Opinion
F071725
06-23-2017
THE PEOPLE, Plaintiff and Respondent, v. MARIO GUTIERREZ, Defendant and Appellant.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Ivan Marrs, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SF013823A)
OPINION
APPEAL from an order of the Superior Court of Kern County. Colette M. Humphrey, Judge. Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Ivan Marrs, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Mario Gutierrez appeals from the denial of a petition for recall of sentence and resentencing under the Three Strikes Reform Act of 2012, also known as Proposition 36. The trial court deemed him ineligible for relief based on its finding that the underlying offense, battery against a custodial officer (Pen. Code, § 243.1), was committed with intent to cause great bodily injury. Gutierrez claims the trial court exceeded its authority because (1) inmates who seek resentencing under Proposition 36 have a Sixth Amendment right to a jury determination regarding the existence of disqualifying factual circumstances, and (2) the trial court impermissibly relied on hearsay by basing its findings on information contained in an appellate court opinion and/or a preliminary hearing transcript. The case law is against him on both issues. We therefore affirm the challenged order.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2008, Gutierrez was found guilty of committing battery against a custodial officer while housed at the Lerdo Detention Facility in Kern County. He was also found to have suffered four prior "strike" convictions, and was sentenced to 25 years to life in prison pursuant to an earlier version of California's Three Strikes Law (former § 667, subds. (b)-(i); former § 1170.12, subd. (c)(2)). The judgment of conviction was affirmed by this court in People v. Gutierrez (2009) 174 Cal.App.4th 515 (Gutierrez).
Proposition 36 was passed into law by the electorate in November 2012. In November 2014, Gutierrez petitioned the Kern County Superior Court for relief pursuant to section 1170.126, i.e., the statute that governs resentencing under Proposition 36. The People opposed the petition, arguing Gutierrez was ineligible for relief because he committed the subject offense with intent to cause great bodily injury. The opposition cited to our opinion in Gutierrez, supra, and its summary of the conduct underlying Gutierrez's conviction. The opinion describes how Gutierrez attacked a custodial officer, "throwing punches with both fists," and landed a punch that broke the officer's nose. (Id., 174 Cal.App.4th at p. 518.)
The People relied on section 1170.126, subdivision (e)(2), which is a disqualifying provision that applies if a defendant's current sentence was "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." (§ 1170.126, subd. (e)(2).) A petitioner is thus disqualified from relief under Proposition 36 if he or she "used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person" during commission of the underlying felony. (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)
The petition was heard on June 3, 2015, at which time the deputy district attorney made a record of having provided the trial court with a preliminary hearing transcript. The transcript purportedly revealed that, in addition to suffering a broken nose, the custodial officer had received "seven stitches on his left eye." The trial court acknowledged receipt of the document by saying, "I'm relying more on the appellate opinion than the preliminary hearing transcript, but I did read both."
The trial court denied the petition for the following reasons: "In this case we have a situation where the defendant repeatedly swung at a detention officer as the officer was trying to back away from [him]. ... It was an act of violence that resulted in the officer having the broken nose. It's the court's position, based on the actions of Mr. Gutierrez, he intended to harm the officer by pursuing him down the hallway and continuing to swing at him, and actually then injuring him. I do believe the evidence, from my reading of the appellate opinion, which is taken from the trial transcripts, indicates that at the time of this crime Mr. Gutierrez did intend to inflict great bodily injury. Therefore, he is not the type of individual the voters intended to benefit from this resentencing scheme, and I will find he is ineligible for resentencing."
DISCUSSION
Enacted as part of Proposition 36, section 1170.126 allows a defendant who was previously sentenced to life in prison under the Three Strikes Law to file a petition for resentencing on the predicate conviction. (§ 1170.126, subd. (b).) A petitioner has the initial burden to demonstrate eligibility for relief, which is determined by the nature of the subject offense and other prior felony convictions. (Id., subd. (e); People v. Bradford (2014) 227 Cal.App.4th 1322, 1338-1339 (Bradford).) Resentencing is prohibited if the subject offense is considered serious and/or violent as defined by section 667.5, subdivision (c) and section 1192.7, subdivision (c), or, as explained in footnote 2, ante, if the offense involved the use of a firearm or was committed with intent to cause great bodily injury. (§ 1170.126, subd. (e)(1)-(2).)
As recently stated by the Third District Court of Appeal in People v. Valdez (2017) 10 Cal.App.5th 1338, "We review the factual basis for the trial court's finding of resentencing ineligibility under the substantial evidence test. We review the whole record in a light most favorable to the order to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find ineligibility by a preponderance of the evidence." (Id. at p. 1346, italics added.) A contrary view was expressed by Division Three of the Second District in People v. Arevalo (2016) 244 Cal.App.4th 836, which holds that disqualifying factual circumstances must be proven beyond a reasonable doubt. (Id. at pp. 841-842, 853.) The issue concerning the applicable standard of proof for a finding of ineligibility under Proposition 36 is pending before the California Supreme Court. (People v. Frierson (2016) 1 Cal.App.5th 788, 793-794, rev. granted Oct. 19, 2016, S236728; People v. Newman (2016) 2 Cal.App.5th 718, 727-730, rev. granted Nov. 22, 2016, S237491 (Newman).) This District, like the majority of appellate courts that have considered the issue, has adopted the preponderance standard. (See, e.g., People v. Osuna (2014) 225 Cal.App.4th 1020, 1040.) We will follow our own precedent unless and until the state Supreme Court holds otherwise.
With regard to his first claim, Gutierrez acknowledges that appellate courts have consistently rejected the notion that petitioners are entitled to a jury determination on the question of eligibility for resentencing under section 1170.126. Our holding in People v. Blakely (2014) 225 Cal.App.4th 1042 (Blakely) is explanatory and representative of the consensus view: "[T]he United States Constitution require[s] that each element of a crime or sentence enhancement be proved to the jury beyond a reasonable doubt. [Citations.] In addition, the United States Supreme Court has made clear that '[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' ([Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi)].) ... Apprendi and its progeny do not apply to a determination of eligibility for resentencing under [Proposition 36]. ... 'The retrospective part of [Proposition 36] is not constitutionally required, but an act of lenity on the part of the electorate. It does not provide for wholesale resentencing of eligible petitioners. Instead, it provides for a proceeding where the original sentence may be modified downward. Any facts found at such a proceeding ... do not implicate Sixth Amendment issues.' ([People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1303-1305].)" (Blakely, supra, 225 Cal.App.4th at pp. 1059-1061.) We are not persuaded by Gutierrez's argument that Blakely was wrongly decided.
We now turn to the second claim, which is presented as a challenge to the sufficiency of the evidence. Gutierrez assigns error to the trial court's reliance on our opinion in Gutierrez and/or the aforementioned preliminary hearing transcript because both allegedly constitute inadmissible hearsay. We conclude the appellate opinion was admissible and independently supportive of the trial court's findings, and therefore decline to address the admissibility of the preliminary hearing transcript.
A hearing to determine eligibility for relief under Proposition 36 is essentially a sentencing proceeding. (See People v. Sledge (2017) 7 Cal.App.5th 1089, 1095 (Sledge) [observing, in the context of Proposition 47, that "[a]n eligibility hearing is a type of sentencing proceeding."].) Determinations of eligibility must be "based solely on evidence found in the record of conviction." (Bradford, supra, 227 Cal.App.4th at p. 1331.) The record of conviction includes prior appellate opinions. (People v. Hicks (2014) 231 Cal.App.4th 275, 286; People v. Guilford (2014) 228 Cal.App.4th 651, 660 (Guilford).) The recital of facts in an appellate opinion is hearsay, but such hearsay may be relied upon by the trial court if it bears sufficient indicia of reliability. (Sledge, supra, 7 Cal.App.5th at p. 1095 ["limited use of hearsay ... is permitted, provided there is a substantial basis for believing the hearsay information is reliable."]; see People v. Otto (2001) 26 Cal.4th 200, 212 ["courts routinely rely upon hearsay statements contained in probation reports to make factual findings concerning the details of the crime."]; People v. Lamb (1999) 76 Cal.App.4th 664, 683 ["Due process does not require that a criminal defendant be afforded the same evidentiary protections at sentencing proceedings as exist at trial."].)
The cases upon which Gutierrez purports to rely concern findings on sentencing enhancement allegations, which require pleading and proof in accordance with the normal rules of evidence, and are therefore inapposite. (E.g., People v. Woodell (1998) 17 Cal.4th 448, 458-459.) "That voters did not intend disqualification under Proposition 36 to require pleading and proof of a formal offense or enhancement is readily apparent from their inclusion, as a disqualifying factor, of an inmate's intent, during commission of the current offense, to cause great bodily injury to another person. We are aware of no provision criminalizing, or permitting imposition of an additional sentence for, the mere intent to cause great bodily injury to another person. The drafters of the initiative knew how to require a separate offense or enhancement if desired." (Blakely, supra, 225 Cal.App.4th at p. 1059; accord, Newman, supra, 2 Cal.App.5th at p. 725 ["no requirement exists that the disqualifying factors as to resentencing eligibility be pled and proved as an element of the current offense or attendant sentence enhancement."].)
In Guilford, supra, the Third District held that a prior appellate opinion, even if construed as hearsay, was "still admissible in the context of a Proposition 36 eligibility review." (Id., 228 Cal.App.4th at p. 660.) The indicia of reliability was found under the following rationale: "If defendant had thought the facts stated in our prior opinion were materially inaccurate, he had the remedy of petitioning for a rehearing. '[I]f a party disagrees with the Court of Appeal's selection of the material facts or identification of the applicable law, the party can petition for a rehearing and point out the deficiencies in the court's opinion.' [Citations.] Defendant did not file a petition for rehearing in this court. Therefore, we presume the facts previously stated by this court were faithful to the appellate record before us and reliably summarized the evidence against defendant." (Id. at pp. 660-661.)
Although the respondent's brief cites and relies upon the holding in Guilford, Gutierrez did not file a reply. We agree with the Guilford analysis and find its reasoning to be applicable here; Gutierrez never disputed the factual accuracy of our prior opinion and, as noted by the judge below, the opinion's summary of the facts was based on the trial transcripts. Therefore, we conclude the trial court properly relied upon the information set forth in the Gutierrez opinion.
The remaining question is whether the facts recounted in Gutierrez support a finding of intent to cause great bodily injury, i.e., "a significant or substantial physical injury." (§ 12022.7, subd. (f); see People v. Escobar (1992) 3 Cal.4th 740, 749-750.) "The force likely to produce bodily injury can be found where the attack is made by use of hands or fists. [Citation.] Whether a fist used in striking a person would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied." (People v. McDaniel (2008) 159 Cal.App.4th 736, 748-749.) Gutierrez threw multiple punches at the custodial officer after the officer had backed away from him and deployed bursts of pepper spray in self-defense. (Gutierrez, supra, 174 Cal.App.4th at p. 518.) Under those circumstances, and considering one of the punches broke the officer's nose, there was sufficient evidence to find an intent to cause great bodily injury under the preponderance standard.
Lastly, we address Gutierrez's unopposed request for a correction of the clerk's minutes from the June 3, 2015 hearing. The minute order indicates the petition was denied because the trial court found that "release of the defendant would result in unreasonable risk of danger to public safety." This conflicts with the judge's statements on the record and erroneously implies that Gutierrez was found to be eligible for relief, but unsuitable for resentencing based on a discretionary assessment under section 1170.126, subdivision (f). "The record of the oral pronouncement of the court controls over the clerk's minute order" (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.), and an appellate court has authority to correct errors in the latter (People v. Williams (1996) 50 Cal.App.4th 1405, 1408, fn. 2.). Accordingly, we order the clerk's minute order corrected to reflect that the petition for resentencing was denied based on a finding of ineligibility under section 1170.126, subdivision (e).
DISPOSITION
The order denying resentencing pursuant to section 1170.126 is affirmed. The trial court is directed to prepare amended minutes of the June 3, 2015 hearing to reflect that appellant's petition for resentencing was denied based on a finding of ineligibility under section 1170.126, subdivision (e).
/s/_________
GOMES, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
MEEHAN, J.