People v. GarciaPeople v. Garcia
I. Background
Defendant's strike priors are two 1992 residential burglaries and a 1996 robbery. The two burglaries were committed within minutes of each other. In the first burglary, defendant stole jewelry. In the second burglary, he was interrupted by the victim. The robbery involved "entering a residence, brandishing knives and demanding
The current conviction arose from an incident in September 2001. Defendant approached an intoxicated man at 2:00 a.m. and asked him for money. When the man pulled out his wallet, defendant pushed the man down, grabbed the wallet out of the man's hand, and ran away. The wallet contained $400.
Defendant was charged with robbery (§ 211, 212.5, subd. (c)) and grand theft of property over $400 (§ 484, former § 487, subd. (a)), and it was further alleged that he had suffered three prior strikes (§ 1170.12), two prior serious felony convictions (§ 667, subd. (a)), and two prison priors (§ 667.5, subd. (b)). In 2002, he entered into a plea agreement under which he pleaded guilty to the grand theft count and admitted the strike and prison prior allegations in exchange for dismissal of the robbery count and the prior serious felony conviction allegations.
During his 11 years in prison for his 2002 conviction, defendant has not been a model prisoner. He has repeatedly disobeyed correctional officers and refused to comply with their orders. Defendant has been repeatedly involved in fights with other prisoners throughout his time in prison. These fights occurred in 2004, 2006, 2008, 2010, twice in 2012, and four times in 2013.
In February 2013, defendant filed a petition for resentencing under section 1170.126. Defendant asked the court to summarily grant his petition on equal protection grounds. He requested a jury trial with a standard of proof beyond a reasonable doubt on the issue of whether resentencing "would pose an unreasonable risk of danger to public safety." Defendant also insisted that the "risk assessment hearing" should be "an evidentiary hearing in which the prosecution has the burden of proving that Petitioner is not entitled to relief
The defense submitted a report by Richard Subia, a former California Department of Corrections and Rehabilitation (CDCR) division director and warden. Subia had
The defense asserted that defendant's misconduct in prison was not indicative of his risk to public safety because it was entirely the result of his need to protect himself from assaults by other inmates that arose from the " 'R' suffix" designation. It argued that defendant was "not a fighter when he's out of prison." The defense also asserted that the fact that defendant had not been found to be using drugs or alcohol in prison showed that he "no longer has a drug problem." Defendant's trial counsel argued that "the Court should give weight to the incidents that are reported in the C file [ (defendant's prison records) ], but I also think that they should be looked at with a grain of salt...."
The prosecution conceded that defendant was eligible for resentencing, but it opposed defendant's petition on the ground that he remained a public safety risk and asserted that he was not entitled to have the risk assessment hearing be a jury trial. The prosecution submitted certified copies of defendant's CDCR records, which documented defendant's behavior in prison between 2002 and 2013.
At the outset of the risk assessment hearing, the superior court denied defendant's request that it summarily grant the petition on equal protection grounds. It also denied defendant's request for a jury trial. The court ruled that the risk assessment hearing would be a "sentencing hearing," not an "evidentiary hearing," and that the rules of evidence did not apply. The court rejected the defense argument that defendant's CDCR file (his "C file") was hearsay.
Subia testified at the hearing that he had reviewed defendant's entire CDCR file and interviewed defendant. Subia explained that defendant's prior conviction for indecent exposure resulted in the CDCR's giving him "an R
The superior court was not persuaded by Subia's testimony because it believed that Subia had "sugarcoated" his review of defendant's CDCR record. The court relied on defendant's criminal history, his commitment offense, and his conduct in prison. "He has not been a productive member of the community when he was in the community. He doesn't have any history of any type of employment or trade or anything of that sort. He had made a conscious decision to be in the United States illegally.... He's been deported three times, and he has apparently c[o]me back, and I have to infer ... that he came back under circumstances which were not
II. Discussion
A. Burden of Proof
Defendant claims that the superior court erroneously placed the burden of proof on him rather than on the prosecutor. We conclude that the record demonstrates that the court properly imposed the burden of proof on the prosecutor.
At the commencement of the hearing, the superior court offered an extended monologue regarding the burden of proof. "Is there a burden of proof? If there is, what is it? What is the issue subject to the burden of proof? What criteria does the Court use to decide the issue as to whether or not he
The court explained that the distinction it was making was that "I might make a decision and based upon findings contrary to what the People argue." "[T]he Court in its own discretion might say I don't put a lot of weight on those reasons [relied upon by the prosecution]. I have other reasons. I'm relying upon what I have heard in this case...." The court's position was that it was not bound by the prosecution's arguments but could base its decision on something "they haven't argued." The court expressly acknowledged that "[t]he People have the burden to prove by a preponderance of the evidence a contested issue of fact. " (Italics added.) At the conclusion of the hearing, the court pointed out that defendant had done nothing positive in prison but instead had been
Defendant insists that the superior court placed the burden of proof on him because the court said, at the very end of the hearing, "he has not done anything to prove to me that he would be anything other than a danger to the
Defendant claims that there was "obvious confusion" in the court's statements about the burden of proof. We disagree. The court acknowledged from the beginning of the hearing that the prosecution bore the burden of proof. The statements by the court that defendant finds confusing were aimed at articulating the court's accurate distinction between the prosecution's burden of proof and the prosecution's arguments. As the court explained, it was not bound by the specific arguments made by the prosecution but could rely on a different basis for its decision so long as the prosecution had presented evidence that satisfied the prosecution's burden of proof.
B. Equal Protection
Defendant claims that his right to equal protection precluded the superior court from even considering the risk that he posed to public safety. He reasons that criminal defendants sentenced before the passage of Proposition 36 are similarly situated to criminal defendants sentenced after the passage of Proposition 36. As only those defendants sentenced before the passage of Proposition 36 are subjected to risk assessment hearings in order to qualify for resentencing to something other than a life term, defendant claims that his right to equal protection has been violated.
In People v. Yearwood (2013)
Defendant challenges the Fifth District's analysis in Yearwood. He claims that strict scrutiny applies. It does not. A statutory distinction between two groups in the length of imprisonment is subjected to rational basis review, not strict scrutiny. (People v. Wilkinson (2004)
Here, the voters could plausibly conclude that the differences between the two groups of defendants justified the distinction in punishment. First, when a defendant is sentenced after the passage of Proposition 36, the provisions of section 1170.12, subdivision (c)(2)(C), as amended by Proposition 36, provide an avenue for a prosecutor to ensure that a life term is possible by pleading and proving one of the listed statutory circumstances where one of them applies. For those defendants sentenced before the passage of Proposition 36, that avenue was not available. Second, since most criminal defendants resolve their cases through plea agreements, prosecutors negotiating with defendants after the passage of Proposition 36 could be expected to tailor plea agreements to the new scheme, something that was not possible
C. Presumption and Sixth Amendment
Defendant contends that section 1170.126 creates a "strong presumption" that an eligible petitioner will be resentenced, and he argues that a superior court denying a petition must "state its grounds" for the denial and "articulate a rational nexus between those grounds and the ultimate question of current dangerousness."
People v. Superior Court (Kaulick) (2013)
The Second District Court of Appeal rejected Kaulick's contentions on the ground that the statutory maximum for his offense was always a life sentence. In Apprendi v. New Jersey (2000)
The Second District found support for its analysis in the United States Supreme Court's decision in Dillon v. United States (2010)
Dillon supports the Second District's conclusion in Kaulick that section 1170.126 does not implicate the Sixth Amendment. Defendant challenges that analysis and claims that People v. Guinn (1994)
Defendant's Guinn -based claim is that the structure of section 190.5 is similar to the structure of section 1170.126, subdivision (f) and therefore a presumption should apply. However, the California Supreme Court's decision in Gutierrez disapproved of the Guinn court's reliance on the structure of section 190.5 to support a conclusion that a presumption should apply. The language and structure of section 1170.126 are not ambiguous with respect to whether a presumption should apply. The statute's heavy emphasis on the court's duty to evaluate whether "resentencing" would pose an unreasonable risk of danger to public safety necessarily
We agree with the Second District's holding in Kaulick and its reliance on Dillon. A petition for resentencing under section 1170.126 does not implicate the Sixth Amendment because it does not establish a presumption that an eligible petitioner is entitled to resentencing. Since the original Three Strikes sentence remained the statutory maximum for defendant's offense, the Sixth Amendment did not entitle defendant to a jury trial or to application of a standard of proof beyond a reasonable doubt.
III. Disposition
The order is affirmed.
WE CONCUR:
Bamattre-Manoukian, Acting P.J.
Márquez, J.
Notes
Subsequent statutory references are to the Penal Code unless otherwise specified.
Defendant's section 314, subdivision (1) conviction made him ineligible for relief under Proposition 47. Grand theft of less than $950 was redefined by Proposition 47 as misdemeanor petty theft except where the defendant has a prior conviction "for an offense requiring registration pursuant to subdivision (c) of Section 290." (§ 490.2, subd. (a).) Section 290, subdivision (c) requires registration for anyone convicted of a violation of "subdivision 1 or 2 of Section 314." (§ 290, subd. (c).)
The abstract of judgment reflects a conviction for grand theft of property over $400 (former § 487, subd. (a)). At the original sentencing hearing, defendant's trial counsel, the prosecutor, and the court all referred to the count defendant had pleaded guilty to as "grand theft person" (former § 487, subd. (c)).
In a footnote to his burden of proof argument in his reply brief, defendant asserts that the superior court erred in failing "to properly consider the question of what 'unreasonably dangerous' means." He maintains that "unreasonable risk of danger" as used in section 1170.126 was defined in Proposition 47, which took effect in early November 2014, long after the superior court denied defendant's petition.
Defendant did not raise this issue in his opening brief, which was filed prior to Proposition 47's passage. He also did not raise this issue in his supplemental opening brief, which was filed after Proposition 47's passage. And he has not sought leave to file another supplemental opening brief addressing this issue. We decline to reach this issue in this appeal because, by raising it for the first time in his reply brief, defendant has deprived the Attorney General of the opportunity to address it. (People v. Clayburg (2012)
Defendant's argument does not clearly explain how he believes the superior court erred in this case with regard to the alleged presumption and the alleged need for express findings. The court plainly stated "its grounds" for the denial and explained how those grounds were linked to the risk of danger defendant posed to public safety. To the extent that defendant is arguing that the superior court failed to apply a presumption in favor of his petition, we consider his contention and find that there was no error because there is no presumption.
Defendant briefly asserts that the superior court erred in admitting hearsay evidence at the risk assessment hearing because such a hearing is not a sentencing hearing and therefore "the rules of evidence must apply." The only authority he cites is Evidence Code section 300. Evidence Code section 300 provides: "Except as otherwise provided by statute, this code applies in every action before the Supreme Court or a court of appeal or superior court...." (Evid.Code, § 300.) Since defendant submits no substantial argument on this issue, we consider it forfeited. We note that risk assessment hearings are plainly part of potential resentencing hearings, and courts have long been permitted to consider hearsay evidence at sentencing hearings. (People v. Peterson (1973)