People v. Burris CA2/6

Filed 8/3/16 P. v. Burris CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B264170 (Super. Ct. No. F213809) Plaintiff and Respondent, (San Luis Obispo County)

v.

EDWARD BURRIS,

Defendant and Appellant.

Edward Burris appeals the denial of his petition for recall of his “three strikes” sentence pursuant to Proposition 36 (Pen. Code,1 § 1170.126). Appellant contends the trial court abused its discretion in finding that resentencing him would pose an unreasonable risk of danger to public safety. (Id., subd. (f).) We affirm. FACTS AND PROCEDURAL HISTORY In March 1994, appellant was an inmate at California Men’s Colony. Correctional staff searched appellant and found a manufactured weapon with a four- and one-half inch sharpened point. Appellant voluntarily offered, “I had the weapon for my own protection, if they let me go I’ll make another one.” A jury subsequently convicted him of possessing a weapon in violation of section 4502. The jury also found true allegations that appellant had suffered two prior strike convictions (§ 667, subd. (d)) and

1 All statutory references are to the Penal Code unless otherwise stated.

served two prior prison terms (§ 667.5, subd. (b)). The trial court sentenced him to an indeterminate state prison term of 27 years to life. In October 2014, appellant filed a petition to recall his sentence under section 1170.126. At the outset of the May 2015 hearing on the petition, the trial court stated its assumption that the prosecutor “wish[ed] to submit the entire packet from C.D.C.R. [the California Department of Corrections and Rehabilitation] as the People bear the burden of proof of dangerousness as far as the opposition to the petition[.]” The prosecutor replied, “That’s correct. And the court is clear, from the People’s perspective as well as defense counsel, the People are only proceeding on the issue of dangerousness under what I believe is sub[divisions] f and g o[f] the aforementioned Penal Code section 1[1]70.126.” The court issued a tentative ruling that resentencing appellant would pose an unreasonable risk of danger to public safety. The court based its decision on appellant’s “entire criminal conviction history, which included the types of crimes that he committed, [and] the length of his prior prison commitments.” The court also considered appellant’s disciplinary record, which included “at least 23” CDC 115 Rules Violation Reports2 and numerous lengthy stays in the segregated housing unit (SHU). In April 2014, appellant received an eight-month SHU commitment for his repeated refusals to accept assigned housing with other inmates. Appellant had repeatedly warned that he would physically harm or even kill any inmate who had the misfortune of being assigned to share a cell with him and once stated, “I cannot cope with having people in close proximity with me. I cannot keep myself from not hurting people[.]” In September 2014, appellant was placed “on an indeterminate SHU . . . status based on [appellant] demonstrating the desire to be disruptive and continue to endanger the safety of other[s] or the security of the institution.” The court also referred to the documentation of