In 2012, California voters passed Proposition 36 by a margin of 53 percent to 47 percent, and significantly changed California’s well known “Three Strike You’re Out” law. Prior to Proposition 36, when a defendant was convicted of any felony after already suffering two prior serious felony convictions, they would be sentenced to life in prison. The third felony did not have to be a serious felony, which created the often publicized situation wherein a defendant would receive a life prison term for a crime as simple as some types of shoplifting. With the passage of Proposition 36 by the electorate, the “Three Strikes” law was modified to require that the third felony must also be a serious felony to trigger the term of life in prison. Proposition 36 also provided the opportunity for defendants already serving prison terms, whose third felony was not a serious felony, to petition the court for resentencing. However, the inmate is not eligible for relief if resentencing would pose an unreasonable risk to public safety. As you might imagine, the requests began to come in immediately and in large numbers. One of those resentencing requests came from Steven Kaulick, an inmate who was 12 years into his life prison sentence.
In 1999, Kaulick was arrested and charged with false imprisonment by violence, assault with intent to commit rape, and criminal threats, following an attack on an 18 year old female neighbor. Under the “Three Strikes” law, the latter two offenses are considered serious felonies, but the first charged offense is not. Kaulick had suffered two previous convictions for serious felonies, and he had served two prior prison terms. Kaulick went to trial and was convicted of the first charged offense, but the jury deadlocked on the second two offenses. The Los Angeles District Attorney’s Office chose not to re-file the latter two charges, and Kaulick was sentenced on his one count conviction. Because of his two prior serious felony convictions, he received a sentence of life in prison (25 years) plus one additional year for his prison priors.
Following the passage of Proposition 36, Kaulick petitioned the court for relief. Without giving any notice to the prosecution, and without a hearing, the trial court granted Kaulick’s petition for resentencing. When the Los Angeles District Attorney’s Office became aware of the order, they obtained an immediate stay of execution and filed a writ of mandate with the California Court of Appeals, Second District.
The Court of Appeals held the trial court should not have granted Kaulick relief without notice to the District Attorney, allowing them the opportunity to be heard about Kaulick’s potential risk to public safety if he were resentenced or released. The Court of Appeals chose to also determine what the prosecution’s burden of proof would be on dangerousness, since they anticipated it arising upon remand to the trial court. In determining the proper burden of proof, the court relied on the United States Supreme Court’s holding in Dillon v. United States (2010) 130 S. Ct. 2683, 2692 that “a defendant’s Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt do not apply to limits on downward sentence modifications due to intervening laws.” The Court of Appeals found this ruling to be applicable to the circumstance created by Proposition 36. Since the right to have facts proven beyond a reasonable doubt does not apply, the court determined the proper standard of proof is preponderance of the evidence.
The Kaulick case does not blatantly contradict the likely intent of the voters in passing Proposition 36, but it certainly establishes some limitations and guidelines for its implementation. The petitions for relief continue to flood into the trial courts, but they will no longer be decided without a hearing and input from the prosecution. Absent a contrary ruling from a higher court, this case lays out the rules of the game that will apply to Proposition 36 resentencing in the future.
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