(Los Angeles County Super. Ct. No. PA034177) ORIGINAL PROCEEDINGS in mandate. Cynthia Ulfig, Judge.
The opinion of the court was delivered by: Croskey, J.
CERTIFIED FOR PUBLICATION
Petition granted with directions.
On November 6, 2012, voters approved Proposition 36, the Three Strikes Reform Act of 2012 (the Act). Under the "three strikes" law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) as it existed prior to Proposition 36, a defendant convicted of two prior serious or violent felonies would be subject to a sentence of 25 years to life upon conviction of a third felony. Under the Act, however, a defendant convicted of two prior serious or violent felonies is subject to the 25-years-to-life sentence only if the third felony is itself a serious or violent felony.*fn1 If the third felony is not a serious or violent felony, the defendant will receive a sentence as though the defendant had only one prior serious or violent felony conviction, and is therefore a second-strike, rather than a third-strike, offender. The Act also provides a means whereby prisoners currently serving sentences of 25 years to life for a third felony conviction which was not a serious or violent felony may seek court review of their indeterminate sentences and, under certain circumstances, obtain resentencing as if they had only one prior serious or violent felony conviction. According to the specific language of the Act, however, a current inmate is not entitled to resentencing if it would pose an unreasonable risk of danger to public safety.
In the instant matter, shortly after the Act went into effect, real party in interest Steven Kaulick, an inmate serving a 25-years-to-life term for a felony conviction which was not a serious or violent felony, filed a petition for habeas corpus seeking resentencing under the Act. The trial court judge hearing the petition granted it, without notice to the prosecution, without giving the prosecution an opportunity to establish that resentencing would pose an unreasonable risk of danger to public safety, and without holding a hearing. When the District Attorney of Los Angeles County (District Attorney) became aware of Kaulick's petition and the trial court's order, the District Attorney obtained an immediate stay of execution of the resentencing order and filed a petition for writ of mandate with this court challenging that order. We issued an order to show cause and now grant the writ petition. The trial court should not have granted Kaulick's petition for resentencing under the Act without insuring that the District Attorney had received notice and an opportunity to be heard on the issue of dangerousness. In the course of granting the writ petition, we will discuss several issues likely to arise on remand, including the prosecution's burden of proof on the issue of dangerousness.
FACTUAL AND PROCEDURAL BACKGROUND
On September 4, 1999, 18-year-old Barbara S. was outside her apartment when she heard Kaulick in his apartment screaming on the telephone. Barbara S. later asked if she could help Kaulick. He told her that he was moving and, at his request, Barbara S. began helping him remove property from his apartment. Kaulick told Barbara S. that his wife was divorcing him and he would not see his daughter again. He was upset and angry. When Barbara S. was inside Kaulick's apartment, he closed the door, tore her blouse, and placed his hand over her mouth. Kaulick choked her and told her to shut up. Barbara S. attempted to flee, but Kaulick grabbed her by the hair, continued choking her, and told her that he would kill her. Kaulick then dragged Barbara S. to his bed, threw her on it, and straddled her. He ordered her to remove her clothes and unbuckled his belt. Barbara S. kicked Kaulick between his legs and fled; she was naked from the waist up. Barbara S. called the police, as did neighbors who had heard her screams. Police ultimately recovered Barbara S.'s torn blouse from Kaulick's apartment. (People v. Kaulick (July 12, 2001, B141026) [nonpub. opn.], pp. 2-3.)
On November 19, 1999, Kaulick was charged by information with three counts: (1) false imprisonment by violence (Pen. Code, § 236); (2) assault with intent to commit rape or other enumerated offense (Pen. Code, § 220); and (3) criminal threats (Pen. Code, § 422). While the latter two offenses are serious or violent felonies (Pen. Code, §§ 667.5, subd. (c)(15), 1192.7, subd. (c)(29), (38)), the first charged offense is not.*fn2 Kaulick was also alleged to have suffered two prior serious or violent felony convictions within the meaning of the three strikes law,*fn3 one prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)), and two prior prison terms (Pen. Code, § 667.5, subd. (b)).
2. Conviction and Sentencing
The case proceeded to a jury trial in early 2000. Kaulick was convicted of count one; the jury was hopelessly deadlocked on the remaining counts and the court declared a mistrial. At a bench trial, the trial court found all alleged prior conviction and prison term allegations true.
Kaulick moved to strike one or both of his prior strike convictions. The trial court denied the motion, stating, " '[w]ell, the way I look at Mr. Kaulick, he's a danger to himself, he is a danger to society. He is waiting to explode at the drop of a hat, or anything that could provoke him. [¶] I don't have a clue as to what might have provoked him to attack the victim in the current case, but she escaped by the skin of her teeth. It's fortunate that she wasn't raped. It's fortunate that she wasn't more seriously injured.' " (People v. Kaulick (July 12, 2001, B141026) [nonpub. opn.], p. 15.) The court went on to state, " '[t]his is a dangerous individual, and in exercising my discretion on whether to strike a strike, I am guided by the law which targets recidivists. [¶] He's a recidivist. He doesn't have a large number of convictions, but given the nature of those convictions, the fact that when he was sent to prison out of Ventura County Superior Court he was violated on parole any number of times, and he hasn't learned a thing. [¶] He is waiting to explode, and he's a person that should be confined for as long as humanly possible. So I am not going to strike a strike in this case.' " (Ibid.)
As Kaulick was convicted of a felony (Pen. Code, § 236) and had two prior serious or violent felony convictions within the meaning of the three strikes law, he was sentenced under the three strikes law to a term of 25 years to life. He received an additional one year in prison for a prior prison term.
The remaining two counts, on which a mistrial had been declared, were dismissed on the motion of the prosecution, in the interests of justice (Pen. Code, § 1385). It cannot be determined from the record whether the prosecution requested dismissal of the remaining counts because it believed it could not prove them at a retrial, or because it believed, as Kaulick was already receiving a third strike sentence, that it was unnecessary to pursue them further.
Kaulick appealed his conviction; we affirmed. In response to Kaulick's argument that the trial court abused its discretion in failing to strike one of his prior strike convictions, we stated that, not only did the court not abuse its discretion, "on this record, the granting of [Kaulick]'s request to strike would have been an abuse of discretion." (People v. Kaulick (July 12, 2001, B141026) [nonpub. opn.], p. 16.)
4. Kaulick's Petition for Relief Under the Act
Some 12 years after Kaulick's sentencing, the electorate passed Proposition 36. On December 21, 2012, Kaulick filed a petition for habeas corpus which was, in effect, a request for resentencing under the Act. The petition was served on the Attorney General; no service was made on the District Attorney.
In Kaulick's petition, he argued that, under the Act, he was entitled to be resentenced to a second strike sentence, as his third felony conviction was not a serious or violent felony. To the extent he impliedly addressed the issue of his dangerousness, Kaulick stated that his instant conviction arose out of an incident where he "grabb[ed] Barbara S. in his apartment in an attempt to retrieve his gold neck[lace] which Barbara S. had stolen from [him]." He stated that his prior conviction was "a single act of aberrant behavior," a "family dispute which went awry and whereby [he] naively accepted a plea-bargain." He also attached two letters from his parents which had sought leniency in connection with his initial sentencing in the instant case. He submitted no evidence whatsoever relating to his behavior in the intervening 12 years or his current risk of dangerousness.*fn4
5. The Trial Court's Ruling
A motion for resentencing under the Act should be submitted to the trial court that entered the judgment of conviction. (Pen. Code, § 1170.126, subd. (b).) If the court that originally sentenced the movant is unavailable, the presiding judge shall designate another judge to rule on the movant's motion. (Pen. Code, § 1170.126, subd. (j).) In the instant case, the judge who originally sentenced Kaulick is deceased. The supervising judge of the North Valley District assigned Judge Cynthia Ulfig to rule on Kaulick's motion.*fn5
On December 31, 2012, Judge Ulfig granted Kaulick's petition. The order granting the petition states, "In the petition for recall of the sentence the defendant included a number of exhibits. The Court reviewed the exhibits, as well as, the court file. Having reviewed all the documents the Court is now satisfied that it is appropriate to recall and modify the sentence." The court resentenced Kaulick as though he had only one prior strike conviction. He was sentenced to the upper term of three years, doubled, plus one year for the ...