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People v. Valdez

California Court of Appeals, Third District, Sacramento

April 20, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
EMIGDIO VALDEZ, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION [*]

         APPEAL from a judgment of the Superior Court of Sacramento County No. 00F00630, Robert Hight, Judge. Affirmed.

          Gregory R. Ellis, Retained Counsel for Defendant and Appellant.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Caely E. Fallini, Jaime A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.

          MURRAY, J.

         In 2001, defendant was convicted of possession of a sharp instrument in prison (Pen. Code, § 4502, subd. (a))[1] and assault by an inmate by means likely to cause great bodily injury (§ 4501). The trial court found true three prior strike allegations. (§§ 667, subds. (b)-(i), 1170.12.) The trial court sentenced defendant to consecutive terms of 25 years to life on each count. In an unpublished opinion, this court affirmed the judgment. (People v. Valdez (May 13, 2003, C038924) [nonpub. opn.] slip opn. at pp. 1-11 (Slip Opn.).)

         Defendant appeals from the trial court's denial of his petition for recall of sentence under the Three Strikes Reform Act of 2012 (enacted by Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012); §§ 667, 1170.12, 1170.126 (Proposition 36 or the Act)). As to each conviction, defendant asserts that: (1) the trial court was not authorized to make findings of fact and the People were required to plead and prove any disqualifying facts in the prosecution of his commitment offense; (2) substantial evidence did not support the trial court's determinations regarding his ineligibility; and (3) the trial court employed the wrong standard of proof, in that it should have applied the “clear and convincing evidence” standard rather than the “preponderance of the evidence” standard. Defendant also asserts that, if we conclude that he is eligible for resentencing on one conviction but ineligible on the other, he should be resentenced on the eligible offense.

         In the published part of this opinion we conclude there was substantial evidence supporting the trial court's determination that defendant was “armed” with the sharp instrument in prison. Defendant had the weapon available for use while he possessed it in his cell and the fact that the weapon was seized from his cell by correctional officers while defendant was away taking a shower does not make defendant eligible for resentencing under Proposition 36. Possession of a weapon can be a continuing offense. Consequently, a person is armed with a weapon for purposes of the Proposition 36 resentencing exception if the evidence from the record of conviction establishes that he or she was present with the weapon and had it available for use at any time he or she had actual or constructive possession of it within the time period for which the defendant was charged and convicted.

         In the unpublished parts of this opinion, we discuss and reject defendant's other contentions.

         We affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         Current Convictions[2]

         Possession of a Sharp Instrument in Prison (§ 4502)

         “In December 1998, Correctional Officer Kevin Keene was working as a floor officer in the administrative segregation section of ‘six block' of the California State Prison, Sacramento. While defendant and codefendant Jose Alberto Dubon were away taking showers, Keene conducted a routine search of their cell. The cell had two bunks and a toilet on the right-hand side and upper and lower cubicles on the left-hand side.

         “In the upper cubicle, Keene found a long stiff straight object wrapped in plastic. When he unwrapped it, Keene saw that the object was an ‘altered toothbrush with razor melted' into the handle, ‘with cardboard cover piece, ... two pieces of clear cellophane plastic.' Keene confiscated the object, put it into evidence, and notified the sergeant of his discovery. No inmates other than defendant and Dubon would have been allowed in their cell.

         “Keene testified that inmates in administrative segregation are not allowed to have disposable razors or sharp metal objects. Inmates in the general population are allowed to have razors but are not allowed to alter them or remove them from their plastic casings.... Keene was not sure which inmate ordinarily used the upper cubicle.” (Slip Opn., supra, at pp. 2-3, fn. omitted.) We set forth additional facts regarding this offense in our discussion, post.

         Assault by Inmate by Means Likely to Cause Great Bodily Injury (§ 4501)

         “Several months after the incident in count three, defendant, Dubon, and two other inmates were seen assaulting a newer inmate. Defendant struck the victim from the back at about the same time that Dubon struck him in the front. Defendant and Dubon kicked the victim with ‘full force kicks.' Both men ignored Correctional Officer Ernest Johnson's order to stop fighting and were undeterred when he fired a special gun that shot rubber grommets. When Johnson resorted to tear gas, the inmates dispersed. At that point, the victim was on the ground and was not moving. He later regained consciousness and tried to stand but fell down a couple of times. He suffered multiple injuries to his face and head, including a large hematoma to his right forehead, an open contusion on his right forehead, a bloody nose, multiple bruising to his upper face, blood in his mouth, a shoe imprint on the left side of his face, and abrasions on both knees and elbows.” (Slip Opn., supra, at pp. 3-4.)

         Petition for Resentencing

         In 2014, defendant filed a petition for recall of his sentence pursuant to section 1170.126 which is part of the Act. Defendant asserted that, under section 1170.126, subdivision (e)(1), his convictions of possession of a sharp instrument while in prison (§ 4502, subd. (a)) and assault by a prisoner by means of force likely to produce great bodily injury (§ 4501) were neither serious felonies within the meaning of section 1192.7, nor violent felonies within the meaning of section 667.5, and therefore these convictions did not render him ineligible for resentencing under the Act. Defendant also asserted that, in violating sections 4501 and 4502, subdivision (a), he was not armed with a firearm or deadly weapon, did not use a firearm or deadly weapon, and he did not intend to cause great bodily injury to another person within the meaning of section 667, subdivision (e)(2)(C)(iii), and therefore he was not ineligible for resentencing under the Act. (§ 1170.126, subd. (e)(2).) Defendant further asserted that these convictions did not otherwise render him ineligible for relief. Thus, according to defendant, he satisfied all of the criteria for resentencing under the Act, and requested that the trial court resentence him as a second strike offender.

         Trial Court's Denial of Petition

         The trial court rejected each of defendant's contentions and denied the petition. We discuss post the court's factual findings concerning each conviction and its determination of resentencing ineligibility based on those findings.

         The trial court also rejected defendant's contention that, if it were to make findings of fact relevant to issues, it would violate the mandate of Apprendi v. New Jersey (2000) 530 U.S. 466');">530 U.S. 466');">530 U.S. 466');">530 U.S. 466 [147 L.Ed.2d 435] that findings of fact that may result in an increase in punishment must be made by a jury beyond a reasonable doubt. The court ruled that Apprendi does not apply to section 1170.126 resentencing proceedings because resentencing pursuant to that section would constitute a downward departure from a previously imposed sentence, and there is no requirement that disqualifying factors must have previously been pleaded and proved to a jury beyond a reasonable doubt.

         The trial court also ruled that its conclusion as to either conviction rendered defendant ineligible for resentencing under the Act. In this regard, the trial court followed those cases which had concluded that a defendant is ineligible for resentencing under the Act if any of the defendant's current convictions render him or her ineligible, although the court noted that the issue was pending before our high court at the time.[3]

         Accordingly, the trial court denied defendant's petition for resentencing.

         DISCUSSION

         I. The Act

         “Prior to its amendment by the Act, the Three Strikes law required that a defendant who had two or more prior convictions of violent or serious felonies receive a third strike sentence of a minimum of 25 years to life for any current felony conviction, even if the current offense was neither serious nor violent. [Citations.] The Act amended the Three Strikes law with respect to defendants whose current conviction is for a felony that is neither serious nor violent. In that circumstance, unless an exception applies, the defendant is to receive a second strike sentence of twice the term otherwise provided for the current felony, pursuant to the provisions that apply when a defendant has one prior conviction for a serious or violent felony.” (Johnson, supra, 61 Cal.4th at pp. 680-681.)

         “The Act's exceptions to the new sentencing provisions relate to a defendant's current offense and prior offenses.” (Johnson, supra, 61 Cal.4th at p. 681.) These exceptions are set forth in sections 667, subdivision (e)(2)(C), and 1170.12, subdivision (c)(2)(C). (Johnson, at p. 681.)

         The Act addressed both prospective sentencing and retrospective resentencing. This case involves retrospective resentencing. “In addition to reducing the sentence to be imposed for some third strike felonies that are neither violent nor serious, the Act provides a procedure by which some prisoners already serving third strike sentences may seek resentencing in accordance with the new sentencing rules. [Citation.] ‘An inmate is eligible for resentencing if.... [¶]... [t]he inmate is serving an indeterminate term of life imprisonment imposed pursuant to [the Three Strikes law] for a conviction of a felony or felonies that are not defined as serious and/or violent....' [Citation.] Like a defendant who is being sentenced under the new provisions, an inmate is disqualified from resentencing if any of the exceptions set forth in section 667, subdivision (e)(2)(C) and section 1170.12, subdivision (c)(2)(C) are present.” (Johnson, supra, 61 Cal.4th at p. 682.)

         The specific exceptions applicable in this case are: “[d]uring the commission of the current offense, the defendant... was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.” (§ 667, subd. (c)(2)(C)(iii); 1170.12, subd. (c)(2)(C)(iii), italics added.)

         II. Pleading and Proof Requirement

         Defendant asserts that the People were required to plead and prove disqualifying facts at trial on the current convictions, and that a court considering a petition under the Act cannot make new findings of fact resulting in the denial of the petition. We disagree.

         As this court said in People v. Guilford (2014) 228 Cal.App.4th 651 (Guilford): “Because the electorate required pleading and proof of these disqualifying facts in the prospective part of the Act, but not the retrospective part, we presume the intention was to dispense with a pleading and proof requirement in the latter case.” (Guilford, at p. 657.) Contrary to defendant's contention, the fact that the resentencing portion of the Act cross-references the prospective portions does not necessarily lead to the conclusion that the electorate intended to impose a pleading and proof requirement for resentencing. In many cases, the relevant factors would not have been adjudicated in the current case, resulting in undermining one purpose of Proposition 36-to preclude dangerous persons from the recall provision. (Guilford, at p. 658.) Rather, it is appropriate in considering a recall petition for the trial court to consider the facts of the crime, as shown by the record, in making a determination as to whether the defendant is ineligible. (Id. at p. 659.) Thus, as defendant acknowledges, this court has agreed with the conclusion that “[t]he requirement of pleading and proof for prospective application of the Act, and the absence of such requirement for retrospective application, indicates that pleading and proof is not a requirement for the latter.” (Guilford, at p. 659.)

         Recently, the Court of Appeal for the Second Appellate District, Division Two, addressed a defendant's argument that the trial court considering his Proposition 36 petition “was not permitted ‘to make a brand new factual finding of intent' and could not ‘make new findings that went beyond the “nature or basis” of the conviction.' ” (People v. Newman (2016) 2 Cal.App.5th 718, 723 (Newman), review granted November 22, 2016, S237491.) The Newman court clarified: “The gist of [the defendant's] claim of error is unless the disqualifying factor, e.g., ‘intent to cause great bodily injury, ' is an element of the current crime or a sentence enhancement allegation found true by the jury, the court is not empowered to find such factor exists.” (Ibid.) The Newman court disagreed. (Ibid.) The court stated that, unlike the determination of the defendant's guilt or innocence of the underlying charges, “the existence of a disqualifying factor that would render a defendant ineligible for resentencing under Proposition 36, which would lessen his punishment if he were eligible, is a determination solely within the province of the Proposition 36 court to make without regard to any factual finding by the trier of fact.” (Newman, at p. 724.) “[A] Proposition 36 court may determine whether one or more of these disqualifying factors exists independent of the elements of the current offense and any attendant sentence enhancement allegation.” (Newman, at p. 726.)

         The court in Newman observed that there was no requirement on the face of Proposition 36 that disqualifying factors must be an element of the crimes of conviction, or that they must be pled and proved to the trier of fact. (Newman, supra, 2 Cal.App.5th at p. 724.) The court stated: “Its plain and clear language reflects a contrary intent. Subdivision (f) of section 1170.126 expressly provides: ‘Upon receiving a petition for recall of sentence under this section, the court shall determine whether the petitioner satisfies the criteria in subdivision (e).' ” (Newman, at p. 724.) Additionally, the Newman court held that the disqualifying factors were not required to be determined by a jury because they do not have the effect of increasing punishment. (Ibid.) On the contrary, Proposition 36 has the effect of decreasing a defendant's punishment, and therefore it constituted “ ‘ “an act of lenity.” ' ” (Newman, at p. 724.) As such, the Newman court concluded Apprendi v. New Jersey (2000) 530 U.S. 466');">530 U.S. 466');">530 U.S. 466');">530 U.S. 466 [147 L.Ed.2d 435] and the Sixth Amendment right to a jury trial were not implicated. (Newman, at p. 724.)

         “[T]he Proposition 36 court is authorized to make its factual findings regarding a disqualifying factor based on the record of conviction.” (Newman, supra, 2 Cal.App.5th at p. 725.) “ ‘[A]... court determining eligibility for resentencing under the Act is not limited to a consideration of the elements of the current offense and the evidence that was presented at the trial (or plea proceedings) at which the defendant was convicted. Rather, the court may examine relevant, reliable, admissible portions of the record of conviction to determine the existence or nonexistence of disqualifying factors. [Citation.] This is consistent with voters' intent.' ” (Newman, at p. 726, quoting Blakely, supra, 225 Cal.App.4th at p. 1063.)

         More recently, the Fifth Appellate District agreed with Newman on this point. “Simply put, the trial court takes the facts from the record of conviction and determines, from its interpretation of those facts, whether a petitioner is eligible for resentencing.” (People v. ...


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