California Court of Appeal Apr 3, 2024 No. E079940Unpublished
Filed 4/3/24 P. v. Schwartz CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079940
v. (Super.Ct.No. FSB047468)
ROBERT DEANE SCHWARTZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie,
Judge. Affirmed.
Heather E. Shallenberger, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Evan Stele,
Deputy Attorney Generals, for Plaintiff and Respondent.
1
Defendant petitioned the trial court to recall his 26-year-to-life sentence pursuant
to Propositions 47 (Pen. Code, § 1170.18) and 36 (Pen. Code, § 1170.126, subd. (f)).1
The trial court found defendant would pose an unreasonable risk of danger to public
safety if resentenced and denied defendant’s petitions. (§§ 1170.18, subd. (b),
(b).) The trial court could deny defendant’s petition if “in its discretion, [it]
determine[d] that resentencing [defendant] would pose an unreasonable risk of danger
to public safety” (Pen. Code, § 1170.18, subd. (a)), which “means an unreasonable risk
that the petitioner will commit a new violent felony” as defined in section 667,
subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (c); see also Valencia, at pp. 355-356.) The
felonies in that subdivision include homicide, attempted homicide, and assault with a
machine gun on a peace officer. (§ 667, subds. (e)(2)(C)(iv)(IV) & (VI).)
It was the People’s burden to prove dangerousness by a preponderance of the
evidence. (People v. Frierson (2017) 4 Cal.5th 225, 239.) In reviewing the record, we
apply the substantial evidence standard of review to the facts supporting the trial court’s
factual findings, and we apply the abuse of discretion standard of review to the trial
court’s ultimate determination that, if resentenced, defendant poses an unreasonable risk
of danger to the public. (People v. Buford (2016) 4 Cal.App.5th 886, 901.)
9
Defendant is an alcoholic who has had little treatment for his alcoholism.
Defendant drives drunk. Defendant believes that the police are bullying him when they
question him. Defendant’s collection of guns includes an AK-47, and he has used that
automatic weapon to shoot two police officers who questioned him.
The foregoing evidence indicates there is a high likelihood that, if defendant
were given a lesser sentence and released, then he would become intoxicated, drive,
interact with police who stop him, and either shoot the officers or assault the officers
with a machine gun. Therefore, the evidence supports the finding that, if he were
resentenced, defendant would pose an unreasonable risk of committing a new violent
felony, in particular homicide, attempted homicide, or assault with a machine gun upon
a peace officer.
Defendant asserts he does not pose an unreasonable risk of danger because he
“was never charged with or suspected of being a felon in possession of a firearm. There
is also nothing to indicate he would unlawfully possess a firearm if released today.”
Defendant carried a gun on him at all times and kept his guns loaded. As noted in a
probation report, “[D]efendant has a long history of pulling weapons on different
individuals, including his own wife and infant daughter.” Given defendant’s affinity for
firearms and long history of using firearms, one can reasonably infer that defendant will
procure a firearm upon his release from incarceration.
Defendant asserts he does not pose a danger because he “has not committed a
subsequent violent offense in over thirty years.” The violence we are focused upon
involved firearms. We agree that defendant did not have a firearm while incarcerated,
10
but if defendant were released, then he is likely to once again obtain a firearm given his
affinity for firearms, and once again shoot at people.
Defendant notes that, at one point in his incarceration, a modified razor blade
was found in his cell, but he did not use it. The razor blade was found on the floor of
the cell, outside of its plastic casing. It is unclear how long the razor blade had been in
the cell or if it belonged to defendant because two inmates occupied the cell. “When
asked who the razor belonged to [defendant] replied, ‘I’ll take the blame because I have
less time to lose.’ ” If the razor belonged to defendant and he had it for a considerable
period of time without using it, that does not persuade us that he is less likely to shoot a
person. Attacking a person with a razor blade requires far more physical effort than
shooting a person with a machine gun. Defendant’s history reflects he is quick to
brandish firearms and shoot people.
Defendant contends it “is his good right” to distrust the police, and that distrust is
not evidence of dangerousness because defendant “abides by” the law. Defendant
assaulted a group of four people with a rifle and shot two police officers with an AK-47.
Accordingly, defendant does not always abide by the law when handling firearms.
Further, defendant carried a gun “on his person at all times because [he believed]
officers in Rialto were ‘harassing him.’ ” Because defendant carried a gun to use
against the police, his distrust of the police is dangerous.
Defendant asserts that his prior struggles with alcohol addiction are “not
evidence that he still suffers from ‘unresolved issues with addiction.’ ” Defendant notes
that the last time he was found with contraband medication was in 2007. Defendant
11
takes prescription pain medications for his health conditions. In 2013, when a doctor
withheld defendant’s pain medication, defendant wrote a note and submitted it in the
medical request box. The note read, “ ‘Fuck Dr. Ko that asshole should be fired, or
fired up,’ ‘withholding my pain meds worse than cheap-ass jewish n*****s’ and ‘If
you’re trying to provoke violence, you’re on the right path.’ ” When asked what “ ‘fired
up’ ” meant, defendant “replied, ‘to get beat up.’ ” One can infer from this evidence
that defendant’s addiction migrated to pain pills because defendant threatened violence
against the doctor who withheld his pain pills.
In Dr. Brodie’s report, he wrote, “It is acknowledged that there is no evidence to
indicate that [defendant] is using any substance presently however he is also not
receiving any random drug and alcohol screens to indicate that he is not using.
[Defendant’s] substance use began when he was 3 or 4 years old and he has abused
substances regularly throughout his adult life. His controlling offense was a substance
related conviction. While incarcerated he has been disciplined three times on substance
related infractions. His parole has been violated three times as a result of alcohol use.
[Defendant] has no insight into his substance use and does not recognize that he has a
substance abuse problem. He has only participated in substance abuse treatment on a
limited basis. . . . He has never completed a substance abuse treatment program and
quit attending NA and AA while in prison. He is not currently attending any substance
abuse treatment.”
Defendant’s lifelong addiction to alcohol and drugs, along with his lack of
treatment for that addiction, indicate that, if he is currently sober, then he is likely to
12
relapse if released from incarceration. In other words, the evidence supports a finding
that defendant has not overcome his addiction issues.3
Defendant contends that he does not pose an unreasonable risk of danger because
he “demonstrate[ed] insight into the shooting by acknowledging that he—and no one
else—was responsible for injuring the officers.” When speaking with Dr. Brodie in
2016, defendant said he shot at the officers because he heard the officers “use[] the code
word.” Defendant knew the “code word” and knew “what it means.” Defendant did not
identify the “code word.” Defendant explained his thoughts after hearing the codeword:
“So the AK is right there and I’m thinking well we’ll see how much fun it’s going to be.
I had about enough of their shit.” Defendant’s explanation of shooting the officers
indicates a belief that the officers were conspiring against him by using code. That
evidence further demonstrates the danger defendant presents if released because
defendant appears to view police officers as conspiring against him.
Defendant contends he is not a danger because he has learned that one must
follow the commands of law enforcement. Defendant is addicted to intoxicating
substances. While defendant might follow commands when sober, he has a history of
failing to follow commands when intoxicated. Given defendant’s addictions, we are not
persuaded that defendant is likely to act rationally if confronted by police.
3 In May 2015, defendant was evaluated by a different psychiatrist, David M. Walsh, PsyD. Dr. Walsh opined that defendant’s “substance abuse is in remission.” Dr. Brodie expressly disagreed with Walsh’s opinion. Under the substantial evidence standard, we view the evidence in the light most favorable to the ruling and resolve conflicts in favor of the ruling. (People v. Veamatahau (2020) 9 Cal.5th 16, 35-36.) Accordingly, we rely on Dr. Brodie’s opinion.
13
Defendant contends that he has “demonstrate[d] remorse for the shooting.”
When Dr. Brodie asked defendant why defendant felt bad about shooting the two
officers, defendant explained that defendant and his wife “had brand new stuff,” “were
going out to dinner, eating three nights a week,” “had good clothes,” “had three cars and
a truck,” and defendant lost those material things by shooting the two officers.
“[Defendant] never discussed the impact of shooting the officers and having an effect
on their physical health and potentially ending their lives.” Dr. Brodie opined,
“[Defendant] has no insight into his behaviors that day and does not feel any remorse
for his actions.” The record indicates that any remorse defendant feels is superficial and
selfish. Defendant might think twice about harming another person only if a sufficiently
large material loss could occur as a consequence, but that would be the only
consequence that would be meaningful to him.
Defendant concludes, “[Defendant] has shown a commitment to abstaining from
any violent behavior and, for that matter, any misconduct as evidenced by his
disciplinary-free conduct for the past 10 years and his current level II placement.”
Contrary to defendant’s position, the danger that defendant presents arises when
defendant is mixed with firearms, intoxicants, and police. When that combination
occurs, it has a high potential of being lethal. Defendant’s inability to obtain a firearm
in prison could be a large factor in the lack of violence he has inflicted during the past
10 years.
In sum, substantial evidence supports the trial court’s finding that resentencing
defendant would pose an unreasonable risk of danger to public safety.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
CODRINGTON J.
FIELDS J.
15
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in denying the defendant's petition for resentencing under Propositions 36 and 47, as substantial evidence supported the finding that the defendant posed an unreasonable risk of danger to public safety.
Issues
Did the trial court err in finding that the defendant poses an unreasonable risk of danger to public safety if resentenced?
Does the defendant's history of firearm use and substance abuse support a finding of dangerousness under Penal Code sections 1170.18 and 1170.126?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The trial court found defendant would pose an unreasonable risk of danger to public safety if resentenced and denied defendant’s petitions.”
“The evidence supports the finding that, if he were resentenced, defendant would pose an unreasonable risk of committing a new violent felony, in particular homicide, attempted homicide, or assault with a machine gun upon a peace officer.”
“In sum, substantial evidence supports the trial court’s finding that resentencing defendant would pose an unreasonable risk of danger to public safety.”