Monday, July 14, 2014
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Court of Appeal Orders New Hearing for Three-Strikes Defendant
Inmate Convicted of Attempt, but Not of Completed Sexual Offense, Held Eligible for Resentencing Under New Law
By KENNETH OFGANG, Staff Writer
A defendant convicted of attempted oral copulation with a minor is eligible for resentencing under the Three Strikes Reform Act, the Court of Appeal for this district has ruled.
In its decision Thursday, Div. Five held that an attempt to commit a disqualifying offense, as distinct from the completed offense, does not preclude relief under the limited retroactivity provision of Proposition 36, as approved by voters in November 2012.
Proposition 36, which took effect the day after it was approved, limits the circumstances in which a defendant convicted of a felony, and previously convicted of at least two serious or violent felonies, may be sentenced to the previously mandated term of 25 years, or more, to life in prison. The new law allows such a sentence only when the new crime is a serious or violent felony, or when certain other aggravating circumstances apply.
The law applies to all defendants sentenced after it was enacted, and to a limited class of previously sentenced defendants. A defendant may request resentencing unless serving a sentence for a serious or violent felony, or for a crime referred to in the portion of the reform act that is Penal Code §1170.126(e)(2), or unless previously convicted of a crime referred to in §1170.126(e)(3).
‘Sexually Violent’ Crimes
Among the crimes referred to in §1170.126(e)(3) are the crimes defined as “sexually violent” by Welfare and Institutions Code §6600(b), which include oral copulation in violation of Penal Code §288a, “when committed by force.”
If a defendant meets the threshold criteria, a trial court must hold a hearing at which the prosecution has the burden—by a preponderance of the evidence, prior Court of Appeal decisions say—of proving that a reduced sentence will endanger the public. If that burden is not met, the defendant must be resentenced to double the base term, as if he or she had only one prior “strike.”
The beneficiary of Thursday’s ruling is Lance Lamont Jernigan, who now faces a “dangerousness” hearing in Los Angeles Superior Court.
Jernigan was sentenced to prison in 1990 for attempted forcible oral copulation, and is presently serving concurrent 25-year-to-life sentences for robbery and grand theft, which were imposed in 1997. The current sentences were based on the Three Strikes Law, after a jury found that Jernigan had two strikes—the 1990 conviction and a conviction for robbery, which is not a disqualifying prior offense under subdivision (e)(3).
Petition Denied
Superior Judge William Ryan denied Jernigan’s resentencing petition, holding that the 1990 conviction was for a disqualifying offense.
But Presiding Justice Paul A. Turner, writing Thursday for the Court of Appeal, said that while forcible oral copulation is disqualifying, an attempt to commit that crime, by the plain terms of Proposition 36, is not.
‘”Sexually violent offense’ as statutorily defined does not include an attempt to commit any of the listed sexual offenses,” he wrote. “Indeed, with the exception of attempted homicide, all of the disqualifying prior convictions are completed crimes. Under the plain language of the governing provisions, defendant’s prior conviction of attempted forcible oral copulation does not render him ineligible for resentencing under section 1170.126.”
Nothing in the language of Proposition 36 creates an ambiguity that would permit the court to consider extrinsic evidence of the voters’ intent, which the attorney general argued was to include convictions for attempts to commit listed crimes within the ambit of disqualifying offenses, the jurist said. Even if there were such an ambiguity, Turner opined, nothing in the ballot pamphlet arguments supports the attorney general’s position.
Other Circumstances
Turner acknowledged there might be circumstances under which an attempt to commit a sexually violent offense includes a completed, disqualifying offense, such as assault with intent to commit the disqualifying offense. But since no admissible evidence of the underlying facts of Jernigan’s 1990 conviction was presented at the hearing, and since the crime of attempted forcible oral copulation does not necessarily include an assault, the court cannot affirm the denial of his petition on that basis, the presiding justice said.
In an unpublished portion of the opinion, Turner noted that the state Supreme Court has before it the issue of whether a denial of Proposition 36 resentencing on threshold eligibility grounds is appealable. Pending a ruling on that issue, the panel elected to treat the order as “appealable as an order made after judgment affecting petitioner’s substantial rights.”
The case is People v. Jernigan, 14 S.O.S. 3585.
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