Metropolitan News-Enterprise


Thursday, December 18, 2014


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C.A. Clarifies Review Standard in Three-Strikes Resentence Cases

Initiative Does Not Create a Presumption in Favor of Release, Panel Says




A trial judge’s denial of a petition for resentencing under Proposition 36 is reviewed for abuse of discretion, the Fifth District Court of Appeal ruled yesterday.

The court affirmed a Merced Superior Court judge’s ruling that a man convicted of two crimes that were not serious or violent felonies is too dangerous to be released from prison after serving about 18 years of a 25-year-to-life sentence. Judge Mark V. Bacciarini said Randy Lynn Payne’s long history of criminal activity, prison rules violations, and inability to control his drug problem met the standard of “unreasonable risk of danger to public safety if released.” 

Payne was convicted in 1996 of evading arrest while driving and recidivist petty theft and was sentenced to 25 years to life in prison based on three prior “strikes”—a robbery and two residential burglaries. Witnesses testified that he led police on a chase at speeds of over 100 miles per hour before the car he was driving, which was stolen, flipped over and hit a utility pole.

Following passage of the Three Strikes Reform Act of 2012 by voters, he petitioned for a reduction of his sentence to a second-strike penalty of four years, meaning he would have been immediately released.

Proposition 36, approved by a large majority of voters, 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.”

Justice’s Opinion

Justice Jennifer Detjen, writing for the Court of Appeal, explained that the prosecution has the burden of proving the facts upon which it bases its claim of dangerousness by a preponderance of the evidence.

But if the trial judge rules for the prosecution on that issue, Detjen explained, the factual basis for the ruling is reviewed under the substantial-evidence test and the ultimate conclusion for abuse of discretion.

“The trial court’s ultimate determination when considering a petition for resentencing under section 1170.126 is analogous to an evaluation of the relative weight of mitigating and aggravating circumstances,” the justice reasoned. “It follows, then, that the trial court need not apply a preponderance of the evidence standard, in that it need not find resentencing the petitioner would, more likely than not, pose an unreasonable risk of danger to public safety.”

No Presumption

The resentencing consideration under Proposition 36, the justice went on to say, is not—as the defense argued—“the converse of a Romero hearing.” There is no presumption in favor of resentencing, she said.

“[W]e do not agree with defendant that resentencing to a second strike term ‘is the ‘generally mandatory’ disposition, subject only to ‘circumscribed’ discretion to retain’ the indeterminate third strike term,” she explained. “A court considering whether to resentence an eligible petitioner under section 1170.126, subdivision (f) has circumscribed discretion in the sense it can only refuse to resentence if it finds that to do so would pose an unreasonable risk of danger to public safety on the facts of the particular case before it.  This does not mean, however, its discretion is circumscribed in the sense it can only find dangerousness in extraordinary cases.  To the contrary, it can do so in any case in which such a finding is rational under the totality of the circumstances.”

The focus of the inquiry, she added, is whether the defendant is currently dangerous, not whether he was dangerous at the time of the original sentencing.

Applying those standards to Payne, she said, leads to the conclusion that the judge’s decision was within “the bounds of reason.” While there were some factors favorable to the defendant, including a favorable psychological assessment and concerns about his health and age, Bacciardi made a reasoned decision that these were outweighed by his history, both in and out of prison, Detjen said.

The dangerousness determination, she added, is not limited to an assessment of the defendant’s likelihood of violence. The risk that the defendant will engage in serious, but non-violent, criminal activity, such as drug activity, may be considered as well, she said.

The case is People v. Payne, F067838.


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