People v. JeffersonPeople v. Jefferson
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton, Sabrina Y. Lane-Erwin, Heidi Salerno, and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
While serving a 32-month sentence for commercial burglary (
The parties agreed that defendant‘s commercial burglary conviction qualified as a misdemeanor shoplifting conviction. (
Defendant claims the court erroneously applied the preponderance of the evidence standard to its unreasonable risk of dangerousness determination. He argues the prosecution was required to prove his dangerousness to a jury beyond a reasonable doubt or, at the very least, based on clear and convincing evidence. He also claims the court
II. BACKGROUND
On September 16, 2014, defendant pled guilty to commercial burglary (
On November 14, 2014, defendant petitioned the court to recall his 32-month sentence and resentence him to not more than six months in county jail, or time served. (
A. Proposition 47, Overview of Relevant Provisions
In the November 4, 2014, election, the voters enacted Proposition 47, “The Safe Neighborhoods and Schools Act” (Proposition 47 or the Act), and the Act went into effect on November 5, 2014. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) As pertinent, the Act added sections 459.5 and 1170.18 to the Penal Code. (People v. Rivera, supra, at p. 1091.) Section 459.5 defines “shoplifting” as “entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950).” (
Under section 1170.18, subdivision (a), a person who is currently serving a sentence for a felony conviction that would have been a misdemeanor under the Act may petition the court that entered the judgment of conviction to recall the person‘s felony sentence and resentence the person as if he or she had been convicted of the misdemeanor. If the court determines that the defendant satisfies the criteria of section
B. Defendant Was Not Entitled to a Jury Trial on the Dangerousness Finding, and the Proper Standard of Proof Was Preponderance of the Evidence
Defendant first claims he had a right to a jury trial on the dangerousness finding, and that the prosecutor had the burden of proving his dangerousness beyond a reasonable doubt or, at the very least, by clear and convincing evidence. We disagree.
Other courts have rejected this claim in the context of Proposition 36, the Three Strikes Reform Act of 2012 (Proposition 36) and its resentencing provision, section 1170.126. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1302-1305 (Kaulick); People v. Flores (2014) 227 Cal.App.4th 1070, 1075-1076.) Like section 1170.18, which requires the court not to recall a defendant‘s felony sentence and resentence the defendant under Proposition 47 if the court finds the defendant would pose an unreasonable risk of danger to public safety (
Defendant‘s argument begins with the settled principal that, “’ “under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” ’ ” (Kaulick, supra, 215 Cal.App.4th at p. 1302, quoting Cunningham v. California (2007) 549 U.S. 270, 281; People v. Towne (2008) 44 Cal.4th 63, 74.) A finding of dangerousness under Proposition 36 or 47 is not a fact that exposes the defendant to a greater potential sentence, however. If the court finds the defendant would pose an unreasonable risk of danger to public safety if he is resentenced under Proposition 36 or 47, the defendant “simply finishes out the term to which he or she was originally sentenced.” (Kaulick, supra, at p. 1303 [Proposition 36].)
Additionally, because Propositions 36 and 47 only allow the defendant‘s original sentence to be modified downward, not upward, any facts found in a proceeding under section 1170.18 or 1170.126, including the defendant‘s dangerousness, do not implicate the defendant‘s Sixth Amendment rights. (Kaulick, supra, 215 Cal.App.4th at pp. 1303-1305.) Thus, the principle established by the Apprendi line of cases, that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be subjected to a jury, and proved beyond a reasonable doubt” (Apprendi v. New Jersey (2000) 530 U.S. 466, 490) is inapplicable to dangerousness determinations under Propositions 36 and 47 (Kaulick, supra, at pp. 1303-1305).
Further, a defendant has no constitutional right to be resentenced under Proposition 36 or 47. Rather, the resentencing provisions of Propositions 36 and 47 are acts of lenity on the part of the electorate. (Kaulick, supra, 215 Cal.App.4th at p. 1304 [Proposition 36].) They do not call for the “wholesale resentencing of eligible petitioners.” (Ibid.) Thus, there is no Sixth Amendment or other constitutional right to have the prosecution prove dangerousness to a jury beyond a reasonable doubt. (Id. at pp. 1304-1305; see People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 451-452 [following the reasoning of Kaulick and holding that a Proposition 47 defendant has no right to a jury trial on the value of the property stolen, a question essential to the defendant‘s eligibility for resentencing under Proposition 47].)
Lastly, the proper standard of proof on a dangerousness finding is the default standard of proof by a preponderance of the evidence. (Kaulick, supra, 215 Cal.App.4th at p. 1305; People v. Flores, supra, 227 Cal.App.4th at p. 1076.)
Defendant maintains that a defendant whose felony offense satisfies the eligibility requirements of section 1170.18, subdivision (a) is entitled to have his or her felony sentence recalled; the misdemeanor sentence is the presumptive sentence; and the court is
C. The Court Did Not Abuse Its Discretion in Finding Defendant Posed an Unreasonable Risk of Danger to Public Safety
Defendant claims that, under any standard of proof, the court abused its discretion in finding he posed an unreasonable risk of danger to public safety. Again, we disagree.
1. Relevant Legal Principles and Standard of Review
For purposes of Proposition 47, an “unreasonable risk of danger to public safety” means “an unreasonable risk that the petitioner will commit a new violent felony” described in section 667, subdivision (e)(2)(C)(iv). (
We review a dangerousness finding for an abuse of discretion, given that the court is statutorily required to determine dangerousness “in its discretion.” (
2. Relevant Background
Before the June 12, 2015, hearing on defendant‘s dangerousness, the parties submitted briefs on whether defendant posed an unreasonable risk of danger to public safety. Evidence concerning defendant‘s dangerousness, or lack of dangerousness, was included in the briefs, and both sides presented additional argument at the hearing. The
(a) The People‘s Evidence
(i) The 1997 Home Invasion Robbery
When he was 20 years old in 1997, defendant was a principal in an armed, home invasion robbery. As a result, he was convicted of residential robbery, assault with a firearm, battery with serious bodily injury, and unlawful taking of a vehicle. (
The 1997 crimes occurred in San Diego and their circumstances are briefly described in People v. Jefferson (Sept. 30, 1998, D029498) [nonpub. opn.]: “Jefferson and three other masked men entered an apartment where the victim, Laura Mootry, was staying. The apartment belonged to her boyfriend. The men were looking for money and expensive tire rims which belonged to the boyfriend. Eventually the men left, taking a VCR, a gold chain and the tire rims. [¶] During the robbery Mootry was repeatedly struck on the head by the robbers. They also drug her around the apartment by her hair. Mootry was rendered unconscious at one point and ultimately required 13 stiches to close her wounds. [¶] As the robbers were leaving the apartment, they took Mootry‘s car keys. They then took her car, which was not recovered until approximately six weeks later.” (Id. [at pp. 2-3].)
For the 1997 crimes, defendant was sentenced to 16 years 8 months in prison and was released on parole in July 2011. While in prison, he was placed in administrative segregation five times, in 1998, 2000, July 2001, October 2001, and 2006. In the 1998, 2000, and July 2001 incidents, he was involved in melees between Crips and Bloods and ignored repeated commands to “get down” or stop fighting. In the 1998 and July 2001 incidents, he was pepper sprayed. In 2004, he wrote a kite indicating his loyalty to the Blood gang. The kite stated he “keeps it Gangsta 24-7,” told a “Soulja” Blood “to Death Do Us Part,” and was signed, “Bulletproof Love, Black Money, South Side Soulja 4 Life, Death View Side, 59 Brim.” In October 2001, defendant threatened a correctional officer that he would “kick [the officer‘s] mother fucking ass” if the officer searched his cell, and in 2006, defendant gassed a correctional officer with pruno.
Defendant violated parole 10 times following his July 2011 release on parole. He was “at large” for 226 days, between May 11, 2012 and April 14, 2014. Twice in April 2014, he violated section 148.9, indicating he was lying about his identity in order to avoid being returned to prison on parole violations. Defendant was still on parole when he committed the commercial burglary of the Kmart store on September 3, 2014, and was sentenced to 32 months in prison.
(b) Defendant‘s Evidence
Defendant‘s prison records showed the “RVR” or “Rules Violation Report” for the 1998 incident was dismissed; a correctional sergeant determined he was not a participant
When released on parole in July 2001, defendant had an “assessment score” of 19, the lowest possible score for his commitment offense, qualifying him to be housed at a “Level 2” facility or yard. When he was sentenced to prison in 1998, his assessment score was 69. Defense counsel argued that defendant‘s low assessment score “speaks for itself in his level of dangerousness” and his conduct in prison. Counsel also pointed out that defendant was part of a group of 72 men who were pepper sprayed for a gang-fighting incident, and none of defendant‘s parole violations involved violence or injury to anyone.
Defense counsel also emphasized that defendant was sentenced to the low term of 16 months, doubled to 32 months, on his current conviction, because “[c]learly there was something in mitigation that the [district attorney] that pled it out in that case felt that it was not worthy of upper term times two, because he did not get six years.”
In 2009, defendant married Janice Higgins, who ran a program called “Project R.A.G.E.—Release Anger and Guilt for Empowerment.” He was actively involved in the R.A.G.E. program, and Ms. Higgins was committed to ensuring that he led “a clean,
(c) The Court‘s Ruling
In denying defendant‘s petition on dangerousness grounds, the court noted that defendant‘s “most serious” crime was the 1997 robbery, and “as robberies go” it was “one of the worst ones.” The court reasoned that defendant‘s 1997 robbery and related convictions, in combination with his rule violations in prison, his “string of parole violations,” and his current felony conviction, showed he was likely to commit a super strike.4 (
3. Analysis
The court did not exceed the bounds of reason in determining that defendant was likely to commit a super strike if resentenced under Proposition 47. The court reasonably determined that defendant‘s 1997 robbery, assault, and battery convictions, in combination with his multiple rule violations in prison and his multiple parole violations following his July 2011 release from prison, showed he was likely to commit a super strike. Indeed, defendant personally used a firearm in the 1997 robbery, and personally inflicted great bodily injury on Mootry, the victim of the 1997 robbery. In sum, the evidence amply supports the court‘s determination that defendant posed an unreasonable
IV. DISPOSITION
The order denying defendant‘s Proposition 47 petition is affirmed.
CERTIFIED FOR PUBLICATION
CODRINGTON J.
We concur:
RAMIREZ P. J.
McKINSTER J.