The opinion
Filed 10/20/14 P. v. Hewitt CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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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, 2d Crim. No. B253447
(Super. Ct. No. F230079)
Plaintiff and Respondent, (Santa Barbara County)
v.
EDDIE JOE HEWITT,
Defendant and Appellant.
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
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Code section 1170.126, also known as Proposition 36. 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.
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All statutory references are to the Penal Code.
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,
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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.
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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.
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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.
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