Thursday, June 15, 2017
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C.A. Affirms 53 Years to Life Sentence for Assaults
Panel Previously Disapproved Sentence of 113 Years, Later a Sentence of 64 Years
By a MetNews Staff Writer
A sentence of 53 years to life in prison for a third-strike offender who twice pointed a shotgun at his wife and threatened to kill her, and committed other crimes, has been affirmed by Court of Appeal for this district, rejecting the claim that the penalty is excessive because no physical harm was inflicted.
The same panel—Div. Two—earlier branded the man’s sentence of 113 years to life excessive under the California Constitution, and in a later decision vetoed a term of 64 years to life.
The 113-year sentence was invalidated based on it amounting to a life sentence; under the latest sentence, if fully served, the defendant would emerge from prison, if still alive, at age 93.
The current sentence was imposed on Dennis Baliscan Regalado by Los Angeles Superior Court Judge Christopher G. Estes. Affirming on Tuesday in an unpublished opinion, Acting Presiding Justice Judith Ashmann-Gerst said that unlike the 113 year sentence, the present one does not violate the state constitutional ban on “cruel or unusual” punishments.
The inquiry under that clause, she recited, is whether the sentence is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” The jurist said this requires an assessment of the offense and offender, with a look at sentences for more serious offenses imposed in California and in other states.
Defendant’s History
Focusing on Regalado, she declared:
“He has a felony conviction for negligently discharging a firearm in 2006 (the first strike), a criminal threats conviction in 2010 (the second strike), and then serious crimes on three different occasions in the current case—pointing a gun at his wife and threatening to kill her on May 29, 2012, and June 10, 2012, and then trying to dissuade her from testifying in December 2012.
“Moreover, the evidence demonstrates that defendant is a danger to society. He repeatedly aimed a shotgun at his wife’s head and body. While he has not caused physical harm—yet—he emotionally terrorized his wife when he threatened to kill her and threatened to bury her alive. And, instead of taking responsibility for his misconduct, defendant attempted to manipulate his wife’s testimony.”
Comparing his sentence with others imposed in California, Ashmann-Gerst wrote:
“In Regalado I, we noted that the original 113-year sentence was far greater than typical sentences imposed for first-time offenders for making criminal threats and attempting to make criminal threats, which ranged from just under five years to nearly 25 years. The 53-year sentence we now review is more in line with these other sentences, particularly when we consider defendant’s criminal history and his status as a third strike offender.”
She also said the current sentence “is consistent with the recidivist statutes enacted in other states.”
Eighth Amendment Claim
Rejecting a claim under the U.S. Constitution’s Eighth Amendment ban on cruel and unusual punishment, Ashmann-Gerst wrote:
“Defendant’s sentence is not unconstitutional. He committed violent felonies that displayed, as the trial court noted, ‘callousness or viciousness.’ He pointed a loaded gun at his wife’s head and body from only a few feet away, threatened to kill her, and threatened to bury her alive. He grabbed her by the throat and told her to open her mouth, presumably so that he could put the shotgun inside it. His abuse of his wife was part of a long cycle of endangering and threatening victims with weapons. His past strikes included firing a gun into the air during an argument with a neighbor and threatening to shoot two other neighbors. Indeed, defendant was on probation for his prior criminal threat conviction at the time of the current offenses. Accordingly, defendant’s violent criminal history and current violent felonies provide a strong justification for his lengthy sentence.”
The case is People v. Regalado, B276909.
In Regalado I, decided April 14, 2015, Ashmann-Gerst said of the 113-year sentence imposed by Los Angeles Superior Court Judge Kathleen Blanchard:
“We agree with the People that appellant’s conduct ‘warranted a significant period of incarceration.’ But, while his conduct was reprehensible, it does not support a sentence amounting to the ‘legal equivalent’ of life without the possibility of parole.”
On remand, Blanchard on Aug. 19, 2015, expressed an understanding that, under the Court of Appeal’s decision, she could not impose a term that was tantamount to life in prison. She sentenced the defendant to 64 years, commenting that he was 38 years old and was “eligible to earn good time/work time at a rate of 20 percent off of that,” so that the sentence was not “the legal equivalent of life without the possibility of parole.”
Under that scenario, he could possibly have been released at age 82, with an outside release date at age 102.
Ashmann-Gerst said in Regalado II, filed April 5, 2016:
“A defendant sentenced to an indeterminate life term under the ‘Three Strikes’ law is not entitled to prison conduct credits for use against his mandatory indeterminate term of life imprisonment….Yet the trial court imposed a sentence under the erroneous belief that appellant was eligible for 20 percent conduct credits for its indeterminate life sentence. It follows that the trial court did not understand its discretion and we must reverse the matter and remand the case for resentencing.”
It was directed that a judge other than Blanchard be assigned on remand.
In a decision in an unrelated case decided Tuesday, Ashmann-Gerst wrote for Div. Two in declaring that a 115 years to life sentence must be set aside because Los Angeles Superior Court Judge Henry J. Hall apparently “was unaware of its discretion to sentence appellant to consecutive or concurrent terms.”
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