People v. Payne

THE PEOPLE, Plaintiff and Respondent, v. RANDY LYNN PAYNE, Defendant and Appellant.

F079012

California Court of Appeals, Fifth District

September 21, 2021

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Merced County Nos SUF20408 & SUF20409, Mark V. Bacciarini, Judge.

Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

PEÑA, J.

Randy Lynn Payne (defendant) is serving a prison term of 25 years to life imposed under the original version of California's “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(j), 1170.12). The qualifying offenses were petty theft with prior theft convictions (felony petty theft) and attempting to elude police while operating a vehicle with willful or wanton disregard for the safety of people or property (felony evading). Defendant has repeatedly sought to be resentenced based on changes in the law, but with little success.^[1] This appeal is taken from an order denying relief requested pursuant to the Three Strikes Reform Act of 2012 (Proposition 36), the Safe Neighborhoods and Schools Act of 2014 (Proposition 47), and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

Defendant contends, and the People agree, the trial court erred by allowing defendant to discharge his appointed counsel and proceed in propria persona without ensuring he understood the risks and disadvantages of self-representation. Accepting the People's concession of error and prejudice, we reverse and remand for further proceedings.

FACTUAL, LEGAL, AND PROCEDURAL BACKGROUND

“What is commonly referred to as the Three Strikes law ‘consists of two, nearly identical statutory schemes': the first enacted by the Legislature in March 1994 [citation], and the second enacted by ballot initiative in November 1994 [citation].” (People v. Valencia (2017) 3 Cal.5th 347, 378, fn. 1 (conc. opn. of Kruger, J.).) As originally conceived, the law “required that a defendant who had two or more prior convictions of violent or serious felonies receive a third strike sentence of a minimum of 25 years to life for any current felony conviction, even if the current offense was neither serious nor violent.” (People v. Johnson (2015) 61 Cal.4th 674, 680.) Such defendants were presumed incorrigible and thus deserving of “‘longer prison sentences and greater punishment.'” (People v. Sasser (2015) 61 Cal.4th 1, 11; see People v. Vargas (2014) 59 Cal.4th 635, 638.)

Defendant, now age 58, has an extensive criminal record. By the time the Three Strikes law was enacted in 1994, he had already suffered three qualifying felony convictions. Defendant also has a history of abusing illegal narcotics and alcohol.

In February 1996, at the age of 32, defendant stole motor oil from a gas station in Merced. He fled in a stolen car and attempted to evade a pursuing California Highway Patrol officer on Highway 99. After reaching speeds of over 100 miles per hour, defendant lost control of the vehicle and crashed into a stationary object. The incident resulted in criminal charges, a jury trial, and convictions of felony evading (Veh. Code, §§ 2800.1, 2800.2, subd. (a)) and felony petty theft (Pen. Code, former § 666; all further statutory references are to the Penal Code).

In April 1997, defendant was sentenced as a third strike offender. The trial court imposed prison terms of 25 years to life on both convictions, with the sentence for felony petty theft ordered to be served concurrently with the life term for felony evading. A defense motion to dismiss the Three Strikes allegation and/or punish the crimes as misdemeanors was denied.^[2] This court later ordered the punishment for felony petty theft stayed (§ 654), but the judgment was otherwise affirmed. (People v. Payne (May 26, 1998, F026894) [nonpub. opn.].)

In November 2012, by enactment of Proposition 36, section 1170.126 created a resentencing process for third strike offenders serving life terms for nonserious and nonviolent felony convictions. An eligible petitioner “shall be resentenced [as a second strike offender] unless the [sentencing] 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 discretion, “the 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, 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).)

In December 2012, defendant petitioned the trial court for resentencing under Proposition 36. Because the original trial judge had retired, the matter was assigned to the Honorable Mark V. Bacciarini. Although defendant was eligible for relief under section 1170.126, subdivision (b), resentencing was found to pose an unreasonable risk of danger to public safety. Judge Bacciarini cited, inter alia, the fact defendant had been clinically diagnosed with a mood disorder “that leaves [defendant] with a ‘fluctuating ability to cope, '” as well as a substance abuse problem. The ruling continued, in relevant part:

“As cited by the prosecutor, [defendant] has ‘proved himself to be a threat to public safety and security.' His criminal career has been long and extensive. His prior serious felony convictions were residential burglaries. The court finds that those offenses do involve a high risk of physical danger, as did the evading offense. His record of rehabilitation while incarcerated is sparse. Indeed, he continues to receive disciplinary write-ups as recently as this year [2013].”

On December 17, 2014, this court affirmed the trial court's denial of relief under Proposition 36. (People v. Payne (2014) 232 Cal.App.4th 579, 584.)^[3]

In March 2015, defendant petitioned the trial court for a writ of habeas corpus based on Proposition 47. Defendant drafted and filed the petition himself. He later drafted and filed a motion for reconsideration of his 1996 Romero motion. A hearing took place on May 11, 2015, with a deputy public defender appearing on defendant's behalf. Judge Bacciarini denied the motion for reconsideration, stating “I don't believe I have any jurisdiction to recall or reconsider that sentence.” The judge noted defendant's eligibility for partial relief under Proposition 47 but declined to take further action “until the proper petition is before me.” Defendant filed a notice of appeal, but he dismissed the appeal before any briefing was submitted.

“Proposition 47 reclassified as misdemeanors certain drug- and theft-related offenses that previously were felonies or wobblers.” (People v. Valencia, supra, 3 Cal.5th at p. 355.) A wobbler is an offense punishable as a misdemeanor or a felony at the discretion of the sentencing court. (§ 17, subd. (b); People v. Park (2013) 56 Cal.4th 782, 789.) Both of defendant's 1996 convictions were wobblers, but only felony petty theft has been reclassified as a misdemeanor by Proposition 47. (§ 1170.18, subd. (a).)

“Proposition 47 also added a provision allowing felony offenders ‘serving a sentence for a conviction' for offenses now reclassified as misdemeanors to petition to have their sentences recalled and to be resentenced.” (People v. Valencia, supra, 3 Cal.5th at p. 355.) Resentencing is mandatory “‘unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.'” (People v. Morales (2016) 63 Cal.4th 399, 404, quoting § 1170.18, subd. (b).) A trial court's discretion to deny resentencing under Proposition 47 is circumscribed by section 1170.18, subdivision (c), which defines “unreasonable risk of danger to public safety” as “an unreasonable risk that the petitioner will commit a new violent felony” described in section 667, subdivision (e)(2)(C)(iv). Commonly known as “super strikes, ” those felonies consist of rape, sexual abuse of minors, homicide offenses, possessing a weapon of mass destruction, and all other serious or violent felonies punishable by life imprisonment or death. (§ 667, subd. (e)(2)(C)(iv)(I-VIII); People v. Jefferson (2016) 1 Cal.App.5th 235, 242.)

In January 2018, defendant, acting in propria persona, again petitioned the trial court for a writ of habeas corpus based on Proposition 47. The trial court set a hearing date and evidently appointed counsel to represent defendant. On at least six occasions between May and September 2018, a deputy public defender appeared on defendant's behalf and asked the Honorable Carol K. Ash to continue the hearing.

On September 25, 2018, defense counsel filed a petition for relief based on Proposition 47 and pursuant to Romero, and for reconsideration of the previous denial of relief under Proposition 36. The document was entitled “Petition To Dismiss ‘Strike' Prior Per Romero [P.C. 1385] & Reduce Pursuant To P.C. 1170.18 & Reconsider Previous P.C. 1170.126 Denial.” (Boldface and some capitalization omitted). Although not indicated by the title, counsel's primary argument for relief was the then-recent decision in People v Buycks (2018) 5 Cal.5th 857 (Buycks). The case holds that if a defendant is eligible for resentencing under Proposition 47, ...