1 Filed 10/29/14 P. v. Chaney CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Amador)

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THE PEOPLE, Plaintiff and Respondent,

v. CLIFFORD PAUL CHANEY, Defendant and Appellant. C073949 (Super. Ct. No. 05CR08104)

Defendant Clifford Paul Chaney has eight strikes: six robberies with arming enhancements and two first degree burglarie s. These eight strikes arose from two separate incidents in which defendant an d two others robbed the same chemical laboratory and imprisoned 20 employees. Defendant’s current offense for which he was sentenced to prison for 25 years to life in 2005 was driving under the influence of alcohol (DUI) with prior convictions for three other DUI’s, two of which resulted in injuries. When he committed the current2 DUI, he was on two grants of probation. Following his current DUI conviction, defendant explained he “drinks too much” and is “emotionally weak.” In this appeal, defendant challenges the trial court’ s denial of his petition for resentencing under the Three Strikes Reform Act of 2012 (the Act). Under the Act, “prisoners currently serving sentences of 25 years to life for a third felony conviction which was not a serious or violent felony may seek court review of their indeterminate sentences and, under certain circumstances, ob tain resentencing as if they had only one prior serious or violent felony conviction.” ( People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1286 ( Kaulick ).) If a defendant such as the one here satisfies certain criteria, “the petitioner shall be resenten ced . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unr easonable risk of danger to public safety.” (Pen. Code, 1 § 1170.126, subd. (f).) The court based the denial on its findi ng that “[t]he [c]ourt cannot in good conscience say that you do not pose an unreasonabl e risk to the public safety if released. The [c]ourt is not convinced that you would not re-engage in alcohol use and place the public at risk.” The court cited defendant’s numerous DUI’s that caused injuries, stating drinking was the root of his criminality. On appeal, defendant cont ends: (1) the court erred by allowing his petition to be heard by a different judge than the one who or iginally sentenced him; (2) the court erred by not obtaining a supplemental probation repor t; and (3) the court abused its discretion in denying the petition. We hold: (1) defendant forfeited his right to have the origin al sentencing judge hear his petition; (2) no supplemental proba tion report was required; and (3) the court acted well within its discretion in denying the petition.

1 All further section references are to the Penal Code.3 DISCUSSION I Defendant Forfeited His Right To Have The Original Sentenci ng Judge Consider His Petition “Penal Code section 1170. 126, subdivision (b) specifies that a prisoner petitioning for resentencing must file the petition ‘before the trial court that entered the judgment of conviction in his or her case.’ The reference to ‘the trial c ourt that entered the judgment’ is clearly a reference to the tr ial judge. This is confirmed by a later subdivision, which uses the terms ‘judge’ and ‘court’ interchang eably, when identifying the judicial officer who must rule on the petition. (Pen. Code, § 1170.126, subd. (j).) Penal Code section 1170.126, subdivision (j) provide s, ‘If the court that originally sentenced the defendant is not available to resentence the defendant, th e presiding judge shall designate another judge to rule on the defendant’s petition.’ [¶] It is th erefore clear that the initial sentencing judge shall rule on the prisoner’s petition.” ( Kaulick , supra , 215 Cal.App.4th at pp. 1300-1301.) Defendant contends the c ourt erred by allowing his petition to be heard by a different judge than the one who originally se ntenced him to his three strikes’ sentence. Defendant has forfeited this contention by not objecting in the trial court. In a similar context, our court has held that where a de fendant does not object to sentencing by a judge other than the one who accepted his pl ea, the defendant has forfeited his right to later contend he was entitled to have th e original judge sentence him. ( People v. Serrato (1988) 201 Cal.App.3d 761, 764-765 [defendant waives his right to have the same judge who accepted the plea also sentence him when he fails to object to a different judge as the sentencing judge in the trial court]; In re Sheena K. (2007) 40 Cal.4th 875, 880, fn. 1 [“correct term is ‘forfeiture’ rather than ‘waiver’ ”].)4 II The Trial Court Did Not Ne ed To Obtain A Supplemental Probation Report Defendant contends the c ourt erred in failing to obta in a supplemental probation report before denying his petition. He acknowle dges that this subject “was not raised by the prosecutor, defense counsel, or the court at any time.” The People contend defendant forfeite d any right to such a report, citing People v. Johnson (1999) 70 Cal.App.4th 1429. In Johnson , the Fourth District Court of Appeal held that a “defendant has waived his right to object to the absence of a supplemental [probation] report by failing to do so in the trial court.” ( Johnson , at p. 1433.) A later case by this court has held that when a supplemental probation report is required , an appellate court cannot infer forfeitu re because there must be a written stipulation of waiver of the supplemental repor t or a stipulation orally in open court. ( People v. Dobbins (2005) 127 Cal.App.4th 176, 182.) This court relied on section 1203, subdivision (b)(4), which provide s as follows: “The preparation of the report or the consideration of the report by th e court may be waived only by a written stipulation of the prosecuting and defense attorneys that is filed with the court or an oral stipulation in open court that is made and entered upon the minut es of the court, except that a waiver shall not be allowed unless the court consents thereto.” Here, because the preparation of a suppl emental probation report was not required, there did not have to be a written or oral sti pulation of waiver. Calif ornia Rules of Court, rule 4.411(c) provides: “The court shall order a supplemental pr obation officer’s report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared.” The hearing here was not a “sentencing proceeding[].” “There are . . . three . . . determinations at issue under Penal Co de section 1170.126, subdivision (f): First, the court must determine whether th e prisoner is eligible for resentencing; second, the court must dete rmine whether resentencing would pose an unreasonable risk of danger to public safety; and third, if the pris oner is eligible and5 resentencing would not pose an unreasonable risk of danger, the court must actually resentence the prisoner.” ( Kaulick , supra , 215 Cal.App.4th at p. 1299.) The trial court found that defendant’s re lease would pose an unreasonable risk of danger to public safety, so it never reached th e third step of resentencing him. Thus, the court was not required to obtain a supple mental probation report, and the rule of forfeiture in Johnson applies here. ( People v. Johnson , supra , 70 Cal.App.4th at p. 1433; In re Sheena K. , supra , 40 Cal.4th at p. 880, fn. 1 [“correct term is ‘forfeitu re’ rather than ‘waiver’ ”].) III The Court Was Well Within Its Disc retion To Deny Defendant’s Petition Defendant contends the court abused its discretion in denying his petition. Included in this contention are defendant’s arguments that: (a) the court shifted the burden of proof to him and did not make the re quired finding; (b) there was no substantial evidence that resentencing him posed an unreasona ble risk of danger to public safety; and (c) the court failed to consider conditions of re sentencing to reduce his risk upon release. A The Court Did Not Shift The Burden Of Proof To Defendant; The Court Made The Required Finding According to defendant, the court shifte d the burden of proof to him and did not make the required finding to deny the petition. The reco rd shows otherwise on both points. In the People’s opposition to defendant’s petition, th e People stated that once defendant showed he wa s eligible for resentencing, “the burden likely shifts to the People to demonstrate that he poses an unreasonable risk of danger to public safety if released.” Consistent with this position (and fixing the standard of proof at preponderance of evidence), at the hearing that took place after defendant established he was eligible for resentencing, the court began by asking the People to present evidence and their6 witnesses. At the conclusion of their eviden ce and witnesses, the People argued to the court that defendant “poses an unreasonable risk of danger to the public if he’s released” and then the “People rest[ed].” Thus, contrary to defendant’s contention, the court placed the burden of proof on the People. 2 As to defendant’s second argument that the court did not make the required finding, again, the record shows otherwise. Before the court announced its ruling, the court stated, “[the court] has to decide, ba sed upon your history, whether you pose an unreasonable risk to the public .” When making that finding, the court stated, “[t]he [c]ourt cannot in good conscience say that yo u do not pose an unreasonable risk to the

2 Defendant also argues (with a limited disc ussion) about the standard of proof. As noted, the court stated the standard was prep onderance of evidence that resentencing defendant would pose an unr easonable risk to public safe ty. Defendant argues the standard was proof beyond a reasonable doubt. Not so. As explained in Kaulick , “[t]his argument presumes that a finding of dangerousness is a factor which justifies enhancing a defendant’s sentence beyond a statutorily presumed second strike sentence” and “that, once the trial court concluded that he was eligible for resentencing under the Act, he was subject only to a second strike sentence, unless the prosecution established dangerousness.” ( Kaulick , supra , 215 Cal.App.4th at pp. 1301, 1302.) “The statutory language, however, is not amenable to [the defendant]’s interpretation.” ( Kaulick , supra , 215 Cal.App.4th at p. 1302.) “The maximum sentence to which [the defendant] . . . is subject was . . . the indeterm inate life term to which he was originally sentenced. . . . As such, a court’s discreti onary decision to decline to modify the sentence in his favor can be base d on any otherwise appropriate factor (i.e., dangerousness), and such factor need not be established by proof beyond a reasonable doubt to a jury.” ( Id. at p. 1303.) We also agree with Kaulick (and the trial court) that “t he proper standard of proof is preponderance of the eviden ce. Evidence Code section 11 5 provides that, ‘[e]xcept as otherwise provided by law, the burden of proof requires proo f by a preponderance of the evidence.’ There is no statute or case aut hority providing for a greater burden, and [the defendant] has not persua ded us that any greater burden is necessary.” ( Kaulick , supra , 215 Cal.App.4th at p. 1305, fn. omitted.)7 public safety if released. The [c]ourt is not convinced that you would not re-engage in alcohol use and place the public at risk.” This finding was what the Act required. Under the Act, defendant “shall be resentenced . . . unless the court, in its di scretion, determines that resentencing the petitioner would pose an unreasona ble risk of danger to public safety.” (§ 1170.126, subd. (f).) Here, the court found that defend ant posed an unreasonable risk to public safety if released because he likely would ree ngage in alcohol use a nd place the public at risk, which was exactly the finding the court was required to make. We turn to the evidence supporting that finding next. B The Court Did Not Abuse Its Discretion In Finding That Defendant’s Resentencing Posed An Unreasonable Risk Of Danger To Public Safety Defendant contends there was no substantial evidence that resentencing him posed an unreasonable risk of danger to public safety. We review a trial court’s finding here for abuse of discretion, under which it is not enou gh for a defendant to show that reasonable people might disagree about the court’s sent encing decision but rather, the defendant must show, for example, the court was unaware of its discretion or acted arbitrarily. (See People v. Carmony (2004) 33 Cal.4th 367, 376-378 [m aking these observations in terms of a trial court’s exercise of discretion in determining whether to strike a defendant’s strike].) Defendant’s argument is based on his belie f that the court should not have found that his prior alcohol abuse made him a current danger to public safety. The problem with defendant’s argument is a rational ba sis existed for the court to believe that defendant’s prior alcohol abuse and curre nt state was predictive of his current dangerousness. Although defendant points ou t that there was no evidence he had used alcohol for the last eight years, there was also no evidence presented that defendant8 completed any alcohol abuse programs or otherwise rehabilitated himself from his alcoholism. And, as the court noted, al coholism was the root of his criminality. When defendant was released from prison following his sentence for the laboratory robberies in April 1995, only four months later, in Au gust 1995, defendant drove his car under the influence of alcohol, colliding head-on with another car, injuring three people in that car. He was sentenced to prison for four years. Within a few years of his release from prison, in Oc tober 2002, he again drove hi s car under the influence of alcohol into the wall of a restaurant causing th e partial collapse of a wall, injuries to the restaurant cook, and destruction of property . Two years later, in March 2004, he drove his car under the influence of alcohol yet agai n. Despite spending tim e in jail and having his license revoked, in June 2005, only months after being released on his last DUI and while still on probation with a revoked licen se, defendant committed his current DUI offense, which landed him in prison for 25 year s to life. Thus, defe ndant’s pattern is a return to alcoholism when fr ee in society with dangerous consequences. Defendant has not shown the court’s exercise of its discretion was an abuse. C The Court Did Not Have To Consid er Conditions Of Resentencing,

And There Was No Error In The Court’s Failure To Do So Here Defendant contends the court abused its discretion by failing to consider conditions of resentencing to reduce his risk u pon release. There was no abuse. There is no authority that requires the court to consid er conditions of resentencing to reduce a defendant’s risk upon release under the Act. Moreover, defendant has demonstrated his failure to comply with superv ised release, given that he was on two grants of probation when he committed the current DUI offense.9 DISPOSITION The judgment (the court’s order denying defendant’s petition for resentencing) is affirmed.

ROBIE , J.

We concur:

BLEASE , Acting P. J.

MAURO , J.