THE PEOPLE, Plaintiff and Respondent, v. EDGAR OMAR AREVALO, Defendant and Appellant.
No. B259998
Second Dist., Div. Three
Feb. 8, 2016
244 Cal.App.4th 836
Lisa Ferreira and Susan Hier, under appointments by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle, Noah P. Hill and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
EDMON, P. J.—Edgar Omar Arevalo appeals from the trial court‘s order denying his petition for resentencing under the Three Strikes Reform Act of 2012 (hereafter, Proposition 36 or the Act). The Act amended
Arevalo is serving an indeterminate sentence under the Three Strikes law, having been found guilty in a bench trial of grand theft auto and driving a vehicle without the owner‘s consent. The trial judge, however, acquitted Arevalo of the charge of possession of a firearm by a felon and found the “armed with a firearm” allegation to be not true.
Arevalo subsequently petitioned for a reduction of his sentence pursuant to Proposition 36, arguing that in light of his acquittal and the not-true enhancement finding, he was eligible for resentencing because he had not committed the disqualifying conduct of being armed with a weapon during the commission of his “current offense.”2 (
The resentencing court, which by stipulation was not the trial court that had rendered the verdicts and findings, rejected Arevalo‘s contention. Reaching its findings under a preponderance of the evidence standard, the resentencing court concluded that Arevalo had been armed with a weapon during
Arevalo appeals, contending that the resentencing court erred in finding him ineligible based on facts not established beyond a reasonable doubt. We agree, and we reverse and remand for further proceedings. Under a properly applied “beyond a reasonable doubt” standard, Arevalo‘s acquittal on the weapon possession charge, and the not-true finding on the allegation of being armed with a firearm, are preclusive of a determination that he is ineligible for resentencing consideration. As a matter of law, therefore, Arevalo is eligible for resentencing. What remains to be adjudicated, however, is whether, under a preponderance of the evidence standard,3 he should be resentenced or whether he would pose an unreasonable risk of danger to public safety such that he should not be resentenced.
FACTUAL AND PROCEDURAL BACKGROUND
On November 9, 1994, the victim left the keys in the ignition of his car when he stopped momentarily to drop off his dog at the home of relatives. When he returned, the car was gone. The victim reported the theft of the car to the police. Approximately 30 minutes later, a police officer observed the victim‘s car pull in at a gas station. Arevalo exited the car and was arrested. The officer found an unloaded revolver on the passenger seat of the car.
A bench trial was held in April 1995. Arevalo was charged with grand theft of a vehicle (
The trial court found Arevalo guilty of grand theft auto and driving a vehicle without the owner‘s consent. Arevalo was acquitted of the burglary and possession of a firearm charges, and the court found the “armed with a firearm” allegation not true. The court further found that Arevalo had suffered multiple prior “strikes” under the Three Strikes law and sentenced him to 25 years to life for grand theft auto. The court stayed a similar term for driving without the owner‘s consent pursuant to section 654‘s prohibition on multiple punishment.
In the first appeal of this matter, we affirmed Arevalo‘s conviction but remanded for resentencing in accordance with People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [53 Cal.Rptr.2d 789, 917 P.2d 628]. (People v. Arevalo (Sept. 4, 1996, B093496) [nonpub. opn.].) On remand, the trial court again sentenced Arevalo to 25 years to life. We then affirmed that sentence. (People v. Arevalo (May 15, 1998, B110091) [nonpub. opn.].)
On November 6, 2012, California voters approved Proposition 36, which amended the Three Strikes law to reduce punishment for certain offenses. Later that month, Arevalo petitioned the court for recall of his sentence and resentencing pursuant to In October 2013, the district attorney filed opposition and argued Arevalo was ineligible for resentencing because he was armed with a firearm during Arevalo contends the resentencing court erred in concluding he was ineligible for resentencing based on facts not established by his underlying conviction. In the California Supreme Court‘s recent opinion in People v. Johnson (2015) 61 Cal.4th 674 [189 Cal.Rptr.3d 794, 352 P.3d 366] (Johnson) addressing the Act, the court summarized the Act‘s purpose and provisions as follows: “Prior to its amendment by the Act, the Three Strikes law required that a defendant who had two or more prior convictions of violent or serious felonies receive a third strike sentence of a minimum of 25 years to life for any current felony conviction, even if the current offense was neither serious nor violent. (Former “The Act‘s exceptions to the new sentencing provisions relate to a defendant‘s current offense and prior offenses. If the current offense involves controlled substances and specified findings are made concerning the quantity of controlled substances involved, or if the current offense is among specified sex offenses, a defendant with two or more strikes must be sentenced to a term of at least 25 years to life. [Fn. omitted.] ( “In addition to reducing the sentence to be imposed for some third strike felonies that are neither violent nor serious, the Act provides a procedure by which some prisoners already serving third strike sentences may seek resentencing in accordance with the new sentencing rules. ( As explained by People v. Blakely (2014) 225 Cal.App.4th 1042 [171 Cal.Rptr.3d 70] (Blakely): “In enacting Blakely went on to explain that “[i]t is clear the electorate‘s intent was not to throw open the prison doors for all third strike offenders whose current convictions were not for serious or violent felonies, but only for those who were perceived as nondangerous or posing little or no risk to the public. A felon who has been convicted of two or more serious and/or violent felonies in the past, and most recently had a firearm readily available for use, simply does not pose little or no risk to the public.” (Blakely, supra, 225 Cal.App.4th at p. 1057.) “[I]n order to effectuate the electorate‘s intent to leave subject to indeterminate life sentences those inmates perceived as posing a risk to public safety, The resentencing court concluded Arevalo was ineligible for resentencing because the evidence at his trial demonstrated that he had been armed with a firearm when he committed the crimes for which he was convicted: grand theft auto and “joy-riding.” It rejected Arevalo‘s argument that it was barred from finding him ineligible for resentencing because at his trial he was acquitted of the felon in possession of a firearm charge, and the arming enhancement allegation was found not true. The Attorney General explains that “[c]iting In re Coley (2012) 55 Cal.4th 524, 554 [146 Cal.Rptr.3d 382, 283 P.3d 1252], the trial court recognized that an acquittal ‘is not a finding of fact, but merely that the fact was not proven beyond a reasonable doubt.’ The court further recognized that the People‘s burden of proof in opposing appellant‘s recall petition was preponderance of According to the Attorney General, the resentencing court relied on trial evidence showing that, after Officer Park activated the lights on his patrol car, he saw Arevalo “make a ‘furtive movement with [his] right hand toward the passenger seat of the vehicle,’ ” and that when Park arrested him, Arevalo was alone in the stolen vehicle and there was an unloaded gun on the front passenger seat. Arevalo contends the resentencing court wrongly found him ineligible for resentencing consideration under the Act based on facts that were not established by his current conviction. As we shall explain, Arevalo is correct. Arevalo and the Attorney General agree that The parties do not agree, however, with respect to the appropriate standard of proof for determining whether Arevalo was disqualified from resentencing eligibility consideration on the basis of the “arming” ineligibility factor. Arevalo argues the correct standard of proof is beyond a reasonable doubt, while the Attorney General argues it is preponderance of the evidence. We conclude that Arevalo is correct. Reviewing courts have grappled with the standard of proof applicable to resentencing eligibility determinations under Proposition 36. In People v. Osuna (2014) 225 Cal.App.4th 1020 [171 Cal.Rptr.3d 55] (Osuna), the Court of Appeal noted In support of this conclusion, Osuna cited our opinion in People v. Superior Court (Kaulick), supra, 215 Cal.App.4th 1279, which held that the appropriate standard of proof for determining dangerousness under In Bradford, supra, 227 Cal.App.4th 1322, the same standard of proof question was raised, but ultimately was not reached: “The People argue the standard should be preponderance of the evidence, while petitioner argues due process compels application of a heightened burden of proof. We conclude the standard of proof is not dispositive in this case [and] . . . . The Bradford concurrence noted that “the degree of proof required in a particular proceeding is traditionally left to the courts and . . . the issue implicates due process concerns.” (Bradford, supra, 227 Cal.App.4th at p. 1346 (conc. opn. of Raye, P. J.).) The Bradford concurrence was guided by the principles that ” ‘[a]n individual has a constitutional right to procedural due process when the government deprives an individual of a liberty or property interest. [Citation.] One component of procedural due process is the standard of proof used to support the deprivation. [Citation.] The standard of proof must satisfy “the constitutional minimum of ‘fundamental fairness.’ ” [Citation.] To determine whether a proof standard meets this constitutional minimum, the courts evaluate three factors: (1) the private interest affected by the proceeding; (2) the risk of an erroneous deprivation of the interest created by the state‘s chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure. [Citations.]’ ” (People v. Jason K. (2010) 188 Cal.App.4th 1545, 1556 [116 Cal.Rptr.3d 443].) Further, as the Supreme Court explained in Santosky v. Kramer (1982) 455 U.S. 745 [71 L.Ed.2d 599, 102 S.Ct. 1388]: ” ‘[T]he standard of proof is a crucial component of legal process, the primary function of which is “to minimize the risk of erroneous decisions.” ’ [Citation.] Notice, summons, right to counsel, rules of evidence, and evidentiary hearings are all procedures to place information before the factfinder. But only the standard of proof ‘instruct[s] the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions’ he draws from that information. [Citation.]” (Id. at pp. 757-758, fn. 9, italics omitted.) “When the State brings a criminal action to deny a defendant liberty or life . . . ‘the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.’ [Citation.]” (Id. at p. 755.) Applying these due process concerns to the question of eligibility for resentencing under the Act, the Bradford concurrence initially pointed out that the defendant‘s liberty interest is somewhat diminished because at issue However, counterbalancing this diminished interest is the substantial amount of future prison time that might be affected by the proceeding: “The difference between an existing sentence and a revised sentence under Proposition 36 is significant. A lengthy, indeterminate sentence that could amount to most of a petitioner‘s life may be reduced on resentencing to a relatively short term of years. . . . The liberty interest may be characterized in this context as substantial, although it is not significantly different than that underlying other sentencing decisions.” (Bradford, supra, 227 Cal.App.4th at p. 1347 (conc. opn. of Raye, P. J.).) The Bradford concurrence then explained that, given the summary and retrospective nature of this proceeding, “the risk of erroneous deprivation of the interest created by the state‘s chosen procedure” factor “is the most compelling. . . . [T]he statute does not call on the parties to present evidence concerning relevant facts of a prior conviction that determine whether the petitioner is ineligible for resentencing. It is in this respect that the current matter is not like either an ordinary sentencing proceeding or the discretionary resentencing proceeding under Proposition 36, at which time the trial court considers evidence bearing on the petitioner‘s dangerousness. The retrospective nature of the determination presents unique pitfalls. A review of the record of the prior conviction is potentially problematic since the parties had no incentive to fully litigate at the time of the original trial court proceedings unpleaded factual allegations that relate to the petitioner‘s conduct and intent at the time of the crimes. Obviously, the issue of whether a particular petitioner intended to cause great bodily injury under the eligibility criteria could be the subject of substantial dispute between the parties, as it necessarily requires a determination based on circumstantial evidence in virtually all cases. The determination of whether an item is a deadly weapon can likewise be problematic . . . .” (Bradford, supra, 227 Cal.App.4th at pp. 1347-1348 (conc. opn. of Raye, P. J.).) Finally, the Bradford concurrence explained that “the countervailing government interest implicated by the procedure” is slight. (Bradford, supra, 227 The Bradford concurrence concluded that “[a]n analysis of the factors described above suggests that due process may compel a heightened burden of proof in making the [resentencing eligibility] determination . . . based upon the cold record of petitioner‘s prior conviction. I would respectfully suggest careful consideration as to whether imposition of proof by clear and convincing evidence is required.” (Bradford, supra, 227 Cal.App.4th at p. 1350 (conc. opn. of Raye, P. J.).) We agree with the Bradford concurrence‘s suggestion that a heightened standard of proof should be required in this situation. We base this conclusion on the substantial amount of prison time potentially at stake for the defendant seeking resentencing, the risk of potential error stemming from the summary and retrospective nature of the adjudication that will be made at the resentencing eligibility proceeding, and the slight countervailing governmental interest given the People‘s opportunity to provide new evidence at any subsequent dangerousness hearing. Contrary to the Bradford concurrence, however, we conclude that the appropriate standard of proof is beyond a reasonable doubt, not clear and convincing evidence. We base our conclusion on Johnson, which the Supreme Court issued after Bradford was filed. Johnson said very clearly: The court‘s analysis in Johnson leads us to conclude that, not only must there be a heightened standard of proof for The Attorney General argues that Johnson‘s discussion of the parallel structure of the Act “reflects nothing more than the recognition that defendants with ‘identical criminal histories,’ whether determined by a trier of fact beyond a reasonable doubt in the prospective portion of the Reform Act, or by a trial court employing a preponderance standard in the retrospective portion of the Reform Act, should ‘receive identical sentences.’ ” We disagree. As demonstrated here, the only avenue by which to accomplish Johnson‘s requirement of identical sentences for defendants with identical criminal histories is to apply an identical standard of proof for the determination of resentencing ineligibility, i.e., beyond a reasonable doubt. Under the applicable beyond a reasonable doubt standard, Arevalo‘s acquittal on the weapon possession charge and the not-true finding on the allegation of being armed with a firearm, preclude a finding that he is ineligible for resentencing consideration. The postjudgment order denying Arevalo‘s resentencing petition is reversed. The matter is remanded for a hearing to determine whether, under a preponderance of the evidence standard, Arevalo would pose an unreasonable risk of danger to public safety such that he should not be resentenced. Aldrich, J., and Jones, J.,* concurred. On March 9, 2016, the opinion was modified to read as printed above. *Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to CONTENTION
DISCUSSION
1. The Act.
2. The resentencing court‘s ruling that Arevalo was ineligible for resentencing.
3. The resentencing court erred in finding Arevalo ineligible for resentencing; Arevalo‘s acquittal on weapon possession charge and not-true finding on allegation of being armed with a firearm preclude a finding that he is ineligible for resentencing consideration.