The fact that qualified defendants who seek Proposition 36 resentencing are subjected to a risk assessment hearing, while defendants sentenced post-Proposition 36 are not, does not deny equal protection. In 2002, Garcia pled guilty to grand theft, and admitted prior strikes and prior prison terms, in exchange for dismissal of a robbery count and prior serious felony enhancements. He was given a life Three Strikes sentence. In 2013, he petitioned for Proposition 36 resentencing, supporting his request with expert testimony that he did not pose an unreasonable risk of danger to public safety if released. Based on the court’s review of Garcia’s criminal history, commitment offense, and poor conduct in prison, it found he remained a public safety risk and denied the petition. Garcia appealed. Held: Affirmed. Proposition 36 amended Penal Code sections 667 and 1170.12 to preclude the imposition of a life Three Strikes sentence unless the current crime is serious or violent, or the prosecution pleads and proves certain factors. It also created a mechanism whereby qualified defendants serving a Three Strikes term may seek resentencing (Pen. Code, § 1170.126). Garcia claimed that defendants sentenced prior to Proposition 36 are similarly situated to defendants sentenced after its passage, and it therefore violates equal protection to subject only the former group of defendants to a risk assessment hearing to qualify for resentencing. A statutory distinction between two groups regarding length of imprisonment is subject to a rational basis review test. With respect to Proposition 36, voters could have concluded that differences between the two groups of defendants warranted a distinction in punishment. There is no equal protection violation (agreeing with People v. Yearwood (2013) 213 Cal.App.4th 161).
Section 1170.126 does not create a presumption that a qualified Three Strikes defendant will be resentenced, nor does the Sixth Amendment apply to Propostion 36 resentencing petitions. Garcia also argued that section 1170.126 creates a strong presumption that an eligible petitioner will be resentenced and that the trial court violated his Sixth Amendment rights by denying him a jury trial. The appellate court disagreed. In People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, the Second District Court of Appeal concluded that section 1170.126 does not create a presumption in favor of resentencing. Instead, the “unreasonable risk of danger” determination is a hurtle a defendant must overcome to be eligible for sentence reduction. Thus, for defendants sentenced prior to Proposition 36, a Three Strikes life term remained the statutory maximum for Sixth Amendment purposes. The Court of Appeal here agreed with Kaulick. Penal Code section 1170.126’s emphasis on the court’s duty to evaluate whether resentencing would pose a danger to public safety reflects that a determination on that issue is a prerequisite to resentencing rather than an issue that may constitute a possible rebuttal of a presumption in favor of resentencing.
The trial court properly imposed the burden of proof on the prosecutor at the risk assessment hearing. Garcia focused on a statement made by the trial court to the effect that Garcia had not done anything to prove to the court that he was not a danger, claiming the court improperly saddled him with the burden of proving the absence of unreasonable risk of danger. However, the totality of the trial court’s comments reflect it appropriately recognized that the prosecution had the burden to prove by a preponderance of the evidence any type of contested issue of fact that might be relevant to the question of risk of unreasonable danger.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/H040765.PDF
