People v. Khrone CA3

Filed 1/27/15 P. v. Khrone CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Lassen) ----

THE PEOPLE, C075881

Plaintiff and Respondent, (Super. Ct. No. CH020984)

v.

THEODORE DWAYNE KHRONE,

Defendant and Appellant.

Defendant Theodore Dwayne Khrone appeals from the trial court’s denial of his petition for resentencing pursuant to Penal Code section 1170.126.1 He contends the trial court abused its discretion when it found that he posed an unreasonable risk of danger to public safety if resentenced. Disagreeing, we affirm.

1 Further undesignated statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND Defendant is currently serving a sentence of 25 years to life in prison for a 2005 conviction for two counts of battery by a prisoner on a nonconfined person. (§ 4501.5.) The 2005 sentence runs consecutive to a 2001 sentence of 35 years to life for burglary with two strikes. Defendant’s criminal record encompasses 30 years and includes five separate state prison terms for felony convictions and two parole violations. Defendant’s Current Offense The facts of the 2005 conviction are follows: On November 22, 2003, Officers Nelson and Hooven were escorting defendant from a lower tier shower to the lockdown shower program. After the shower door opened, defendant pulled his right hand from the handcuffs and tried to strike Nelson in the face, but Nelson blocked the punch with his left arm. Nelson then seized defendant by the head and upper body while Hooven grabbed defendant’s left arm. Defendant grabbed Nelson’s baton and tried to hit Hooven with it, missing once before hitting his right thigh. After his conviction by jury, defendant told the probation officer that he was not properly represented by his attorney and he should have represented himself, adding that, because he was attacked by the correctional officers and did not try to hit anyone, he was falsely accused. Defendant’s Section 1170.126 Hearing At defendant’s hearing on his section 1170.126 petition, associate warden Harold Wagner testified to defendant’s disciplinary record during his recent incarceration. Defendant had rules violation reports for: delaying a peace officer in 2013; fighting in 2012; threatening staff in 2011; possession of altered personal property in 2010; refusing a cellmate in 2009; battery on a peace officer and refusing a direct order in 2008; two violations for obstructing a peace officer in 2005; battery on a peace officer resulting in the current conviction, destruction of state property, possession of inmate manufactured alcohol, two violations for each refusing a direct order and refusing to obey orders, and