P. v. Campbell

Filed 1/9/17 P. v. Campbell CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMOND CAMPBELL,
Defendant and Appellant.
B264913
(Los Angeles County
Super. Ct. No. BA183776)
APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Affirmed.
Barbara A. Smith, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Noah P. Hill and Viet H. Nguyen,
Deputy Attorneys General, for Plaintiff and Respondent.

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In 1999, a jury convicted defendant and appellant Raymond
Campbell of possession of a controlled substance (Health & Saf.
Code, § 11350, subd. (a)) and misdemeanor battery (Pen. Code, §
2421). It found true the allegations that defendant had two prior
convictions within the meaning of the Three Strikes law (§§ 667,
subds. (b)-(i) & 1170.12, subds. (a)-(d)) and two prior convictions
for which he served prison terms (§ 667.5, subd. (b)). The trial
court sentenced defendant to 25 years to life in state prison.
Following the passage of Proposition 36, the Three Strikes
Reform Act of 2012, defendant filed a petition requesting recall of
his sentence pursuant to section 1170.126. The trial court denied
the petition, finding defendant eligible for relief but unsuitable
for release as he posed an unreasonable risk of danger to public
safety. Defendant contends the trial court erred in failing to use
the definition of “unreasonable risk of danger to public safety”
from Proposition 47, the Safe Neighborhoods and Schools Act of
2014 (§ 1170.18), and abused its discretion in finding he posed a
risk. We affirm the order denying defendant’s petition for
resentencing.
The issue of whether the later-enacted Proposition 47
definition of “unreasonable risk of danger to public safety” applies
with respect Proposition 36 petitions is pending before our
Supreme Court in People v. Chaney (2014) 231 Cal.App.4th 1391,
review granted February 18, 2015, S223676, and People v.
Valencia (2014) 232 Cal.App.4th 514, review granted February
18, 2015, S223825. For purposes of this appeal, we agree with
the People’s argument that the Proposition 47 definition does not
apply in Proposition 36 cases. Because the Supreme Court’s
1 All statutory references are to the Penal Code unless
otherwise noted.

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resolution of this issue will govern this case, we do not address it
further. We also hold that the trial court did not abuse its
discretion in determining that defendant posed an unreasonable
risk of danger to public safety.
BACKGROUND
On December 12, 2012, defendant filed a petition for recall
of sentence pursuant to section 1170.126. The People opposed
the petition, arguing defendant was unsuitable for resentencing
because he presented an unreasonable risk of danger to public
safety based on: his extensive criminal history; prior commission
of crimes involving violence or threats of violence; his current
crime that was related to an act of violence; and his conduct in
prison. In response, defendant argued he was suitable for
resentencing in light of: his record of rehabilitation; viable
reentry plan; family support; remoteness of his criminal history;
and relatively few acts of violence prior to and during his current
incarceration.
On March 5, 2015, the trial court held a suitability hearing.
The People did not present any witnesses. Their 42 exhibits were
admitted into evidence. Richard Subia, an expert witness in
adult corrections and rehabilitation, and Dr. Rahn Minagawa, a
clinical and forensic psychologist, testified for defendant.
Defendant did not testify. His 10 exhibits were admitted into
evidence.
The Trial Court’s Factual Findings
The trial court made the following factual findings:
In 1980, at age 17, defendant committed a burglary (§ 459)
for which a petition was sustained against him in juvenile court.

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In 1982, defendant was convicted of grand theft person (§ 487.2)
after he stole $110 from a liquor store. The trial court found
defendant appeared actually to have committed a robbery and an
assault as the record showed he pushed a female employee from
the counter in order to take the money and punched the employee
on the side of her face when she grabbed his shirt trying to stop
him. In February 1983, the trial court granted defendant three
years of probation on his grand theft person conviction. In
November 1984, defendant violated his probation and the trial
court sentenced him to 90 days in jail.
In February1985, three months after being released on his
probation violation, defendant was convicted of
transporting/selling a controlled substance and placed on
probation. (Health & Saf. Code, § 11352.) His first “strike”
conviction occurred eight months later, in December 1985, when
he was convicted of first degree residential burglary. (§ 459.)
The trial court sentenced defendant to four years in state prison.
Defendant was released on parole in 1988, and returned to prison
twice in 1988 on parole violations. In 1989, defendant was
convicted of misdemeanor burglary. (§ 459.) In 1990, he was
convicted of transporting/selling a controlled substance. (Health
& Saf. Code, § 11352.) In 1993, defendant was again convicted of
misdemeanor burglary. (§ 459.)
In 1994, defendant was convicted of “felony”—i.e., first
degree—burglary. (§ 459). The trial court sentenced him to two
years in state prison. In 1995, defendant was convicted of
misdemeanor trespass. (§ 602.) In 1996, defendant was
convicted of transportation/sale of a controlled substance (Health
& Saf. Code, § 11352), misdemeanor assault with force likely to
inflict great bodily injury (§ 245, subd. (a)(1)), and resisting,

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delaying, or obstructing an officer (§ 148, subd. (a)). In 1998,
defendant was convicted of misdemeanor trespass. (§ 602.)
In 1999, defendant committed his commitment offense—
unlawful possession of a controlled substance. (Health & Saf.
Code, § 11350, subd. (a).) In that case, defendant forced entry
into a hotel room, struggled with the victim and his roommate,
and chased the victim and struck him several times as the victim
ran to a pay telephone to call the police. The police discovered a
bag containing a small amount of cocaine in defendant’s pocket
during a pre-booking search at the police station. While
defendant’s commitment offense was pending, defendant was
convicted of indecent exposure. (§ 314.1.)
During the course of his current prison commitment,
defendant incurred 11 Rules Violation Reports (RVR’s) and 18
“counseling chronos.” Of the 11 RVR’s, three were classified as
administrative and eight as serious. Defendant’s three
administrative RVR’s were for failing “to appear for a ducat to
the law library” (2000), disobeying orders (2004), and
disrespecting staff (2008). His eight serious RVR’s were for
mutual combat (2000), masturbation (2000), indecent exposure
(2002), possessing inmate manufactured alcohol (2004), refusing
to provide a urine specimen (2004), disrespect for staff (2004),
failing to perform work duties (2008), and possessing a controlled
substance—a marijuana cigarette (2010). Of defendant’s 18
counseling chronos, only three were incurred in the 10 years
before the hearing. Those three were for delaying lockup (2004),
having window and light covers in his cell (2009), and failing to
report for a work assignment (2009).
Defendant received certificates for participating in
Alcoholics and/or Narcotics Anonymous from 2000 through 2004

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and July 2013 through February 14, 2014. In 2002, defendant
received a “laudatory chrono” for his active participation in
Narcotics Anonymous. At the time of the hearing, defendant was
housed in a progressive programming yard that required inmates
to remain free of discipline and participate in “active
programming.”
Defendant’s access to educational programming was
limited during his incarceration. In 2007, after reaching the
highest level of an adult education program, he was “unassigned”
from the program. Since 2012, defendant participated in
voluntary educational activities. While incarcerated, defendant
worked as a porter and in the kitchen. In 2014, he received a
“laudatory chrono” from his supervisor for going to work every
day, performing his duties, working well with others, and
remaining free of discipline.
In 1999, when defendant entered prison for his
commitment offense, his classification score was 104.2
Thereafter, defendant’s score increased—reaching a high of 124
in 2004—and remained above 104 until 2012 when it decreased
to 100. At the time of the hearing, defendant’s classification
score was 84.
Richard Subia was appointed as an expert in corrections
and rehabilitation. He worked for the CDCR for 26 years,
2 A classification score is used to determine an inmate’s
placement within the California Department of Corrections and
Rehabilitation (CDCR), including the security level of the facility
in which the inmate is housed. “‘A lower placement score
indicates lesser security control needs and a higher placement
score indicates greater security control needs.’ [Citation.]” (In re
Jenkins (2010) 50 Cal.4th 1167, 1173-1174.) The lowest score a
life inmate can receive is 19.

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including as a prison warden and Director of the Division of
Adult Institutions. None of defendant’s RVR’s indicated to Subia
that defendant hurt anyone in prison, and none involved threats
of violence or weapons.
With respect to defendant’s substance abuse, defendant
told Subia he had “‘significant problems’ with substance abuse on
the streets and talked about how his addiction led to some of his
criminal offenses.” Subia stated there was no evidence defendant
tested positive for drugs or alcohol during his incarceration and
opined defendant had made a successful effort to refrain from
drugs and alcohol in prison. Subia believed defendant would not
pose an unreasonable risk of danger to public safety if he were
resentenced or released.
Dr. Rahn Minagawa was appointed as an expert in clinical
and forensic psychology. He examined defendant and defendant’s
criminal history, disciplinary record, age, and record of
rehabilitation while incarcerated. He found many of defendant’s
crimes were related to defendant’s addiction to crack cocaine.
Defendant had gained insight into his history of substance abuse
and addiction and the relationship between his criminal conduct
and substance abuse. According to Minagawa, defendant did not
have a “significant history of violence” and had not engaged in a
pattern of violent conduct. Defendant told Minagawa he
possessed the marijuana cigarette to barter with and not for
personal use. Because defendant subsequently was required to
drug test and did not test positive, Minagawa believed him.
Minagawa determined that defendant’s risk of committing
a sexual offense was not higher than the general population. On
the “HCR-20” test, defendant scored in the lowest categories for
potential to cause serious or life-threatening physical harm and

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for risk of committing an act of violence in the near future. The
test also showed defendant required the lowest level of
intervention to prevent future violence. Minagawa opined that if
defendant participated in a program that provided housing,
vocational assistance, financial support, and substance abuse
counseling, defendant would not pose an unreasonable risk to
public safety.
The Amity Foundation (Amity) provided comprehensive
reentry services to released inmates. It was prepared to help
defendant transition into the community.
The Trial Court’s Decision
In a written decision, the trial court denied the petition.
The trial court stated that defendant had a lengthy history of
committing multiple crimes when free from custody, even when
on parole. Defendant had 20 arrests, 15 convictions, and five
parole violations. He had not been free from custody or parole
supervision since 1982.
The trial court rejected defendant’s contention that his
criminal history did not indicate he posed a risk to public safety
because his convictions were remote and none involved serious
violence, serious injuries to the victims, or the use of weapons.
Relying on People v. Guzman (2015) 235 Cal.App.4th 847, 860
review subsequently granted on June 17, 2015, S226410), the
trial court ruled that the concept of public safety did not
contemplate merely the absence of violent acts, it also included
the absence of property crimes. Six of defendant’s 15 convictions
were for property crimes. Moreover, three convictions were for
transporting and/or selling drugs which compromised public

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safety. The trial court described defendant as the classic drug
addict who committed property crimes to support his habit.
Assessing defendant’s conduct while incarcerated, the trial
court stated, “Because of the undeniable link between
[defendant]’s history of substance abuse and criminal behavior,
the Court is most concerned about [defendant]’s two RVR’s in
2004 for possessing inmate manufactured alcohol and failing to
provide a urine sample, and the 2010 RVR for possession for
marijuana.” It observed that defendant had participated in
alcohol and drug programs since his incarceration began, yet was
caught with alcohol in his cell in April 2004, and admitted to
Minagawa that he drank alcohol at that time. Five months after
being caught, defendant failed to provide a urine sample even
though he had three and one-half hours’ notice. Defendant’s
conduct demonstrated to the trial court that defendant “was
unable to abstain from alcohol despite consistent substance abuse
programming.”
With respect to defendant’s claim that he possessed the
marijuana cigarette for barter, the trial court stated that such
possession was “behavior substantially similar to his prior
convictions for transporting and/or selling controlled substances.
He thus exhibited behavior as recently as 2010 that reflects the
same criminal mindset he possessed when he committed his
crimes in the community. . . . [P]ossessing marijuana for ‘barter’
bodes poorly for his ability to refrain from selling or using drugs
again if released into the community.”
The trial court questioned defendant’s motivation and
sincerity in resuming of substance abuse programming in 2013.
It noted defendant had been precluded from participating in a
significant amount of programming while housed at Calipatria

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State Prison, but ostensibly had more programming available to
him following his transfer to Salinas Valley State Prison in 2010.
Yet defendant did not resume substance abuse programming
until 2013—eight months after Proposition 36 passed, and seven
months after defendant filed his petition for resentencing in this
case.
The trial court found defendant’s reentry plans deficient.
All that was before it was the letter from Amity. In the letter,
Amity stated it had received information about defendant’s
potential release. Amity stated, “[W]e work to get the individual
to Amity immediately upon release and then transport to the
Probation Department” within 72 hours. It was able to “facilitate
connection with one of its community partners” for mental health
services if ordered by the trial court and worked closely with
CDCR and an Amity subcontractor for housing and employment
services. Defendant’s counsel stated at the suitability hearing
she had confirmed Amity had drug counseling. The trial court
observed, however, there was no guarantee defendant would
receive housing and employment services or drug counseling.
The trial court discounted Subia’s opinion that defendant
did not pose an unreasonable risk to public safety because Subia
did not consider reentry plans as a factor in his opinion. It
shared Minagawa’s “‘reservation that upon [defendant’s] release
he will still need support in terms of getting a job, transitional
housing, continuing to work with an AA/NA group” given
defendant’s tenuous reentry plans. It concluded defendant’s risk
of reoffending in the community was increased without a solid
and reliable reentry plan that was guaranteed upon his release.
The trial court ruled, “[T]he preponderance of the evidence
demonstrates that [defendant] does pose an unreasonable risk of

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danger to public safety at this time due to his criminal history,
record of serious rules violations, insufficient rehabilitative
programming, and inadequate [reentry] plans.”
DISCUSSION
The Trial Court Acted Within Its Discretion in Denying
Defendant’s Petition for Recall of His Sentence
A. Standard of Review
The parties agree we review a trial court’s ruling on a
Proposition 36 petition for recall of sentence under the abuse of
discretion standard of review. (§ 1170.126, subd. (f).) “[A] trial
court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with
it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
B. Application of Relevant Principles
When a petitioner satisfies the eligibility criteria for
resentencing under section 1170.126, subdivision (e), “the
petitioner shall be resentenced pursuant to paragraph (1) of
subdivision (e) of Section 667 and paragraph (1) of subdivision (c)
of Section 1170.12 unless 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 other
words, after Proposition 36, a qualified prisoner who is serving a
third-strike sentence for a felony that is neither serious nor
violent 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, 168.)

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“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.”
(§ 1170.126, subd. (g).)
The trial court found defendant posed an unreasonable risk
of danger to public safety based on “his criminal history, record of
serious rules violations, insufficient rehabilitative programming,
and inadequate re-entry plans.” A preponderance of the
evidence3 supports each of the bases of the trial court’s finding,
and the trial court acted within its discretion in denying
defendant’s petition.
Defendant’s criminal career—at least as established by a
sustained juvenile petition—began at age 17 with a burglary.
Over the following 19 years, defendant engaged in an unbroken
pattern of criminality leading to an additional 14 misdemeanor or
felony offenses, a probation violation for which he was sentenced
to 90 days in jail, and two parole violations for which he was
3 A trial court’s determination that a petitioner would pose
an unreasonable risk of danger to public safety is released is
subject to the preponderance of the evidence standard. (People v.
Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1305;
People v. Flores (2014) 227 Cal.App.4th 1070, 1075-1076.)

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returned to prison. Defendant’s felony convictions included three
convictions for transporting or selling a controlled substance.
While incarcerated on his current conviction, defendant
incurred eight serious RVR’s including possessing inmate
manufactured alcohol, refusing to provide a urine specimen, and
possessing marijuana. Based on its finding of a link between
defendant’s substance abuse and his criminal conduct, the trial
court rightly was concerned that these three rule violations
involved alcohol or marijuana. As the trial court explained,
defendant’s claim that he possessed the marijuana for barter did
not ameliorate his conduct because he possessed the substance
just before petitioning for recall of sentence and possessing
marijuana for barter “bode[d] poorly for his ability to refrain from
selling or using drugs again if released into the community.”
Although defendant participated in alcohol and drug
rehabilitation programs from 2000 to 2004 and July 2013 to
February 2014 while incarcerated, his rule violation for
possessing inmate manufactured alcohol occurred in 2004—i.e.,
after four years of alcohol rehabilitation. As for defendant’s
second period of drug and alcohol rehabilitation beginning in July
2013, the trial court was justifiably skeptical of defendant’s
motivation and sincerity as defendant recommenced his
participation eight months after Proposition 36 passed and seven
months after he filed his Proposition 36 petition.
Finally, as for defendant’s reentry plans, the Amity letter
simply set forth broadly the services Amity provided. The trial
court correctly observed that Amity had not guaranteed
defendant would receive housing, employment, or drug
counseling.

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In light of defendant’s criminal history, record of serious
rules violations, insufficient rehabilitative programming, and
inadequate reentry plans, we cannot say the trial court abused its
discretion in denying defendant’s petition for recall of his
sentence based on its determination that defendant posed an
unreasonable risk of danger to public safety.

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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KUMAR, J.
We concur:
TURNER, P. J.
KRIEGLER, J.
 Judge of the Superior Court of the County of Los Angeles,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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