Prosecution Is Entitled to Notice of Petition for Resentencing Under Three Strikes Reform Act (Proposition 36); Prosecution Has Burden of Establishing Petitioner's Dangerousness.

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People v. Superior Court (Kaulick) (2013) 215 C.A.4th 1279, 155 C.R.3d 856, involved the provisions of the Three Strikes Reform Act of 2012 (Proposition 36) that allow an inmate currently serving a sentence under the three strikes law to petition for a reduced sentence if the inmate's third strike is for a felony that is not serious or violent. An inmate serving such a sentence filed a petition for a reduced sentence and served the petition on the Attorney General. Without notice to the district attorney and without a hearing, the trial court granted the relief and determined that the inmate was eligible for immediate release, because he had already served his sentence as reduced. On learning of the inmate's pending release, the district attorney petitioned for a writ of mandamus. Held, writ granted.

(a) Proposition 36. Proposition 36 changed the three strikes law by requiring that, with some exceptions, the third strike must be for a serious or violent felony before a defendant is subject to a life sentence. If the third strike is for a felony that is not serious or violent, the defendant is sentenced as a second strike offender. There are two parts to Proposition 36. The first part, amending P.C. 667 and 1170.12, is prospective only. It reduces the sentence to be imposed in future three strike cases where the third strike is not a serious or violent felony. The second part, adding P.C. 1170.126, is retrospective, providing similar, but not identical, relief for inmates already serving third strike sentences in cases where the third strike is not a serious or violent felony. Under this part, an inmate is entitled to a reduced sentence as if there were only one prior strike, unless the court determines that resentencing the inmate would pose an unreasonable risk of danger to public safety. (215 C.A.4th 1292.)

(b) Prosecution's Right To Challenge Order. The prosecution's writ petition is properly before the Court of Appeal. Generally, the prosecution may not seek an extraordinary writ in circumstances where the Legislature has not provided for an appeal. Here, the trial court's order is appealable under either P.C. 1238(a)(5) (order made after judgment that affects substantial rights of the people) or P.C. 1238(a)(10) (imposition of unlawful sentence). Further, a writ petition is most appropriate here in view of all parties' interest in a prompt resolution. (215 C.A.4th 1294, citing the text.)

(c) Prosecution's Right To Notice of Inmate's Petition. The statutory language and principles of due process demand that the prosecution be given notice and an opportunity to be heard in response to a petition for resentencing. P.C. 1170.126(g) contemplates a hearing on the issue of the inmate's dangerousness by listing factors that the trial court may consider in exercising its discretion on this issue. Due process requires that the prosecution be afforded notice and an opportunity to argue for the court's exercise of discretion to find a risk of dangerousness. The prosecution's due process rights include the right to a full adversarial proceeding, in which it may present evidence and argument. Here, the prosecution was denied due process by the trial court's order granting the petition for resentencing without giving the prosecution notice and an opportunity to be heard. The inmate's notice to the Attorney General was not sufficient to give notice to the district attorney, who represents the people before the trial court. (215 C.A.4th 1296.)

(d) Participation at Hearing. The inmate has the right to be personally present at the hearings considering dangerousness and resentencing. (215 C.A.4th 1299.) The victim also has a right to notice and to be heard at the hearings considering dangerousness and resentencing. (215 C.A.4th 1300.)

(e) Proceedings To Be Conducted Before Original Sentencing Judge. The proceedings should be conducted before the original sentencing judge if that judge is available. P.C. 1170.126(b) specifies that an inmate petitioning for resentencing must file the petition “before the trial court that entered the judgment of conviction.” This reference is clearly a reference to the trial judge. P.C. 1170.126(j) provides that if the court that originally sentenced is not available, the presiding judge must designate another judge to rule on the petition. As with other rights, an inmate may waive the right to have the petition considered by a particular judge, but courts should not find a waiver by mere silence or acquiescence even when the inmate is represented by counsel. (215 C.A.4th 1300.)

(f) Burden of Proof on Dangerousness. The prosecution bears the burden of establishing dangerousness by a preponderance of the evidence, and not, as the inmate argued, by proof beyond a reasonable doubt. The United States Supreme Court has held that most factors used to increase penalty must be submitted to the jury and proved beyond a reasonable doubt. But in the context of Proposition 36, dangerousness is not a factor that increases an inmate's punishment. Instead, dangerousness is a hurdle that must be overcome in order for an inmate to be resentenced at all. If the court finds that resentencing an inmate poses an unreasonable risk of danger, the court does not resentence the inmate. The inmate simply finishes the term to which he or she was originally sentenced. (215 C.A.4th 1301.) Moreover, the retrospective portion of Proposition 36 is not constitutionally required, but is an act of lenity by the electorate. It does not provide for wholesale resentencing of eligible inmates. Instead, it authorizes a proceeding where the original sentence may be modified. Any facts found at such a proceeding, such as dangerousness, do not implicate the Sixth Amendment. (215 C.A.4th 1304.) This ruling does not violate the inmate's equal protection right, because he is not similarly situated to persons subject to civil commitment based on a finding of dangerousness by beyond a reasonable doubt. (215 C.A.4th 1305.)

Witkin References

On Proposition 36, generally, see 3 Cal. Crim. Law (4th), Punishment, Supp., §421A.

On resentencing under Proposition 36, see 3 Cal. Crim. Law (4th), Punishment, Supp., §421B.

On three-strikes sentencing when the third felony conviction is for a crime that is not serious or violent, see 3 Cal. Crim. Law (4th), Punishment, Supp., §429A.

On appeals by the prosecution, generally, see 6 Cal. Crim. Law (4th), Criminal Appeal, §73 et seq.

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Last updated
Wednesday, August 20, 2014