People v. Jefferson

1 Cal.App.5th 235

204 Cal.Rptr.3d 583

The PEOPLE, Plaintiff and Respondent

v.Lamonte Alvin JEFFERSON, Defendant and Appellant.

E063900

Court of Appeal, Fourth District, Division 2, California.

Filed July 7, 2016

Tanya Dellaca, Universal City, 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.

OPINION

CODRINGTON, J.

I. INTRODUCTION

While serving a 32–month sentence for commercial burglary (Pen.Code, § 459 ),¹ defendant and appellant, Lamonte Alvin Jefferson, petitioned the trial court to recall his sentence and resentence him as if he had been convicted of misdemeanor shoplifting (§§ 459.5, 1170.18, subd. (a)). Defendant stole an ink cartridge worth $24.99 from a Riverside Kmart store.

The parties agreed that defendant's commercial burglary conviction qualified as a misdemeanor shoplifting conviction. (§ 459.5 [defining shoplifting as including entering a commercial establishment during regular business hours with intent to commit or committing larceny where value of property taken or intended to be taken does not exceed $950].) The parties also agreed that, had defendant's petition been granted at the January 12, 2015, hearing on the petition, defendant would have been eligible for immediate release from prison. However, the court denied the petition on the ground defendant posed an unreasonable risk of danger to public safety. (§ 1170.18, subds. (b), (c).)

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 abused its discretion in finding he posed an unreasonable risk of danger to public safety under any standard of proof. We find no error or abuse of discretion, and affirm.

II. BACKGROUND

On September 16, 2014, defendant pled guilty to commercial burglary (§ 459 ), a felony, and admitted a strike prior. In entering his plea, defendant admitted in court that he entered a Kmart store in the City of Riverside “with the idea of taking some of their property.” The guilty plea form that defendant signed does not indicate the circumstances of the crime, but the People represent that the commercial burglary was committed on September 3, 2014, when defendant, while on active parole, left a Kmart store without paying for an ink cartridge worth $24.99.² On September 16, 2014, defendant was sentenced to 16 months in prison on the burglary conviction, doubled to 32 months based on the strike prior.

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. (§§ 19, 459.5, 1170.18, subd. (a).) The People opposed the petition and requested a hearing to determine whether defendant posed an unreasonable risk of danger to public safety. At a June 12, 2015, hearing, the court found that defendant posed an unreasonable risk of danger to public safety and denied the petition.

III. DISCUSSION

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, 183 Cal.Rptr.3d 362.) As pertinent, the Act added sections 459.5 and 1170.18 to the Penal Code. (People v. Rivera, supra, at p. 1091, 183 Cal.Rptr.3d 362.) 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).” (§ 459.5, subd. (a).) Shoplifting must be punished as a misdemeanor unless the defendant has one or more disqualifying prior convictions. (Ibid. )³ Generally, misdemeanors are punishable by imprisonment in the county jail for not more than six months. (§ 19.)

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 1170.18, subdivision (a), the court is required to recall the felony sentence and resentence the defendant to the misdemeanor sentence, “unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).)

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, 155 Cal.Rptr.3d 856 (Kaulick ); People v. Flores (2014) 227 Cal.App.4th 1070, 1075–1076, 174 Cal.Rptr.3d 390.) 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 (§ 1170.18, subds. (b), (c)), section 1170.126 includes a similar dangerousness provision (§ 1170.126, subd. (f)). The reasoning of Kaulick and Flores applies with equal force to dangerousness determinations under Proposition 47, regardless of whether “ ‘unreasonable risk of danger to public safety’ ” has the same meaning in sections 1170.18 (Proposition 47) and 1170.126 (Proposition 36). (See § 1170.18, subd. (c) [defining “ ‘unreasonable risk of danger to public safety’ ” “[a]s used throughout this Code”]; People v. Cordova (June 24, 2016, H041050) ––– Cal.App.4th ––––, 203 Cal.Rptr.3d 700, 2016 WL 3513920 [definition of “unreasonable risk of danger to public safety” in § 1170.18, subd. (c) applies to dangerousness determinations under both Propositions 47 and 36].] )

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, 155 Cal.Rptr.3d 856, quoting Cunningham v. California (2007) 549 U.S. 270, 281, 127 S.Ct. 856, 166 L.Ed.2d 856 ; People v. Towne (2008) 44 Cal.4th 63, 74, 78 Cal.Rptr.3d 530, 186 P.3d 10.) 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, 155 Cal.Rptr.3d 856 [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, 155 Cal.Rptr.3d 856.) 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 ) is inapplicable to dangerousness determinations under Propositions 36 and 47 (Kaulick, supra, at pp. 1303–1305, 155 Cal.Rptr.3d 856 ).

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, 155 Cal.Rptr.3d 856 [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, 155 Cal.Rptr.3d 856 ; see People v. Rivas–Colon (2015) 241 Cal.App.4th 444, 451–452, 193 Cal.Rptr.3d 651 [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, 155 Cal.Rptr.3d 856 ; People v. Flores, supra, 227 Cal.App.4th at p. 1076, 174 Cal.Rptr.3d 390.) Evidence Code section 115 provides that, “[e]xcept as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.” No statute or case law provides...