People v. Bradford

• Decision Date: 15 July 2014
• Docket Number: C073339
• Citation: 174 Cal.Rptr.3d 499,227 Cal.App.4th 1322
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Reginald BRADFORD, Defendant and Appellant.

227 Cal.App.4th 1322

174 Cal.Rptr.3d 499

The PEOPLE, Plaintiff and Respondent,

v.Reginald BRADFORD, Defendant and Appellant.

C073339

Court of Appeal, Third District, California.

Filed July 15, 2014

See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 421B.

APPEAL from a judgment of the Superior Court of Sacramento County, Maryanne G. Gilliard, Judge. Reversed. (Super. Ct. No. 98F05483)

Richard M. Doctoroff, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Stephen G. Herndon and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.

RAYE, P.J.

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 I ).)

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 “[d]uring the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) The trial court reviewed facts recited in this court's opinion affirming the original judgment and concluded petitioner was armed with a deadly weapon, a pair of wire cutters. This appeal followed.

The question is whether the trial court erred in finding petitioner ineligible for resentencing based on evidence petitioner had a pair of wire cutters at or near the time of the “current” offenses, meaning the commitment offenses in the case of a petitioner seeking resentencing. We answer this question in the affirmative. We conclude that the trial court must determine the facts needed to adjudicate eligibility based on evidence obtained solely from the record of conviction. The petitioner has no right to a jury trial or to a formal hearing but must be provided an opportunity to be heard before the court determines ineligibility based on unadjudicated facts. Because it is not supported by the evidence, we shall reverse the trial court's determination that petitioner was ineligible for resentencing under the provisions of Proposition 36.

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 various eligibility criteria. (§ 1170.126, subd. (f).) The eligibility criteria are the same criteria, noted above, that apply to defendants awaiting sentencing under the three strikes law as revised by Proposition 36. Section 1170.126, subdivision (e) provides, in pertinent part: “An inmate is eligible for resentencing if: [¶] ... [¶] (2) The inmate's current sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.” ³

We are concerned with the third of the enumerated exceptions that apply based on the “current” conviction, at which the petition for resentencing is directed. The three “current” conviction enumerated exceptions are stated as follows:

“(i) The current offense is a controlled substance charge, in which an allegation under Section 11370.4 or 11379.8 of the Health and Safety Code was admitted or found true.

“(ii) The current offense is a felony sex offense, defined in subdivision (d) of Section 261.5 or Section 262, or any felony offense that results in mandatory registration as a sex offender pursuant to subdivision (c) of Section 290 except for violations of Sections 266 and 285, paragraph (1) of subdivision (b) and subdivision (e) of Section 286, paragraph (1) of subdivision (b) and subdivision (e) of Section 288a, Section 311.11, and Section 314.

“(iii) During the commission of the current offense, the defendant used a fire arm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.” (§ 667, subd. (e)(2)(C)(i)-(iii), italics added; see also § 1170.12, subd. (c)(2)(C)(i)-(iii) [containing substantively identical language and identical italicized language].)

If the petitioner is otherwise eligible, the statute provides that he or she shall be resentenced under current law “unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) In exercising its discretion, the court may consider a broad range of evidence, including the petitioner's criminal history and disciplinary record while incarcerated. (§ 1170.126, subd. (g).) Ordinarily, the original sentencing judge will hear the petition and conduct resentencing unless that judge is unavailable. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1300–1301, 155 Cal.Rptr.3d 856 (Kaulick ); § 1170.126, subds. (b), (j).)

3. The current case

This court granted incorporation by reference of the record on appeal from the original appeal of petitioner's conviction, docketed in this court as Bradford I, supra, C034427. A brief recitation of facts will suffice. The following summary is taken from a review of the trial transcript. Petitioner took merchandise from stores in the Sacramento area. Two incidents occurred on May 15, 1998. When petitioner was apprehended with stolen merchandise following these crimes, police found a pair of wire cutters in his pants pocket.

A third incident occurred on June 12, 1998, at which time there is some evidence in the record indicating petitioner made threatening statements when confronted by a store employee, for example, saying he would “kick [his] ass.” Petitioner did not display any weapon or attack the employee when the employee refused to allow him to leave despite his attempts to do so. Police were summoned, and petitioner was found in possession of stolen merchandise. This third incident was the incident for which the jury acquitted petitioner of an additional charge of robbery.

The final incident occurred on June 19, 1998. Following the final incident, police discovered a pair of wire cutters in petitioner's bag. There was evidence petitioner had removed electronic sensors from stolen merchandise before discovery of the wire cutters on May 15, 1998, and June 19, 1998.

After petitioner filed the petition to recall his sentence under Proposition 36, the trial court considered his eligibility without further briefing or involvement by petitioner or the People. On February 1, 2013, the trial court found petitioner ineligible for resentencing based on its review of the appellate opinion in the original proceedings. A minute order of the proceedings for that date reflects that the court's determination was ex parte. The trial court determined petitioner was ineligible for resentencing because he was armed with a deadly weapon at the time of the commitment offenses. (See §§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) The trial court explained its reasoning as follows: “In its opinion affirming the judgment on appeal, the Third District Court of Appeal summarized the trial evidence as showing that (1) with regard to Counts 1 through 4, ‘[w]hen apprehended with his clothes-filled bag, defendant had a pair of wire cutters in his pants pocket,’ and (2) with regard to Counts 5 and 6, police ‘booked ... a pair of wire cutters, also found in defendant's bag, into evidence.’ [¶] This shows that defendant was armed with a deadly weapon at the time of the commitment offenses, as a wire cutter can be used to cut or stab another person in a deadly manner.” The trial court's summary of the appellate opinion accurately describes discovery of the wire cutters on the two occasions except insofar as the trial court cited the wrong counts with respect to the second occasion. As correctly described in this court's appellate opinion, the second occasion in which wire cutters were...