PEOPLE v. PEREZ

Respondent’s Supplemental Authorities

Cal.January 26, 2018

SUPREME COURT COPY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, 5238354 Plaintiff and Appellant, SUPREME COURT v. FILED JAN 26 2018 ALFREDO PEREZ,JR.., Jorge Navarrete Clerk Defendant and Respondent. Deputy Court of Appeal, Fifth Appellate District, No. FO69020 Fresno County Superior Court No. CF94509578 Hon. Jonathan Conklin, Judge RESPONDENT’S SUPPLEMENTAL AUTHORITIES ELIZABETH CAMPBELL Attorney at Law State Bar No. 166960 PMB 334 3104 O Street Sacramento, CA 95816 (530) 786-4108 campbell166960@gmail.com Attorney for Respondent TABLE OF CONTENTS RESPONDENT'S SUPPLEMENTAL AUTHORITIES CONCLUSION CERPIFICATE OF WORD COUNT DECLARATION OF SERVICE TABLE OF AUTHORITIES Page Cases Descampsv. United States (2013) 133 S.Ct. 2276 ............. 4 Dillon v. United States (2010) 560 U.S. 817 «1.1... ee eee eee 5 People v. Bradford (2014) 227 Cal.App.4th 1822 ............. 5 People v. Estrada (2017) 3 Cal.5th 661 ..............05. 2,5,6 People v. Frierson (2017) 4 Cal.5th 225 ............005: passim People v. Gallardo (2017) 4 Cal.5th 120 ............... passim People v. Johnson (2015) 61 Cal.4th 674 ............0--. 3, 5,6 People v. McGee (2006) 38 Cal.4th 682 ..............0045- 4,5 Codes Penal Code section 1170.12, subdivision (c)(2)(C) ............. 3 Penal Code section 1170.126 .......... cece eee 3 Constitutional Provisions United States Constitution, Amendment VI ............ passim ii IN THE SUPREME COURT OF THE STATE OF CALIFORNIA $238354 PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Appellant, F069020 V. Fresno County Superior Court ALFREDO PEREZ,JR., No. CF94509578 Defendant and Respondent. RESPONDENT'S SUPPLEMENTAL AUTHORITIES TO THE HONORABLE TANI CANTIL-SAKAUYE, PRESIDING JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE:SUPREME COURT OF THE STATE OF CALIFORNIA: Pursuant to Rule 8.520(d) of the California Rules of Court, respondent Alfredo Perez submits the following supplemental authorities for this court’s consideration. Within approximately the past thirty days, this court issued two opinionsrelevant to the issues presented in this case. In People v. Gallardo (2017) 4 Cal.5th 120, this court held that the trial court violated a defendant's Sixth Amendmentright to a jury trial when it found a disputed fact about the conduct underlying a prior conviction allegation that had not been established by virtue of the conviction itself. In People v. Frierson (2017) 4 Cal.5th 225, this court held that the State must prove a petitioner’s ineligibility 1 under the Three Strikes Reform Act beyond a reasonable doubt. Finally,earlier in 2017 but subsequent to the conclusion of briefing in this case, this court held in People v. Estrada (2017) 3 Cal.5th 661 that, in considering a recall petition, the trial courtis not limited to considering only facts encompassed bythe prior judgment when determining whethera prisoner was eligible underthe Act. (People v. Estrada, supra, 3 Cal.5th at p. 672.) Each of these cases has relevance to the issues currently before the court. The Court of Appeal here held that a court determining eligibility for Proposition 36 relief has the authority to consider the record of conviction and to makefactual findings by a preponderanceofthe evidence, even if those findings were not madebythetrier of fact in convicting a defendant of the current offense. (People v. Perez (2016) 3 Cal.App.5th 812, 832.) This court specifically disapproved this portion of the Court of Appeal opinion in Frierson. (See People v. Frierson, supra, 4 Cal.5th at p. 240, fn. 8.) Moreover, while the portion of this holding permitting the judge to makefindings that go beyond the jury verdict would appear to have been endorsedby the holding in People v. Estrada, that case did not involve a consideration of the constitutional right to trial by jury, nor did it consider the federal authorities followed by this court in People v. Gallardo. (See People v. Estrada, supra, 3 Cal.5th at p. 668.) In Frierson, this court held that proof beyond a reasonable doubt is required to discharge the People of the burden of establishing that a petitioneris ineligible for resentencing under the Three Strikes Reform Act. (People v. Frierson, supra, 4 Cal.5th at p. 230.) The court held that applying a reasonable doubt standard to proofof ineligibility for resentencing preserves the parallel structure between the prospective and retroactive application of the Act. Ud. at pp. 238-239.) At the sametime, preserving the exercise of broad judicial discretion in determining whether a prisoner’s release would pose an unreasonable risk to the public, effectuates the dual intent of the Act, thatis, to protect the public while reducing excessive sentences. (/d. at p. 239.) Quoting this court’s prior opinion in People v. Johnson (2015) 61 Cal.4th 674, this court concluded that the “parallel structure” of the Act as well as Penal Code section 1170.126's “wholesale incorporation”of the ineligibility criteria from Penal Codesection 1170.12, subdivision (c)(2)(C), reflect an intent to apply the same burdenofproof regardless of whetherthe Actis being applied prospectively to new sentences, or retrospectively through the recall procedure.(People v. Frierson, supra, 4 Cal.5th at p. 236.) The holding in Frierson is relevant not only asit affects the People’s burden of proof below, but also in terms of how the analysis in that case affects the overall proceedings. In addition to arguing that the trial court’s conclusion in this case waslegally correct and factually supported by substantial evidence, respondent has also argued that, had the court proceededas the People urged and deniedhis petition based on facts beyond those necessitated by his conviction, the court would have thereby deprived him of his Sixth Amendmentright to a jury trial as well his right to due process. The interplay between the holdings in Gallardo and Frierson bears upon this contention. | In Gallardo, this court addressed the application of the Sixth Amendmentto the determination of whether a defendant’s prior serious felony allegation constitutes a strike. In that case, the trial court had relied on judicial fact-finding beyond the elementsof the prior conviction in orderto establish that the conduct underlying the defendant’s conviction for assault by meanslikely to result in great bodily injury was in fact assault witha deadly weapon.(People v. Gallardo, supra, 4 Cal.5th at p. 123.) Disapproving People v. McGee (2006) 38 Cal.4th 682,this court held that this procedure ran afoul of Descampsv. United States (2013) 570 U.S. __ [133 S.Ct. 2276]. By finding true a disputed fact about the conduct underlying the defendant's conviction, the trial court violated the defendant’s Sixth | Amendmentright to a jury trial. (People v. Gallardo, supra, 4 Cal.5th at pp. 124-125.) This court held that, under those _ procedural circumstances, the judge’s role was“limited to identifying those facts that were established by virtue of the conviction itself—thatis, facts the jury was necessarily required to find to render a guilty verdict." (Id. at p. 136.) The Gallardo decision, of course, occurred in a very different procedural context than the instant case. Gallardo concerned the application of a defendant’s Sixth Amendmentrights in the context of a prior conviction allegation affecting a current prosecution. (People v. Gallardo, supra, 4 Cal.5th at pp. 125-126.) Here, as in Estrada, the question is whetherthe current conviction precludesrelief under the Reform Act. (See People v. Estrada, supra, 3 Cal.5th at p. 665.) Nonetheless,this court’s holding in Gallardois relevant to the issues presented in the instant appeal. The court in Gallardo disapprovedtheearlier decision in People v. McGee, in whichthis court had found nofederal right to have a jury determine whether prior convictions constitute strikes under California law. (People v. McGee, supra, 38 Cal.4th 682, disapproved in People v. Gallardo, supra, 4 Cal.5th 120.) Although thus far California courts have held that, under Dillon v. United States (2010) 560 U.S. 817 [130 S. Ct. 2683; 177 L.Ed.2d 271], prisoners have no Sixth Amendmentright to a jury determinationof factors rendering them ineligible for relief under the Reform Act(see, e.g., People v. Bradford (2014) 227 Cal.App.4th 1322, 1347), this court’s adoption of the reasonable doubt standard in Frierson, together with the disapprovalofMcGee in Gallardo, would seem to call into question the underpinnings of Bradford and othercases. This court emphasized in People v. Johnson and again in People v. Frierson that the structure and languageofthe Act makeclear the “intent that sentences imposed on individuals with the samecriminal history be the same,regardless ofwhether they are being sentenced or resentenced.” (People v. Frierson, supra, 4 Cal.5th at p. 236, quoting People v. Johnson, supra, 6 Cal.5th at 686, italics added in Frierson.) On the other hand,this court in Estrada rejected the defendants’ argument that Johnson’s emphasis on the parallel schemes demandedthat a court determiningeligibility for resentencing should be limited to considering only those facts encompassedby theprior conviction. (People v. Estrada, supra, 3 Cal.5th at p. 672.) Not only did the Estrada decision not encompass a Sixth Amendment argument, however, that decision arose in a precise procedural context: where the defendant had entered a plea agreement in exchange for dismissal of related counts. This court’s narrow holding was that a court determininga prisoner’s eligibility under the Act may consider facts connected to dismissed counts, but only if those facts also underlie a count to which the defendant pleaded guilty. (People v. Estrada, supra, 3 Cal.5th at p. 674.) In Estrada, this court was unpersuaded by an argument similar to that later embraced in Frierson — that the clear intent for treating offenders in a “nearly identical” manner demanded that “a court determiningeligibility for resentencing should be limited to considering only those facts encompassedby the prior conviction.” (People v. Estrada, supra, 3 Cal.5th at p. 672.) This court stated that the language in Johnson did not compelidentical treatment, but merely set forth the same substantiveeligibility criteria. (People v. Estrada, supra, 3 Cal.5th at pp. 672-673.) With respect, it is difficult to reconcile this declaration with the languagein Frierson. It is similarly difficult to reconcile the protection of Sixth Amendmentrights in Gallardo with a recall procedure that embraces judicial fact-finding beyond thefacts encompassedby the disqualifying conviction, whentheresult is that one procedural context may lead to a life sentence while the other maynot. Accordingly, respondent respectfully requests that this court reverse the holding of the Court of Appeal and reinstate the order granting his recall petition. CONCLUSION Respondentrespectfully requests that this court reverse the Court of Appeal and reinstate the order recalling his sentence. Dated: January 25, 2018 Respectfully submitted, ELIZABETH CAMPBELL Attorney at Law State Bar No. 166960 PMB 334 3104 O Street Sacramento, CA 95816 (530) 786-4108 Attorney for Respondent ~ CERTIFICATE OF WORD COUNT As required by California Rules of Court, Rule 8.520(c), I certify that this petition contains 1,936 words, as determined by the word processing program used to create it. Elizabeth Campbell Attorney at Law DECLARATION OF SERVICE I, the undersigned, declare as follows: I am a memberofthe State Bar of California and a citizen of the United States. I am over the age of 18 years and nota party to the within-entitled cause; my business address is PMB 334, 3104 O Street, Sacramento, California, 95816. On January 25, 2018, I served the attached RESPONDENT’S SUPPLEMENTAL AUTHORITIES (by mail) - by placing a true copy thereofin an envelope addressed to the person(s) named below at the address(es) shown, and by sealing and depositing said envelope in the United States Mail at Sacramento, California, with postage thereon fully prepaid. There is delivery service by United States Mail at each of the places so addressed,or there is regular communication by mail between the place of mailing and each of the places so addressed. Alfredo Perez, Jr. Respondent 843 12th Street Sanger, CA 93657 Fresno County Superior Court 1100 Van Ness Avenue Fresno, CA 93724 (by electronic transmission) - J am personally and readily familiar with the preparation of and process of documents in portable document format (PDF) for e-mailing, and I caused said:'document(s) to be prepared in PDF and then served by electronic mail to the party listed below,by close of business on the date listed above: Central California Appellate Program 2150 River Plaza Dr., Ste. 300 Sacramento, CA 95833 eservice@capcentral.org Douglas O. Treisman Office of the District Attorney Juv. Div. 3333 E. American Ave, Bldg 701, Suite F Fresno, CA 93725 dtreisman@co.fresno.ca.us Office of the Attorney General P.O. Box 944255 Sacramento, CA 94244-2550 SacAWTTrueFiling@doj.ca.gov California Court of Appeal Fifth Appellate District 2424 Ventura Street Fresno, CA 93721 served via Truefiling.com I declare under penalty of perjury that the foregoing is true and correct. Executed on January 25, 2018, in Sacramento, California. DECLARANT