Filed 4/21/16 P. v. Baker 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. BRUCE OWEN BAKER, Defendant and Appellant. F070902
(Super. Ct. No. SC077324B)



### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.
J. Peter Axelrod , under appoi ntment 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, Louis M. Vasquez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.

- ooOoo

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* Before Levy, Acting P.J., Kane, J., and Smith, J.2

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In 1999, Bruce Owen Baker was convicted of three counts of selling hero in and
was sentenced to a third

- strike sentenc e of 80 years to life. In 2014, he sought relief from this sentence pursuant to the p rovisions of Penal Code section 1170.126. 1 The trial co urt denied Baker’s petition. Baker argues the trial court erred because it misconstrued the record, and there is insufficient evidence to support the trial court’s conclusion that he posed an unreasonable risk of danger to public safety. We disagree and affirm the order.

FACTS AND PROCEDURAL HISTORY In 2014, Baker filed a petition for recall of h is sentence pursuant to
section 1170.126. The petition alleged that in 1999, Baker was convicted of three counts of selling heroin in violation of Health and Safety Code section 11352, and one count of conspiracy to sell heroin in violation of section 182, subdivision (a)(1). In additi on, the following enhancements were found true: (1) two prior convictions that constituted strikes within the meaning of se ction 667, subdivisions (b)

- (i); (2) a prior conviction for selling a controlled substance within the meaning of Health and Safety C ode
section 11370.2, subdivision (a); and (3) two prior prison sentence s within the meaning
of section 667.5, subdivision (b). The prior

- strike convictions were a 1983 conviction for voluntary manslaughter ( § 192.1) and a 1993 conviction for first degree burglary (§ 459). Baker was sentenced to a determinate sentence of five years and an indeterminate term of 75 years to life. Fin ally, the petition alleged that, because of the Three Strikes Reform Act of 2012, if convicted of the same crimes and enhancem ents today, Baker would face a maximum sentence of 12 years eight months in prison.
The d istrict a ttorney’s office opp osed the petition, arguing that, while Baker may be eligible for resentencing, the petition should be denied because Baker posed an

unr easonable risk of danger to public safety.

1 Subsequent statutory references are to the Penal Code unless stated otherwise.3

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The trial court denied the petition finding release of Baker would result in an unreasonable risk of danger to public safety.
DISCUSSION
Baker filed his motion pursuant to section 1170.126. This section des cribes those eligible for resentencing as those serving an indeterminate third

- strike sent ence; also, (1) the inmate is not serving a sentence for a crime that is listed as a serious or violent felony (§§ 667.5, subd. (c) & 1170.12, subd. (b)); (2) the inm ate is not serving a sentence
for a crim e that is listed in section 667, subdivision (e)( 2)(C), clause s (i) through (iii), or
section 1170.12, subdivision (c)(2)(C), clauses (i) through (iii); and, (3) the inmate does not have a prior conviction for an off ense appearing in section 667, subdivision (e)(2)(C),
clause ( iv), or section 1170.12, subdivi sion (c)(2)(C), clause (iv). (§ 1170.126, subd. (e).) The trial court concluded, and the parties agree, that Baker met the eligibility requirements for resenten cing

. If the petitioner is eligible for resentencing, “ the petitioner shall be resentenced pursuant to paragraph (1) of subdivision (e) of Section 667 and paragraph (1) of subdivision (c) of S ection 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 exercising its discr etion, “the court may
consider: [¶] (1) The petitioner’s criminal conviction history, including the type of

cr imes 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 rehabil itation 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 dispute in this case is whether the trial court erred when, in the exercise of its discretion, it determined that resentencing Baker would pose an unreasonable risk of danger to public safety. Baker begins his argument by raising numerous procedural
issues that have been addressed in prior cases and many of which are no w pending before4

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the California Supreme Court. This court has addressed these issues in published cases, which the Supreme Court has accepted for review. Since these issues have already been addressed and will likely be addressed by the Supreme Court, we will simply state our conclusions with citations to published cases which have not been accepted for review, if possible. First, in the trial court, the burden was on the prosecution to prove by a preponderance of the evidence that resentencing Baker p osed an unreasonable risk of danger to public safety. Baker was not entitled to a jury trial. ( People v. Osuna (2014) 225 Cal.App.4th 1020, 1038

- 1040; People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301

- 1305.) Second, we review the trial court’s ruling under the deferential abuse of discretion
standard. Section 1170.126, s ubdivisions (f) and (g), clearly state that when the trial court decides if a petitioner poses an unreasonable risk of danger to public safet y, it is exercising its discretion. No reasonable interpretation of these subdivisions could arrive
at a different conclusion. Third, as this court concluded in People v. Valencia (2014) 232 Cal.App.4th 514, the definition of unreasonable risk of dange r to pub lic safety found in Proposition 47 and
codified in section 1170.18, subdivision (c), is not applicable to petition s filed pursuant to Proposition 36 as codified in section 1170.126. We recognize the Supreme Court has granted the petition for revie w of Valencia ( review granted Feb. 18, 2015, S223825 ), but unless the Supreme Court concludes otherwise, our analysi s remains unchanged

. Which lead s us to the issue in this case: D id the trial court abuse its discretion when it concluded Baker posed an unreasonable risk of danger to public sa fety? As stated above, section 1170.126, subdivision (g), provides the trial courts with guidance in exercising their discretion. This subdivision permits, but does not require, t he trial courts to consider (1) th e petitioner’s c riminal conviction history, (2) the petitioner’s5

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disciplinary and rehabilitation history while incarce rated, and (3) any other evidence the
trial court determines to be relevant. In this case, the trial court had before it several docume nts. The first was the probation report prepared for the hearing on Baker’s petition (the lead probation report). This report indicated Baker was convicted in 1999 of three counts of possession of heroin
for sale and one count of conspiracy to sell heroi n. It was also found true that Baker had suffered a prior conviction for possession for sale (Health & Saf. Code, § 113 70.2,
subd. (a)) and had served two prior prison term s within the meaning of section 667.5,
subdivision (b).
Attached as an exhibit t o the lead probation report was the probation report prepared for the original sentencing hearing. As relevant here, this report provides Baker’s criminal history, which we summarize below. The lead probation report also
attached as exhibits probation re ports from two of Baker’s prior sentencing hearings.
Information from these reports will be referred to when relevant. Baker’s first contact with law enforcement occurred in 1959 when he was placed on probation after a sustained juvenile petition alleg ing that he was “Out of Control.” In 1962, the second sustained juvenile petition found that Baker committed grand theft, and he was committed to Camp Erwin Owen. Baker escaped from this camp and was
sentenced to what was known at the time as the Califor nia Youth Authority (CYA), now known as the Department of Juvenile Justice (DJJ). When paroled, Baker violated parole and was subsequently discharged to the California Dep artment of Corrections (CDC). The fourth sustained juvenile petition against Baker was in 1964 for grand theft auto.
Baker wa s returned to CYA. In 1965 Baker was convicted of fighting in public or disturbing the peace. (§ 415

. ) He was sentenced to 60 days in jail.6

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In 1965, Baker was convicted of vehicle theft. (Veh. Code, § 10851.) He was sentenced to six months to five years in CDC. He was paroled in 1967, violated parole in 1969, and was d ischarged in 1970.
In 1969 Baker was convicted of resisting arrest. (§ 148

. 2 ) He was sentenced to 90 days in jail. Apparently h e was also convict ed of trespassing in this year and sentenced

to 10 days in jail. In 1970, Baker was sentenced to five days in jail for, apparently, public drunkenness, and was sentenced to time served for driving while intoxicated and driving
without a driver’s license. Later that year he was convicted of felony burgla ry and sentenced to three years’ probation, including 12 months in jail. Finally, he was convicted of petty larceny in Nevada and sentenced to two weeks in jail. In 1971, Baker was c onvicted of ro bbery and placed on three years’ probation, including 12 months in jai l. Later that year, Baker was convicted of e scape and placed on three years’ felony probation, including one year in jail.
In 1974 , Baker incurred his first drug

- relate d offense, possession of a controlled substance (H ealth & Saf. Code, § 11377), and was placed on three years’ misdemeanor probation, which included 180 days in jail. Later that year, he was convicted of receiving stolen property (§ 4 96) and was placed on 13 months’ felony probation, including one
year in jail. In 1975 Baker was convicted of driving while under the influence of alcohol or a drug (Veh. Code, § 23105, renumbered in 1981 to § 23152), and sentenced to one year misdemeanor probation, includin g 90 days in jail. In 1976, Baker was convicted of th e same offense, and placed on two years’ mi sdemeanor probation, including 180 days in jail.

2 The probation report lists the date of this offense as 1989. We suspect this is a typographical error, as the following conviction occurred in 1970.7

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In 1978, Baker was convicted of vehicular mans laughter (former § 192.3,
subd. (a)), 3 and was sentenced to 3 65 days in jail. Later that year Baker was convicted of battery of a police officer and sentenced to one year in jail. In 1981, Baker was convicted of using or being under the influence of a controlled substance (Health & Saf. Code, § 11550), a nd was s entenced to three years’ misdemeanor probation, including 90 days in jail. He was later convicted of sales of a controlled
substance and sentenced to one year in jail. In 1982, Baker was convicted of voluntary manslaughter (former § 192.1) and was

sent enced to six years in prison. The report describes the crime as occurring after Baker hit the victim with a club. The victim then reached for a shotgun, at which time Baker
shot and killed the victim. Bak er violated parole seven times and was ultimately discharged in 1991. The CLETS report for this offense indicates Baker wa s charged with murder, robbery and burglary, but these charges were dismissed in the furtherance of justice, apparently as part of a plea bargain. The probation report for this conv iction indicates Baker was mad at the victim, Robert Campbell, because Campbell sold drugs to and had intercourse with Baker’s girlfriend. The report indicates the rela tionship was
either consensual or rape. Baker devised a plan to steal drugs and money from Campbell, so he went to the house with an accomplice for that purpose. Baker was apparently upset regarding Campbell’s relationship with Baker’s girlfriend. W hen Baker entered the residence, he struck and shot Campbell. In 1988, Baker was convict ed of misdemeanor vandalis m and was placed on three years’ misdemeanor probatio n. Later that year, he was convicted of possession of a controlled substance (marijuana) (Hea lth & Saf. Code, § 11357, subd. (b)) and was placed on three years’ misdemeanor pro bation wit h time served in jail.

3 This section apparently w as deleted and added to section 192. See Wood v. McGovern (198 5) 167 Cal.App.3d 772, 774, fn. 3.8

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In 1989, Bake r was convicted of petty theft and was sentenced to three years ’ misdemeanor probation, including 90 days in jail. Later that year he was convicted of
po ssession of drug paraphernalia and was sentenced to 99 days in jail, which was tim e already served. In 1991, Baker was convicted of possession of heroin for sale and was sentenced to three years in prison. He was paroled in 1993. Lat er in 1991, he was convicted of possession of a controlled substance (Hea lth & Saf. Code, § 11550), driving under the
influ ence (Veh. Code, § 23152, subd. (a)), and driving without a driver’s lic ense (Veh. Code, § 12500, subd. (a)). He was sentenced to 180 days in jail. In 1993, Baker was convicted of first degree burglary when he stole approximately $30,000 worth of jewelry and other items from a home. He was sentenced to three years in prison pursuant to a plea agre ement. He was paroled in 1995 but returned to custody
on seven occasion s , presumably for parole violations. The probation report from this conviction was included as an attachment to the lead pr obation report. Also attached to the lead probation report was information from the Department of Corrections regarding Baker’s c urrent incarceration. The first rul es violation occurred on May 27, 1993, when Baker submitted a urine sample that tested positive for morphine.
The second rules

- violation report occurred on March 29, 1995, when a second urine sample again revealed the presence of morphine.
A third ru les

- violation report occurred on July 5, 1997, when Baker failed to have in his possession a fork before leaving the serving line, a rules violation.
A fourth rules

- violation report was generated for an incident that occurred on April 7, 2002. Baker wa s observed displaying abnormal behavior and was escorted to a medical clinic for evaluation. Baker refused to provide a urine sample for urinalysis, which is apparently a violation of prison rules.
The fifth rules

- violation report indicated that, on Ap ril 30 and May 1, 2002, Baker participated in a planned work strike and refused to report to work when or dered to do so.9

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On September 12, 2002, a sixth violation occurred when Baker was observed kissing and licking the fingers of a visitor, a rules viol ation. Lastly, i n February 2003, Baker failed to report to his assigned placement in the vocational nurse ry on four days. In addition to this information, in his reply to the prosecution’s opposition, Baker provided information indicating he attended s ome meetings of the Narcotics Anonymous chapter in the third quarter of 2013. The number of meetings attended was not stated, and there is no information to suggest Baker atte nded meetings at any other time while he was incarcerated. Baker also provi ded information suggesting that, fo r portions of his incarceration, he provided satisfactory work in the tasks for w hich he was employed. The
time frame for these reports is March through November 2003; January through February 2005; February, May, and June 2 006; and January 2007. 4 An education progress report
indicated Baker was enrolled in five units with satisfactory behavior in 2011. Another report indicated he took courses in the nurse ry operations vocation in 2003 with apparently no units ear ned at the time of the report, n or is there any indication he attended classes at any other time during his incarceratio n. These reports raise more questions about Bake r than provide support for him . No work reports were provided for the majority of Baker’s inca rceration leading one to suspect either he did not work most o f the time he was incarcerated or his work was far from satisfactory. Similarly, the education reports only suggest Baker took s ome courses while incarcerated but do not indicate that any were completed or that any degree or
certificate was earned. Again, this leads one to assume Baker accomplished nothing

to ward improving his education while incarcerated. Finally, the information from the Narcotics Anonymous c hapter indicates that Baker atten ded as few as one meeting during his entire period of incarceration. No reasonable person could infer from this m eager

4 The exact time frame covered by these w ork s upervisor’s reports is unclear. Several indicate the reports were mad e for a quarter of the year.10

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information that Baker had attempted to rehabilitat e himself while incarcerated. Perhaps more support for Baker’s argument can be found in what is not in the record. There is little to indicate Baker’s behavior while incarcerated was anything but trouble free, with the last minor rules violation oc curring more than 10 years ago.
Section 1170.126, subdivision (g), suggests that the trial court consider a petitioner’s criminal history, his disciplinary record, his rehabilitation record, and any other evidence the trial court deems relevant when determining if a petitioner poses an unreasonable risk of danger to public safety. As disc ussed above, Baker’s disciplinary record does not suggest he posed a danger to public safety, but his rehabilitation record did not support the argument he was reformed. The other argument made in the trial court was, in essence, that because of Baker’s a dvanced age (approximately 69 at the time of the hearing), he was no long er a danger to public safety. Weighed against each of these factors was Baker’s long, and virtually uninterrupted, 40

- year criminal record. His first sustained juve nile petition o ccurred in 1959, with his last conviction in 1999. Baker was responsible for two deaths. It would
appear that one was the result of drunk driving (1978) and the other the result of an assault perpetrated by Baker because of a perceived connection between the victim, a drug dealer, and Baker’s girlfriend (1982). Baker shot and killed the victim, apparently because the victim reached for a firearm to protect himself from Baker’s assault. In between the first and last convictions were numerous convictions, many misdemeanors, but all evidencing a complete disdain for the law. We emphasize our review is limited to determining whether the trial court abused its discretion when it concluded Baker was a danger to public safety, not what we may
have done had t he petition been before us in the first instance. Our limited review leads to the inescapable conclusion that the trial court did not abuse its discretion. There has never been a significant period in Baker’s adult life where he has not posed a danger to public safety, unless he was incarcerated. Baker admitted in several probation reports11

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that he was a drug addict. He has no significant work history, so the only logical
conclusion is that he either s old drugs to support his habit or committed crimes to purchase drugs. His record confirms both types of conduct. Moreover, his record confirms he repeatedly drove while under the influence of drugs or alcohol, apparently causing one death. His prison record does not support the conclusion that Baker has

o vercome his addiction, so it was reasonable for t he trial court to conclude that, if released, Baker will return to his former lifestyle, placing the public’ s lives and property
at risk. Baker argues the trial court erred because it misinterpreted his v ehicular manslaughter conviction. Baker asserts, correctly, that he was not convicted of driving under the influence of alcohol or drugs, only vehicular manslaughter. E ven though he was charged with driving while under the influence when he was arrested, Baker asserts that is not proof he was intoxicated when he caused a vehicle crash that resulted in the death of another person. Even if we were to agree with Baker that it is unreasonable to infer he was under the influence when he killed the victim, ou r analysis would not change and any error by
the trial court would be deemed harmless. The relevant fact is that Baker ki lled someone while driving, and, at the time, he was committing an unlawful act not amounting to a felony. Whether that unlawful act was driving while intoxicated or some other crime does not change the fact that Baker’s conduct evinced an absence of any concern for the public’s safety. Since nothing in the record suggests Baker’s attitude has changed, the
trial court could and should infer from this conduct that Baker would pose a danger to public safety if released from prison. No error occurred. Baker also argues the record does not support the trial court’s conclusion that he posed an unreasonable risk of danger to public safety. The facts on which Baker relies are his advanced age, his 16 years of incarceration, the brief period of time during these 16 years that he attended Narcotics Anonymous meetings, the lack of evidence of drug12

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use since 2002, and the age of his prio r convictions. He asserts the only reasonable
conclusion that can be drawn from these facts is that he is no longer a drug addict and , consequently, would not commit any crimes t o support his drug addiction. This is, in essence, the same argument Baker made in the trial court, and it is no more compelling in this court. Certainly, the trial court could have concluded from this evidence that Baker was not a danger to public safety. But the trial court acted well
within its discretion when it concluded oth erwise. Once again, Baker’s 40

- year life of crime, the absence of any job skills, the lack of any viable means to support himself, and the lack of any real plan if he were released all strongly suggest the most likely course
Baker would take if he were released would be to return to the life he has known his entire adult life, a life of addiction and crime. Baker also minimizes the crime for which he is currently incarcerated. He was convicted of selling heroin, which he asserts he only did to suppo rt his drug addiction. Not only was Baker committing a crime to support his addiction, it is likely those to whom he sold heroin were also committing crimes to support their addiction s

. Accordingly, the actions Baker took to support his addic tion endange red public safety. The record in this case provides overwhelming evidence that Baker would pose an unreasonable risk to public safety if he were resentenced. The trial court did not abuse its discretion when it denied his petition.
DISPOSITION
The or der denying Baker’s petition is affirmed.