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People v. Clark

California Court of Appeals, First District, Second Division

February 15, 2017

THE PEOPLE, Plaintiff and Respondent,
JON ERIC CLARK, Defendant and Appellant.


         San Mateo County Superior Court No. SC044395, Hon. Barbara Mallach Trial Judge.

          Attorneys for Appellant: By Appointment of the Court of Appeal Under the First District Appellate Project Jonathan Soglin William Richard Such.

          Attorneys for Respondent: Kamala D. Harris Attorney General of California Gerald A. Engler Chief Assistant Attorney General Jeffrey M. Laurence Acting Senior Assistant Attorney General Catherine A. Rivlin Supervising Deputy Attorney General Allan Yannow Deputy Attorney General

          KLINE, P.J.

         In 1997, Jon Eric Clark was convicted of indecent exposure and sentenced to a prison term of 26 years to life under the “three strikes” law. In 2014, after adoption of the Three Strikes Reform Act (Reform Act), he petitioned for resentencing. This appeal is from the denial of that petition. Appellant contends the trial court erred in failing to conduct a hearing and rule on his motion to strike one of his prior convictions on the ground that it was constitutionally invalid and in ruling it lacked authority to dismiss the prior conviction in the interests of justice. He additionally contends the court's implied finding that he was ineligible for resentencing due to a prior conviction under Penal Code section 288 violated his constitutional right to equal protection because a similarly situated defendant with a prior conviction for the more serious offense of violating Penal Code section 288.7 would be eligible for resentencing. We affirm.


         In August 1996, a customer eating at a McDonald's observed appellant sitting by himself at another table, exposing his erect penis by pulling up the leg of his shorts. Appellant was charged with indecent exposure (Pen. Code, § 314.1), [1] by amended information filed on May 6, 1997; the offense was charged as a felony due to prior convictions of the same offense in 1971, 1973 and 1974, and prior convictions of lewd and lascivious conduct (§ 288, subd. (a)) in 1974 and 1985. The two section 288 convictions were alleged as strikes under section 1170.12, subdivision (c)(2), and the 1985 conviction was additionally alleged as a prior prison term under section 667.5, subdivision (b). Appellant admitted having been convicted of the priors alleged in the section 314.1 charge for purposes of the present offense being charged as a felony. Appellant was found guilty of the present offense after a jury trial, and the court found the alleged strike and prison term prior convictions true. The trial court denied appellant's motion to reduce his conviction to a misdemeanor and strike his prior strikes, and sentenced him to a prison term of 26 years to life.

         Appellant unsuccessfully appealed to this court (A081042) on grounds unrelated to the issues now before us. He also filed a petition for writ of habeas corpus (A085538) alleging that his 1974 prior conviction was constitutionally invalid in that the record of his guilty plea did not show he was aware he was waiving his rights to jury trial, to confront and cross examine witnesses and against self-incrimination (Boykin v. Alabama (1969) 395 U.S. 238, 242-244; In re Tahl (1969) 1 Cal.3d 122 (Tahl)), [2] or that he was aware he would have to register as a sex offender for life as a consequence of his plea. We denied the petition and the California Supreme Court denied a habeas petition filed in that court.

         In 2012, the California electorate adopted Proposition 36, the Reform Act as part of which section 1170.126 was added to the Penal Code. Section 1170.126 provided for the resentencing of individuals then serving three strike indeterminate prison terms for offenses not defined as serious and/or violent felonies. (Prop. 36, § 6, approved Nov. 6, 2012, eff. Nov. 7, 2012.) In the specified circumstances, such individuals would instead receive two-strike sentences. (§§ 1170.126, subd. (b), (e); 1170.12, subd. (c)(2)(C).) As relevant here, persons with prior convictions for certain felonies, including section 288, are not eligible for resentencing under section 1170.126. (§§ 1170.126, subd. (e)(3); 1170.12, subd. (c)(2)(C)(iv)(III).)

         On July 8, 2014, appellant filed a petition for resentencing under section 1170.126, alleging that his 1974 conviction was constitutionally invalid under Boykin and that his prior section 288 convictions did not render him ineligible for resentencing because it would violate his constitutional right to equal protection to find him ineligible based on those convictions when a similarly situated person convicted of violating section 288.7, a more serious offense, would not be found ineligible.

         Opposing the petition, the district attorney argued that appellant was statutorily ineligible for resentencing due to his prior section 288 convictions; the trial court had no authority to consider the validity of the priors in a section 1170.126 proceeding; and there was no equal protection violation. Alternatively, the district attorney argued the trial court should exercise its discretion under section 1170.126, subdivision (g), to deny the petition for resentencing. In support of its argument that section 1170.126 provided no authority for the court to disregard the finality of prior judicial decisions in this case, the district attorney provided the 1999 opinion of this court affirming the 1997 judgment and denying the writ petition by which appellant previously challenged the 1974 conviction; the Attorney General's 1999 informal opposition to the writ petition; and the 1987 opinion of the Fifth District Court of Appeal affirming appellant's 1985 section 288 conviction. The 1985 opinion, among other things, rejected appellant's argument that the 1974 section 288 conviction should have been stricken under Boykin/Tahl.

         Responding to the prosecutor's arguments, appellant submitted documentation of his discipline-free prison record and participation and positive performance in rehabilitative programs, and of various health conditions including diabetes and heart problems. Appellant also raised a new issue, asking the trial court to dismiss the case in the interests of justice under section 1385, as appellant had already served 17 years in prison for the 1997 offense, for which the maximum sentence was three years, and Proposition 36 reflected the voters' belief that individuals convicted of more serious crimes than appellant's should be released after serving only a two-strike sentence (in this case, six years).

         At the hearing on October 16, 2014, defense counsel argued there was evidence that appellant was not advised of his rights when he entered the 1974 plea: Although there was neither a plea form nor a transcript of the proceedings, the Certificate of the Magistrate indicated that “advice of rights was waived so there wasn't even a reading of the advice of rights.” The declaration of the then-clerk for the superior court judge stated that “there was not a giving of the advice of rights and a waiver of such a right to those reaffirming their plea.” The declaration of current appellate counsel stated, based on his experience as a public defender in Santa Clara County at the time, that prior to 1977, when the determinate sentencing law took effect, there was not a practice of carefully ensuring defendants were advised of and waived their rights, and plea forms were not used. Trial counsel additionally argued at the hearing that although the 1974 prior was challenged at the time of appellant's 1985 conviction, counsel at that time was “ill prepared” and did not have the Magistrate's Certificate that had since been found.

         Recognizing that it had declined to strike appellant's priors at the time of trial and there was no law on the question whether that issue could be revisited on a petition for resentencing, the court denied the petition, explaining that “under the statute as it stands, [appellant] is ineligible for resentencing. I don't find the Equal Protection argument to be compelling. [¶] I appreciate that the court has inherent powers with regard to [section] 1385, but I don't think it was the intent of... both the drafters of the law and the public in enacting the law that the court would simply skip ahead to the suitability portion and ignore the eligibility portion of the law.”

         Appellant filed a timely notice of appeal on October 21, 2014.


         Prior to the adoption of Proposition 36, a defendant who had previously been convicted of two or more serious or violent felonies was subject to an indeterminate sentence of 25 years to life upon conviction of any new felony. (People v. Chubbuck (2014) 231 Cal.App.4th 737, 740 (Chubbuck); People v. White (2014) 223 Cal.App.4th 512, 517 (White); People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1285 (Kaulick).) “The Reform Act prospectively changed the Three Strikes law by reserving indeterminate life sentences for cases where the new offense is also a serious or violent felony, unless the prosecution pleads and proves an enumerated disqualifying factor. In all other cases, a recidivist defendant will be sentenced as a second strike offender, rather than a third strike offender.” (Chubbuck, at pp. 740-741; Kaulick, at p. 1286; People v. Yearwood (2013)213 Cal.App.4th 161, 167-168 (Yearwood).)

         “The Reform Act also created a ‘ “post-conviction release proceeding” ' whereby a Three Strikes prisoner who is serving an ‘indeterminate life sentence' for a crime that was not a serious or violent felony-and who is not otherwise disqualified-may have his or her sentence recalled and be resentenced as a second strike offender, unless the court ‘determines that resentencing... would pose an unreasonable risk of danger to public safety.' (§ 1170.126, subds. (a), (f), (m); see Yearwood, supra, 213 Cal.App.4th at p. 168.)” (Chubbuck, supra, 231 Cal.App.4th at p. 741; White, supra, 223 Cal.App.4th at p. 517.)

         Under section 1170.126, subdivision (e)(3), an inmate is not eligible for resentencing if he or she has a prior conviction for any offense appearing in section 667, subdivision (e)(2)(C)(iv), or section 1170.12, subdivision (c)(2)(C)(iv). As relevant here, the referenced offenses include a “lewd or lascivious act involving a child under 14 years of age, in violation of Section 288.” (§ 1170.12, subdivision (c)(2)(C)(iv)(III).)


         Relying upon the principle that a criminal defendant's punishment may not be enhanced on the basis of a prior felony conviction obtained in violation of the defendant's constitutional rights (People v. Allen (1999) 21 Cal.4th 424, 429 (Allen); Garcia v. Superior Court (1997) 14 Cal.4th 953, 959 (Garcia)), appellant argues that in determining whether an inmate has a prior conviction that renders him or her ineligible for resentencing, the trial court must determine not only whether such a prior conviction exists but also whether it is constitutionally valid. His 1974 conviction, he maintains, was not valid because his plea was taken in violation of his rights under Boykin/Tahl.

         As indicated above, appellant unsuccessfully sought to have his prior convictions stricken at his 1997 trial and, subsequently, unsuccessfully argued in a petition for writ of habeas corpus that trial counsel was ineffective for failing to challenge the 1974 prior as constitutionally invalid under Boykin/Tahl. Appellant now urges that he was denied a fair hearing on the validity of the 1974 prior, first by his 1997 attorney's failure to challenge the prior and then by this court denying his habeas petition without issuing an order to show cause, which appellant views as having deprived him of due process.

         At the time of appellant's writ petition, the question whether a defendant could move to strike a prior conviction on Boykin/Tahl grounds in a current proceeding was pending before the California Supreme Court, and appellant believes that this court denied the petition because it expected the procedure to be disallowed. Although the motion to strike procedure had been approved in this context by Sumstine, supra, 36 Cal.3d 909, the viability of that decision had come into question after the United States Supreme Court held that the federal Constitution does not authorize a motion to strike a prior state felony conviction except on grounds of denial of the right to appointed counsel (Gideon v. Wainright (1963) 372 U.S. 335) in the former proceeding (Custis v. United States (1994) 511 U.S. 485 (Custis)), and the California Supreme Court held that a defendant in a current prosecution for a noncapital offense may not use a motion to strike to challenge a prior conviction on the ground of ineffective assistance of counsel. (Garcia, supra,14 Cal.4th 953.) A few months ...

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