P. v. Douglas

SEE CONCURRING OPINION
Filed 5/19/17 P. v. Douglas CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES EARL DOUGLAS,
Defendant and Appellant.
F069667
(Super. Ct. No. SC065430A)
OPINION
APPEAL from an order of the Superior Court of Kern County. Michael G. Bush,
Judge.
Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
James Douglas appeals from the denial of a petition for recall of sentence and
resentencing under the Three Strikes Reform Act of 2012, also known as Proposition 36.
Douglas claims the trial court erred by finding him unsuitable for relief on grounds that

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his release from prison would pose an unreasonable risk of danger to public safety. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1992, at the age of 21, Douglas was convicted of three counts of first degree
robbery with personal use of a firearm (Pen. Code,1 §§ 211, 212.5, subd. (a), 12022.5,
subd. (a)). These convictions resulted in a six-year prison sentence, which he began
serving in approximately February 1993. California’s Three Strikes law was enacted the
following year, whereupon individuals convicted of any felony offense after having
suffered two prior convictions for serious or violent felonies were subject to a mandatory
minimum prison term of 25 years to life. (Stats. 1994, ch. 12, § 1, p. 71, codified at
former § 667, subds. (b)–(i); former § 1170.12, subd. (c)(2), added by Prop. 184, as
approved by voters, Gen. Elec. (Nov. 8, 1994).)
In 1995, a correctional officer found Douglas in possession of two-tenths of a
gram of marijuana. He was prosecuted and convicted of violating section 4573.6
(possession of a controlled substance in prison) and sentenced to 25 years to life under
the Three Strikes law. In 1998, Douglas was found guilty of violating section 4502 based
on the discovery of a weapon inside of his prison cell and was sentenced to an additional
two-year term. He is not eligible for parole until 2025.
Proposition 36 was passed into law by the electorate in November 2012. In
August 2013, Douglas petitioned the Kern County Superior Court for relief pursuant to
section 1170.126, the statute that governs resentencing under Proposition 36. The matter
was heard and ruled upon in June 2014. Evidence submitted by the parties in support of
and opposition to the petition, including Douglas’s own testimony, revealed the following
information.
1All further statutory references are to the Penal Code.

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Douglas sustained two juvenile adjudications for vehicle taking and continued to
violate the law in his early adulthood. He suffered a vehicle taking conviction around the
time of his nineteenth birthday and was convicted of threatening a witness (§ 140) at
age 20. A year later, he pleaded guilty to a charge of assault with a deadly weapon
(§ 245, subd. (a)(1)) and was on probation when he committed the armed robbery
offenses that landed him in prison.
While incarcerated, Douglas ascended the organizational hierarchy of a prison
gang known as the Black Guerilla Family. He testified to achieving the status of
“captain,” which made him one of the highest ranking members of the gang. Douglas
also accumulated a large number of disciplinary infractions, particularly during the years
1996 through 2002, as memorialized in California Department of Corrections and
Rehabilitation form 115 (CDC 115) rules violation reports. He was the subject of at least
twenty-two CDC 115 investigations within that time period and was found to have
committed battery on an inmate with serious injury; battery on an inmate without serious
injury (x 3); battery on a peace officer; possession or manufacture of a deadly weapon;
possession of a weapon; possession of dangerous contraband; delaying a peace officer
(x 5); threatening a staff member; and engaging in conduct that could lead to violence.
Douglas’s behavior improved significantly in the eight-year period spanning 2003
to 2011. He was cited for only two CDC 115 violations during that stretch of time:
refusing to obey an order in August 2006 and destruction of state property valued at less
than $50 in December 2008. In approximately May 2008, Douglas disassociated from
the Black Guerilla Family and began the process of “debriefing,” i.e., disclosing to prison
officials insider information regarding the gang’s operations and its members. He later
joined Alcoholics Anonymous and Narcotics Anonymous, completed a 13-week course
on anger management, and enrolled in general education classes. By 2011, Douglas had
obtained a General Educational Development (GED) certificate and was officially
validated by the CDC as a “dropout,” i.e., a former gang member.

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In 2012, Douglas continued to show positive development by involving himself in
the Education, Diversion, and Goals to Endeavor (EDGE) youth diversion program for
at-risk children and minors. However, he also incurred four additional CDC 115
violations. He was found guilty of fighting with an inmate in April 2012 and again in
September 2012, though he later described the incidents as involving “mutual combat”
and denied being the initial aggressor on either occasion. His other violations were for
failing to report to a work assignment. In January 2013, Douglas was again cited for
failing/refusing to report to a work assignment.
The trial court denied the petition for resentencing in a written decision filed on
June 23, 2014. The order states, in pertinent part, “The court finds that the People have
met their burden that the Petitioner would pose an unreasonable risk of danger to the
public safety. The court has considered all aspects of the information and evidence
presented, including but not limited to Petitioner’s in-custody behavior, which supports a
denial of the petition, notwithstanding that the Petitioner debriefed from the Black Gorilla
[sic] Family about four years ago.” Douglas filed a timely notice of appeal.
DISCUSSION
Standard of Review
Enacted as part of Proposition 36, section 1170.126 allows a defendant who was
previously sentenced to life in prison for a nonserious and nonviolent felony under the
Three Strikes law to file a petition for resentencing on the predicate conviction.
(§ 1170.126, subd. (b).) The petitioner has the initial burden to demonstrate eligibility for
relief, which is objectively determined by the nature of his or her third strike offense and
other prior felony convictions. (Id., subd. (e); see People v. Bradford (2014)
227 Cal.App.4th 1322, 1336 [“The eligibility determination … is not a discretionary
determination by the trial court.”].) Upon a showing of eligibility, “the petitioner shall be
resentenced [as a second strike offender] unless the court, in its discretion, determines

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that resentencing the petitioner would pose an unreasonable risk of danger to public
safety.” (§ 1170.126, subd. (f).)
“[T]he People have the burden of proving, by a preponderance of the evidence,
facts on which a finding that resentencing a petitioner would pose an unreasonable risk of
danger to public safety reasonably can be based. Those facts are reviewed for substantial
evidence.” (People v. Buford (2016) 4 Cal.App.5th 886, 903-913, review granted
Jan. 11, 2017, S238790 (Buford).) However, “a trial court need not determine, by a
preponderance of the evidence, that resentencing a petitioner would pose an unreasonable
risk of danger to public safety…. Nor is the court’s ultimate determination subject to
substantial evidence review. Rather, its finding will be upheld if it does not constitute an
abuse of discretion, i.e., if it falls within ‘the bounds of reason, all of the circumstances
being considered.’ ” (Id. at p. 901.)
Finding of Unreasonable Risk of Danger to Public Safety
Preliminarily, we address Douglas’s contention that the words “unreasonable risk
of danger to public safety” as used in section 1170.126, subdivision (f) must be
interpreted pursuant to section 1170.18, subdivision (c), which is a provision enacted by
the Safe Neighborhoods and Schools Act (Proposition 47) that defines the exact same
phrase as meaning “an unreasonable risk that the petitioner will commit a new violent
felony” described in section 667, subdivision (e)(2)(C)(iv). The enumerated offenses,
colloquially known as “super strikes,” include rape, sexual abuse of children and minors,
various homicide offenses, possessing a weapon of mass destruction, and any other
serious or violent felony punishable by life imprisonment or death. (§ 667,
subd. (e)(2)(C)(iv)(I-VIII); People v. Jefferson (2016) 1 Cal.App.5th 235, 242.)
Douglas asserts his statutory interpretation claim to preserve it for further review,
acknowledging that the majority of appellate districts, including ours, have rejected the
position he is advocating. (E.g., Buford, supra, 4 Cal.App.5th at pp. 910-911 [Fifth
District]; People v. Myers (2016) 245 Cal.App.4th 794, 801-805 [Third District], review

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granted May 25, 2016, S233937; People v. Guzman (2015) 235 Cal.App.4th 847, 853-
857 [Fourth District], review granted June 17, 2015, S226410; People v. Davis (2015)
234 Cal.App.4th 1001, 1021-1026 [First District], review granted June 10, 2015,
S225603.) The issue of whether Proposition 47’s definition of “unreasonable risk of
danger to public safety” applies in Proposition 36 proceedings is pending before the
California Supreme Court in People v. Valencia (2014) 232 Cal.App.4th 514, review
granted February 18, 2015, S223825. Under the current prevailing view, trial courts have
broad discretion to determine whether an otherwise eligible petitioner is suitable for
resentencing under Proposition 36. We will follow our District’s precedent in that
regard.
In exercising its discretion to grant or deny a Proposition 36 petition, the trial 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 … determines to
be relevant….” (§ 1170.126, subd. (g).) The assessment must focus on whether the
petitioner currently poses an unreasonable risk of danger to public safety. (People v.
Esparza (2015) 242 Cal.App.4th 726, 746 (Esparza).) As with parole suitability
determinations, “the passage of time … and the attendant changes in a prisoner’s
maturity, understanding, and mental state … [are] highly probative to the determination
of current dangerousness.” (In re Lawrence (2008) 44 Cal.4th 1181, 1219-1220
(Lawrence) [discussing standard applicable in parole proceedings]; Esparza, supra,
242 Cal.App.4th at p. 746, citing Lawrence at p. 1214 and In re Shaputis (2008)
44 Cal.4th 1241, 1254-1255.)
Since the order appealed from is presumed correct, we must view the record in the
light most favorable to the trial court’s ruling. (People v. Carpenter (1999) 21 Cal.4th
1016, 1046.) “The area of discretion is that in which reasonable minds might differ.”

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(People v. Johnson (1974) 38 Cal.App.3d 228, 248.) Reasonable minds could certainly
differ with respect to the trial court’s conclusion in this case. The court was evidently
unmoved by Douglas’s rehabilitative achievements and stated desire to pursue
community service and youth outreach endeavors upon release from prison. What
appears to have tipped the scales for the judge below is Douglas’s two CDC 115
violations for fighting in 2012, which arguably suggested a continuing propensity for
violence despite commendable progress in other areas of his life. In light of the current
standard for discretionary assessments of dangerousness under section 1170.126, we
cannot say the trial court’s ruling is “so irrational or arbitrary that no reasonable person
could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Disclosure of Douglas’s Mental Health Records
During a hearing conducted on October 3, 2013, the trial court noted its receipt of
files containing Douglas’s mental health records from prison. When the deputy district
attorney confirmed that she had subpoenaed those records, the trial court said, “As my
standard practice, I’m going to turn the mental health records over to the People over the
defense objection.” Three months later, the People filed an opposition to the petition,
which included approximately 450 pages of exhibits. Exhibit “SS” to the opposition is a
single-page excerpt from a collection of “Mental Health Interdisciplinary Progress Notes”
and contains handwritten notes prepared by a psychologist on or about February 4, 1997.
The author of the document references Douglas’s “past [history] of assaultiveness” and
notes: “manipulative statements made, ‘I might snap’ and ‘I might go off on my cellie.’ ”
The author had a suspicion that Douglas made those statements in hopes of obtaining
prescription drugs or “special housing” accommodations. The document also contains
the acronym “ASPD,” which the deputy district attorney interpreted as meaning “anti-
social personality disorder.”
During the June 11, 2014 hearing on the petition for resentencing, Douglas was
asked on cross-examination if he had any “mental health issues.” He replied, “I struggle

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with depression like people would doing time and stuff and stress here and there, but
that’s about it.” The deputy district attorney later asked, “What if I told you I had a
record that said anti-social personality disorder?” Douglas responded, “I seen something
about that. That’s because when I was housed in the SHU, I shut down. When they had
me isolated, I’m the only one in the pod and I’m a member of a gang and they got me in
with nothing but Mafia members and Aryan Brotherhood. I didn’t -- they didn’t
associate with me. … I don’t expect nothing from them and they didn’t expect nothing
from me. I think that’s the time where they diagnosed me with anti-social disorder.”
On appeal, Douglas contends that the trial court violated his constitutional right to
privacy under state and federal law by providing his mental health records to the People
over his attorney’s objection. We agree with the People that Douglas put his mental
health at issue by petitioning for relief under Proposition 36, and thus find no grounds for
reversal. As previously discussed, section 1170.126 authorizes the trial court to consider
any evidence it determines “to be relevant in deciding whether a new sentence would
result in an unreasonable risk of danger to public safety.” (Id., subd. (g)(3).) “While
normally an inmate would have a medical privilege not to have psychological records
disclosed, likely the privilege would be deemed waived by the filing of a petition under
section 1170.126. Certainly the psychological history of an inmate can have a direct
bearing on the issue of dangerousness.”2
2 Couzens & Bigelow, The Amendment of the Three Strikes Sentencing Law
(May 2016) § IV.C.4., p. 74 <http://www.courts.ca.gov/documents/Three-Strikes-
Amendment-Couzens-Bigelow.pdf> [as of May 19, 2017].

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DISPOSITION
The order denying resentencing pursuant to section 1170.126 is affirmed.
_____________________
GOMES, Acting P.J.
I CONCUR:
SMITH, J.

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PEÑA, J., Concurring
In People v. Buford (2016) 4 Cal.App.5th 886 (Buford), this court unanimously
agreed the definition of dangerousness, if applicable to Proposition 36 (the Three Strikes
Reform Act of 2012) cases, does not apply retroactively. (Buford, at p. 913, fn. 28; id. at
pp. 918-920 (conc. opn. of Peña, J.).) Since the newly enacted definition of
dangerousness does not apply retroactively to this case, and because defendant James
Earl Douglas has failed to show the trial court abused its discretion in denying his
petition for resentencing, the judgment requires affirmance.
I write separately because it appears the court in this case is rejecting Douglas’s
contention on the ground Penal Code section 1170.18, subdivision (c) does not mean
what it says: “As used throughout this Code, ‘unreasonable risk of danger to public
safety’ means an unreasonable risk that the petitioner will commit a new violent felony
within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e)
of section 667.” For the reasons stated in my concurring opinion in Buford, I cannot
endorse a view that does violence to the plain meaning rule, unless such a meaning is
repugnant to the general purview of the act, or for some other compelling reason.
(People v. Leal (2004) 33 Cal.4th 999, 1007-1008.) The majority in Buford did not
attempt to show the plain meaning of the language used was repugnant to the act.
Further, it did not even offer or suggest a compelling reason to ignore the rule.
In light of this, although I concur in the judgment, I cannot sign the opinion of my
colleagues until further guidance from our Supreme Court.
___________________
Peña, J.

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