Metropolitan News-Enterprise


Friday, October 17, 2014


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C.A. Upholds Exception to Three Strikes Resentencing Provision




The provision of the Three Strikes Reform Act that allows a judge to deny resentencing to a defendant whose release would pose “an unreasonable risk of danger to public safety” is not unconstitutionally vague, the Third District Court of Appeal ruled yesterday.

Justice Ronald Robie said the phrase “is clear because it can be objectively ascertained by reference to the examples [in Proposition 36] of evidence the trial court may consider in making this determination.”

Proposition 36, approved by a large majority of voters in November 2012, amended the 1980s 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. An inmate who was previously sentenced, 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 “unreasonable risk” language applies.

In making that determination, the measure says, judges may consider:

“(1) The petitioner’s criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes;

(2) The petitioner’s disciplinary record and record of rehabilitation while incarcerated; and 

(3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.”

In yesterday’s case, the panel affirmed a Shasta Superior Court judge’s order denying a resentencing petition by Armando Joseph Garcia.

Garcia was sentenced to 25 years to life in prison as part of a plea bargain on a charge of receiving stolen property. He had been charged with multiple offenses after police spotted him and his wife serving as lookouts for a burglary, and had to pepper spray Garcia when he tried to run away while being handcuffed, and found a stolen camera on his person and a stolen rifle nearby.

All other charges were dismissed as part of the plea agreement, and he has been serving his current sentence since 2007.

‘Unreasonable Risk’

When he filed his petition for resentencing under Proposition 36, prosecutors filed opposition under the “unreasonable risk” exception, and also argued that if the court did not find unreasonable risk, rather than resentence him, the judge should set aside his plea and reinstate the original charges, since the prosecution would not have received the benefit of the plea bargain.

Judge James Ruggiero, in denying resentencing, acknowledged that Garcia’s record of good conduct during his prison term was entitled to consideration. But the judge said that showing was outweighed by the defendant’s “nonstop criminal history” that included three “strikes”—two robberies and a first degree burglary, two escapes from confinement, and an 18-year prison commitment shortly after which he exhibited a weapon.

Garcia’s other convictions, beginning in 1980, were for felony receiving stolen property, second degree burglary, unlawful driving/taking a vehicle,  grand theft, assault on a peace officer, battery on a peace officer, and vehicle theft. He also had violated parole and probation conditions and committed his last offense just eight months after being released from the 18-year term, the judge found.

Robie, writing for the Court of Appeal, said the rule of reasonableness in Proposition 36 was similar to that in other statutes.

He reasoned:

“Defendant insists the term ‘unreasonable risk of danger to public safety” is vague because the term ‘unreasonable’ is not defined with mathematical precision.  He questions whether it ‘mean[s] a risk of harm that is more likely that not to occur, say a risk greater than 50%?  Or is an ‘unreasonable risk’ one which cannot be elicited by the use of reasonable or rational analysis?’ 

“The critical inquiry, however, is not whether the risk is quantifiable, but rather, whether the risk would be ‘unreasonable.’”

By applying the examples in Proposition 36, the justice said, a judge may rationally complete that inquiry.

Unpublished Portion

In an unpublished portion of the opinion, Robie said the trial judge did not abuse his discretion in finding that Garcia’s criminal record as a whole supported a finding of unreasonable risk.

The justice acknowledged Ruggiero’s “significant” findings that the defendant had not committed misconduct during his current prison term and that none of his crimes involved physical harm to victims. But the judge was also entitled to conclude that the defendant’s long history of crimes, including property offenses that may have caused psychological harm to victims, and the fact that he had never been crime-free for any significant length of time outside of prison.

“Simply because reasonable people could disagree, this does not mean the court abused its discretion,” Robie explained.

The case is People v. Garcia, 14 S.O.S. 4591.


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