ELIA, J.—
The Three Strikes Reform Act of 2012 (hereafter the Act or Proposition 36) created a postconviction release proceeding for third strike
On September 12, 2013, after the Act went into effect, defendant filed a petition for recall of sentence and request for resentencing under the Act.
Ultimately, on January 16, 2014, after a hearing at which defendant's brother testified, the court denied the recall and resentencing petition. Defendant filed a timely notice of appeal.
On appeal, defendant claims that because the trial court applied the wrong definition of unreasonable risk of danger to public safety, this court must reverse the denial of his recall and resentencing petition. Further, he asserts that because the trial court placed the burden of proof on him, his due process rights were violated. In addition, defendant maintains that he had a right to a jury trial. Alternatively, if his request for a jury trial was not preserved for appeal, his due process rights were violated since the court denied his request for a continuance, which resulted in the dismissal of his petition. Finally, defendant argues that along with his right to a jury trial he was entitled to a standard of proof beyond a reasonable doubt and his attorney's failure to assert that standard deprived him of the effective assistance of counsel.
In addition, Abel Rodolfo Esparza has filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. In his petition, Esparza contends that trial counsel was ineffective in failing to call as a witness a prison expert to testify in support of his Proposition 36 resentencing
For reasons that follow we agree with defendant that the court erred below and that he is entitled to a new sentencing hearing.
In his recall petition, defendant argued that his current status showed that he was not dangerous. Attached to the petition were letters indicating that defendant had been accepted into the Options Recovery Services outpatient reentry program, an abstinence-based drug and alcohol treatment program; that he had been accepted into the Salvation Army Adult Rehabilitation Center in San Jose; that he had been attending the Saturday Alcoholics Anonymous program at San Quentin for six months beginning in the first half of 2013; and that his "C-file" showed that had been participating in AA (Alcoholics Anonymous) since May of 2012. In addition, defendant submitted a two-page relapse prevention plan in which he outlined how he would avoid relapsing and returning to the use of drugs and alcohol. Finally, defendant submitted a letter to the court in which he acknowledged that his criminal record was "bad and really questionable," and in which he indicated remorse for his past actions. He wrote "I . . . grieved the passing of life and the injury to another. I am appalled of my causing such pain to the family of the deceased."
The prosecutor argued that if defendant were resentenced and released he would be a serious danger to public safety. The prosecutor noted that defendant had 14 alcohol- and drug-related criminal driving convictions, three convictions for being under the influence of narcotics, and 17 convictions for driving on a suspended or revoked license. The prosecutor pointed out that defendant's record stretched back to 1971 and that previously defendant's driving had resulted in the death of one person and the severe injury of that person's wife.
The prosecutor went on to conclude, "Time after time, one year after another, for 26 years he has continued to commit crimes. At this point, the People of Santa Clara County and the State of California deserve protection from his continual criminal conduct. The intent of the `Three Strikes' law was to remove dangerous criminals from our streets and towns, so that the rest of the law abiding citizenry can enjoy the menace of criminal behavior such as that in which the defendant engages."
As to defendant's record while incarcerated, all the prosecutor could point to in defendant's record was a "Conviction" for "Possession of Contraband."
Joel Esparza, defendant's brother—a registered nurse—testified that he was prepared to help his brother with housing, food, clothing, and the basic necessities of life should his brother be released from prison. Mr. Esparza
At the end of the hearing, defendant's counsel argued that defendant's records "show a durable and sustained absence from the use of alcohol" while defendant has been in prison. Counsel pointed out that in the 17 years defendant has been in prison he "has not done anything wrong." Counsel asserted that defendant had made a lifetime commitment never to drink alcohol again and that the recidivism rate for 60-year-olds such as defendant was "very, very, low."
The prosecutor countered that defendant posed an unreasonable risk of danger to public safety. The prosecutor conceded that for violent offenders the older they get the recidivism rate lowers, but stated that defendant was an alcoholic and "[t]hat never goes away." The prosecutor referred to defendant's never taking advantage of drug and alcohol programs for 26 years and again noted that defendant blamed other people for what happened. The prosecutor continued, "I do find it ironic that attached to counsel's papers that during the 16 years that he's been in custody there's no evidence of AA meetings or any type of drug or alcohol treatment that he received in prison. It wasn't unless [sic] two years ago when he knew he potential [sic] could be able to present to the Court and be resentenced that he finally took action, and I think it's only been six months that he's gone to AA meetings and he's finally programmed and looked for options that would be able to help this issue. [¶] And I would just like to state that maybe he didn't drink in prison, maybe he did. We don't know. All we know is that he wasn't caught drinking in prison and disciplined for it. But it is hard to get access to alcohol while you're in prison. So who is to say when he gets out when he is an alcoholic, for 26 years when he was drinking, programming, being told not to drink, being arrested, spending time in jail, spending time in programs, he continued to drink for 26 years. We don't know what he did in prison. There's no evidence of a [sic] that. We just know he wasn't caught. But the fact is he's still an alcoholic." The prosecutor concluded, "There's no assurance he's not going to drink again, and we still do see that he's a danger to the community."
The court said that it had never seen a case where someone had 14 convictions for DUI. The court did not doubt that defendant had behaved well in prison because he did not have a history of being a violent person—the court found that defendant "is an alcoholic who drinks and drives." The court recited defendant's criminal history for the record—41 misdemeanor convictions and three felonies. The court noted that defendant had driven on a
The court went on to say that defendant had not started his AA meetings until "April of last year, so he didn't do anything with respect to trying to help himself with respect to his alcohol problem. And you can perhaps infer, and I don't know if this is a fact, but maybe you can infer that he did this simply because the law had changed and he would be eligible to be reconsidered under the law for resentencing because of the nature of the commitment, which is not a serious violent felony. But he didn't start [until] April of 2013. That's what the record reflects that was submitted to the Court."
Ultimately, the court concluded that it was "not willing to make a decision in this case that [defendant is] not a danger in the community. I have very grave concerns that . . . in fact you would be a danger to the community because of your alcohol problem and because of your prior history." Accordingly, the court denied defendant's petition for resentencing.
At the outset, we note that in Teal v. Superior Court (2014) 60 Cal.4th 595 [179 Cal.Rptr.3d 365, 336 P.3d 686], the California Supreme Court held that the denial of a motion for recall and resentencing is an appealable postconviction order. (Id. at pp. 599-601.)
If the inmate satisfies all three criteria, as did defendant, he or she "shall be resentenced [as a second strike offender] unless the court, in its discretion, determines that resentencing the [inmate] would pose an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).) In exercising this discretion, "the court may consider: [¶] (1) The [inmate's] criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes; [¶] (2) The [inmate's] disciplinary record and record of rehabilitation while incarcerated; and [¶] (3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety." (§ 1170.126, subd. (g).)
Effective November 5, 2014, the voters approved Proposition 47, which, among other things, "[r]equire[s] misdemeanors instead of felonies for nonserious, nonviolent crimes [such as] petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, p. 70 (Voter Information Guide).) Proposition 47 added section 1170.18 to the Penal Code, under which "[a] person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section . . . had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case [and] request resentencing . . . ." (§ 1170.18, subd. (a).) If subdivision (a) of this provision is satisfied, subdivision (b) requires recall and resentencing "unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.18, subd. (b).) Subdivision (c) provides: "As used throughout this Code, `unreasonable risk of danger to public safety' means an unreasonable risk that the petitioner will commit a new violent felony within the
Defendant argues that Proposition 47's definition of unreasonable risk of danger to public safety necessarily governs the identical section 1170.126 standard.
Proposition 47 was intended to reduce penalties for "certain nonserious and nonviolent property and drug offenses from wobblers or felonies to misdemeanors." (Voter Information Guide, supra, analysis of Prop. 47 by Legis. Analyst, p. 35.) Those crimes were identified as "Grand Theft," "Shoplifting," "Receiving Stolen Property," "Writing Bad Checks," "Check Forgery," and "Drug Possession." (Ibid., italics omitted.) "This measure allows offenders currently serving felony sentences for the above crimes to apply to have their felony sentences reduced to misdemeanor sentences . . . . In addition, the measure states that a court is not required to resentence an offender currently serving a felony sentence if the court finds it likely that this offender will commit a specified severe crime." (Id., analysis by Legis. Analyst, p. 36, italics added.) This intent was echoed by the proponents of Proposition 47, who argued the measure "is sensible" in that it "Stops wasting prison space on petty crimes and focuses law enforcement resources on violent and serious crime by changing low-level nonviolent crimes such as simple drug possession and petty theft from felonies to misdemeanors." (Voter Information
Furthermore, in Proposition 47, as noted ante, the electorate redefined several felonies as misdemeanors and extended the benefits of the law to current inmates similar to Proposition 36. Under the retroactive part of Proposition 47, similar to the retroactive part of Proposition 36, relief can be denied to unreasonably dangerous inmates. The new, narrower definition of "unreasonable risk of danger" in Proposition 47 is appropriate because the inmates who stand to benefit from Proposition 47 are now considered misdemeanants, or they would have been if they had committed their crimes after the passage of Proposition 47. As misdemeanants, in general, they as a class are less dangerous than recidivist felons with prior strike offenses. It is axiomatic that a felony is a more serious type of crime than a misdemeanor. It would be illogical to believe that the electorate intended to change Proposition 36 when in Proposition 47 it redefined some felonies as misdemeanors; to do so would be to treat felons whose underlying third crime is still a felony if committed today as if they were now misdemeanants.
Moreover, Proposition 47's definition of "`unreasonable risk of danger to public safety'" applies to "petitioner[s]." (§ 1170.18, subd. (c).) However, Proposition 36 has a sunset clause. Without a showing of good cause, a three strikes inmate had until November 7, 2014 (two days after Prop. 47 became effective), to file a petition for recall of sentence. (§ 1170.126, subd. (b) [an inmate may file a petition for a recall of sentence, within two years after the effective date of the act that added this section or at a later date upon a showing of good cause].) Without a showing of good cause, the only "petitioners" who are able to petition for recall of sentence after November 7, 2014, are those who are eligible to petition for recall under section 1170.18. We must presume that the drafters of Proposition 47 were aware of this when they used the word "petitioner" in subdivision (c) of section 1170.18.
Before we constrain a court considering whether to release a former three strikes offender back to the streets, which we would do if we accepted defendant's arguments, we would need the most compelling proof that the voters intended what we see as an unreasonable and counterintuitive result. Defendant has not satisfied that burden on appeal.
As noted, defendant filed his original recall and resentencing petition on November 14, 2012. Thereafter, the prosecution filed its opposition on March
In essence, defendant argues that since there was only a court hearing on his petition for recall of sentence, the court deprived him of the jury trial he had requested.
The People assert that because the request for a jury trial was filed in connection with defendant's first petition that was dismissed and he did not file a new request after he filed his new petition, the request for a jury trial was rendered moot by the dismissal.
We are not persuaded by the People's argument. At the status hearing on October 18, 2013, the court noted that the prosecution and the defense had already filed their respective papers and defendant's newly retained counsel requested to file supplemental papers, to which the court agreed. We take this to mean that the court considered everything that had been submitted prior to the dismissal of defendant's initial petition to be preserved.
That being said, defendant's argument that he was denied his right to a jury trial is premised on his assertion that section 1170.126 creates a new statutory presumption for a two-strike sentence; he asserts that the statute mandates that the court impose the two-strike sentence unless a factual finding of dangerousness is made. We do not agree with defendant that a second strike sentence is the presumptive sentence.
As we have explained, the language of subdivision (f) of section 1170.126 reads that a petitioner who meets the eligibility criteria "shall be resentenced [as a second strike offender] unless the court, in its discretion, determines that resentencing the [inmate] would pose an unreasonable risk of danger to public safety." It is not unreasonable to read this text to mean that a court "shall" impose a second strike sentence unless "at the discretion of the court" the petitioner's original sentence of 25 years to life appears more appropriate because of an unreasonable risk of danger to the public. However, it is equally reasonable to read the text to mean that a court may select one of the two penalties (a second strike sentence or the original life sentence) in the exercise of its discretion, with no presumption in favor of one or the other. "The latter reading accords with common usage. For example, if a teacher informed her students that `you must take a final exam or, at your discretion, write a term paper,' it would be reasonable for the students to believe they were equally free to pursue either option." (People v. Gutierrez (2014) 58 Cal.4th 1354, 1371 [171 Cal.Rptr.3d 421, 324 P.3d 245] (Gutierrez).) The text of subdivision (f) of section 1170.126 does not plainly indicate that a second strike sentence is the presumptive sentence.
Nothing in Alleyne v. United States (2013) 570 U.S. ___, ___ [186 L.Ed.2d 314, 133 S.Ct. 2151], cited by defendant, supports his views. As described by the California Supreme Court, in Alleyne "the United States Supreme Court held that the federal Constitution's Sixth Amendment entitles a defendant to a jury trial, with a beyond-a-reasonable-doubt standard of proof, as to `any fact that increases the mandatory minimum' sentence for a crime." (People v. Nunez and Satele (2013) 57 Cal.4th 1, 39, fn. 6 [158 Cal.Rptr.3d 585, 302 P.3d 981].) The denial of a recall petition does not increase the mandatory minimum sentence for a defendant's crime.
"The retrospective part of the Act is not constitutionally required, but an act of lenity on the part of the electorate. It does not provide for wholesale resentencing of eligible petitioners. Instead, it provides for a proceeding where the original sentence may be modified downward. Any facts found at such a proceeding, such as dangerousness, do not implicate Sixth Amendment issues." (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1304-1305 [155 Cal.Rptr.3d 856] (Kaulick).) We agree with Kaulick on this point.
In Kaulick, the defendant argued that the standard of proof applicable to the determination of dangerousness under section 1170.126, subdivision (f) should be beyond a reasonable doubt, reasoning that "a finding of dangerousness is a factor [that] justifies enhancing a defendant's sentence beyond a statutorily presumed second strike sentence." (Kaulick, supra, 215 Cal.App.4th
Simply put, a denial of an inmate's petition does not increase the penalty to which that inmate is already subject, but instead removes the inmate from the scope of an act of lenity on the part of the electorate to which he or she is not constitutionally entitled. That the denial is based on a determination of dangerousness does not change that conclusion.
Defendant argues that he was entitled to a standard of proof beyond a reasonable doubt and his attorney's failure to assert that standard deprived him of the effective assistance of counsel.
As the Kaulick court explained, the proper standard of proof is preponderance of the evidence. "Evidence Code section 115 provides that, `[e]xcept as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.' There is no statute or case authority providing for a greater burden, and [the defendant] has not persuaded us that any greater burden is necessary. In contrast, it is the general rule in California that once a defendant is eligible for an increased penalty, the trial court, in exercising its discretion to impose that penalty, may rely on factors established by a preponderance of the evidence. [Citation.] As dangerousness is such a factor, preponderance of the evidence is the appropriate standard." (Kaulick, supra, 215 Cal.App.4th at p. 1305, fns. omitted.)
We agree with Kaulick's analysis. Similarly, we conclude that the proper standard of proof is preponderance of the evidence. Since defendant was entitled only to a standard of proof by a preponderance of the evidence, his counsel cannot be faulted for failing to assert that he was entitled to a standard of proof beyond a reasonable doubt.
At the hearing on defendant's resentencing petition, after calling the case, the court indicated that the case had been assigned for hearing; that the People had filed opposition; that the court had read that opposition and defendant's reply; and that, unless there were any motions, the proceedings would start with the presentation of evidence. Immediately, the court told defendant's counsel to "[g]o ahead." Defendant's counsel told the court that "the People have the burden, but I'm happy to proceed this way." The court
After defendant's brother Joel testified, the court asked defense counsel if she had any more witnesses. Defense counsel, Ms. Bucknell, said that she did not intend to present any other witness. The following colloquy occurred:
"THE COURT: Okay. So you rest as far as the presentation of any further evidence?
"[MS. BUCKNELL]: Yes, unless the Court wishes to address my client.
"THE COURT: No. [¶] On behalf of the People, Ms. Schon?
"[MS. SCHON]: No witnesses, Your Honor.
"THE COURT: Okay, so that concludes the testimony. [¶] Now is the opportunity of counsel to address the Court by way of any argument. [¶] Ms. Bucknell."
Immediately, defendant's counsel began her argument to the court.
Defendant argues that implicitly the court imposed the burden of proof on him and required him to prove he had rehabilitated in violation of his due process rights.
The People argue that both defense counsel and the prosecutor recognized that the People have the burden of proof and the trial court is presumed to have known and applied the applicable law.
Certainly, "Evidence Code section 664 provides that `[i]t is presumed that official duty has been regularly performed' and scores of appellate decisions, relying on this provision, have held that `in the absence of any contrary evidence, we are entitled to presume that the trial court . . . properly followed established law.' [Citation.]" (Ross v. Superior Court (1977) 19 Cal.3d 899, 913 [141 Cal.Rptr. 133, 569 P.2d 727].)
At the time of defendant's hearing, there was only one published case that had discussed who had the burden of proof in a recall and resentencing hearing. As we have explained, Kaulick found that the prosecution bears the burden of establishing "dangerousness" by a preponderance of the evidence against a claim the Apprendi line of cases requires proof beyond a reasonable
Preponderance of the evidence means "`evidence that has more convincing force than that opposed to it.'" (Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 324 [276 Cal.Rptr. 430].) That standard is met when "evidence on one side outweighs, preponderates over, is more than, the evidence on the other side, not necessarily in number of witnesses or quantity, but in its effect on those to whom it is addressed." (People v. Miller (1916) 171 Cal. 649, 652 [154 P. 468].) In light of this standard, the burden of proof becomes relevant to the determination only if the evidence is evenly balanced in the mind of the fact finder. (Id. at p. 654.)
Plainly, the court did not view the relevant facts as supporting both positions equally. The court described defendant's criminal record—41 misdemeanors, three felonies, 17 times driving on a revoked or suspended license, and a manslaughter conviction. Although the court found defendant's prison record to be "the most stellar" the court had seen for somebody who had been in prison for 16 years, it was the nature of the offenses that defendant committed that concerned the court; and the inference the court drew that defendant only started his AA meetings "simply because the law
Certainly, the prosecution produced documents from defendant's prison file, which included the probation report from his 1997 case. In that case, defendant was convicted of two counts of DUI with three or more prior DUI convictions (Veh. Code, 23152, subd. (b)), one count of resisting, delaying or obstructing a police officer, and one count of driving on a suspended license (Veh. Code, § 14601.2, subd. (a)). The probation report documented defendant's prior criminal record—three felonies,
In this case, the trial court's analysis became disconnected from the evidence presented. Whether we review this as a violation of defendant's due process rights because the prosecution failed to carry its burden,
We make the following observations for the benefit of the trial court on remand. In discussing the "some evidence" standard applicable in parole cases, the California Supreme Court has stated: "This standard is unquestionably deferential, but certainly is not toothless, and `due consideration' of the
In his writ petition, defendant claims that he was denied the effective assistance of counsel. Specifically, he asserts that his trial counsel failed to adequately investigate and present a prison expert at his Proposition 36 resentencing hearing to explain to the court how extraordinary it was for defendant not to have had a single disciplinary infraction in 16 years; to explain how prevalent the use of alcohol and drugs are within the California prison system and in that context, for an alcoholic inmate not to have a single disciplinary infraction in 16 years, which reflects a commitment to sobriety; to explain why residential treatment at the initial phase of reentry would likely facilitate a relapse-free life for defendant; to explain how difficult it is in prison to regularly attend AA meetings; and to explain how his recent and regular attendance further bolsters the likelihood that defendant will remain clean and sober out of custody.
As to defendant's other contention that the trial court's finding in his 1997 case that his priors were strikes violated his constitutional right to due process under Descamps, supra, 570 U.S. at page ___ [133 S.Ct. at p. 2288], this is an attempt to mount a collateral attack on a long final judgment.
Without doubt, all courts in California have original jurisdiction in writ proceedings. Article VI, section 10 of the California Constitution provides that "[t]he Supreme Court, courts of appeal, superior courts, and their judges have original jurisdiction in habeas corpus proceedings." This "original jurisdiction" means that a petition for writ of habeas corpus may be filed in the first instance in the superior court, Court of Appeal, or the California Supreme Court. (People v. Romero (1994) 8 Cal.4th 728, 737 [35 Cal.Rptr.2d 270, 883 P.2d 388].)
Having original jurisdiction and exercising it are two separate things. It has long been the law in California that, while a Court of Appeal may have original jurisdiction in a habeas corpus proceeding, it has the discretion to deny a petition without prejudice if it has not been first presented to the trial court. As the Fifth District Court of Appeal explained more than half a century ago: "There is no question but that this court has jurisdiction to issue the writ of habeas corpus [citation]. But this court has discretion to refuse to issue the writ as an exercise of original jurisdiction on the ground that application has not been made therefor in a lower court in the first instance." (In re Hillery (1962) 202 Cal.App.2d 293, 294 [20 Cal.Rptr. 759] (Hillery).) In Hillery, the petition, which was filed directly in the Court of Appeal, was denied because the petitioner did not show "that any extraordinary reason exists for action by this court, rather than by the Superior Court of the State of California . . . ." (Ibid.) The same can be said of this case. Since the appeal in this case is from the denial of a Proposition 36 resentencing hearing, it seems more appropriate that the superior court decide this issue in the first instance since it is collateral to the Proposition 36 resentencing hearing. Accordingly, as to this issue we deny the petition without prejudice to defendant's raising it in the superior court in the first instance.
The order denying defendant's petition for recall of sentence is reversed and the matter is remanded to the trial court for further proceedings.
Rushing, P. J., and Premo, J., concurred.
