Filed 7/12/21 P. v. Alvarez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B305462
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA056865)
v.
BROOK MICHAEL ALVAREZ,
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.
Matthew Rodriguez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Noah P. Hill and
Stephanie C. Santoro, Deputy Attorneys General, for
Plaintiff and Respondent.
____________________________________________
INTRODUCTION
In 2000, appellant Brook Michael Alvarez (AKA Brook
Michael Blankenship) was convicted of unlawful driving and
evading the police with willful disregard for the safety of
persons or property. Because he had suffered two prior
strike convictions under the Three Strikes law (Pen. Code,
§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), appellant
received a third-strike sentence: two concurrent terms of 25
years to life in prison.1 In 2012, appellant filed a petition for
resentencing under section 1170.126, which had recently
been enacted by Proposition 36, the Three Strikes Reform
Act of 2012. He contended his commitment offenses were
not violent or serious, and thus that he should be
resentenced as a second-strike offender.
Following an order to show cause and an evidentiary
hearing, the superior court denied appellant’s petition.
While it was undisputed that appellant was eligible for
resentencing under section 1170.126, the court concluded
that based on his criminal history, disciplinary record, and
inadequate release plans, appellant’s resentencing would
1 Undesignated statutory references are to the Penal Code.
2
pose an unreasonable risk of danger to public safety.2 On
appeal, appellant contends the trial court’s conclusion
constituted an abuse of discretion. Finding no such abuse,
we affirm.
BACKGROUND
A. The Commitment Offenses and Appellant’s
Petition
In 1999, a police officer spotted appellant driving a
stolen car. When the officer activated his lights and sirens,
appellant accelerated and attempted to flee, exceeding 70
miles per hour in a 25-miles-per-hour residential area.
Appellant later slowed down and attempted to jump out of
the car while it was still in motion, but the car hit a curb,
throwing appellant out of the vehicle. Appellant attempted
to flee on foot but was apprehended.
The following year, appellant was convicted of unlawful
driving of a vehicle (Veh. Code, § 10851, subd. (a)) and
evading the police with willful disregard for the safety of
persons or property (id., § 2800.2). Having suffered two
prior strike convictions under the Three Strikes law,
appellant was sentenced as a third-strike offender to two
concurrent terms of 25 years to life in state prison.
2 As discussed below, the superior court may deny a petition
under section 1170.126 if it determines that resentencing the
petitioner would pose an unreasonable risk of danger to public
safety. (§ 1170.126, subd. (f).)
3
In 2012, appellant filed a petition under newly enacted
section 1170.126, seeking recall of his sentence and
resentencing as a second-strike offender, and the superior
court issued an order to show cause. The prosecution filed
an opposition to the petition, conceding that appellant was
eligible for relief under the statute, but asserting he was
unsuitable for relief because his resentencing would pose an
unreasonable risk of danger to public safety. The matter
proceeded to an evidentiary hearing on appellant’s
suitability for resentencing in August 2019.
B. The Suitability Hearing
1. The Prosecution’s Evidence
At the suitability hearing, the prosecution called no
witnesses but submitted numerous exhibits detailing, among
other things, appellant’s criminal history and his
disciplinary record in prison.
a. Appellant’s Prior Convictions
Appellant’s criminal history was extensive and began
at a young age. In 1985, when he was 16 years old,
appellant suffered a sustained juvenile petition for grand
theft. In 1987, as an adult, appellant was convicted of
trespassing and two counts of battery. In 1990, he was
convicted of burglary and evading a peace officer with willful
disregard for the safety of persons or property. Appellant
suffered another burglary conviction in 1991 (though he
committed the offense in 1989). In 1992, he was convicted of
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driving under the influence and two counts of assault with a
deadly weapon. In 1994, he was convicted of resisting
arrest. And in 1997, appellant was convicted of inflicting
corporal injury on a spouse, with a great bodily injury
finding. Appellant’s record also showed he violated
probation or parole in 1989, 1992, 1993, and 1994.
b. Appellant’s Disciplinary Record in
Prison
In prison, appellant was associated with the Nazi Low
Riders prison gang. California Department of Corrections
and Rehabilitation (CDCR) records indicated he was an
active associate at the time of the suitability hearing.
During his current incarceration, appellant committed
numerous disciplinary violations.
In 2001, appellant participated in a racial riot, during
which he engaged in mutual combat with Black inmates. In
2003, he was found guilty of possession of a deadly weapon
after correctional officers found a razor blade hidden in his
cellmate’s locker. That same year, he sustained a violation
for willfully resisting, delaying, or obstructing a peace
officer. In 2004, officers intercepted a letter addressed to
appellant, containing a greeting card soaked in
methamphetamine. Also in 2004, appellant was found guilty
of fermentation or distillation of materials consistent with
the production of alcohol. In 2007, appellant pleaded guilty
to possession of alcohol. In 2008, appellant again
participated in a racial riot. In 2009, he was again found
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guilty of fermentation or distillation of materials consistent
with the production of alcohol. Later that same year,
appellant was found guilty of conspiracy to commit battery
on an inmate, after prison authorities confiscated a note
indicating that appellant had relayed orders from leaders of
the Aryan Brotherhood and Nazi Low Riders to attack Black
inmates. A Black inmate was assaulted as a result of these
orders. Based on this evidence, prison authorities concluded
that appellant held a leadership position within the White
prison-gang system.
In 2011, appellant was found guilty of participating in
a mass disturbance, due to his participation in a hunger
strike while in solitary confinement. He again participated
in a hunger strike in 2013. Finally, in 2016, appellant tested
positive for amphetamines, methamphetamine, morphine,
and codeine.
2. Appellant’s Evidence
a. Rehabilitative Programs
In 2014, appellant obtained his GED, and in 2016, he
completed 48 units of correspondence courses. Appellant
was in solitary confinement for six years and had no work
assignment during that time, but he began working as a
prison barber following his transition into general
population in 2015. He participated in Narcotics
Anonymous and Alcoholics Anonymous and became involved
in the Going Out by Going In program, which teaches
inmates to understand their personality defects and
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instructs them on how to cope with difficulties without
resorting to substance abuse. He also participated in the
PREP Turning Point program, and planned to complete the
program at a PREP residential facility upon his release.
b. Release Plans
Upon release from prison, appellant intended to enter
PREP Turning Point’s residential program, which would
provide housing at a program facility, drug counseling, job
preparation assistance, and other services intended to
increase the chances of his successful reentry into society.
In response to the court’s inquiry, appellant also expressed
willingness to serve a year in the Male Community Reentry
Program (MCRP). This program allows eligible inmates to
serve the last year of their sentence in the community rather
than a prison, and provides rehabilitative services in areas
such as substance abuse treatment, mental health care,
employment services, and education. (CDCR, Male
Community Reentry Program
[as of July 9,
2021].) Appellant would have the support of his wife, who is
employed and owns a home. Additionally, appellant had a
job offer in construction.
c. Testimony of Richard Subia
Appellant called Richard Subia, a former acting
director of the CDCR, as an expert on prison operations and
risk assessment in custody and in the community. Subia
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reviewed appellant’s file and interviewed him before the
hearing. Subia testified about the evidence and
circumstance relating to appellant’s disciplinary violations
based on CDCR records. He also testified about appellant’s
rehabilitative efforts in prison and his release plan, as
detailed above.
According to Subia, appellant disavowed his connection
with the Nazi Low Riders in 2009, and his current placement
in general population suggested that authorities believed he
was an inactive associate. Subia opined that CDCR records
indicating appellant remained an active associate resulted
from an “input error.”
Based on appellant’s records, Subia testified that
appellant had managed to remain free of drug use for years,
and that appellant’s use of drugs in 2016 constituted a single
relapse, which is common for recovering substance abusers.
He stated that appellant’s continued participation in
recovery programs and the lack of subsequent positive drug
tests were encouraging signs. Based on the information
available to him, Subia opined that appellant’s resentencing
would not pose an unreasonable risk of danger to public
safety.
d. Testimony of Dr. Goodwin
Dr. Ronette Goodwin, a psychologist specializing in
forensic mental health, also testified on behalf of appellant.
Dr. Goodwin reviewed appellant’s records, interviewed him
in February and March 2018, and conducted several tests to
8
assess his risk levels. She testified that appellant’s
assessment indicated the presence of “criminal thinking” and
reflected an impulsive and impetuous thinking style. She
opined that appellant’s thinking style, together with his drug
use, likely contributed to his past criminal behavior.
Regarding appellant’s drug use, Dr. Goodwin revealed that
appellant had told her he had been drug free for six months
at the time of their interview. Dr. Goodwin did not recall if
appellant said this in February or March 2018.
Dr. Goodwin identified appellant’s coping skills and his
ability to handle stress as areas of concern. According to Dr.
Goodwin, appellant attributed his drug use in 2016 to his
difficulty in adjusting to being around other inmates after
his release from solitary confinement. In response to
questioning by the prosecutor, Dr. Goodwin agreed that
release from prison and reintegration into society also
required an adjustment and caused stress.
Dr. Goodwin testified that appellant’s assessments
indicated he represented a medium risk for recidivism and
violence, primarily due to his early history and criminal
lifestyle. She explained that appellant’s assessment score of
19 was the highest within the medium-risk range and was
associated with a 28 percent chance of recidivism within one
year.
Based on her assessment of appellant, Dr. Goodwin
opined he was suitable for resentencing, but this conclusion
was conditioned on a more structured discharge plan that
addressed areas of concern. She characterized appellant’s
9
current transitional plan as “weak.” Dr. Goodwin opined
that appellant needed at least six months to a year of
treatment and intervention relating to his thinking styles
and drug addiction, prior to release. She explained he
needed training to develop his skills in areas such as
patience and emotional control, critical reasoning skills, and
goal setting. According to Dr. Goodwin, excluding
appellant’s criminal history from consideration would result
in a low-risk assessment, assuming implementation of her
recommendations for a better release plan.
C. The Superior Court’s Ruling
Following the suitability hearing, the superior court
denied appellant’s petition, concluding his resentencing
would pose an unreasonable risk of danger to public safety.
The court reasoned: (1) appellant’s extensive criminal
history indicated a propensity for violence; (2) his prison
misconduct, which also included violent conduct, showed he
continued to struggle with substance abuse, which was
particularly concerning given Dr. Goodwin’s opinion that
drug use contributed to his criminal behavior in the past;
and (3) based on Dr. Goodwin’s testimony, appellant’s
release plan was inadequate. Appellant timely appealed.
DISCUSSION
Appellant contends the superior court abused its
discretion in determining that resentencing him would pose
an unreasonable risk of danger to public safety, and thus
10
that he was unsuitable for resentencing under section
1170.126. We disagree.
A. Principles
In 2012, the electorate approved Proposition 36,
amending 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 is itself a serious or violent felony. (People v.
Yearwood (2013) 213 Cal.App.4th 161, 169-170.) Proposition
36 also added section 1170.126, creating a postconviction
resentencing proceeding for specified inmates sentenced
under the prior version of the Three Strikes law. (People v.
Yearwood, at 170-171.) 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. (§ 1170.126, subd. (e).)
If a petitioner is eligible for resentencing under
Proposition 36, the superior court may still deny his or her
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 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. (§ 1170.126, subd. (g).)
“The proper focus is on whether the petitioner currently
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poses an unreasonable risk of danger to public safety.”
(People v. Buford (2016) 4 Cal.App.5th 886, 913 (Buford).) In
assessing the petitioner’s criminal and disciplinary history,
“‘“[t]he relevant inquiry is whether . . . , when considered in
light of other facts in the record, [they] are such that they
continue to be predictive of current dangerousness many
years [later].”’” (Id. at 914.) “‘“[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 (2018) 25 Cal.App.5th 1007, 1016.)
On appeal, the court’s determination that resentencing
would pose an unreasonable risk of danger to public safety is
reviewed for an abuse of discretion. (Buford, supra, 4
Cal.App.5th at 895.) We will find such an abuse only if the
court exercised its discretion in an arbitrary, capricious, or
patently absurd manner. (Id. at 895, 901.)
B. Analysis
The superior court did not abuse its discretion in
determining that appellant’s resentencing would pose an
unreasonable risk of danger to public safety. Appellant’s
criminal history, his disciplinary record, and other factors
supported the court’s decision.
Appellant’s criminal history was extensive and his
criminality persistent, stretching from 1985, when he was 16
years old, to his commitment offenses in 1999. His prior
convictions included violent and other dangerous offenses,
including two batteries (in 1987), two burglaries (1990 and
12
1991), evading a peace officer with willful disregard for the
safety of persons or property (1990), two assaults with a
deadly weapon (1992), and inflicting corporal injury on a
spouse, resulting in great bodily injury (1997). Appellant
also violated probation and parole on multiple occasions.
Appellant’s 1999 commitment offenses, unlawful driving and
evading the police with willful disregard for the safety of
persons or property, involved driving more than 70 miles per
hour in a 25-miles-per-hour residential area and ultimately
attempting to jump out of the moving vehicle.
Appellant’s record during his current incarceration
exhibited a continuation of rule-breaking behavior, even in
the controlled environment of a prison. Appellant was long
associated with the Nazi Low Riders. CDCR records
indicated he remained an active associate, although Subia,
appellant’s prison-operations expert, testified that
appellant’s current placement suggested authorities believed
he was inactive. Appellant committed numerous
disciplinary violations, including violations related to racial
violence. His record included participating in two racial
riots in 2001 and 2008. In 2009, appellant was found guilty
of conspiracy to commit battery on an inmate, after prison
authorities confiscated a note indicating that appellant had
sent out orders for White inmates to attack Black inmates on
behalf of White prison gangs. These orders resulted in the
assault of a Black inmate. Based on this evidence, prison
authorities concluded that appellant held a leadership
position within the White prison-gang system.
13
Appellant’s disciplinary record additionally indicated
that appellant continued to abuse drugs and alcohol in
prison. He sustained three violations relating to the
production or possession of alcohol in 2004, 2007, and 2009.
In 2004, officers intercepted a letter addressed to appellant
containing a greeting card soaked in methamphetamine. In
2016, appellant tested positive for amphetamines,
methamphetamine, morphine, and codeine. Moreover,
according to the testimony of Dr. Goodwin, appellant
admitted using drugs in 2017, but his drug use went
undetected.
Dr. Goodwin’s testimony showed that appellant’s
criminal and disciplinary history reflected a continuing risk.
Testifying on appellant’s behalf, Dr. Goodwin opined that
appellant represented a medium risk for recidivism and
violence. She explained that appellant’s risk-assessment
score was the highest within the medium-risk range and was
associated with a 28 percent chance of recidivism within one
year. Dr. Goodwin stated that appellant’s assessment
indicated the presence of “criminal thinking” and reflected
an impulsive and impetuous thinking style. She opined that
appellant’s thinking style, together with his drug use, likely
contributed to his criminal behavior. Dr. Goodwin expressed
concern regarding appellant’s coping skills and his ability to
handle stress. According to Dr. Goodwin, appellant
attributed his drug use in 2016 to his difficulty in adjusting
to being around others after being released from solitary
confinement. In response to questioning, she agreed that
14
release from prison and reintegration into society also
required an adjustment and caused stress.
Based on her assessment of appellant, Dr. Goodwin
opined he was suitable for resentencing, but conditioned her
conclusion on a more structured discharge plan that
addressed areas of concern. She testified that appellant
needed at least six months to a year of treatment dealing
with his thinking styles and drug addiction, prior to release.
She further testified that appellant needed training aimed at
developing his skills in areas such as patience and emotional
control, critical reasoning skills, and goal setting. Dr.
Goodwin characterized appellant’s current transitional plan
as “weak.”
Dr. Goodwin’s testimony contextualized appellant’s
criminal and disciplinary misconduct and established its
roots in appellant’s personal characteristics and drug abuse.
Together, this evidence supported the finding appellant
posed a current unreasonable risk of danger to public safety.
(See Buford, supra, 4 Cal.App.5th at 913-914.) Given
appellant’s troubling criminal and disciplinary history and
Dr. Goodwin’s testimony about the inadequacy of his release
plan in relation to his risk factors, the superior court’s denial
of his petition was eminently reasonable.
Appellant contends his record contained only isolated
evidence of past dangerousness that, in view of the totality of
his circumstances, did not support the superior court’s
finding of current dangerousness. He notes that he was 51
years old at the time of the hearing and had been free of any
15
gang-related activity or violent violations for about ten
years. He also contends that “[w]ith the exception of a single
relapse in 2016, [he] ha[d] successfully overcome his drug
and alcohol abuse for at least 11 years.”
Contrary to appellant’s characterization, the record
supports a persistent pattern of criminal and disciplinary
misconduct, including violent behavior, both before and
during his current incarceration. This pattern was,
according to appellant’s own expert, linked to his criminal
and impulsive thinking styles, as well as to his substance
abuse. And although appellant’s record shows a reduction in
serious rule-breaking behavior in prison during the years
preceding the suitability hearing, it also suggests that
appellant has not sufficiently addressed the root causes of
his conduct. While appellant points to positive markers --
and we hope that his trend of improvement in his conduct
continues -- the superior court was not bound to find them
dispositive in the face of significant evidence of appellant’s
dangerousness. (See Buford, supra, 4 Cal.App.5th at 895,
901.) We note, moreover, that by appellant’s own admission
to Dr. Goodwin, his drug use continued beyond 2016, without
being detected by prison authorities, and it is not apparent
that he had in fact “overcome” his drug-abuse issues by the
time of the suitability hearing.
Appellant claims the superior court failed to consider
his youth at the time he committed most of his violent
conduct: “The record shows most of appellant’s acts of
violence . . . occurred when he was 25 years old or younger.
16
The one exception is appellant’s conviction for physically
abusing his former wife at the age of 26. [¶] In finding that
appellant’s criminal history as a youth made him a current
risk of danger 25 years later[, the court] fail[ed] to consider
the impact of his minority in assessing his culpability.”
However, appellant’s argument omits his significant violent
or otherwise dangerous conduct well beyond the age of 25,
both before and during his present incarceration. He
committed his offenses of commitment -- involving a reckless
attempt to flee from police at a high speed through a
residential area -- at age 29. He then participated in racial
riots in prison at ages 32 and 39, and at age 40, he relayed
orders for White inmates to attack Black inmates.
Finally, appellant maintains the court erred in
deeming his release plan insufficient. He cites caselaw
dealing with parole decisions, holding that an inmate need
not provide ironclad post-release plans, only realistic ones.
(See In re Twinn (2010) 190 Cal.App.4th 447, 465; In re
Andrade (2006) 141 Cal.App.4th 807, 817.) Appellant argues
he indeed proffered a realistic plan, noting his admission to a
residential transition program, the job offer he received, and
the support of his spouse. He repeats his contention that he
has been drug free since his 2016 relapse and contends that
the superior court could have addressed any remaining
concerns about his continued drug use through MCRP, in
which he agreed to participate, or by requiring frequent drug
tests as a condition of parole. We are unpersuaded.
17
By appellant’s own expert’s account, his release plan
was “weak,” and it failed to address the core reasons for his
past criminality and rule-breaking behavior. His plan did
not include lengthy pre-release intervention relating to his
problematic thinking styles and drug addiction, which Dr.
Goodwin opined was necessary for him to be suitable for
resentencing. The mandatory drug testing suggested by
appellant would serve as no substitute for this kind of
intervention, as it fails to address his thinking patterns and
coping skills. Moreover, appellant has used drugs without
detection even in the controlled prison environment, and
random drug testing following release would not ensure that
he would be detected before recidivating. As to MCRP, the
record contains insufficient information about this program,
and it does not appear that Dr. Goodwin assessed its
suitability to reduce appellant’s risk profile. Moreover, while
appellant agreed to participate in the program, he makes no
attempt to show that he would have been eligible to
participate. In short, the superior court was well within its
discretion in determining that appellant’s resentencing
would pose an unreasonable risk of danger to public safety.
18
DISPOSITION
The superior court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
19