offenses, including
convictions for robbery, weapons violations, burglary with a
firearm, and an arrest for rape.” Further, Peoples’s “behavior
during the commitment offense reflects a tendency to resort to
violence,” and “the majority of these convictions occurred while
[Peoples] was on supervised release.”
Turning to Peoples’s disciplinary record in prison, the
superior court found “multiple instances of violence or threats of
violence, including battery on an inmate without serious injury,
threatening to batter a peace officer, possession of dangerous
contraband, weapon stock/dangerous property, battery on a peace
officer with serious injury, and fighting. Aside from these acts of
violence, [Peoples’s] disciplinary history largely reflects a pattern
of disregard of orders and refusal to follow the rules in
prison. . . . Furthermore, [Peoples’s] high classification score is
indicative of his violent rule violations and insubordinate
attitude. Finally, [Peoples] has continued to receive rule
violations while seeking resentencing.”

11 Section 1170.126, subdivision (g), provides, “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.”

11
 The superior court also considered that Peoples presented
no release plans and did not appear to have family or community
resources on which he could rely. The court acknowledged that
studies have found criminality generally decreases dramatically
after age 50, but it found in light of Ayers’s report that this did
not appear to apply to Peoples, and the fact Peoples had been
involved in a violent altercation as recently as 2019 indicated his
violent tendencies had not declined as studies would suggest.
The court concluded, in finding Peoples posed a current risk of
danger to public safety if released: “Certainly, [Peoples’s]
criminal record is a concern. However, his criminal history is
remote in time and cannot support a finding of current
dangerousness without recent evidence establishing a rational
nexus to that question. His disciplinary history involves multiple
acts of violence and an apparent inability to follow the rules in
prison, which raises questions about whether [Peoples] will carry
those violent tendencies with him upon his release and whether
he will be able to comply with the terms of his parole.
Furthermore, [Peoples] has not taken advantage of any in-prison
rehabilitative services and has refused to upgrade educationally
or address his mental health. Finally, Ayers’[s] report is
unsupportive of his release.”
Peoples timely appealed.

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 DISCUSSION

A. Governing Law and Standard of Review
Proposition 36, approved by the electorate in November
2012, amended the three strikes law “to provide that absent
specified exceptions, an offender with two or more prior strikes is
to be sentenced as a two-strike offender unless the new offense
also is a strike, that is, a serious or violent felony.” (People v.
Piper (2018) 25 Cal.App.5th 1007, 1013; accord, People v.
Yearwood (2013) 213 Cal.App.4th 161, 167-168.) Proposition 36
also added section 1170.126, which created “a postconviction
resentencing proceeding for specified inmates sentenced under
the prior version of the [t]hree [s]trikes law.” (Piper, at p. 1013;
accord, Yearwood, at p. 168.) “Under that statute, a defendant
sentenced as a three-strike offender may petition for recall of the
sentence and for resentencing, subject to certain eligibility
criteria.” (Piper, at p. 1013; see § 1170.126, subd. (e).)
“[Proposition 36’s] resentencing mechanism has three separate
aspects: (1) the initial petition for recall of the sentence, (2) a
determination of eligibility, and (3) the court’s discretionary
decision whether the defendant poses an unreasonable risk of
danger to public safety.” (People v. Frierson (2017) 4 Cal.5th 225,
234; accord, Piper, at p. 1013.)
If a petitioner is eligible for resentencing under
Proposition 36, the superior court may nonetheless deny the
petition if the court “in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of
danger to public safety.” (§ 1170.126, subd. (f).) In exercising its
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

13
evidence the court, in its discretion, determines to be relevant.
(§ 1170.126, subd. (g).) The court must consider “‘‘‘whether [a
petitioner’s prior criminal and/or disciplinary history], when
considered in light of other facts in the record, are such that they
continue to be predictive of current dangerousness many years
[later].”’” (People v. Buford (2016) 4 Cal.App.5th 886, 914
(Buford).) “‘“[T]he facts upon which the court’s finding of
unreasonable risk is based must be proven by the People by a
preponderance of the evidence.”’” (People v. Piper, supra,
25 Cal.App.5th 1007, 1016.)
“Under the clear language of section 1170.126, the ultimate
determination that resentencing would pose an unreasonable risk
of danger is a discretionary one. We, therefore, review that
determination for abuse of discretion.” (Buford, supra,
4 Cal.App.5th at p. 895; see ibid. [“‘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.”’”].)

B. The Superior Court Did Not Abuse Its Discretion in Denying
the Petition
Peoples’s criminal history, disciplinary record in prison,
and lack of postrelease plans all supported the superior court’s
determination that Peoples, if released, would pose an
unreasonable risk of danger to public safety. There was no abuse
of discretion.
Peoples’s criminal record is extensive, beginning in 1973
when he was 16 years old, and continuing through his final
offense in 1999, with few periods of time out of custody. He

14
committed numerous violent and dangerous offenses, including
two burglaries involving firearms, robbery and armed robbery,
two weapons-related offenses, and his penultimate commitment
offense of corporal injury to his girlfriend. Peoples violated
parole on multiple occasions, and his 1990 and 1999 offenses both
occurred within a year of his release from prison while on parole.
Peoples’s disciplinary record during his current
commitment shows a continuing pattern of rule-breaking and
violent behavior. Peoples received 41 RVR’s during his
commitment, 16 of which occurred between January 2018 and
April 2020. Although his most violent offenses—including the
2006 battery of correctional officers—are remote in time—Peoples
was disciplined for fighting another inmate as recently as 2019.
As Ayers opined, Peoples’s persistent refusal to obey orders,
respond to notices, or participate in prison programming
indicates that Peoples, despite his age and decades of
commitment, is unlikely to conform to behavioral expectations
necessary to maintain a job and function safely in the
community. Peoples’s risk classification score, which was already
“a very high score” at the time of his petition, had increased to
273 by the time of the hearing on the petition.
The superior court also properly considered Peoples’s lack
of postrelease plans and resources. Ayers concluded Peoples did
not have any work skills or family support, and he did not have
plans for where he would live or how he would support himself if
released. Further, Peoples refused educational, self-help, and
mental health programming in prison. As discussed, Peoples’s
own expert (Ayers) opined in his revised opinion that Peoples
would pose an unreasonable risk to public safety if he were
released from prison. Peoples did not present any contrary
evidence.

15
 Peoples contends the superior court abused its discretion in
failing to consider his mental health issues that went untreated
in prison and resulted in the RVR’s, and the court “precluded him
from proving his parole suitability by failing to consider the
impact of his mental illness on his ability to achieve the
traditional suitability factors.” This contention is both factually
unsupported and legally untenable.
As a threshold matter, Peoples forfeited this contention by
not raising it in the superior court. Even if he did not forfeit the
argument, Peoples does not cite any evidence of how his mental
health issues rendered him unable to show his suitability for
release. It is true Peoples’s criminal and court records reflect
disturbing outbursts, including at his 2000 trial of the
commitment offense, and it is undisputed that Peoples received
mental health services in prison through 2007. But according to
his prison records, starting in 2009 Peoples did not participate in
the MHSDS program, and he “did not demonstrate unusual,
uncharacteristic or bizarre behavior” that required a mental
health assessment. Peoples’s most recent classification reports
(in 2017 and 2018) stated, “No MHSDS . . . issues noted.”
(Capitalization partially omitted.) Peoples argues on appeal that
the very nature of his rule violations, such as his use of abusive
and ranting language with correctional officers; his repeated
tampering with his cell windows, door, and meals; his refusal of
any prison programming, including medical services; and other
manifestations of irrational recalcitrance demonstrates he suffers
from mental health issues. Perhaps, but even if he had mental
health issues, he failed to show they prevented him from availing
himself of mental health and self-help services that could have
addressed his behavior during the seven years his resentencing
petition was pending.

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 Most significantly, Peoples has not cited any legal authority
for the proposition that the suitability analysis of
section 1170.126, subdivisions (f) and (g), does not apply where a
petitioner suffers from mental health issues. The proper focus in
a suitability hearing is on whether the petitioner currently poses
an unreasonable risk of danger to public safety. (§ 1170.126,
subd. (f); Buford, supra, 4 Cal.App.5th at p. 913.) Even if Peoples
is correct that his mental health issues were the cause of his
dangerousness to public safety, he failed to show while in custody
that he could control his behavior, and he lacked postrelease
plans and family support to ensure he could safely manage his
behavior in the community.

DISPOSITION

The order denying Peoples’s petition for recall of his
sentence and resentencing is affirmed.

FEUER, J.
We concur:

PERLUSS, P. J.

SEGAL, J.

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