People v. Bradford

I concur in part 5. of the Discussion and in the result reached in the majority opinion; however, I do not concur in the remainder of the opinion. Since there was no substantial evidence to support the trial court’s finding that petitioner was armed with a deadly weapon when he committed the current offenses and there was no other aspect of the current offenses that disqualifies petitioner from resentencing under the Three *1344 Strikes Reform Act, it is unnecessary to consider petitioner’s other arguments. This case must be remanded for the trial court to either resentence petitioner or find petitioner too dangerous to resentence under the Three Strikes Reform Act. Nothing stated in the majority opinion, except for the finding that there was no substantial evidence that petitioner was armed with a deadly weapon, is necessary to the disposition or helpful to the court or the parties on remand. Accordingly, I would simply find the evidence was insufficient to sustain the deadly weapon finding and remand for further proceedings.

Although unnecessary to our disposition here, the question of what burden of proof should apply to a court’s determination of facts related to an inmate’s eligibility for resentencing under Proposition 36 could be a critical issue in future cases. I write separately to explore the significant due process concerns involved and to suggest the appropriateness of a heightened burden of proof by clear and convincing evidence.

Recent authority from the Fifth Appellate District holds that since “a determination of eligibility under [Penal Code] section 1170.126 does not implicate the Sixth Amendment, a trial court need only find the existence of a disqualifying factor by a preponderance of the evidence.” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1040 [ 171 Cal.Rptr.3d 55 ].) The court’s reasoning is consistent with our own insofar as it rejects application of the Apprendi line of cases to the determination at issue. 2 The fact the Apprendi cases do not govern the current matter means there is no clear constitutional requirement of the right to a jury trial with the concomitant standard of proof beyond a reasonable doubt. But that does not end the inquiry.

“[T]he degree of proof…

*1327 Opinion

In 1999 Reginald Bradford was convicted by a jury of three counts of second degree burglary and four counts of petty theft with a prior. (Pen. Code, §§ 459, 666.) 1 The offenses were based on incidents in which Bradford took merchandise from various stores. The jury acquitted him of robbery. (§211.) The trial court found he had five prior felony convictions for which he had served prison terms, including two residential burglaries that were strikes under the three strikes law. (§§ 459, 667, subds. (b)-(i), 667.5, subd. (b), 1170.12.) Bradford received four consecutive terms of 25 years to life pursuant to the three strikes law and an additional four years for the enhancements. He appealed, and this court affirmed the judgment. (People v. Bradford (Jan. 29, 2001, C034427) [nonpub. opn.] (Bradford 1).)

Following the enactment of Proposition 36, the Three Strikes Reform Act of 2012, Bradford (petitioner) filed a petition to recall the sentence and for resentencing. (See § 1170.126.) The trial court denied the petition, finding him ineligible for relief based on a statutory exclusion that applies if “[djuring the commission of the current offense, the defendant used a…

BACKGROUND

1. New sentencing procedure under Proposition 36 Under Proposition 36, a defendant who has two or more prior serious and/or violent felonies (strikes) is not necessarily subject to an enhanced “third strike” sentence if the current conviction is not for a serious or violent felony. Assuming a defendant being sentenced under current law does not fall within one of four enumerated eligibility exceptions, he or she will receive a sentence consistent with that imposed in a second-strike case, i.e., the determinate term (or minimum term for an indeterminate term) is doubled. (§§ 667, subd. (e)(1), (2)(C); 1170.12, subd. (c)(1), (2)(C).) The four eligibility exceptions apply based on a defendant’s current and past convictions, provided “the prosecution pleads and proves any of” them. (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).)2 2. Resentencing under Proposition 36 Proposition 36 also provides an avenue for resentencing for certain persons, such as the current petitioner, who are serving previously imposed indeterminate sentences under an earlier version of the three strikes law. First, the trial court “shall determine whether the petitioner satisfies” the…