Opinion
G052037
02-14-2017
THE PEOPLE, Plaintiff and Respondent, v. KENNETH ELLIOT ALDHIZER, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 96WF0944) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
This is an appeal from a postjudgment order denying a resentencing petition by a third striker under 2012's Proposition 36, arguing in essence that the prosecution has the burden of pleading and proving ineligibility in the face of an existing prisoner's petition. We follow numerous appellate decisions in declining to accept the argument.
II. BACKGROUND
In 1996, Kenneth Aldhizer was charged with felony domestic violence under section 273.5 of the Penal Code. He had violently attacked and beaten his live-in girlfriend M.S.
We see no reason to further identify the victim.
All statutory references in this opinion are to the Penal Code.
There is no question the assault did great bodily injury to M.S. No one can look at the picture of her taken just after the beating without coming to that conclusion. And the evidence at the preliminary hearing also demonstrates a trier of fact could reasonably conclude that Aldhizer not only did great bodily injury to M.S., but intended to. M.S. described the assault in detail, including how Aldhizer first tried to choke her, and then, after she got away, how he chased her down to a liquor store parking lot where he pulled her hair so hard some of it came out in the back, and hit her so hard in the face she passed out.
There was no question here of intentionality. M.S.' testimony at the preliminary hearing was so powerful that when she was asked the question, "And what happened as you were running?" Aldhizer could no longer contain himself. He burst out in open court: "This is so - I just want to plead fucking guilty. That's fine, let's plead guilty and get her off the stand."
His actual guilty plea came months later, in early January 1997, as a jury was being selected for his trial. Aldhizer admitted two prior strikes, and was advised he faced a maximum exposure of 28 years to life. That turned out to be his sentence.
This court affirmed that sentence in 1999 in an unpublished opinion, People v. Aldhizer (Oct. 26, 1999, G023723) [nonpub. opn.]. Much of Aldhizer's appeal stemmed from buyer's remorse in regards to his guilty plea. He argued he did not understand the meaning of the words "traumatic condition" or "cohabiting" as used in section 273.5. And he asserted he was misled as to the length of the imprisonment he actually faced. This court affirmed his sentence, in an opinion in which Justice Crosby recounted the severity of M.S.' injuries. The opinion also states Aldhizer told a probation officer that he "'lost control'" after M.S. had scratched him.
"Defendant arrived home around the same time [as M.S.]. He and [M.S.] argued some more, and he slapped her several times in the face and choked her. She fought back in an effort to get away and ran off. But he chased her down, pulled her hair and began hitting her again. She apparently passed out. When she came to, paramedics were taking her to the hospital. She went out again. When she awoke in the emergency room she 'had blood all over [her] face and [her] eyes were both swollen, [she] couldn't see out [her] left eye . . . .' She also had bruises on her neck and arms and her eyes were circled in purple; blood vessels inside her eyes had ruptured. The next day bruises on her legs, hips and shoulders emerged. She had a bald spot on the back of her head where he hair had been pulled out. Her vision was blurry."
In 2013, roughly a decade and a half after Aldhizer's guilty plea, he brought a petition for resentencing under 2012's Proposition 36. The district attorney's office countered by asserting he was ineligible for Proposition 36 resentencing because he had intended to cause great bodily injury to M.S. The trial court agreed in a hearing in which Aldhizer himself stressed he wanted to retry his original conviction from 1997 because he shouldn't have pled guilty in the first place.
"And I just want to say that the record upon which I am convicted upon contains false evidence and physically impossible evidence which disputes the actual finding here. And so with not having a trial, without it being adversarially contested, this is a mockery of the American justice system."
III. DISCUSSION
Aldhizer's arguments on appeal all derive from a discrepancy between the text of the "Three Strikes" law as amended by Proposition 36 and the elements of section 273.5 itself. Under Proposition 36, a two-strike prison inmate is categorically ineligible for resentencing if in the course of committing the third strike the defendant "intended to cause great bodily injury to another person." (§ 1170.126, subd. (e)(2)(C) referring to § 667, subd. (e)(2)(C)(iii) and § 1170.12, subd. (c)(2)(C)(iii).) But, notes Aldhizer, a conviction for felony domestic violence under section 273.5 only requires (and only required back in 1996 as well) willful infliction of "traumatic" injury on a domestic spouse or partner, with the word "traumatic" being statutorily defined to include even "minor" and non-serious wounds. Aldhizer further points out that, given the lower threshold for conviction under section 273.5 in comparison with the higher standard for ineligibility under Proposition 36, a second-strike defendant such as himself did not have the same incentive back in 1996 to try to disprove - and that precise word is emphasized in his opening brief - an adjudication of intent to cause great bodily injury to a victim as a similarly situated defendant today. For Aldhizer, the difference amounts to a kind of existential unfairness: Had he known, in 1997, that one day, based on what the voters would do in 2012, he might avoid life in prison by fighting to establish he didn't intend to cause M.S. great bodily injury, he would have done so. Now, in hindsight, it seems unfair that he doesn't now have the chance to establish that he didn't assault M.S. with an intent to cause great bodily injury.
Aldhizer does not appear to argue that the actual text of Proposition 36 allows those who committed third strikes with an intent to cause great bodily injury to be still eligible for resentencing. In any event such an argument was refuted by People v. Osuna (2014) 225 Cal.App.4th 1020, 1033-1034 (Osuna).) Aldhizer gives us no basis on which to conclude that Osuna was incorrectly decided, but even were we to reach the issue anew, we would agree with that court. The voters' intent in enacting Proposition 36 did not include allowing third strikers who had intended to cause great bodily injury to a victim to be eligible for resentencing. (See id. at pp. 1033-1034.)
Back in 1996, the definition of "traumatic" was in subdivision (c) of the statute. Today it is subdivision (d). In both cases, though, the key words "whether of a minor or serious nature" are the same, and the disjunctive "or" between "minor" and "serious" of course tells the reader that a minor wound can be nonserious.
Legally speaking, in light of the disparity in incentives as they existed in 1997 versus 2012, Aldhizer spins out three challenges to the trial court's determination of automatic ineligibility for resentencing:
(1) The Three Strikes law should be interpreted to have required the prosecution, in the light of his petition, to "plead and prove" his intent to cause great bodily injury back in 1996 in order to establish his ineligibility for resentencing;
(2) the absence of a plead and prove requirement for inmates sentenced pre-Proposition 36 compared to its presence for post-Proposition 36 defendants fails an equal protection rational basis test; and
(3) under the federal high court decision of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), since the intent to inflict great bodily injury has the effect of increasing his term if incarcerated, the prosecution should be required to prove it before a jury.
As to the first argument, courts have uniformly rejected the argument that Proposition 36 requires - or should be interpreted to require - prosecutors to "plead and prove" the ineligibility of third strikers for resentencing. (See People v. Chubbuck (2014) 231 Cal.App.4th 737, 747; People v. Brimmer (2014) 230 Cal.App.4th 782, 801-803; People v. Guilford (2014) 228 Cal.App.4th 651, 656-658 (Guilford); People v. Bradford (2014) 227 Cal.App.4th 1322, 1332-1333; People v. Elder (2014) 227 Cal.App.4th 1308, 1315-1316 (Elder); People v. Blakely (2014) 225 Cal.App.4th 1042, 1057-1063; Osuna, supra, 225 Cal.App.4th at p. 1026; People v. White (2014) 223 Cal.App.4th 512, 526-527.) Guilford, in fact, specifically rejected any such pleading and proof requirement where the third strike was a felony domestic violence conviction under section 273.5 like the one at bar.
Aldhizer asks us to reconsider these holdings in light of the disparity in incentives in his case, though he doesn't mention Guilford at all. In light of our agreement with the substantial scholarship already undertaken by this small platoon of appellate courts, we decline.
But we will say this: Proposition 36 was enacted by the electorate in 2012 to "'dilute[]'" (Osuna, supra, 225 Cal.App.4th at p. 1036, quoting People v,. Yearwood (2013) 213 Cal.App.4th 161, 167) or otherwise "retreat" (People v. Berry (2015) 235 Cal.App.4th 1417, 1425 (Berry)) from the Three Strikes law to a limited extent. The reason for that limited retreat was the prospect of the proverbial nonviolent pizza thief receiving a life sentence if the pizza theft turned out to be a third strike. (See In re Coley (2012) 55 Cal.4th 524, 529, citing Vitiello, California's Three Strikes and We're Out: Was Judicial Activism California's Best Hope? (2004) 37 U.C. Davis L.Rev. 1025, 1026 ["Widely reported Three Strikes cases have involved trivial offenses - such as the theft of a bicycle, a slice of pizza, cookies or a bottle of vitamins - that have resulted in severe sentences"].)
It was of course no problem for the drafters of Proposition 36 to require pleading and proof for all third strikes going forward. And such a requirement makes perfect sense when one realizes that, as regards all future cases, the third strike was being proven for the first time. Indeed, pleading and proof in that context would be required under Apprendi, because the third strike would indeed be increasing a defendant's sentence for the first time. (See Apprendi, supra, 530 U.S. at p. 490; accord, Blakely v. Washington (2004) 542 U.S. 296, 303.)
But applying Proposition 36's limited retreat from three strikes presents the metaphysical problem of dealing with, and possibly trying to undo, the past. Aldhizer's proffered view of the initiative is that drafters were perfectly willing to countenance the full retrial of third strikes in cases like his - that is where one could not say an inmate was categorically ineligible for any resentencing based on the inherent nature of the third strike. But we see nothing in Proposition 36 to show any intent on its drafters to impose such an extreme burden on prosecutors. Indeed, Aldhizer's own case illustrates the absurdity of the position. Did the drafters who wrote and the voters who enacted Proposition 36 really mean to require prosecutors to retry a certain set of long finished cases with witnesses now dead or unavailable? The prospect is untenable. At the very least such a requirement would impose significant burdens on prosecutor's offices and allow those convicted of violent crimes to be resentenced if they were lucky enough to face prosecutors who were unable to reassemble and retry the original strike.
As for the fine point of the disparity in incentives at respective points in time, it is also a theory already rejected. As the court in Elder, supra, 227 Cal.App.4th at page 1316 nicely put it: "Finally, defendant suggests it is improper to allow a trial court to find a defendant ineligible on the basis of facts in the underlying proceeding that the parties did not have any incentive to litigate at the time, in the absence of a pleading and proof requirement. But that ship sailed long ago when out Supreme Court abandoned an approach of considering only the least adjudicated elements of a prior conviction and endorsed consideration of the entire record of conviction. [Citations.]" Aldhizer gives us no reason to depart from the Elder court's insight on this point.
We need only add that the entire record of Aldhizer's conviction readily demonstrates he attacked M.S. with intent to cause great bodily injury, a fact ironically attested to by Aldhizer's own argument to the trial court in this case: He essentially had to assert that his original conviction was based on falsified evidence. If he really believed that back in 1997, he did not have to withdraw his not guilty plea.
By the same token, the disparity in incentives readily passes rational basis evaluation as against an equal protection challenge. In sentencing law, if not poetry, time present can be rationally distinguished from time past. In the context of a sentencing scheme seeking to ameliorate past harshness, the distinction makes eminent rational sense. The past can never be wholly undone.
See T.S. Eliot, The Four Quartets, Burnt Norton.
Finally, Aldhizer's Apprendi argument has been specifically rejected by this court in Berry, supra, 235 Cal.App.4th 1417. There we said the same argument was "unpersuasive because as many other courts have already pointed out, the ruling that a defendant is ineligible for resentencing does not expose him to any increase in his sentence." (Id. at p. 1428, italics added.) The premise of Adlhizer's Apprendi argument - that ineligibility for resentencing is a de facto increase in his sentence - is simply not true. In the original Apprendi decision, the defendant's original sentence was increased, as a hate crime, by the trial judge, as distinct from the jury. Here, there is no increase in Aldhizer's original sentence, only the loss of hope of a reduction.
The order is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: ARONSON, J. THOMPSON, J.