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Court of Appeal Rejects A.G.’s Sentencing Concession
Accedes to Superior Court’s Direction to Rethink Decision, Comes to Same Conclusion as Before: Inmate, Whose Third Strike Must Be Stricken Is Not Entitled to Resentencing as Second-Strike Offender
By a MetNews Staff Writer
The Third District Court of Appeal on Friday declined to accede to a concession by the Office of Attorney General that an inmate is statutorily entitled to a resentencing, despite being nudged by the California Supreme Court to do so.
Justice Peter A. Krause authored the opinion which affirms a judgment by Butte Superior Court Judge Corie J. Caraway.
Seeking resentencing—and a release from prison—is Kelly Vaughn Kimble who was convicted in 2008 of stalking his girlfriend. That was a third strike for Kimble.
He had previously been convicted of attempted kidnapping and criminal threats.
Kimble was sentenced under the Three Strikes Law, as it then existed, to 25 years to life in prison plus one year based on a prior-prison-term enhancement.
Reform Act
In 2012, voters enacted the Three Strikes Reform Act, providing:
“[P]risoners currently serving sentences of 25 years to life for a third felony conviction which was not a serious or violent felony may seek court review of their indeterminate sentences and, under certain circumstances, obtain resentencing as if they had only one prior serious or violent felony conviction.”
Stalking was not a serious or violent felony, and Kimble in 2013 sought a resentencing. It was denied based upon a provision of the Reform Act—Penal Code §1170.126(f)—saying that “the petitioner shall be resentenced...unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.”
The judge explained that Kimble’s prior acts “involved physical violence” that he had violated conditions of probation and conditions of parole, that he “continues to defy authority year after year.” Twice assaulting other prisoners, and maintained gang ties. The Court of Appeal, on July 14, 2014, upheld that decision.
SB 483
On Jan. 1, 2022, Senate Bill 483 went into effect. Under it, Kimble’s prior-prison-term enhancement was invalidated.
Now, he contended, he was entitled to a “complete resentencing” as a second-strike defendant.
Caraway disagreed, citing Kimble’s continuing “danger to public safety.” He said:
“I have gone over the existing laws, and I’m declining to exercise my discretion.”
He did strike the one-year enhancement.
The Court of Appeal on July 14, 2023, affirmed. But two weeks later, the Office of Attorney General changed its position, urging that relief be granted.
Lack of Explanation
Krause recited on Friday:
“The Attorney General did not explain the basis for his change in position, cite to any recent authority that might have triggered the sudden reversal, or point out any errors of law or fact in our opinion. After due consideration of the Attorney General’s rehearing petition, it was denied on the merits.”
The California Supreme Court on Oct. 25, 2023, granted review and transferred the case back to the Third District with directions to “reconsider the cause in light of the Attorney General’s concession that defendant was entitled to resentencing under the revised penalty provisions of the Three Strikes Reform Act.”
No Significant Deference
Krause wrote:
“Having carefully reconsidered the matter, we again decline to accept the Attorney General’s bare concession. As a general rule, we are not bound by concessions made by the People in a criminal case….And here, we are not inclined to give the Attorney General’s concession significant deference, as the issue before us turns on a question of statutory interpretation, such that the analysis is not invalidated simply by a change in party position.
“It also is worth highlighting that while the Supreme Court’s basis for granting review appears to be the Attorney General’s concession, he has declined to take any position after transfer.”
He pointed out that the Reform Act still provides—in Penal Code §1170.126(f)—that a court may, in its discretion, deny resentencing if the trial court “in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.”
The jurist declared that if Kimble’s view were accepted, it would “circumvent” the Reform Act “and effectively mandate that the trial court resentence defendant as a second strike offender, without regard to the potential risk he poses.”
Public Safety Concerns
He continued:
“The trial court could not consider defendant’s criminal history, disciplinary record, or other relevant information under section 1170.126, subdivision (f) to decide whether to deny relief based on public safety concerns. This result would conflict with the Reform Act’s intent to protect the public from people who pose an unreasonable risk of danger to public safety. Such an outcome would be particularly worrisome in this case, given that the trial court previously found under section 1170.126, subdivision (f) that defendant did pose an unreasonable risk of danger to public safety.”
The case is People v. Kimble, C097389.
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