Filed 10/20/14 P. v. Hewitt CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or 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 8.111.5. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

EDDIE JOE HEWITT,

 Defendant and Appellant.

2d Crim. No. B253447

(Super. Ct. No. F230079)

(Santa Barbara County)

Eddie Joe Hewitt appeals the denial of his petition to recall a Three Strikes 

indeterminate sentence and be resentenced as a second strike offender pursuant to Penal 

Code section 1170.126, also known as Proposition 36.1 The superior court denied the 

petition on the ground that appellant poses an unreasonable risk of danger to public safety. 

(§ 1170.126, subd. (f).) We affirm. (People v. Superior Court (Kaulick) (2013) 215 

Cal.App.4th 1279, 1303.)

Appellant's Three Strikes commitment is for conspiracy (§ 182, subd. (a)) and 

possession of marijuana in a prison facility (§ 4573.6), both nonserious and nonviolent 

offenses. In 1995 appellant conspired with his wife to smuggle marijuana into the prison 

facility where he was housed. The trial court imposed a Three Strikes sentence of 25 years 

to life. 

 

1

All statutory references are to the Penal Code. 
2

Appellant petitioned for resentencing pursuant to section 1170.126. Appellant 

is 50 year old and has the following violent criminal history: 

A 1991 robbery conviction resulting in a seven year prison sentence. 

Appellant and an accomplice robbed a BMW car salesman at gunpoint during a test drive. 

A 1994 double homicide conviction in which appellant and an accomplice 

kidnapped and executed two people. Appellant agreed to testify against his accomplice and 

was allowed to plead guilty to two counts of voluntary manslaughter and two counts of 

kidnapping. He was sentenced as a two strikes offender to 19 years 8 months state prison. 

In 1995, while serving the prison sentence, appellant conspired with his wife 

to smuggle marijuana into prison. He was convicted of conspiracy and possession of 

marijuana in a prison facility and sentenced as a three strikes offender to 25 years to life 

state prison. 

Unreasonable Risk of Danger

Proposition 36 creates a postconviction release procedure whereby a 

qualifying prisoner serving a Three Strikes indeterminate life sentence may have his or her 

sentence recalled and be resentenced 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.) Appellant argues that there is no nexus 

between the commitment offense, possession of .7 grams of marijuana, and the court's 

finding of current dangerousness. He claims that Proposition 36 was enacted to assure that 

only the most dangerous remain in prison. Public safety, however, is a paramount concern. 

(Id., at p. 175.) The superior court may deny a section 1170.126 petition if, after 

examination of the prisoner's criminal history, disciplinary record while incarcerated, and 

other relevant evidence, it determines that the prisoner poses "an unreasonable risk of 

danger to public safety." (§ 1170.126, subd. f); see People v. Flores (2014) 227 

Cal.App.4th 1070, 1076-1076; People v. Yearwood, supra, 213 Cal.App.4th at p. 176.) 

The court here denied appellant's petition on the following grounds: 

"Petitioner, despite having done and accomplished a number of positive things while in 

prison, as established by the certificates, letters of commendation and offers of employment, 
3

still has shown a propensity to engage in serious antisocial, criminal behavior. This 

propensity was established by the 115 rule violations involving the possession of 

contraband, especially the possession of hundreds of documents which indicated an intent to 

engage in personal identification theft offenses. His predilection to commit crimes even 

while in prison causes the Court to fear that resentencing and an early release, given his 

terribly violent past, would pose an unreasonable risk to public safety." 

Appellant contends that the prosecution must prove dangerousness beyond a 

reasonable doubt. A similar argument was rejected by this court in People v. Flores, supra, 

227 Cal.App.4th 1070 and our colleagues in Division Three in People v. Superior Court 

(Kaulick) supra, 215 Cal.App.4th 1279. The standard of proof is preponderance of the 

evidence. (Id., at p. 1305; People v. Flores, supra, 227 Cal.App.4th at pp. 1075-1076.) 

Proposition 36 "does not provide for wholesale resentencing of eligible petitioners. Instead, 

it provides for a proceeding where the original sentence may be modified downward, Any 

facts found at such a proceeding, such as dangerousness, do not implicate Sixth Amendment 

issues. Thus, there is no constitutional requirement that the facts be established beyond a 

reasonable doubt. [¶] . . . Evidence Code section 115 provides that '[e]xcept as otherwise 

provided by law, the burden of proof requires proof by a preponderance of the evidence.' 

There is no statute or case authority providing for a greater burden, and [appellant] has not 

persuaded us that any greater burden is necessary." (People v. Superior Court (Kaulick), 

supra, 215 Cal.App.4th at p. 1305, fn. omitted.)

Section 1170.126, subdivision (g) provides that the superior court, in deciding 

current dangerousness, may (1) consider the prisoner's criminal conviction history, (2) the 

prisoner's disciplinary record and record of rehabilitation, and (3) any other evidence the 

court, within its discretion, determines is relevant to the issue of dangerousness. Appellant's 

criminal record and prison discipline record clearly support the finding that appellant poses 

a substantial risk to public safety if released. Appellant continues to minimize his criminal 

conduct and blame others. He claims that the commitment offense (smuggling .7 gram 

marijuana into prison) was his wife's idea and that he has been a model prisoner. 
4

Pursuant to section 1170.126, subdivision (g)(1), the superior court considered 

petitioner's criminal conviction history, the type of crimes committed, the extent of injury to 

victims, the length of the prior prison commitments, and the remoteness of the crimes. We 

have already recited appellant's prior convictions. We also note that in 1998 appellant 

argued with his wife and cut her throat with a broken glass. 

Appellant's prison disciplinary record is less than stellar. After appellant was 

convicted of conspiracy to smuggle narcotics into prison, contraband was found in his 

prison cell including the names, dates of birth and social security numbers of non-inmate 

people and blank W-2s and tax return forms. Hundreds of documents and tax forms were in 

his cell, indicating that appellant was engaged in or preparing to engage in identify theft 

crimes. In 2007 an illegal phone was found in his cell and, in 2013, appellant had work

cards belonging to two other inmates. 

Appellant makes no showing that the court abused its discretion. Substantial 

evidence supports the finding that appellant would pose an unreasonable risk of danger to 

public safety if resentenced and released from prison. 

The judgment is affirmed. 

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.
5

Michael J. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

Al F. Amer, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill, Mark 

E. Weber, Deputy Attorneys General, for Plaintiff and Respondent.