Filed 7/21/21 P. v. Hayden CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B306059
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. PA023303)
v.
ROBERT MICHAEL
HAYDEN,
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.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Rene Judkiewicz, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Robert Michael Hayden
(defendant) appeals from the denial of his petition for
resentencing under Penal Code section 1170.126 (Proposition
36).1 He contends that the trial court abused its discretion in
finding him unsuitable for resentencing and denying his petition.
As we find that defendant has not demonstrated an abuse of
discretion, we affirm the order.
BACKGROUND
In 1996, defendant was convicted of felony evading a police
officer causing injury, in violation of Vehicle Code section 2800.3
(count 1), and taking a car without the owner’s consent in
violation of Vehicle Code section 10851, subdivision (a) (count 3).
The jury found true four prior burglary convictions alleged as
one-year sentencing enhancements within the meaning of Penal
Code section 667.5, former subdivision (b); and one prior first
degree burglary conviction alleged pursuant to the “Three
Strikes” law, section 667, subdivisions (b) through (i) and section
1170, subdivisions (a) through (d). The trial court sentenced
defendant to a total of 27 years to life in prison, comprised of two
concurrent terms of 25 years to life and one year each for two
enhancements alleged under section 667.5, subdivision (b).
In 2013, defendant petitioned for a recall of his sentence
under Proposition 36. Defendant was found eligible for
resentencing on count 3, but not count 1, after an eligibility
hearing in 2016. A resentencing suitability hearing was held in
February 2020. After considering the evidence and the argument
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2
of counsel, on April 28, 2020, the court denied defendant’s
petition on the ground that he currently posed an unreasonable
risk of danger to public safety.
Defendant filed a timely notice of appeal from the order.
Factual findings
The trial court issued a memorandum of decision detailing
its factual findings from the evidence presented by the parties.2
Criminal history
The memorandum of decision includes a summary of
defendant’s criminal history, which began with a burglary in
1979 when defendant was 12 years old. At age l6, defendant was
declared a ward of the court and sent home on probation after
resisting arrest, evading arrest, and driving recklessly. At age
18, defendant was convicted of four first degree residential
burglaries and initially sentenced to 48 months of probation with
365 days in jail. Following a probation violation defendant was
sent to the California Rehabilitation Center (CRC).
In 1987, defendant was convicted of unlawful drug
possession, placed on 12 months’ probation and fined. One month
later defendant was convicted of first degree burglary, received a
suspended prison sentence, and was again committed to CRC.
While an outpatient from CRC, defendant was arrested for
2 Defendant does not challenge the factual findings as
unsupported by substantial evidence; instead defendant asserts
that the findings or inferences drawn are inadequate to support
the court’s conclusions. Therefore, rather than summarize all the
evidence in the record, our statement of facts is a summary of the
trial court’s factual findings in the memorandum of decision. We
later discuss any evidence in the record pointed out by the parties
as necessary to address their arguments.
3
narcotic sales, returned to CRC, paroled, arrested again for
unlawful drug possession, and excluded from CRC. In 1988,
defendant was arrested for spousal abuse but convicted of battery
and placed on 24 months’ summary probation.
In 1992, defendant was convicted of possession of a
hypodermic needle and placed on 12 months’ summary probation
and four days in jail. One month later, he was convicted of
second degree burglary and sentenced to 36 months in prison.
In 1993, defendant was convicted of battery, placed on 24
months’ summary probation with 20 days in jail. The same year
defendant was convicted of being under the influence of a
controlled substance and sentenced to 120 days in jail. Also in
1993, defendant was convicted of petty theft and second degree
burglary, sentenced to 48 months in prison, and then convicted of
escape and sentenced to 24 months in prison.
Defendant was paroled in September 1995, and in October
l995, he was convicted of soliciting the sale of narcotics, being
under the influence of narcotics, and possession of narcotics
paraphernalia. In March 1996, he was convicted of the current
commitment offense. The trial court summarized the facts of the
commitment offense in large part from the Court of Appeal
opinion in this case (People v. Hayden (Sep. 15, 1997, B106150)
[nonpub. opn.]), which indicated that two weeks after defendant’s
mother had reported her car stolen, a police officer observed him
driving the car and activated his lights and siren. A high-speed
chase ensued through a residential area during which defendant
went through two intersections without stopping at stop signs
and ultimately collided with another vehicle. The driver of the
other car sustained a large cut and other lacerations on the back
of his head and briefly lost consciousness. Defendant was thrown
4
from his vehicle and also sustained injuries. In his defense,
defendant claimed he borrowed his mother’s car intending to
return it at some point and that he was not aware that the police
were following him.
Prison discipline history
The trial court also summarized People’s exhibit 9, the
CDCR (California Department of Corrections and Rehabilitation)
Disciplinary Record containing defendant’s disciplinary history
from 1999 to 2018, beginning with the most recent discipline.
During the course of defendant’s current commitment, defendant
had been found culpable of 25 RVR’s (serious rules violations
reports) and received discipline. In 2017 and 2018, defendant
failed to report for health care appointments and to sign a refusal
of examination and treatment form. In 2017, defendant
possessed inmate-manufactured alcohol in a clear plastic bag and
in his toilet. In 2016, defendant and his cellmate were seen
fighting and bleeding. In 2014, defendant refused to exit his cell
and missed an appointment. In 2012, defendant was in
possession of an inmate-manufactured weapon under his
mattress. In 2010, defendant was in possession of drug
paraphernalia (a syringe with needle and cap) secreted in his
rectum. Between 1999 and 2004, alcohol was found in
defendant’s cell 11 times. On one occasion in April 2003,
defendant fought with his cellmate in their cell, and both men
smelled of alcohol. In December 2000, defendant was found
guilty of obstruction of a peace officer for refusing to return to his
cell while participating in a mass “sit-down.”
Rehabilitative programming
The trial court also summarized the rehabilitative
programming in which defendant participated while
5
incarcerated, such as Alcoholics Anonymous (AA) from 2015 and
into 2018, including a 12-week, “In-Cell” AA program he
completed in October 2016. He received several laudatory
“chronos” during that period for “being an active participant” and
showing “a commitment to help himself.” Defendant also
completed: Anti-Recidivism Coalition’s (ARC) 10-week Youth
Offender Mentor Program in January 2018; Criminals and Gang
Members Anonymous (CGA) Group in 2017; an eight-week anger
management training program in 2016; and a peer education
program basic HIV/AIDS information course in 2003. Defendant
earned his GED in July 2011. In 2015, he successfully completed
the Office Services and Related Technology vocational program,
which included courses in shop and site safety, employer
expectations, finding and applying for a job, computing
fundamentals, keyboarding, key applications, and living online.
Work history, classification scores, parole plans
The trial court summarized the evidence of defendant’s
prison work history, noting that he had received satisfactory
supervisor’s reports. The court also noted at the time of the
hearing that defendant was 52 years old, and his classification
score was 125.3 Defendant entered prison with a classification
score of 81, was at a high of 153 in 2013 and a low of 67 in 1999.
The court found that defendant had been accepted in Fresh
Start Recovery Home, a transitional housing program
3 Inmates with lower classification scores require lower
security controls and those with higher scores require higher
security controls. Scores are reduced for periods without
discipline and for satisfactory or better performance in work,
school, or vocational training. The minimum classification score
is 19.
6
specializing in those reentering the community on parole and
suffering from substance abuse or mental health issues. In a
letter to the court from the Recovery Network Resource, which
runs Fresh Start Recovery Home, Perry Zimmerman wrote that
“there is not a time limit on how long he can stay.”
During his comprehensive risk assessment (CRA),
defendant told the psychologist that he knew he could not
succeed alone and needed a strong support group. He was also
willing to accept any form of employment. Defendant’s sisters
provided letters of support, and the court found that one of
defendant’s sisters was familiar with AA resources in the
community and willing to assist and to offer emotional support
during defendant’s transition (as were two other sisters and a
former brother-in-law), but she was unable to provide him a place
to live.
CRA
In January 2020, the CRA was conducted by forensic
psychologist Jennifer Soares, who found defendant presented a
moderate risk for violence upon release, “largely attached to his
substance use and his lack of insight into how his substance use
increases his risk of engaging in violent behavior.” She also
noted that defendant’s performance on probation and parole had
been poor.
The evaluation included an in-depth history of defendant’s
use of alcohol, cannabis, cocaine, and methamphetamine from
age 16, with occasional alcohol consumption, the use of cannabis
every other day, and cocaine, which became his “drug of choice.”
In prison defendant had received 10 RVR’s involving alcohol.
Defendant told Dr. Soares that drugs and alcohol had ruined his
life and that he stole to pay for his cocaine habit. Dr. Soares
7
diagnosed defendant with alcohol use disorder, cannabis use
disorder, and stimulant use disorder (cocaine), each in a
controlled environment.
Dr. Soares found that defendant exhibited six of the seven
criteria for antisocial personality disorder: failure to abide by the
law, impulsivity, reckless disregard for the safety of others,
irresponsibility, aggressiveness, and lack of remorse. These
behaviors began when defendant was 12 years old. She also
found that defendant had historically displayed all the predictive
factors for violent recidivism, three of which remained at least
moderately relevant at the time of the report, including violent
attitude (moderately relevant), substance use (highly relevant),
and performance on supervision (highly relevant). Finally,
Dr. Soares noted that defendant had demonstrated minimal
acceptance, responsibility or remorse for his commitment offense.
Defendant’s expert
The trial court summarized testimony given by Robert Lee
Ayers, defendant’s expert witness regarding CDCR matters used
to assess the risk of recidivism upon release. Ayers reviewed
defendant’s Central File (C-file), which contains health care
records, disciplinary files, any confidential information that may
have been collected during defendant’s incarceration, and
probation reports; as well as criminal history records; the
placement letter from Perry Zimmerman; the CRA; a letter from
another placement program called PREP; and letters of support.
Based on his training, experience, and the materials reviewed,
Ayers opined that defendant did not pose an unreasonable risk to
public safety upon release. Ayres found that defendant was “a
textbook example of a drug addict’s life.”
8
Due to defendant’s high classification score, he was sent to
a “Level IV” prison, which generally have more control and fewer
activities and programs available to the inmates. However
defendant would have had access to the programs available at his
prison and Ayres noted that defendant had participated in AA.
Ayers placed defendant’s disciplinary history into two
categories: those involving violence and those involving chemical
abuse. Ayers was of the opinion that defendant’s violent RVRs
were typical of Level IV prisons where “violent predatory inmates
pressure non-violent, weaker inmates into involuntary sex,
involuntarily holding contraband, involuntarily participating in
violence, and ‘paying rent or taxes’”; and that defendant had
become the “prey” of such inmates.
Ayers found that defendant’s substance abuse-related
RVR’s were “entirely predictable and typical of a long-time drug
addict,” and he did not believe that the 2017 RVR for possession
of alcohol was a sign of relapse or cause for concern because of
defendant’s “on-going participation in program activities” such as
CGA, AA, as well as having been a youth mentor for ARC. Ayers
believed these activities demonstrated that defendant had
“turned the maturity corner.”
As for public safety, Ayers opined that in order for
defendant to be successful in the community and not succumb to
the stress of survival by reverting to temptation, he would need
“solid release plans.” Ayers pointed to the support of his sisters,
one of whom had extensive knowledge of AA, and to defendant’s
acceptance into the Fresh Start program. Finally, Ayers noted
that defendant’s California Static Risk Assessment (CSRA) score
was 1, indicating a low risk of reoffending. Ayers concluded that
9
defendant did not pose any significant risk for endangering the
public safety by future criminal behavior.
DISCUSSION
Defendant contends that the trial court abused its
discretion in finding that he currently poses an unreasonable risk
of danger to public safety, resulting in a violation of defendant’s
rights to due process and a fair hearing under the United States
Constitution.4
Proposition 36, the Three Strikes Reform Act of 2012,
created a procedure “whereby a prisoner who is serving an
indeterminate life sentence imposed pursuant to the three strikes
law for a crime that is not a serious or violent felony and who is
not disqualified, may have his or her sentence recalled and be
sentenced as a second strike offender unless the court determines
that resentencing would pose an unreasonable risk of danger to
public safety.” (People v. Yearwood (2013) 213 Cal.App.4th 161,
167; see § 1170.126, subd. (f).) “The determination whether a
defendant poses an unreasonable risk of danger to public safety is
discretionary (§ 1170.126, subd. (f)), and . . . ‘[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 . . . and
are themselves subject to [appellate] review for substantial
evidence.’” (People v. Frierson (2017) 4 Cal.5th 225, 239.)
4 Defendant’s due process was satisfied, as he was given
notice of the resentencing hearing, an opportunity to be heard,
and a statement of reasons for the denial of resentencing. (See
People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279,
1299-1300.)
10
“In exercising its discretion to deny resentencing, the court
has broad discretion to consider: (1) the inmate’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) his or her
‘disciplinary record and record of rehabilitation while
incarcerated’; and (3) ‘[a]ny 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.’ (§ 1170.126, subd. (g)(1)-(3).) Thus, . . . ‘[i]n determining
whether an offender poses [an unreasonable risk of danger to
public safety], the court could consider any evidence it determines
is relevant, such as the offender’s criminal history, behavior in
prison, and participation in rehabilitation programs.’ (Voter
Information Guide, Gen. Elec. (Nov. 6, 2012) analysis of Prop. 36
by Legis. Analyst, p. 50, italics added.)” (People v. Valencia
(2017) 3 Cal.5th 347, 354.)
It is the defendant’s burden on appeal “‘to clearly show that
the sentencing decision was irrational or arbitrary. [Citation.] In
the absence of such a showing, the trial court is presumed to have
acted to achieve legitimate sentencing objectives, and its
discretionary determination . . . will not be set aside on review.’”
(People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978
(Alvarez).) “‘[A] decision will not be reversed merely because
reasonable people might disagree. “An appellate tribunal is
neither authorized nor warranted in substituting its judgment for
the judgment of the trial judge.”’” (Id. at p. 978.) In general, a
ruling is not arbitrary and capricious if it “is based upon an
‘individualized consideration of the offense, the offender, and the
public interest.’” (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
11
Defendant contends that the trial court’s ruling was an
abuse of discretion because the “circumstances did not support
the overall conclusion that his history of substance abuse and
related criminality made him a current unreasonable risk of
danger to public safety, with probation conditions requiring
continued substance abuse programming and random drug tests.”
In particular, defendant suggests that the trial court placed too
much weight on defendant’s remote history of alcohol and drug
addiction and the crimes committed because of his addiction.
Comparing the standard applicable in parole cases,
defendant relies on the California Supreme Court’s decision in In
re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), to argue that the
trial court could not properly rely solely on “immutable” factors,
that is, his prior criminal history, to find that resentencing him
would pose an unreasonable risk of danger but must find a nexus
between the immutable factors and current risk. Defendant
argues that the trial court was required to conduct an
individualized inquiry by examining all the circumstances of the
crime, including the passage of time or other mitigating factors.
This is exactly what the trial court did. Quoting People v.
Esparza (2015) 242 Cal.App.4th 726, 746 (Esparza), which in in
turn cited Lawrence, supra, 44 Cal.4th at page 1214, the trial
court recognized that “[a] petitioner’s criminal history is an
immutable factor upon which the court may properly rely in
assessing a petitioner’s dangerousness, as specified in section
§ 1170.126, subdivision (g),” and that “‘the proper focus is on
whether the petitioner currently poses an unreasonable risk of
danger to public safety.’” Thus, as does the defendant here, the
trial court relied on parole suitability cases, including Lawrence,
supra. Quoting Esparza, supra, at page 746, which in turn
12
quoted In re Lawrence, supra, at page 1221 and In re Shaputis
(2008) 44 Cal.4th 1241, 1254-1255, the trial court made clear that
it was well aware that a court could “properly deny resentencing
under the Reform Act based solely on immutable facts, such as a
petitioner’s criminal history, ‘only if those facts support the
ultimate conclusion that an inmate continues to pose an
unreasonable risk to public safety[,’] [‘]when considered in light of
other facts in the record, are such that they continue to be
predictive of current dangerousness many years [later].’” (Italics
added.)
Defendant complains that the “Memorandum of Decision
repeatedly relied on [his] substance abuse in explaining why his
criminal history, prison misconduct, lack of sufficient
rehabilitative programming, and inadequate parole plans made
him unsuitable for resentencing.” Defendant also acknowledges
that “substance abuse provides some evidence of his
unsuitability” although he argues that it “does not support an
overall conclusion that he current[ly] presents an unreasonable
risk of danger to public safety.” As we construe defendant’s
arguments he essentially concedes that the trial court did not
rely solely on the immutable fact of defendant’s prior criminal
history or solely on defendant’s history of substance abuse but
also considered defendant’s “prison misconduct, lack of sufficient
rehabilitative programming, and inadequate parole plans.”
We agree. The trial court reviewed defendant’s lengthy
criminal history and poor performance on past supervised release
and his addiction history. The court acknowledged that
defendant was able to connect his substance abuse to the
significant negative role it had played in his criminal history,
observing that “no amount of punishment has appeared to deter
13
[defendant] from reoffending including inside state prison.”
(Italics added.) The court considered defendant’s RVR’s in prison
(he had been found guilty of 25 RVR’s since 1993) and six RVR’s
were for fighting or possessing a weapon. The trial court
acknowledged that defendant’s criminal history did not include
violent crimes, and at his current age of 52 years old he presented
a reduced risk of violent recidivism. The court also considered
defendant’s current classification score of 125, which was not his
highest but well above the score of 81 he had when he entered
prison.
Of concern to the court were the RVR’s relating to alcohol,
narcotics and narcotics paraphernalia, and that just two years
had elapsed since his most recent misconduct. Like the majority
of defendant’s previous RVR’s, they were related to the
possession or manufacture of alcohol and committed while
defendant was participating in AA. The court cited evidence that
in both 2016 and 2017, although defendant complied with giving
urine samples, he refused to consent to having them tested. The
court also noted that although defendant participated in AA and
other rehabilitative programs, his participation was limited and
begun only after his petition for resentencing was filed.
Finally, the trial court considered defendant’s parole plans,
noting his strong family support and that it had also existed
throughout his life of repeated relapses and reoffenses. The trial
court found defendant’s past performance on probation and
parole to be indicative of current dangerousness, and although
defendant had been accepted into Fresh Start, defendant would
be free to leave at any time and fall into his old habits with
relative ease.
14
The court concluded: “In sum, the totality of the record,
including consideration of all the statutory factors, demonstrates
that resentencing [defendant] at this time would pose an
unreasonable risk of danger to public safety.”
Defendant suggests that the court failed to take into
consideration the passage of time since his commitment offense
and asserts that the court failed to “cite a specific factor
associated with a prior crime that the defendant has not
mitigated in the intervening years.” Defendant argues that the
court should have placed more weight on the fact that he has not
incurred a single RVR for an alcohol-related offense since 2017.
Defendant asserts that “[b]y all accounts,” he has been “clean
from drugs for the past seven years”; and he argues that his
continuing in AA since his last known relapse in 2017 provides
evidence that he has been sober since then. Defendant then
concludes that such a remote criminal history of drug abuse is
insufficient to permit the conclusion that he currently poses an
unreasonable risk of danger to public safety.
Contrary to defendant’s assertion the trial court reasonably
considered the 2017 alcohol-related RVR to be such a factor. The
trial court reasonably concluded that defendant’s continued
alcohol abuse during the 24 years of his incarceration, even if
episodic, was significant given the relatively short time since the
last episode. Indeed the court observed that defendant did not
participate in AA until after his petition was filed, and his
participation in all rehabilitative programs had been limited. It
was reasonable for the court to infer that defendant’s
commitment to rehabilitation appears to have been insincere.
Defendant suggests that the court should have concluded
from his claimed insight into the devastating impact substance
15
abuse has had on his life and from his expressions of remorse to
Dr. Soares, that he was ready to overcome this problem. Of
course, being ready to overcome a problem does not indicate that
adequate progress toward that goal has been achieved.
Moreover, as the court observed, defendant was remorseful that
he stole from open garages, and this expression of remorse was
followed by “more or less it’s things that people don’t notice and it
was strictly for drugs.” The court could reasonably infer that
defendant’s remorse was an excuse. It is of interest to note that
Dr. Soares found that defendant had not demonstrated minimal
acceptance, responsibility, or remorse for his commitment
offense. Thus the CRA, which was prepared just four months
before the court issued its memorandum of decision, provided
another current factor associated with defendant’s prior crimes
that defendant failed to mitigate during the 24 years of his
incarceration.
Defendant takes issue with the trial court’s finding that
Fresh Start Recovery Home’s policy of allowing residents to leave
the program at any time creates the risk that defendant would
“fall into his old habits with relative ease if he so desired.”
Defendant contends that the trial court misinterpreted the parole
plan for placement in the Fresh Start Recovery Home and that
the court misunderstood the law. Defendant asserts that the
court’s comments showed that it was unaware that postrelease
community supervision is mandatory for any inmate released
under section 1170.126.5
5 Those resentenced under section 1170.126 are subject to
section 3451, subdivision (a). (People v. Espinoza (2014) 226
Cal.App.4th 635, 639.) Section 3451, subdivision (a) now
provides: “Notwithstanding any other law . . . , all persons
16
We disagree that a reasonable interpretation of the court’s
finding shows ignorance of the law. The court referred to the
letter from Perry Zimmerman, in which he states not only that
“there is not a time limit on how long he can stay,” but also,
“[s]ome clients stay for years, some go to school, some go to
work . . . .” Thus, residents may leave for work or school. The
court could have been expressing concern that placement in that
type of facility was premature given defendant’s many relapses
during his incarceration, including the events of just two years
earlier. Defendant has not shown that the trial court
misunderstood or was ignorant of the law.
Defendant does not contend that the trial court’s factual
findings were unsupported by substantial evidence, and his
arguments show only that reasonable minds might differ on
whether the risk of danger that defendant would pose on release
is unreasonable. Where, as here, the record reflects an informed
exercise of discretion based on permissible factors, we will
reverse only in the extraordinary case where those factors
“manifestly support” the conclusion that reasonable minds could
not differ. (People v. Carmony (2004) 33 Cal.4th 367, 378.) Facts
which merely afford an opportunity for a difference of opinion do
not establish an abuse of discretion. (People v. Clair (1992) 2
Cal.4th 629, 655.) We find that the court exercised its discretion
based upon an “individualized consideration of the offense, the
released from prison on and after October 1, 2011, or, whose
sentence has been deemed served pursuant to Section 2900.5
after serving a prison term for a felony shall, upon release from
prison and for a period not exceeding three years immediately
following release, be subject to community supervision provided
by the probation department . . . .”
17
offender, and the public interest,” in a manner consistent with
the letter and spirit of the law, and we thus conclude that the
court acted neither arbitrarily nor capriciously. (Alvarez, supra,
14 Cal.4th at p. 978.)
DISPOSITION
The order denying defendant’s petition for resentencing is
affirmed.
__________________________
CHAVEZ, J.
We concur:
______________________________
ASHMANN-GERST, Acting P. J.
______________________________
HOFFSTADT, J.
18