THE PEOPLE, Plaintiff and Respondent, v. DERRICK LEE SLEDGE, Defendant and Appellant.
No. G052780
Fourth Dist., Div. Three
Jan. 25, 2017
1089
THOMPSON, J.
Gerald J. Miller, 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, Scott C. Taylor and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THOMPSON, J.-Defendant Derrick Lee Sledge appeals from an order denying his petition for resentencing under
Subdivision (i) of section 1170.18 (section 1170.18(i)) states: “The provisions of this section shall not apply to persons who have one or more prior
The court found defendant suffered a 1980 felony forcible rape juvenile adjudication and ruled it was a disqualifying prior conviction under section 1170.18(i).
We conclude (1) substantial evidence supports the court‘s historical factual finding that defendant suffered the felony forcible rape juvenile adjudication; (2) some felony juvenile adjudications are disqualifying “prior convictions” for purposes of section 1170.18(i); and (3) defendant‘s felony forcible rape juvenile adjudication is a disqualifying prior conviction under section 1170.18(i). Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
In 1998, defendant went into a bank and attempted to cash a check for $453.12 drawn on the account of Sara Delgadillo. Ms. Delgadillo had not signed the check or given defendant permission to cash it. The bank teller learned the checking account had been flagged, and the branch manager called the police. Defendant told police he had received the check from a man for whom he had performed some work.
A jury convicted defendant of possession of a fictitious instrument (
After the Three Strikes Reform Act of 2012 (Proposition 36) passed, defendant petitioned to recall his third strike sentence and for resentencing as a second strike offender. The trial court denied his Proposition 36 petition on the grounds he posed an unreasonable risk of danger to public safety and we affirmed. (People v. Sledge (2015) 235 Cal.App.4th 1191 [186 Cal.Rptr.3d 9], review granted July 8, 2015, S226449 (Sledge II).)
After Proposition 47 passed, defendant, acting in propria persona, filed a petition to recall his third strike sentence and for resentencing as a misdemeanor offender. Defendant‘s Proposition 47 petition asserted he was eligible for resentencing under
Defendant‘s counsel then filed a supplemental petition to recall his third strike sentence and for resentencing as a misdemeanor offender under section
The People‘s written opposition stated defendant had suffered a 1980 felony forcible rape (former
The court conducted an eligibility hearing on the Proposition 47 petitions. At the People‘s request and over defendant‘s objections, the court took judicial notice of the entire superior court file and admitted several documents from it into evidence, including a 1999 supplemental presentence report (probation report) prepared by the probation department for the original sentencing hearing in this case.
According to the probation report:
“Los Angeles County Juvenile Probation Records on the defendant have been purged. Through investigation and contact with the Los Angeles County Juvenile Court Presiding Judge‘s Office and the Court Clerk‘s Office in the Eastside Juvenile Court, it was learned that juvenile court records are maintained until the defendant reaches the age of 38.
“The defendant‘s Juvenile Court record has been obtained. Los Angeles Juvenile Court Records (#J81771) reveal that a Petition was initially filed on the defendant on May 7, 1979 for violation of 484(a) PC [misdemeanor petty theft]. Subsequently, on May 11, 1979, a Placement order was obtained. On June 11, 1980, a Petition was filed under Section 602 of the Welfare and Institutions Code charging the defendant with violation of Section 261(2) PC, a felony. This matter was heard on July 14, 1980, and the Petition was found to be true and sustained as a felony. This has been verified by court docket. According to telephone contact with the Clerk‘s Office, on August 4, 1980, a Placement order was continued and it was recommended that the defendant be placed in the Dorothy Kirby facility.” (Italics added.)
“A copy of the Probation Officer‘s report prepared in the latter case was obtained through the Juvenile Court. The following information is from that
report, dated July 28, 1980. Regarding the circumstances of the offence, victim . . . contacted the Long Beach Police Department on June 9, 1980, and accused the defendant, 17 years of age at the time, of forcibly raping her. She told police that she had fallen asleep on the sofa in the living room and was awakened by a hand around her neck. She awoke to see the [defendant], who covered her mouth and then pulled up her dress. He penetrated her vagina and forced intercourse upon her for two to three minutes. Following the rape he went to his bedroom and closed the door. She went to her own room because she was frightened and after he left for school in the morning, she contacted the police. [[] . . . [[]
“When the defendant was interviewed in 1980 by the Probation Department regarding the rape, he adamantly maintained that he did not forcibly rape the victim. He claimed she had been drinking and smoking phencyclidine the night before with a boyfriend. He had fallen asleep on the floor and she woke him up, standing nude before him. She invited him to have sexual intercourse and he complied. He then went back to sleep and she returned to her own room. When he returned from school, the police arrived and arrested him for rape. When questioned regarding the bruises on the victim‘s arm, he speculated that she had possibly obtained them when her 18-year-old son had previously grabbed her the prior Saturday.”
At the conclusion of the Proposition 47 eligibility hearing, the court found defendant had suffered the felony forcible rape juvenile adjudication in 1980, and the court concluded it was a disqualifying prior conviction under section 1170.18(i).
BURDENS OF PROOF, PROCEDURES AND STANDARDS OF REVIEW
Proposition 47, like Proposition 36, requires the petitioning defendant to establish his or her initial eligibility for relief—which, under Proposition 47, is a prior felony conviction that would have been a misdemeanor if Proposition 47 had been in effect at the time of the offense. (
An eligibility hearing is a type of sentencing proceeding. Nothing in Proposition 47 suggests the applicable rules of evidence are any different than those which apply to other types of sentencing proceedings. Accordingly, limited use of hearsay such as that found in probation reports is permitted, provided there is a substantial basis for believing the hearsay information is reliable. (People v. Arbuckle (1978) 22 Cal.3d 749, 754 [150 Cal.Rptr. 778, 587 P.2d 220] (Arbuckle); People v. Lamb (1999) 76 Cal.App.4th 664, 683 [90 Cal.Rptr.2d 565] (Lamb); see also
Like Proposition 36, the burden of proving a disqualifying prior conviction is on the People by a preponderance of the evidence. (See People v. Osuna (2014) 225 Cal.App.4th 1020, 1040 [171 Cal.Rptr.3d 55] (Osuna).) Unlike Proposition 36, “the trial court is not limited to the record of conviction in its consideration of the evidence to adjudicate eligibility for resentencing under Proposition 47.” (Johnson, supra, 1 Cal.App.5th at p. 967, fn. omitted.) “While the petitioning and resentencing procedures under Proposition 36 and Proposition 47 appear similar (compare
“Where an appeal involves the interpretation of a statute enacted as part of a voter initiative, the issue on appeal is a legal one, which we review de novo. [Citation.] Where the trial court applies disputed facts to such a statute, we review the factual findings for substantial evidence and the application of those facts to the statute de novo. [Citation.] ‘“[A]n order is presumed correct; all intendments are indulged in to support it on matters as to which the record is silent, and error must be affirmatively shown.“’ [Citation.] In
DISCUSSION
Defendant contends the court erred because (1) there is insufficient evidence to support the factual finding he had suffered the felony forcible rape juvenile adjudication; (2) juvenile adjudications are not “prior convictions” for purposes of section 1170.18(i); and (3) in any event his felony forcible rape juvenile adjudication is not a disqualifying prior conviction under section 1170.18(i). We are not persuaded.
1. Substantial Evidence Supports the Court‘s Forcible Rape Adjudication Finding.
Substantial evidence supports the court‘s historical factual finding defendant suffered the felony forcible rape juvenile adjudication in 1980. Reviewing the entire record in the light most favorable to the finding, we conclude “it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could” make the historical factual finding under the preponderance of the evidence standard. (People v. Bolin (1998) 18 Cal.4th 297, 331 [75 Cal.Rptr.2d 412, 956 P.2d 374].) The probation report alone is sufficient.
Defendant does not explicitly argue to the contrary, but instead posits “he is entitled to a trial on the issue, at which only reliable and admissible portions of his criminal record are admitted,” and he contends the probation report is unreliable and inadmissible hearsay. We disagree. As noted, he was not entitled to a jury trial, and the court was not limited to considering only his record of conviction. Further, as we will explain below, the probation report is reliable and admissible hearsay.
The probation report is part of the superior court record, and it is also part of the appellate court record in Sledge I and Sledge II. Hence, the court was authorized to take judicial notice of it at the eligibility hearing. (
Even so, those factual statements are admissible in this context. (Arbuckle, supra, 22 Cal.3d at p. 754; Lamb, supra, 76 Cal.App.4th at p. 683.) As the court here explained in overruling defendant‘s hearsay objection to the admission of the probation report at the eligibility hearing: “I don‘t think a
Defendant claims hearsay is inadmissible in this context, citing People v. Reed (1996) 13 Cal.4th 217 [52 Cal.Rptr.2d 106, 914 P.2d 184]. Reed is inapposite. Reed concluded hearsay statements in a probation officer‘s report were inadmissible in a trial on prior conviction allegations for sentence enhancement purposes. (Id. at pp. 230-231.) But the eligibility hearing in this case was not a trial on a prior conviction allegation for sentence enhancement purposes. Defendant was sentenced long ago under the Three Strikes law and he was petitioning under Proposition 47 for “‘an act of lenity.‘” (Osuna, supra, 225 Cal.App.4th at p. 1040.)
Defendant also claims the hearsay statements in the probation report are unreliable. We disagree for three reasons. First, the probation report and the 1980 probation report it referred to were both prepared by probation officers performing their official duties. Those probation reports relied in part on information obtained from the official court records in defendant‘s 1980 juvenile case, and those records were prepared by court clerks performing their official duties. And it is presumed the probation officers and court clerks regularly performed their official duties. (
Second, the probation report has been used without objection throughout this case, in both the trial and appellate court proceedings. The probation report was considered by the judge at the original sentencing hearing. The judge asked if there were, “any . . . corrections or modifications.” Defense counsel stated there were none.
The probation report was also considered by the judge at the hearing on defendant‘s Proposition 36 petition, again without objection.2 In fact, the judge relied upon the probation report‘s hearsay statements about the felony rape juvenile adjudication as a basis for denying his Proposition 36 petition on the grounds he posed an unreasonable risk of danger to public safety.
Defendant appealed that ruling in Sledge II. His counsel filed a brief which summarized and quoted at length from the probation report‘s statements about the felony rape juvenile adjudication. Defendant then filed a supplemental brief, which incorporated that statement of facts and acknowledged the existence of the felony rape juvenile adjudication, but asserted his “actual innocence,” consistent with his probation report statement “he did not forcibly rape the victim.”
In short, while defendant has always insisted the underlying conduct was not forcible rape, he has never denied the fact of the felony juvenile adjudication.
Third, defendant‘s insistence the underlying conduct was not forcible rape does not make it so. The undisputed fact remains the petition charging defendant with forcible rape was sustained as a felony, which means the juvenile court necessarily rejected his version of the sexual encounter and instead believed the victim. Plus, as the Sledge II trial judge found, defendant has never “acknowledged responsibility for his criminal acts,” and “there is a pattern of denial and completely different story as to the significant and very important criminal acts, including the shooting at a residence, the rape issue, and then the current offense.” (Italics added.)
In sum, we conclude the hearsay statements in the probation report are sufficiently reliable to be admissible; the statements are reasonable, credible, and of solid value such that a reasonable trier of fact could find defendant suffered the felony forcible rape juvenile adjudication; and substantial evidence thus supports that factual finding.
2. Some Felony Juvenile Adjudications Are Disqualifying Prior Convictions.
Some felony juvenile adjudications are disqualifying “prior convictions” for Proposition 47 purposes under section 1170.18(i) as a matter of law. We reach this conclusion applying the de novo review standard, after considering the actual language of section 1170.18(i), giving effect to the voters’ intent in enacting Proposition 47, and rejecting defendant‘s arguments for the opposite conclusion.
To determine whether felony juvenile adjudications are disqualifying prior convictions we must interpret section 1170.18(i). “In interpreting a ballot initiative measure, we apply the same principles we use in construing a statute enacted by the Legislature. [Citation.] We begin by considering the
Again the actual language of section 1170.18(i) states: “The provisions of this section shall not apply to persons who have one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.” (Italics added.)
In turn, clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of
Finally, subdivision (d)(3) of section 667 (section 667(d)(3)) provides: ”A prior juvenile adjudication shall constitute a prior serious and/or violent felony conviction for purposes of sentence enhancement if: [[] (A) The juvenile was 16 years of age or older at the time . . . [[] (B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a serious and/or violent felony. [][] (C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law. [][] (D) The juvenile was adjudged a ward of the juvenile court . . . because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.” (Italics added.)
Reading these statutes together, and giving the unambiguous words in them their usual and ordinary meaning, we conclude a felony juvenile adjudication is a disqualifying prior conviction within the meaning of section 1170.18(i): if it is one of the super strike offenses listed in section 667(e)(2)(C)(iv); if it is either an offense listed in
Our conclusion that these specific felony juvenile adjudications are disqualifying prior convictions under section 1170.18(i) is consistent with at
Our conclusion is also consistent with two recent cases which held these same felony juvenile adjudications are disqualifying prior convictions for Proposition 36 resentencing purposes under the analogous provisions of
Defendant argues juvenile adjudications are not disqualifying prior convictions because section 1170.18(i) does not expressly refer to juvenile adjudications, and because juvenile adjudications have historically been treated differently than adult criminal convictions. We do not agree.
“Since the definition of ‘conviction of a serious and/or violent felony’ contained in section 667(d) is incorporated . . . in section 1170.18(i), and since that definition specifically includes designated juvenile adjudications, . . . a person who has been adjudicated for an offense listed in section 667(d)(3) will be excluded . . . . While juvenile ‘adjudications’ and adult ‘convictions’ are distinguished in many other contexts, for the purposes of the exclusion under section 1170.18(i), they are treated the same.” (Couzens & Bigelow, Proposition 47: “The Safe Neighborhoods and Schools Act” (May 2016) § III.A., p. 18 <http://www.courts.ca.gov/documents/Prop-47-Information.pdf> [as of Jan. 25, 2017], italics added.)
In addition, the absence of any express reference to juvenile adjudications in section 1170.18 is easily explained. “Section 1170.18‘s use of terms associated with adult criminal proceedings logically comports with the fact that the Penal Code and other codes defining crimes define the offenses primarily for use in the adult context, and that these substantive criminal offense provisions are then engrafted onto the juvenile proceedings in wholesale fashion by means of
Defendant next argues juvenile adjudications can only be used as convictions for sentence enhancement purposes, not for resentencing disqualification
Finally, defendant urges us to apply the rule of lenity, under which courts must resolve doubts as to a statute‘s meaning in a criminal defendant‘s favor. (See, e.g., People v. Avery (2002) 27 Cal.4th 49, 57 [115 Cal.Rptr.2d 403, 38 P.3d 1].) But the rule of lenity does not apply every time there are two or more reasonable interpretations of a penal statute. Rather, the rule applies “‘“only if the court can do no more than guess what the legislative body intended; there must be an egregious ambiguity and uncertainty to justify invoking the rule.“’ [Citation.]” (People v. Manzo (2012) 53 Cal.4th 880, 889 [138 Cal.Rptr.3d 16, 270 P.3d 711].) And “[n]o such ambiguity or uncertainty exists here.” (Arias, supra, 240 Cal.App.4th at p. 169, fn. 7.)
3. Defendant‘s Forcible Rape Adjudication Is a Disqualifying Prior Conviction.
Defendant‘s felony juvenile adjudication for forcible rape is a disqualifying prior conviction under section 1170.18(i) because (A) it is a super strike offense listed in section 667(e)(2)(C)(iv); (B) it is an offense listed in
A. Forcible Rape Is a Section 667(e)(2)(C)(iv) Super Strike Offense.
The list of super strike offenses set out in section 667(e)(2)(C)(iv) includes, “A ‘sexually violent offense’ as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.” (
Reading these statutes together, it is apparent defendant‘s felony juvenile adjudication for rape in violation of former
B. Forcible Rape Is a Welfare and Institutions Code Section 707, Subdivision (b) Offense.
Defendant acknowledges rape by means of force, violence, or threat of great bodily harm is an offense listed in
Defendant unsuccessfully advanced the same argument below. His counsel stated: “So [section] 261(2) lists alternative circumstances, one of which is not included in [Welfare and Institutions Code section] 707(b). And because we don‘t have a record of the conviction . . . , it hasn‘t been demonstrated to this court that the adjudication for the [section] 261(2) is an offense on the [Welfare and Institutions Code section] 707(b) list, rendering it a prior conviction for purposes of [section] 667(d)(3). [[] . . . [[] and it‘s not a [Welfare and Institutions Code section] 707(b) offense based on the [scant] information in the exhibits that the court is considering.”
The court responded: “Okay. Well in my view, the issue is whether or not this prior juvenile adjudication meets the requirements of [section]
The only evidence in the record regarding the circumstances of the rape offense is found in the conflicting statements of the victim and defendant in the probation report. Again, the victim told police that she was awakened by a hand around her neck. Defendant covered her mouth and pulled up her dress. “He penetrated her vagina and forced intercourse upon her for two to three minutes.” When defendant was interviewed by the probation department, he adamantly maintained he did not forcibly rape the victim and claimed, “[s]he invited him to have sexual intercourse and he complied.”
“The court did not expressly resolve this factual question, but ‘[a]n order is presumed correct; all intendments are indulged in to support it on matters as to which the record is silent, and error must be affirmatively shown.’ [Citation.] We must ‘view the record in the light most favorable to the trial court‘s ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence.’ [Citation.]” (People v. Carpenter (1999) 21 Cal.4th 1016, 1046 [90 Cal.Rptr.2d 607, 988 P.2d 531].)
Applying these principles and reviewing the record in the light most favorable to the finding we conclude defendant has not affirmatively shown error. The court here, like the juvenile court before it, could and did reasonably credit the victim‘s statement and reject defendant‘s statement. Moreover, the victim‘s statement is evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find defendant committed the rape offense by force as required by Welfare and Institutions Code section 707, subdivision (b).
C. Forcible Rape Is also a Section 667(d)(1) Serious and Violent Felony.
Section 667(d)(1) defines prior serious or violent felony convictions as, “Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state.” Those statutes provide rape by various means including force is a violent felony (
We have already determined the conditions in section 667, subdivision (d)(3)(B) were satisfied. All of the other conditions in section 667(d)(3) were satisfied too. (See
DISPOSITION
The order is affirmed.6
Moore, Acting P. J., and Fybel, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied May 10, 2017, S240290.