Opinion
C077898
10-12-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN DAVID GANN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 94F07904, 95F02375)
Defendant John David Gann appealed from the trial court's denial of his petition for resentencing pursuant to Penal Code section 1170.126. He claimed the trial court erred in finding him ineligible for resentencing, and we could reach claims of error not previously articulated in the trial court because trial counsel was ineffective in failing to argue—with respect to his statutory ineligibility—that the People needed to plead and prove that defendant "used or was armed with a deadly weapon," that a jury finding of that fact beyond a reasonable doubt was required, and that his acquittal on the greater charge of assault with a deadly weapon in one case precluded a finding of ineligibility as to that conviction. We originally affirmed the judgment; the Supreme Court then granted review, and has now remanded for our reconsideration in light of People v. Frierson (2017) 4 Cal.5th 225 (Frierson) and People v. Estrada (2017) 3 Cal.5th 661 (Estrada). (People v. Gann (Dec. 27, 2016, C077898) [nonpub. opn.]; petn. for review granted Mar. 29, 2017, S239935; order transferring case with directions to vacate, May 16, 2018; decision filed Dec. 27, 2016, ordered vacated May 21, 2018.) We will again affirm the order as to one conviction, and remand the other for further proceedings.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
We take the facts of defendant's crimes primarily from our prior nonpublished opinions that affirmed his convictions (People v. Gann (Jan. 28, 1997, C020617) & People v. Gann (Jan. 20, 1998, C024163)) in accord with People v. Guilford (2014) 228 Cal.App.4th 651, 660-661, which held that a prior appellate opinion is admissible to prove ineligibility in a section 1170.126 proceeding.
In case No. 94F07904, defendant was serving a sentence (not specified in the record) in a state prison in Sacramento. A search of his cell, of which he was the sole occupant, found a sharpened stabbing tool in the mattress. Although not included in the opinion because it was not relevant to any of defendant's arguments, we note that the trial transcript includes testimony that this stabbing tool had a handle fashioned from newspaper wrapped with a string; when untied, there was a mailing label affixed to the newspaper addressed to defendant and bearing his thumbprint. The jury found defendant guilty of possession of a sharp instrument by a state prisoner. The trial court sentenced him to state prison for a term of 25 years to life consecutive to his existing sentence pursuant to the recidivist provisions of former section 667 on the basis of his multiple prior convictions for qualifying felonies.
We granted defendant's motion to augment the record to include the transcript. (Cf. Estrada, supra, 3 Cal.5th at pp. 665, 672 [resentencing court not limited to facts necessarily established in prior conviction and may consider transcript of preliminary hearing].)
During the prosecution of case No. 94F07904, defendant struck the prosecutor in the face with his fist and a pencil, stating "If you want a third strike case, I will give you one." The prosecutor received a puncture wound and scratch on the right cheek, and his cheekbone and lip were swollen. A few months later, while defendant was continuing to serve his term in the Sacramento state prison, a guard observed defendant papering over his cell window in violation of prison rules. Defendant refused to speak with the officer and insisted the officer summon someone from prison administration. Eventually, an associate warden arrived to speak with defendant. The associate warden squatted by the front window of defendant's cell in an attempt to speak with defendant through the food port. Suddenly, the glass in the door's window exploded outward. The associate warden received a head laceration requiring one stitch. A metal switch plate was found outside the door to defendant's cell; defendant admitted at trial that he had hurled this switch plate through the supposedly shatter-resistant window "in self-defense" because he asserted that the associate warden had an abusive reputation.
These two incidents formed the basis of case No. 95F02375. The prosecutor charged defendant with assault with a deadly weapon by a prisoner serving less than a life sentence, malicious assault with a deadly weapon by a state prisoner serving less than a life sentence, and two counts of battery on a nonconfined person by a prisoner. For his attack on the prosecutor, the jury found defendant guilty of the lesser included offense of simple assault (rather than assault with a deadly weapon) and the charged offense of battery; it found him guilty of the lesser offense of nonmalicious assault with a deadly weapon on the associate warden, and acquitted him of the other battery. The trial court sentenced defendant to two consecutive indeterminate terms of 25 years to life pursuant to former section 667, consecutive to the term he was already serving.
In 2013, defendant petitioned the trial court for resentencing pursuant to section 1170.126 as to his convictions in both cases (Nos. 94F07904 & 95F02375), except for his conviction for assault with a deadly weapon on the associate warden. The trial court denied defendant's petition, finding him ineligible for resentencing based on the existence of a disqualifying factor—that he was armed with a deadly weapon in the commission of his crimes. Applying the standard of preponderance of the evidence, the trial court found in case No. 94F07904 that defendant was armed with the stabbing tool, a deadly weapon, under the standard set forth in People v. Bland (1995) 10 Cal.4th 991; in case No. 95F02375 it found the pencil with which defendant assaulted the prosecutor to be a deadly weapon, notwithstanding the jury's acquittal on the greater offense because the logic of People v. Towne (2008) 44 Cal.4th 63 (Towne) permitted the trial court to consider the facts underlying the conviction and make findings based on a preponderance of the evidence, absent specific jury findings to the contrary.
Defendant does not contest that his conviction for assault with a deadly weapon for the attack upon the associate warden renders him ineligible for resentencing under section 1170.126 as to that conviction.
DISCUSSION
1.0 Background
Formerly, a defendant with two or more prior convictions for a violent or serious felony who was subsequently convicted of a felony—regardless whether it was violent or serious—had a mandated recidivist indeterminate sentence of 25 years to life for that subsequent conviction. (People v. Johnson (2015) 61 Cal.4th 674, 680 (Johnson).) As amended in 2012, however, the statute presently provides that if the current conviction is for a felony that is not serious or violent, a defendant is sentenced only to a doubled term of imprisonment rather than 25 years to life, unless an exception applies. (Id. at p. 681; section 667, subd. (e)(1), (2)(C).) One of these statutory exceptions applies when a defendant was armed with a deadly weapon in the commission of the subsequent offense. (Johnson, at p. 681; § 667, subd. (e)(2)(C)(iii).)
Section 1170.126 provides a procedure by which defendants serving a term of 25 years to life under the former provisions of section 667 could gain the benefit of the amendment. (Johnson, supra, 61 Cal.4th at p. 682.) An eligible inmate may petition for resentencing if "serving an indeterminate term of life imprisonment imposed pursuant to [section 667, subdivision (e)(2)] for a conviction of a felony . . . not defined as serious and/or violent . . . ." (§ 1170.126, subd. (e)(1).) However, an inmate is not eligible for resentencing if any of the exceptions set forth in section 667, subdivision (e)(2)(C) apply. (Johnson, at p. 682; § 1170.126, subd. (e).)
In reviewing defendant's challenge to the trial court's ruling through the lens of ineffective assistance of counsel, we note that ultimately he must show the reasonable probability of a more favorable result without trial counsel's purported dereliction, which ultimately is all we need to analyze. (In re Alvarez (1992) 2 Cal.4th 924, 945; People v. Ledesma (1987) 43 Cal.3d 171, 217.) We thus simply address the merits of his arguments on reconsideration in light of Frierson (and Estrada).
2.0 The People Do Not Need to "Plead and Prove" Ineligibility
Defendant originally contended the People must plead and prove any disqualifying factor in the underlying conviction in order to establish that a defendant is ineligible. As we then stated, "several" published cases have held that this principle does not have any application in a petition pursuant to section 1170.126 (e.g., People v. Chubbuck (2014) 231 Cal.App.4th 737, 745; cf. Estrada supra, 3 Cal.5th at p. 672 [current requirement for pleading and proof of ineligibility does not apply retroactively to resentencing petitions]), because neither the statutory language nor the constitutional rights to due process and a jury trial compel such a procedure (People v. Elder (2014) 227 Cal.App.4th 1308, 1314-1315 (Elder)). Nothing in Frierson and Estrada compels us to reconsider that conclusion, and defendant does not reiterate the issue on remand.
3.0 Ineligibility Is Not Subject to the Right to a Jury Trial
Originally raised separately (but connected to the previous argument), defendant contended generally that he was entitled to a jury trial on eligibility. As we previously ruled, eligibility for mitigation of punishment after conviction is not subject to the right to a jury trial. (E.g., People v. Hudson (2016) 244 Cal.App.4th 1318, 1323; Elder, supra, 227 Cal.App.4th at p. 1315.) Again, nothing in Frierson and Estrada compels us to reconsider that conclusion, and defendant does not reiterate the issue on remand. 4.0 Effect of Frierson
4.1 Attack on Prosecutor
We originally rejected defendant's claim that the jury's verdict of simple assault in connection with his attack on the prosecutor precludes the trial court from finding that he was armed with a deadly weapon in the offense, relying on the then prevailing view that the prosecution's burden of proof in establishing ineligibility was preponderance of the evidence (e.g., People v. Osuna (2014) 225 Cal.App.4th 1020, 1040) and therefore a jury's rejection of charges involving the use of a deadly weapon was irrelevant (Towne, supra, 44 Cal.4th at p. 86 [acquittal does not preclude relitigation of facts at sentencing under lesser standard of proof by preponderance of evidence]; cf. People v. McCoy (2012) 208 Cal.App.4th 1333, 1340 [sentencing decisions under section 654].). Frierson, however, has since rendered inapplicable this aspect of Towne in connection with resentencing pursuant to section 1170.126 in holding that the burden on the prosecution of ineligibility is proof beyond a reasonable doubt. (Frierson, supra, 4 Cal.5th at p. 235.)
Estrada, in the course of holding that a resentencing court may consider facts that are "connected to dismissed counts . . . if those facts also underlie a count to which the defendant pleaded guilty" (Estrada, supra, 3 Cal.5th at p. 674), raised but did not resolve whether this principle also applied to facts underlying counts on which a defendant was acquitted (id. at p. 675, fn. 6).
People v. Arevalo (2016) 244 Cal.App.4th 836 (Arevalo) concluded that both an acquittal of a weapons charge and the return of a special finding that a defendant was not armed "preclude a finding that he is ineligible for resentencing consideration," because a court cannot revisit the jury's determinations (id. at p. 853). A recent case, People v. Piper (2018) 25 Cal.App.5th 1007 (Piper), agreed with Arevalo, citing the reasoning in Frierson regarding why the burden of proof must be identical for both petitions for resentencing and prospective sentencing under the amended section 667.
Frierson cited the language from Arevalo—that a lesser standard of proof would impermissibly allow a court to "revisit" acquittals and negative enhancement findings and turn them into their opposites—without any reservation about applying this to a sentencing court making findings beyond a reasonable doubt (Frierson, supra, 4 Cal.5th at p. 235), so unless the Supreme Court revisits the issue we will concur with this precedent. As a result, the trial court in the present case is precluded from finding that defendant is ineligible for resentencing on his conviction for the lesser offense of simple assault after the jury rejected the prosecutor's charge that he was armed with a deadly weapon. We will therefore reverse the trial court's order in this respect and remand for a determination of whether defendant poses an unreasonable risk of danger to public safety if resentenced. (Piper, supra, 25 Cal.App.4th at p. 1016; § 1170.126, subd. (f).)
Returning a verdict on a lesser offense is an implied acquittal of the greater offense. (See People v. Bradford (1997) 15 Cal.4th 1229, 1375 (Bradford).)
Thus, the trial court's Frierson error with respect to the burden of proof it applied is a moot point, as is the parties' discussion of "collateral estoppel," which in any event is inapposite to a prior finding in the same proceeding as opposed to a collateral proceeding (see People v. Johnson (2015) 60 Cal.4th 966, 955 and Bradford, supra, 15 Cal.4th at pp. 1375-1376 [both suggesting that issue preclusion does not apply to facts in sentencing proceedings]). --------
4.2 Possession of Sharp Instrument by State Prisoner
On the other hand, even though the trial court committed Frierson error in finding only by a preponderance of the evidence that defendant was armed with a deadly weapon when he possessed the sharp instrument in prison, it is harmless beyond a reasonable doubt. It is uncontroverted that defendant was the sole occupant of a cell in which the sharp instrument was secreted in his mattress with his own thumbprint on paperwork addressed to him that was used as the handle. It is inconceivable that under either standard of proof a trier of fact would come to a different conclusion. We thus affirm the conclusion that defendant is ineligible on this conviction for resentencing.
DISPOSITION
The order denying defendant's petition for resentencing is reversed with respect to case No. 95F02375, and accordingly remanded for a determination of whether he represents an unreasonable risk of danger to public safety or should otherwise be resentenced. As for case No. 94F07904, the order is affirmed.
BUTZ, Acting P. J. We concur: DUARTE, J. RENNER, J.