Metropolitan News-Enterprise


Wednesday, May 1, 2013


Page 1


Court Clarifies Rules for Resentencing Under Three-Strikes Reform


By a MetNews Staff Writer


Both the prosecution and the victim have a right to notice and to be heard before a defendant is resentenced under the limited retroactivity of last year’s Proposition 36, the Court of Appeal for this district ruled yesterday.

Justice Walter Croskey, writing for Div. Three, said it was error for Los Angeles Superior Court Judge Cynthia Ulfig to grant Steven Kaulick’s petition for resentencing “without giving the prosecution an opportunity to establish that resentencing would pose an unreasonable risk of danger to public safety, and without holding a hearing.”

The defendant, Croskey added, has a right to be present and heard, and also has a waivable right to have the hearing before the original sentencing judge, if available.

Proposition 36, approved by a large majority of voters last November, amended the state’s 25-year-old Three-Strikes Law by providing that, with limited exceptions, a third “strike” that is not a serious or violent felony will result in the same sentence as a second strike—twice the usual sentence—rather than a sentence of 25 years to life in prison. 

Limited Retroactivity

The law has a limited retroactivity provision. A current inmate whose conviction and sentence are final, but who would otherwise qualify for a lesser sentence under Proposition 36, is eligible to be resentenced under the new law unless prosecutors prove that the inmate is dangerous.

In Los Angeles Superior Court, the presiding judge has ordered that all petitions for resentencing be heard by a single judge, William Ryan. In a footnote to his opinion, however, Croskey said that order was apparently not communicated to the North Valley District before Ulfig was assigned to hear Kaulick’s petition in place of the original sentencing judge, who had died.

Kaulick was sentenced to 25 years to life in prison—plus a one-year prior-prison-term enhancement—in 2000 for false imprisonment by violence, which is not automatically classified as a serious or violent felony by the Three-Strikes Law, although it may be such under the particular circumstances of the case, such as when a dangerous or deadly weapon is used.

The conviction arose from an incident in which he assaulted a neighbor who had offered to help him move some property out of his apartment. She said he closed the door, tore her blouse, and placed his hand over her mouth, then threw her on the bed and ordered her to remove her clothes, before she kicked him between his legs and ran from the apartment, screaming and naked from the waist up.

He was also charged with assault with intent to commit rape and criminal threats, both serious or violent felonies. Those charges were dismissed after jurors deadlocked.

‘Danger to Society’

The sentencing judge denied the defense motion to dismiss the prior strikes, finding that Kaulick was a “danger to society,” that the victim could have suffered more serious injury if she hadn’t escaped, and that he had violated parole a number of times. 

Affirming the sentence, the Court of Appeal said that given the facts, it would have been an abuse of discretion to dismiss the strikes.

In moving to be resentenced under Proposition 36, Kaulick noted that he was now 54 years old and claimed that his conviction arose an incident in which he tried to retrieve a gold necklace that the victim had stolen from him. He claimed that his prior convictions resulted from “a family dispute” and that he had “naively accepted a plea bargain.”

Croskey explained in a footnote that the record of the prior case shows that Kaulick kidnapped his parents and threatened to kill his father unless he gave him a gun.

Preponderance Standard

Under the retroactivity provision of Proposition 36, the justice said, the burden is on the prosecution to prove dangerousness by a preponderance of the evidence, at a hearing which the prosecution and victim have reasonable notice of.  He rejected the defense argument that the U.S. Constitution, as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 and subsequent cases, requires that a proof-beyond-a-reasonable doubt standard be applied.

Apprendi does not apply, he said, because the fact of dangerousness is not being used to increase the sentence above the statutory maximum, but rather to determine whether the defendant is to be denied a reduction of the original sentence.

The case is People v. Superior Court (Kaulick), B46632.


Copyright 2013, Metropolitan News Company