P. v . Flowers

Filed 4/11/17 P. v. Flowers CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
HENRY DONALD FLOWERS,
Defendant and Appellant.
B269656
(Los Angeles County
Super. Ct. No. YA053776)
APPEAL from an order of the Superior Court of
Los Angeles County. Rand S. Rubin, Judge. Affirmed.
Arielle Bases, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Noah P. Hill and Viet H. Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________

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On February 26, 2004, a jury convicted defendant and
appellant Henry Donald Flowers of driving in willful or wanton
disregard for safety while fleeing from a pursuing police officer
(Veh. Code, § 2800.2, subd. (a)) and two counts of leaving the
scene of an accident (Veh. Code, § 20001, subd. (a)). The trial
court found true allegations that defendant had suffered two
prior convictions within the meaning of the “Three Strikes” law
(Pen. Code, §§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)).1 The
trial court sentenced defendant to two consecutive terms of 25
years to life pursuant to the Three Strikes law.2
On March 22, 2013, defendant filed a petition for recall of
sentence in the trial court, pursuant to section 1170.126.3 The
trial court issued an order to show cause, and the parties filed
written briefs addressing the issue of whether relief should be
granted to defendant.
After conducting a hearing on the issue, the trial court
denied defendant’s petition pursuant to section 1170.126,
subdivision (f). In a 21-page memorandum of decision, the trial
court summarized the applicable law and rejected defendant’s
contention that the phrase “unreasonable risk of danger to public
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Defendant appealed the judgment of conviction, and on
September 30, 2005, we affirmed the judgment. (People v.
Flowers (Sept. 30, 2005, B175317) [nonpub. opn.].)
3 On March 6, 2013, defendant filed a petition in pro. per.
His petition was forwarded to the “writ center,” and the Post
Conviction Assistance Center subsequently filed the operative
petition for recall of sentence.

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safety” set forth in Proposition 47 (§ 1170.18, subd. (c)) applies in
the context of a petition under Proposition 36 (§ 1170.126). The
trial court then detailed defendant’s criminal history, the facts
relating to the instant commitment offense, defendant’s
disciplinary history, rehabilitative programming, postrelease
plans, and other relevant evidence. Considering all this evidence,
the trial court determined that resentencing defendant would
pose an unreasonable risk of danger to public safety.
Defendant timely filed a notice of appeal. He argues that
he is eligible for resentencing because (1) the Three Strikes law
has a strong presumption that a defendant whose third strike is
not violent or serious should not receive an indeterminate life
sentence absent exceptional circumstances; (2) due process
requires that a section 1170.126 petition be granted unless there
is a rational nexus between the evidence in the record and a
finding that the defendant currently poses an unreasonable risk
of danger to public safety; (3) the language of Proposition 47
clarified the definition of the phrase “unreasonable risk of danger
to public safety” to section 1170.126 petitions for resentencing;
and (4) the trial court erred by failing to apply the proper legal
standard and by erroneously finding a nexus between defendant’s
past criminal conduct and the current risk of danger he poses to
the public.
We affirm.
DISCUSSION
I. There is no presumption in favor of resentencing
Defendant argues that he is entitled to resentencing
pursuant to Proposition 36, the Three Strikes Reform Act of 2012
(the Act); he claims that he is subject to a second strike sentence.

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Defendant’s argument is flawed because there is no
expectation or presumption that a petitioner under the Act will
be sentenced to a second strike sentence. This contention by
defendant is based on the “shall”/“unless” formulation employed
in subdivision (f) of section 1170.126. The Court of Appeal has
previously rejected such a contention (People v. Buford (2016) 4
Cal.App.5th 886, 901–903, review granted Jan. 11, 2017,
S238790) and defendant offers no compelling reason to depart
from that holding. The Act does not create an expectation or
presumption that under its provisions a petitioner under the Act
would be resentenced as a second striker.
In a similar vein, defendant argues that there is a “‘strong
presumption’ that a defendant whose third strike is not violent or
serious should not receive an indeterminate life sentence.” In
other words, a petitioner who is found eligible for section
1170.126 relief will also be found eligible for relief absent
“[e]xceptional [c]ircumstances.” Defendant’s argument finds no
support in the statutory language. Had the voters intended such
relief, they would have said so, instead of employing language
that affords broad discretion to find dangerousness.
II. No due process liberty interest at stake
Defendant contends that he has a liberty interest in
resentencing under Proposition 36 protected under the federal
guarantee of due process of law (U.S. Const., 5th & 14th
Amends.) and the comparable but broader state guarantee of due
process of law (Cal. Const., art. 1, §§ 7, subd. (a), 15). He argues
that “[s]ection 1170.126 is analogous to the liberty interest
recognized in [Greenholtz v. Inmates of Nebraska Penal &
Correctional Complex (1979) 442 U.S. 1] and [Board of Pardons v.
Allen (1987) 482 U.S. 369] because it involves lessening the

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sentences of life prisoners unless a designated finding is made.”
He further points out that under the California Constitution, our
Supreme Court has held that “when an individual is subjected to
deprivatory governmental action, he always has a due process
liberty interest both in fair and unprejudiced decision-making
and in being treated with respect and dignity.” (People v.
Ramirez (1979) 25 Cal.3d 260, 268.) To protect such interest, he
posits that when a resentencing petition is denied, a nexus must
be “established by some evidence on the record and the
conclusion that the inmate poses a current risk of danger to
public safety, after conducting a particularized assessment of the
inmate’s individual circumstances.”
We are not persuaded by defendant’s claim of a
constitutional liberty interest in resentencing under Proposition
36. First, for life sentences, there is a mandatory minimum
amount of prison time that must be served before an inmate can
be considered for parole. (see § 3046.) Section 1170.126, on the
other hand, provides no mandatory minimum number of years
that must be served before petitioning for a sentence reduction.
Second, pursuant to statute, the Parole Board “‘shall
normally set a parole release date’ one year prior to the inmate’s
minimum eligible parole release date.” (In re Lawrence (2008) 44
Cal.4th 1181, 1202.) In other words, the statutory scheme
provides defendants who are convicted of crimes carrying life
terms with a “due process liberty interest in parole” and “‘an
expectation that they will be granted parole unless the [Parole]
Board finds, in the exercise of its discretion, that they are
unsuitable for parole in light of the circumstances specified by
statute and by regulation.’” (In re Lawrence, supra, at pp. 1191,
1204.) Third strike prisoners have the same expectation of parole

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associated with their life sentences, but their original sentence
provided no expectation of a sentence reduction.
A third difference is the mandatory language of the parole
provisions. Unlike section 1170.126, none of the relevant parole
provisions uses the word “may.” The Parole Board and the
governor, while having great discretion regarding parole, “must
consider the statutory factors concerning parole suitability set
forth in section 3041 as well as the [Parole] Board regulations.”
(In re Prather (2010) 50 Cal.4th 238, 251, italics added.) In
contrast, the trial court “may” consider the factors set forth in
section 1170.126 when assessing a defendant’s risk of
dangerousness.
III. Proposition 47 definition of danger is inapplicable to
Proposition 36
Defendant argues that the enactment of Proposition 47
clarified the definition of the phrase “unreasonable risk of danger
to public safety” as it applies to section 1170.126 petitions for
resentencing.
On February 18, 2015, our Supreme Court granted review
in People v. Valencia (2014) 232 Cal.App.4th 514 (Valencia),
S223825. The applicability of Proposition 47’s danger definition
in the Proposition 36 context is pending before that Court in both
Valencia, supra, S223825, and People v. Chaney (2014) 231
Cal.App.4th 1391 (Chaney) review granted, February 18, 2015,
S223676.
In view of the posture of this issue, we shall not belabor the
point but simply conclude, as did the court in People v. Esparza

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(2015) 242 Cal.App.4th 726 (Esparza),4 that the voters in
enacting Proposition 47 did not intend for its definition of danger
to extend to petitions under Proposition 36, and thus such
definition is inapplicable here.
IV. The trial court did not abuse its discretion in denying
defendant’s petition
As the parties agree, we review the trial court’s order for
abuse of discretion. “Where, as here, a discretionary power is
statutorily vested in the trial court, its exercise of that discretion
‘must not be disturbed on appeal except on a showing that the
court exercised its discretion in an arbitrary, capricious or
patently absurd manner that resulted in a manifest miscarriage
of justice. [Citations.]’” (People v. Rodrigues (1994) 8 Cal.4th
1060, 1124–1125.)
In a lengthy, detailed order, the trial court summarized the
evidence and considered defendant’s criminal history,
institutional behavior, rehabilitative programming, postrelease
plans, psychological evaluation, and recidivism risk scores before
denying his petition. The trial court relied on the language of
section 1170.126 and cases governing the suitability for release
4 No petition for review was filed or review granted in
Esparza, which came from the Sixth Appellate District. In a
subsequent Sixth Appellate District case, the majority noted that
Esparza was the only extant decision on this issue and rejected
its conclusion. (People v. Cordova (2016) 248 Cal.App.4th 543,
552, fn. 8, review granted Aug. 31, 2016, S236179 (Cordova).) In
granting review in Cordova, the Court deferred further action
pending resolution of a related issue in Chaney, supra, S223676,
and Valencia, supra, S223825. We decline to consider the
Cordova majority opinion persuasive on this point. (Cal. Rules of
Court, rules 8.1105, 8.1115.)

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on parole to guide its interpretation of “unreasonable risk of
danger” and its ultimate decision. The trial court did not abuse
its discretion.
In urging us to reverse, defendant argues that the trial
court failed to consider his rehabilitation in the context of his
young age when he committed the current offenses, that there
was no rational nexus between the trial court’s finding of current
dangerousness and defendant’s rule violations in prison, that
defendant’s risk of recidivism does not indicate that he would
pose an unreasonable risk of danger to the community, and that
the trial court did not properly consider defendant’s reentry plan.
But, defendant has not shown that the trial court’s exercise of
discretion was arbitrary or capricious.
Rather, based upon the express language in the trial court’s
order, the trial court recognized that it had to determine, “in its
discretion, [whether] resentencing [defendant] would pose an
unreasonable risk of danger to public safety.” The trial court also
recognized that it had to determine whether defendant “currently
poses an unreasonable risk of danger to public safety if
resentenced.” The trial court then set forth the factors that it
could consider and, in fact, did consider, namely defendant’s
criminal history and the facts of the commitment offense. While
defendant claims that the trial court failed to consider his age,
the record shows otherwise. The trial court specifically
referenced defendant’s age when discussing defendant’s past and
current behavior.
The trial court also reviewed defendant’s record of
discipline and rehabilitation in prison. The trial court noted that
defendant’s disciplinary history showed that he had engaged in
dangerous acts in prison. Also, the trial court found that his

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possession of a cell phone constituted dangerous contraband
because it could allow an inmate to conduct illicit activities
outside of prison.
Defendant contends that there is no nexus between his past
criminality and his rule violation for possession of a cell phone.
We disagree. Defendant’s willingness to break prison rules is
indicative of his lack of rehabilitation and current criminality.
(In re Bettencourt (2007) 156 Cal.App.4th 780, 805.) Similarly,
there is a nexus between defendant’s past criminality and his
rule violations for controlled substances. Defendant currently
has a drug problem and, as the trial court found, his drug use
escalated in prison. While there is no evidence that drug use was
a part of defendant’s past criminality, his current drug use shows
his lack of rehabilitation and current criminality. Defendant has
not rehabilitated himself in prison. Instead, he acquired a drug
problem and violated a prison rule prohibiting the possession
and/or use of a controlled substance on prison grounds as a
result.
Finally, the trial court addressed defendant’s risk
assessments for recidivism and his California Department of
Corrections and Rehabilitation classification score. As the trial
court rightly determined, defendant’s risk assessment scores are
evidence of current dangerousness. (In re Stevenson (2013) 213
Cal.App.4th 841, 869–870.)
Dr. Hy Malinek’s assessment of defendant’s risk of
recidivism as “moderate” does not compel a different result. The
trial court considered Dr. Malinek’s testimony and still found him
to pose an unreasonable risk of danger to public safety.
Defendant has not shown how the trial court’s conclusion
constitutes an abuse of discretion.

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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, Acting P. J.
ASHMANN-GERST
We concur:
______________________________, J.
CHAVEZ
______________________________, J. *
GOODMAN
* Retired Judge of the Los Angeles Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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