Metropolitan News-Enterprise


Friday, October 21, 2016


Page 1


S.C. to Resolve Conflict Over Standard of Proof in Three Strike Cases




The California Supreme Court has agreed to decide what standard of proof to apply in determining whether a Three-strike inmate is eligible for resentencing under Proposition 36, the Three Strikes Reform Act approved by voters in 2012.

The justices, at their weekly conference in San Francisco Wednesday, unanimously granted review in People v.  Frierson (2016) 1 C.A. 5th 788.

Div. Four of this district’s Court of Appeal held in that case that Los Angeles Superior Court Judge William Ryan was correct in determining that a defendant, convicted of stalking his estranged wife, was ineligible for resentencing.

That latest conviction was based on letters James Frierson sent her from prison, telling her that he would track her down and “hurt” her, and “do something real bad” to her, if she carried out her stated intent to end the marriage.

Ryan concluded that Frierson was ineligible for recall of sentence under Proposition 36 because his letters established that the third-strike offense was committed with intent to cause great bodily injury. He rejected the defense argument that the only facts taken into consideration should have been those essential to a conviction of stalking, which does not require proof the defendant actually intended to carry out threats.

Agrees With Ryan

Presiding Justice Norman Epstein, writing for the Court of Appeal, agreed with Ryan, saying the trial judge was entitled to consider “all relevant, reliable and admissible material in the record to determine the existence of a disqualifying factor.”

Ryan’s determination of intent to cause great bodily injury was supported by the evidence, the presiding justice said, because he “was entitled to infer…that defendant meant to do what he said he would do.”

Epstein rejected the reasoning of People v. Arevalo (2016) 244 Cal.App.4th 846, in which this district’s Div. Three held that a petitioner seeking resentencing must be deemed eligible unless the prosecution proves ineligibility beyond a reasonable doubt.

The court in that case concluded that given the high stakes for the defendant and the government’s ability to present new evidence at the hearing, the higher standard is reasonable to apply.

Preponderance Standard Applies

Epstein disagreed, writing:

“Preponderance is the general standard under California law, and there is no showing that trial courts will be unable to apply it fairly and with due consideration.  Nor is there a showing that they have failed to do so.  We do not believe that a higher standard, let alone proof beyond a reasonable doubt, the highest standard possible, is constitutionally required.”

In granting review, the high court cited Arevalo, while noting that People v. Osuna (2014) 225 Cal.App.4th 1020, took the same position as the Frierson court.

Certified Question

In other conference action, the justices agreed to answer a question certified by the Ninth U.S. Circuit Court of Appeals in Liberty Surplus Insurance Corporation v. Ledesma and Meyer Construction Company, Incorporated.

The question is:

“Whether there is an ‘occurrence’ under an employer’s commercial general liability policy when an injured third party brings claims against the employer for the negligent hiring, retention, and supervision of the employee who intentionally injured the third party?”

The case stems from the alleged molestation of a child by an employee of Ledesma and Meyer Construction Company, who was performing work at a middle school in San Bernardino County Unified School District. The minor sued Ledesma and Meyer, as well as the school district.

The defendants tendered their defense to Liberty Surplus, which insured the construction company. Liberty responded that it was obligated to defend its named insured, but not the district, and filed a declaratory relief action.

A federal district judge ruled for Liberty and granted summary judgment, holding that the allegedly negligent supervision was too remote from the alleged molestation to be a covered “occurrence under the policy.” The Ninth Circuit panel noted conflicting decisions on the issue and certified the question. 


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