P. v. Harmon

Filed 2/2/17 P. v. Harmon CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
VINCENT M. HARMON,
Defendant and Appellant.
B269971
(Los Angeles County
Super. Ct. No. BA093310)
APPEAL from an order of the Superior Court of Los
Angeles County. Rand S. Rubin, Judge. Affirmed.
Allen G. Weinberg, 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, Mary Sanchez and Robert M. Snider,
Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * *

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Vincent M. Harmon (defendant) appeals the trial court’s
denial of his motion to be resentenced under the Three Strikes
Reform Act of 2012 (Pen. Code, § 1170.126).1 We conclude there
was no error, and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Underlying Conviction and Sentence
One early morning in March 1994, a homeowner was shot
outside his home. The homeowner identified defendant as the
shooter, and police found defendant in a nearby alley with the
homeowner’s jewelry case in his pocket. The People charged
defendant with (1) attempted premeditated murder (§§ 187, subd.
(a) & 664), (2) first degree residential burglary (§ 459), and
(3) receiving stolen property (§ 496, subd. (a)). The People
further alleged, with respect to the burglary count, that
defendant personally used a firearm (§ 12022.5, subd. (a)) and
that he personally inflicted great bodily injury (§ 12022.7, subd.
(a)).
A jury convicted defendant of second degree burglary and
receiving stolen property, but acquitted him of attempted murder
and found “not true” the additional allegations with respect to the
burglary count.
The trial court sentenced defendant to prison for 27 years
to life. On the burglary count, the court imposed 27 years to life,
comprised of (1) a third strike base sentence of 25 years to life
because defendant’s 1984 and 1987 robbery convictions
constituted strikes within the meaning of the “Three Strikes” law
(§§ 667, subds. (b)-(j) & 1170.12, subds. (a)-(d)); and (2) two
1 All further statutory references are to the Penal Code
unless otherwise indicated.

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additional one-year enhancements because those two prior
convictions also constituted prior prison terms (§ 667.5., subd.
(b)). The court stayed the receiving stolen property sentence
under section 654.
II. Petition for Resentencing
In September 2013, defendant filed a petition for recall of
this sentence pursuant to the Three Strikes Reform Act of 2012,
which was enacted by the voters as Proposition 36. The trial
court ordered a response from the People, entertained full
briefing, and in September 2015, held an evidentiary hearing at
which the court heard testimony from a defense expert and
admitted dozens of exhibits.
In November 2015, the trial court issued a 14-page written
ruling denying defendant’s petition. The court concluded that
defendant was eligible for resentencing under Proposition 36, but
found him unsuitable for resentencing because he “pos[ed] an
unreasonable risk of danger to public safety.”
In assessing defendant’s suitability, the court applied the
three factors Proposition 36 specifies are to inform the trial
court’s discretion in determining whether to resentence an
eligible defendant—namely, (1) the petitioner’s “criminal
conviction history,” (2) his “disciplinary record and record of
rehabilitation while incarcerated,” and (3) “[a]ny other evidence
the court . . . determines to be relevant.” (§ 1170.126, subd. (g).)
The court recounted defendant’s extensive criminal history.
As a juvenile, defendant committed the crimes of burglary (§ 459)
and receiving stolen property (§ 496) in April 1980; was sent to
the California Youth Authority in January 1981, after he violated
his probation; escaped from the California Youth Authority in
September 1981; and thereafter committed the crimes of burglary

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(§ 459) and receiving stolen property (§ 496) in November 1981,
doing so while carrying a loaded .38-caliber revolver. Defendant
was convicted of several more crimes as an adult. In January
1984, while on parole from the California Youth Authority,
defendant committed a strong-arm robbery (§ 211) using a
baseball bat. After release from the ensuing three-year prison
sentence and while still on parole, defendant in September 1986,
committed another strong-arm robbery (§ 211), this time holding
a gun to the victim’s head. After release from the resulting two-
year prison sentence and while still on parole, defendant in
August 1990, possessed a gun stolen from a police officer (§ 496).
While on probation for the stolen gun conviction and under pain
of a five-year suspended prison sentence, defendant in December
1991, fired 10 shots at a person and was subsequently convicted
of assault with a firearm (§ 245, subd. (a)(2)) and unlawfully
possessing a firearm (§ 12022, subd. (a)). Defendant was on
probation for the assault conviction under pain of a 16-year
prison sentence when he committed the crimes that are the
subject of this appeal. During the trial in this matter, moreover,
defendant pantomimed firing a gun by putting his finger to his
head while one of the victims was on the stand.
The court also reviewed defendant’s disciplinary history in
prison, as well as his rehabilitative efforts. In addition to a
number of minor infractions, defendant committed the following
violations: (1) he was disrespectful to prison staff in June 2001;
(2) he did not report to work in November 2002; (3) he
circumvented the jailhouse telephone procedures in October
2003; (4) he was late to work in November 2004; and (5) he
engaged in mutual combat in January 2007, when he bear
hugged (but did not punch) a fellow inmate. While in prison,

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defendant worked as a dining hall worker and a building porter.
Defendant also participated in a few courses soon after his
admission to prison—namely, an orientation course and a shop
and site safety course in April 1998, and a parenting class in
March 2001. After filing his Proposition 36 petition, defendant
completed a three-day basic workshop on alternatives to violence
in October 2013; a three-day advanced course on alternatives to
violence in February 2014; a one-hour course on hypertension in
January 2015; a course on life skills/anger management in
February 2015; and a course on life skills/stress management in
February 2015.
The trial court further considered evidence that
(1) defendant’s prison “classification score,” which evaluates the
level of security under which he should be incarcerated, started
at 59 (on a 100-point scale) and steadily dropped to 19 (which is
the lowest possible level for a prisoner with his sentence);
(2) defendant had been accepted into a post-release program to
assist with his transition from prison and had received an offer to
enroll in another post-release program; (3) defendant had non-
validated association with the Crip-Hoover 74th Street gang and,
in November 2009, possessed paraphernalia associated with the
Black Guerrilla Family prison gang, about which he stated, “I am
a Silver Back Gorilla,” and “I am a leader”; (4) defendant’s
relatives and others attested to his good character; and (5) an
expert employed by the defense submitted a written report and
testified to his opinion that defendant “does not possess an
unreasonable risk of dangerousness to public safety.”
The court acknowledged that defendant’s age (50, at the
time of the evidentiary hearing) put him in “a population that
presents a statistically lower risk of re-offending,” and that

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defendant’s criminal history was “remote in time.” However, the
court observed that defendant’s “crimes have escalated
significantly over time, becoming more violent and often
involving the use or possession of a weapon.” What is more, the
court noted that most of these crimes were committed while
defendant was on probation or parole, and that even a 16-year
suspended prison sentence did not deter defendant from
committing the underlying crimes. The court recognized that this
“history of recidivism alone [was] insufficient to support a finding
that he currently poses an unreasonable risk of danger to public
safety,” but found that other evidence “provide[d] a nexus
between [defendant’s] criminal past and his current
dangerousness”—namely, (1) a lack of rehabilitative
programming, (2) inadequate post-release plans, and (3) his gang
associations. The court noted that nearly all of defendant’s
rehabilitative programming occurred after defendant filed his
Proposition 36 petition, leaving the court with “little confidence”
that defendant would continue to “voluntarily participate in re-
entry programs once” he was released. The court further
observed that defendant had not obtained “any trade or
vocational skills” while in prison and that his acceptance into two
post-release programs could not overcome his lack of any skills
that “would permit him to earn an honest living” and “avoid re-
offending.” Based on the “totality of [this] evidence,” the court
concluded that defendant “would pose an unreasonable risk of
danger to public safety.”
Defendant filed a timely notice of appeal.
DISCUSSION
Until 2012, California’s Three Strikes law required a trial
court to impose a minimum sentence of 25 years to life in prison

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for a defendant convicted of a felony—no matter what the
felony—if he or she had previously been convicted of two “serious”
or “violent” felonies (so-called “strikes”). (Former §§ 667, subd.
(e)(2)(A) & 1170.12, subd. (c)(2)(A).) Proposition 36 changed this
law. Prospectively, the Proposition modifies the Three Strikes
law so that the minimum 25-years-to-life sentence may in most
cases only be imposed for a third or subsequent felony conviction
if that conviction is also a serious or violent felony. (§§ 667, subd.
(e)(2)(C) & 1170.12, subd. (c)(2)(C).) Retrospectively, the
Proposition entitles defendants previously sentenced on a
nonserious and nonviolent felony to a 25-years-to-life sentence
under the Three Strikes law to petition for resentencing on that
offense. (§ 1170.126, subd. (b).) Whether a defendant is entitled
to that resentencing (and thus to an earlier release) turns on
(1) whether he is eligible for relief and, if so, (2) whether he is
suitable for relief—that is, whether “resentencing the [defendant]
would pose an unreasonable risk of danger to public safety.”
(§ 1170.126, subd. (f).)
It is undisputed that defendant is eligible for Proposition 36
relief. Defendant argues that the trial court erred in denying his
Proposition 36 petition for resentencing because (1) the court
applied the incorrect legal standard for assessing his suitability
for relief, and (2) the court’s conclusion that he is not suitable is
not supported by substantial evidence. The first issue turns on
questions of statutory interpretation, which we review de novo.
(People v. Prunty (2015) 62 Cal.4th 59, 71.) The standard of
review we are to employ in evaluating a trial court’s finding that
a defendant is not suitable for resentencing under Proposition 36
is unsettled: Review could be for an abuse of discretion because
Proposition 36 entrusts the suitability determination to the trial

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court’s “discretion” (§ 1170.126, subd. (f)); review could be for
substantial evidence because the suitability determination rests
on factual findings; or review could be for “‘some evidence’”
because the prognostication of risk required by Proposition 36 is
“somewhat akin” to the denial of parole (People v. Superior Court
(Kaulick) (2013) 215 Cal.App.4th 1279, 1306, fn. 29 (Kaulick)).
We need not select a standard because, as discussed below,
defendant’s second claim lacks merit even if we employ the more
rigorous substantial evidence and abuse of discretion standards,
which call upon us to assess whether the evidence is sufficient for
a rational trier of fact to come to the same conclusion and
whether the trial court’s ruling was arbitrary and capricious.
(Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712;
People v. Zamudio (2008) 43 Cal.4th 327, 357; cf. In re Shaputis
(2011) 53 Cal.4th 192, 210 [under “some evidence” standard, “‘the
court’s review is limited to ascertaining whether there is some
evidence in the record that supports the . . . decision’”].)
I. The Standard for Assessing Suitability
Proposition 36 explicitly sets forth the factors that a trial
court is to consider “[i]n exercising its discretion” to “determine[]”
[whether] resentencing the [defendant] would pose an
unreasonable risk of danger to public safety”: (1) the defendant’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
defendant’s “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, subds. (f) & (g).)

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Defendant asserts that the trial court erred in applying
these factors because, in his view, the court should have applied
three different standards. We examine each in turn.
A. The Proposition 47 Standard
Two years after Proposition 36 was enacted, the voters in
November 2014, enacted Proposition 47. (§ 1170.18.) Proposition
47 redesignates as misdemeanors “certain drug- and theft-related
offenses” that were charged as felonies or charged as “wobblers”
(that is, offenses that are punishable as a felony until a court
reduces them to a misdemeanor) and ultimately sentenced as
felonies. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.)
Like Proposition 36, Proposition 47 has a retrospective
component that entitles persons sentenced to these low-level
felonies to petition for resentencing. (§ 1170.18, subds. (f) & (g).)
Also, like Proposition 36, Proposition 47 tasks a court with
determining whether the defendant seeking resentencing would
“pose an unreasonable risk of danger to public safety.”
(§ 1170.18, subd. (b).) Of critical importance here, Proposition 47
provides: “As used throughout this Code, ‘unreasonable risk of
danger to public safety’ means an unreasonable risk that the
[defendant] will commit” one of a small list of so-called “super
strike” felonies.2 (§ 1170.18, subd. (c), italics added.)
2 Those offenses include (1) a “sexually violent offense” (as
defined in Welf. & Inst. Code, § 6600), (2) sodomy, oral
copulation, or sexual penetration with a child under the age of 14
when the defendant is age 24 or older (in violation of §§ 286,
288a, or 289), (3) a lewd or lascivious act involving a child under
the age of 14 (in violation of § 288), (4) homicides and attempted
homicides (in violation of §§ 187-191.5), (5) soliciting murder (in
violation of § 653f), (6) assault with a machine gun on a peace
officer or firefighter (in violation of § 245, subd. (d)(3)),

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Defendant argues that Proposition 47’s narrower definition
of “unreasonable risk of danger to public safety,” which focuses on
the danger that the defendant would commit specific offenses
rather than his danger generally, applies to Proposition 36
because Proposition 47 says its definition applies “throughout
this Code” and Propositions 36 and 47 are both part of the Penal
Code. This plain language of Proposition 47 is certainly on
defendant’s side. However, every court to consider this
argument—save one—has rejected it and concluded that
Proposition 47’s use of the word “Code” (rather than “Act”) was a
drafting error. In reaching this conclusion, these courts reasoned
that applying Proposition 47’s narrower definition to Proposition
36 (1) is inconsistent with Proposition 47’s mandate not to
“diminish or abrogate the finality of judgments in any case not
falling within the purview of this act” (§ 1170.18, subd. (n));
(2) goes far beyond Proposition 47’s stated intent to give lower-
level criminals who have committed a “nonserious and nonviolent
property” offense a reduced sentence (Voter Information Guide,
Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst,
p. 35) because it allows for the reduction of sentences for
hardened criminals with at least two prior serious or violent
felonies; and (3) makes little sense because Proposition 47 was
enacted just two days before Proposition 36’s two-year window for
seeking relief closed. (People v. Buford (2016) 4 Cal.App.5th 886,
(7 possessing a weapon of mass destruction (in violation of
§ 11418, subd. (a)(1)), and (8) any other serious or violent felony
punishable by life imprisonment or death. (§ 667, subd.
(e)(2)(C)(iv).)

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903-913, review granted Jan. 11, 2017, S238790 (Buford).)3 Our
Supreme Court has agreed to review this question. (See Chaney,
supra, 231 Cal.App.4th 1391, review granted; Valencia, supra,
232 Cal.App.4th 514, review granted.) In the meantime, we are
persuaded by the majority position, and we will not revisit the
identical arguments defendant raises here and that have been
rejected by these decisions.
However, defendant raises one additional argument not
addressed above. He contends that In re Estrada (1965)
63 Cal.2d 740 (Estrada) mandates the retroactive application of
Proposition 47’s definition to Proposition 36. In our view,
Estrada is doubly irrelevant. To begin, Estrada erects a
“reasonable presumption that a legislative act mitigating the
3 Our Supreme Court, as explained below, has granted
review on this issue, and this grant of review has resulted in the
complete or partial depublication of every other published
decision on the issue. (Compare People v. Florez (2016) 245
Cal.App.4th 1176, 1190-1196 (2016), review granted June 8,
2016, S234168 [declining to apply Proposition 47’s definition to
Proposition 36]; People v. Myers (2016) 245 Cal.App.4th 794, 801-
804, review granted May 25, 2016, S233937 [same]; People v.
Sledge (2015) 235 Cal.App.4th 1191, 1212, review granted July 8,
2015, S226449 [same]; People v. Guzman (2015) 235 Cal.App.4th
847, 853-857, review granted June 17, 2015, S226410 [same];
People v. Davis (2015) 234 Cal.App.4th 1001, 1006, review
granted June 10, 2015, S225603 [same]; People v. Chaney (2014)
231 Cal.App.4th 1391, review granted Feb. 18, 2015, S223676
(Chaney) [same]; People v. Valencia (2014) 232 Cal.App.4th 514,
review granted Feb. 18, 2015, S223825 (Valencia) [same] with
People v. Cordova (2016) 248 Cal.App.4th 543, 547-548, review
granted Aug. 31, 2016, S236179 [applying Proposition 47’s
definition to Proposition 36].)

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punishment for a particular criminal offense is intended to apply
to all nonfinal judgments.” (People v. Brown (2012) 54 Cal.4th
314, 324; Estrada, at p. 744.) Although the resentencing
defendant seeks under Proposition 36 ostensibly “mitigat[es] . . .
punishment,” Estrada applies only to “nonfinal” judgments, and
defendant’s 1995 third strike conviction and sentence became
final a long time ago when his ability for direct review of that
conviction and sentence expired. (People v. Smith (2015) 234
Cal.App.4th 1460, 1464-1465 [conviction becomes final when time
to appeal and file a petition for writ of certiorari expires].)
Further, Estrada speaks to whether a newly enacted provision
that applies to a conviction or sentence is to be applied
retroactively; it does not speak to the precursor question whether
the newly enacted provision applies in the first place. We have
before us that precursor question: Does Proposition 47’s
definition apply to Proposition 36 in the first place? Estrada says
nothing on that question.
B. The “Unreasonable Risk” Standard
The suitability inquiry under Proposition 36 looks to
whether the defendant “pose[s] an unreasonable risk of danger to
public safety.” (§ 1170.126, subd. (f), italics added.) Defendant
seems to suggest that this requires something more than just a
“risk of danger to public safety,” and points us to several out-of-
state cases defining “unreasonable risk.” We reject this
argument. As an initial matter, the distinction defendant
appears to be drawing between “unreasonable risk” required by
Proposition 36 and “risk” required in parole cases is not as stark
as defendant portrays. (E.g., In re Moses (2010) 182 Cal.App.4th
1279, 1303-1304 (Moses) [treating “risk” and “unreasonable risk”
interchangeably in a parole case].) Moreover, the out-of-state

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cases defendant cites all define “unreasonable risk” for purposes
of tort law. (E.g., Wagoner v. Waterslide, Inc. (Utah Ct.App.
1987) 744 P.2d 1012, 1013; Dick’s Sporting Goods, Inc. v. Webb
(Ky. 2013) 413 S.W.3d 891, 899 & fn. 26.) We decline to displace
the standards for assessing “unreasonable risk” included in
Proposition 36 with a standard used by other states’ courts in tort
actions.
C. The Risk of Violent Crimes Standard
Relatedly, defendant seems to argue that Proposition 36’s
requirement that the defendant not “pose an unreasonable risk of
danger to public safety” mandates a showing that the defendant
is likely to commit violent crimes. (§ 1170.126, subd. (f), italics
added.) He cites no authority for the broad proposition that only
those persons who commit violent crimes present a risk of danger
to public safety.
II. Substantiality of Evidence Supporting Suitability
Finding
The People bear the burden of proving that a defendant
poses an “unreasonable risk of danger to public safety” by a
preponderance of the evidence. (Kaulick, supra, 215 Cal.App.4th
at p. 1305; Buford, supra, 4 Cal.App.5th at pp. 895-898, review
granted.)4 The trial court concluded that the People carried this
4 At least one court has held that the People must prove a
defendant’s lack of suitability beyond a reasonable doubt. (People
v. Arevalo (2016) 244 Cal.App.4th 836, 842.) Every subsequent
decision has disagreed with Arevalo. (People v. Frierson (2016)
1 Cal.App.5th 788, 793-794, review granted Oct. 19, 2016,
S236728; People v. Newman (2016) 2 Cal.App.5th 718, 730-732,
review granted Nov. 22, 2016, S237491; Buford, supra, 4
Cal.App.5th at pp. 895-898, review granted.) The issue is now
before our Supreme Court in Frierson and Newman. The issue is

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burden after considering the evidence and testimony submitted,
filtering them through the three factors set forth in Proposition
36, and ultimately concluding that the totality of that evidence
indicated that defendant currently posed an unreasonable risk of
danger to public safety.
Defendant raises a number of challenges to the trial court’s
analysis. First, he argues that the court erred in rejecting his
expert’s opinion that he did not pose an unreasonable risk of
danger to public safety, particularly when there was no contrary
expert opinion. There was no error because the court, as the trier
of fact, was free to disregard that opinion in light of the other
evidence presented. (People v. Brown (2014) 59 Cal.4th 86, 101.)
Second, defendant asserts that the trial court erred by
making a “rote recitation” of his prior criminal history and in
failing to connect his prior criminal history to his current risk of
danger. (Moses, supra, 182 Cal.App.4th at pp. 1303-1304
[prohibiting the same in making parole decisions].) However, the
court did no such thing: The court recognized that the proper
focus was on whether defendant “currently poses an unreasonable
risk” and noted that defendant’s “history of recidivism alone” was
not enough to prove risk, but concluded that other evidence
provided the requisite “nexus” linking his prior crimes to his
current risk—namely, (1) a lack of rehabilitative programming,
(2) inadequate post-release plans, and (3) his gang associations.
Third, defendant asserts that the trial court erred when it
stated that he had made no plans for reintegration into the
community if he were released. Again, the court did no such
thing. The court recognized that defendant had signed up with
not relevant to this case because defendant does not dispute the
applicability of the preponderance of the evidence standard.

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two post-release programs, but found this insufficient to ensure
he would not revert to a life of crime because he had developed no
useful “trade or vocational skills” while incarcerated.
Fourth, defendant contends that the trial court erred in
placing weight on the fact that he undertook nearly all of his
rehabilitative efforts after filing his Proposition 36 petition; such
efforts, he contends, are relevant no matter when they occur.
However, the court did not ignore defendant’s efforts. It elected
to accord them less weight because their timing indicated that
defendant’s sole motivation for rehabilitation was to obtain
release, a motivation he would no longer have if released into the
community. A defendant’s lack of motivation to pursue re-entry
efforts once back in the community is a relevant consideration.
Lastly, defendant asserts that the trial court should have
discounted his entire criminal history due to its age. The court
properly recognized that defendant’s crimes were “remote in
time,” but went on to note that defendant had reverted to
committing crimes whenever he was released, and that being on
parole or probation had not deterred that criminal behavior. The
court was also undoubtedly aware that the gap in defendant’s
commission of any crime after 1995 was due in part to his
incarceration during that entire period.
At bottom, defendant seems to contend that the trial court
did not properly weigh the evidence presented. But it is not our
place to reweigh the evidence. (People v. Covarrubias (2016)
1 Cal.5th 838, 890.) The evidence presented was sufficient; the
trial court’s analysis was reasoned and thorough; and we
accordingly have no basis to disturb its ruling.

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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.*
GOODMAN
* Retired judge of the Los Angeles Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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