People v. Frierson

Filed 12/28/17

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S236728

v. )

) Ct.App. 2/4 B260774

JAMES BELTON FRIERSON, )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. GA043389

____________________________________)

The Three Strikes Reform Act of 2012 (the “Reform Act” or the “Act”),

amended the Three Strikes sentencing scheme. The Act reduced the class of

defendants who are eligible for indeterminate prison terms following a third felony

conviction. It also permitted some inmates serving a Three Strikes term to petition

for modification of their current sentences. The Act excluded resentencing under

certain circumstances. The People acknowledge that they bear the burden of

establishing that a petitioner is ineligible for resentencing. The question here is

what degree of proof is required to discharge that burden. We hold that proof

beyond a reasonable doubt is required.

I. BACKGROUND

A. Statutory Background

We recently considered another aspect of the Reform Act in People v.

Conley (2016) 63 Cal.4th 646 (Conley). The background provided there is helpful

to an analysis of the current question. “Enacted ‘to ensure longer prison sentences

1

and greater punishment for those who commit a felony and have been previously

convicted of serious and/or violent felony offenses’ (Pen. Code, former § 667,

subd. (b), as amended by Stats. 1994, ch. 12, § 1, pp. 71, 72), the Three Strikes

law ‘consists of two, nearly identical statutory schemes.’ [Citation.] The first of

these schemes was enacted by the Legislature in March 1994. (Pen. Code, former

§ 667, subds. (b)–(i).) The second was enacted by ballot initiative in November of

the same year. (Pen. Code, former § 1170.12, added by Prop. 184, as approved by

voters, Gen. Elec. (Nov. 8, 1994) (Proposition 184).) The two statutes differ only

in minor respects not relevant here.[1] [Citation.]

“Under the Three Strikes law as originally enacted, a felony defendant who

had been convicted of a single prior serious or violent felony (a second strike

defendant) was to be sentenced to a term equal to ‘twice the term otherwise

provided as punishment for the current felony conviction.’ (Pen. Code, former §

1170.12, subd. (c)(1).) By contrast, a defendant who had been convicted of two or

more prior serious or violent felonies (a third strike defendant) was to be

sentenced to ‘an indeterminate term of life imprisonment with a minimum term of’

at least 25 years. (Pen. Code, former § 1170.12, subd. (c)(2).)” (Conley, supra, 63

Cal.4th at p. 652.) Thus, under the original law, a defendant previously convicted

of two qualifying strikes was subject to a life term if he was subsequently

convicted of any new felony, regardless of whether it was a serious or violent one.

“The Reform Act changed the sentence prescribed for a third strike

defendant whose current offense is not a serious or violent felony. [Citation.]

Under the Reform Act’s revised penalty provisions, many third strike defendants

1 Because the relevant portions of the legislative and initiative versions of the

Three Strikes law are the same, for convenience, we will hereafter refer to the

initiative version. (Pen. Code, § 1170.12.)

2

are excepted from the provision imposing an indeterminate life sentence (see Pen.

Code, § 1170.12, subd. (c)(2)(A)) and are instead sentenced in the same way as

second strike defendants (see id., subd. (c)(2)(C)): that is, they receive a term

equal to ‘twice the term otherwise provided as punishment for the current felony

conviction’ (id., subd. (c)(1)). A defendant does not qualify for this ameliorative

change, however, if his current offense is a controlled substance charge involving

large quantities (id., subd. (c)(2)(C)(i)), one of various enumerated sex offenses

(id., subd. (c)(2)(C)(ii)), or one in which he used a firearm, was armed with a

firearm or deadly weapon, or intended to cause great bodily injury (id., subd.

(c)(2)(C)(iii)). The ameliorative provisions of the Reform Act also do not apply in

cases in which the defendant was previously convicted of certain enumerated

offenses, including those involving sexual violence, child sexual abuse, homicide

or attempted homicide, solicitation to commit murder, assault with a machine gun

on a peace officer or firefighter, possession of a weapon of mass destruction, or

any serious or violent felony punishable by life imprisonment or death.

(§ 1170.12, subd. (c)(2)(C)(iv)(I)–(VIII).) The Act provides that these

disqualifying factors must be pleaded and proved by the prosecution. (§ 1170.12,

subd. (c)(2)(C).)

“In the Reform Act, the voters also established a procedure for ‘persons

presently serving an indeterminate term of imprisonment’ under the prior version

of the Three Strikes law to seek resentencing under the Reform Act’s revised

penalty structure. (Pen. Code, § 1170.126, subd. (a).) Under section 1170.126,

‘within two years after the effective date of the act . . . or at a later date upon a

showing of good cause,’ such persons can file a petition for a recall of sentence

before the trial court that entered the judgment of conviction. (Id., subd. (b).) If

the petitioner would have qualified for a shorter sentence under the Reform Act

version of the law, taking into consideration the disqualifying factors (§ 1170.126,

3

subds. (e), (f)), section 1170.126 provides that he ‘shall be resentenced pursuant to

[the Reform Act] unless the court, in its discretion, determines that resentencing

the petitioner would pose an unreasonable risk of danger to public safety’ (id.,

subd. (f)). In exercising this discretion, the court may consider the defendant’s

criminal conviction history, the defendant’s disciplinary record and record of

rehabilitation while incarcerated, and ‘[a]ny other evidence the court . . .

determines to be relevant.’ (Id., subd. (g).)” (Conley, supra, 63 Cal.4th at pp.

652-653.) The Act, therefore, enacted two kinds of reforms: prospective, by

exempting some newly-charged defendants from an indeterminate term, and

retrospective, by permitting resentencing for some already convicted.

Serious and violent felonies are defined in the Penal Code in two ways: by

definition or because of the circumstances of their commission. Rape, robbery,

murder and other listed offenses are serious or violent by definition. (See Pen.

Code,2 §§ 667.5, subd. (c), 1192.7, subd. (c).) Other felonies may qualify as

serious based on a defendant’s conduct during their commission. (See, e.g.,

§ 1192.7, subd. (c)(8), (23).) The circumstances of commission requirements are

similar to, but different from, the factors set out in the Reform Act’s resentencing

provisions. (See discussion post.)

B. Facts and Procedure

Defendant James Frierson and his girlfriend, Lynn Thompson, had a stormy

relationship. In September 1998, he struck her in the head, broke her car

windshield, and threatened to kill her. Frierson was jailed but the couple

reconciled and married. When Frierson was subsequently sent to state prison,

2 Subsequent statutory references are to the Penal Code unless otherwise

noted.

4

Thompson told him she was suing for divorce. Frierson responded by sending

Thompson a series of letters, threatening to “track [her] down,” and saying she

“better run fast.” He wrote: “I will find you, Lynn, and kill you for causing me so

much pain. I want you to feel what I am going through.” He indicated he would

come to her job or son’s school to find her. After Thompson filed divorce papers

and secured a restraining order, Frierson sent more letters, threatening to rape and

kill her.

A jury convicted defendant of stalking and stalking while violating a

restraining order.3 (§ 646.9, subds. (a), (b).) Frierson had been convicted of

robbery (§ 211) in 1981 and 1990, and of inflicting corporal injury on a cohabitant

(§ 273.5, subd. (a)) in 1998. The robbery convictions qualified as separate strikes.

(§§ 667.5, subd. (c)(9), 1170.12, subd. (b)(1), 1192.7, subd. (c)(19).) Accordingly,

he was sentenced to a term of 25 years to life in prison on one stalking count.

After passage of the Reform Act, defendant petitioned for resentencing.

Stalking is not a serious or violent felony by definition. The People opposed

resentencing, however. They urged Frierson was ineligible for relief because,

during commission of that offense, he “intended to cause great bodily injury to

another person.”4 (§ 1170.12, subd. (c)(2)(C)(iii); see also § 1170.126, subd.

(e)(2).)

The court granted the People’s unopposed motion to admit six exhibits,

which included trial testimony by Thompson and two officers, as well as a May

2014 letter Thompson wrote to the sentencing court. The court denied

3 Defendant was also convicted of two misdemeanor counts of disobeying a

court order (§ 166, subd. (a)(4)), for which he received concurrent terms.

4 The People also urged that resentencing Frierson would pose an

unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).)

5

resentencing, reasoning Frierson was ineligible because, “even assuming arguendo

that the offense of stalking does not involve an intent to cause great bodily injury,

the factual circumstances of petitioner’s stalking clearly evidence an intent to

cause great bodily injury.” The court concluded that “the People have amply met

their burden of showing by a preponderance of evidence that Petitioner is

ineligible for resentencing because petitioner ‘[d]uring the commission of the

current offense, . . . intended to cause great bodily injury to another person’ ([Pen.

Code, §] 1170.12[, subd.] (c)(2)(C)(iii)).” The Court of Appeal affirmed.

II. DISCUSSION

A. Burden of Proof for Prospective Application of the Three Strikes Law

The Three Strikes law, both before and after the Reform Act, does not

directly mention the applicable burden of proof. However, the Three Strikes law

has always required that a qualifying prior conviction be “pled and proved” by the

prosecution. (Pen. Code, § 1170.12, subds. (a), (c)(1), (c)(2)(A).) It has long been

settled that “[t]he burden is on the state as in the case of the trial of other factual

matters in issue to prove beyond a reasonable doubt those alleged prior

convictions challenged by a defendant.” (In re Yurko (1974) 10 Cal.3d 857, 862;

see People v. Richardson (2008) 43 Cal.4th 959, 1032; People v. Newman (1999)

21 Cal.4th 413, 418.) Specifically, courts have held or acknowledged that the

prosecution bears the burden of proving beyond a reasonable doubt that a prior

conviction is a serious or violent felony. (See People v. Miles (2008) 43 Cal.4th

1074, 1093; People v. Delgado (2008) 43 Cal.4th 1059, 1070; People v. Ledbetter

(2014) 222 Cal.App.4th 896, 900; People v. Towers (2007) 150 Cal.App.4th 1273,

1277.) Evidence Code section 501 provides that “[i]nsofar as any statute, except

[Evidence Code] Section 522 [concerning insanity pleas], assigns the burden of

proof in a criminal action, such statute is subject to Penal Code Section 1096.”

6

Penal Code section 1096 articulates the presumption of innocence and provides

that “the effect of this presumption is only to place upon the state the burden of

proving him or her guilty beyond a reasonable doubt.”

After passage of the Reform Act, the prosecution bears an additional

burden to secure imposition of a third strike sentence. If the current offense is not

a serious or violent felony, the prosecution must plead and prove facts that

demonstrate the defendant is not entitled to the ameliorative changes of the Act.

The People do not dispute that stalking is not listed as a serious or violent felony

by definition. Accordingly, if Frierson had been prosecuted for stalking

Thompson after the Reform Act’s passage, they could only have secured a third

strike sentence if they had pled and proved he had two qualifying strikes and,

while committing the current stalking offense, he intended to inflict great bodily

injury on Thompson.5 The People concede that prospective application of the

Three Strikes law “requires the prosecution to prove any disqualifying factors

beyond a reasonable doubt . . . .” (Cf. In re Winship (1970) 397 U.S. 358, 361-

364.)

B. Burden of Proof for Ineligibility Criteria at Resentencing

The Reform Act’s resentencing mechanism has three separate aspects:

(1) the initial petition for recall of the sentence, (2) a determination of eligibility,

and (3) the court’s discretionary decision whether the defendant poses an

unreasonable risk of danger to public safety. The defendant must file a petition for

5 As noted, there was no evidence that Frierson used or was armed with a

firearm or deadly weapon when he stalked Thompson. (Pen. Code, § 1170.12,

subd. (c)(2)(C)(iii).) Likewise, there was no evidence that the current offense was

an applicable sex or drug crime, or that the nature of his prior convictions were of

a kind that would preclude a second strike term. (§ 1170.12, subd. (c)(2)(C)(i)-

(ii), (iv).)

7

recall of sentence (§ 1170.126, subd. (b)) and “specify all of the currently charged

felonies” that resulted in a third strike sentence, as well as “all of the prior

convictions alleged and proved under” the Three Strikes law. (§ 1170.126, subd.

(d).)

“[T]he petitioning defendant has the initial burden of establishing

eligibility, and if that burden is met, then the prosecution has the opportunity to

establish ineligibility on other grounds.” (People v. Johnson (2016) 1 Cal.App.5th

953, 963.) Placing the initial burden on the defendant is consistent with the

electorate’s clear intent that resentencing not be automatic. A defendant must seek

out relief, and do so within a specified time period.

Once that initial showing is made by the defendant, the prosecution bears

the burden of proving that one of the ineligibility criteria applies. The People do

not argue otherwise. Placing the burden of proving ineligibility on the prosecution

is consistent with the recall statute’s statement that it should apply to one “whose

sentence under this act would not have been an indeterminate life sentence.”

(§ 1170.126, subd. (a).)

Turning to Frierson’s petition, stalking is not, by definition, a serious or

violent felony. Thus, the People could only prove he was ineligible in one of two

ways. First, they could offer evidence that defendant’s stalking of Thompson was

a serious felony because he (a) personally used a firearm or other dangerous or

deadly weapon, or (b) personally inflicted great bodily injury on Thompson.

(§ 1192.7, subd. (c)(8), (23).) Such proof would establish his current offense for

stalking was a serious felony because of the circumstances of its commission.

Alternatively, they could prove that, while stalking Thompson, he intended to

cause great bodily injury on her. The People argued the latter. Such proof would

bring Frierson’s current offense within the exclusion provision of sections

1170.12, subdivision (c)(2)(C)(iii) and 1170.126, subdivision (e)(2).

8

The court, in assessing the People’s opposition, applied a preponderance of

evidence standard. This application is consistent with People v. Osuna (2014) 225

Cal.App.4th 1020. Osuna concluded that “a trial court need only find the

existence of a disqualifying factor by a preponderance of the evidence” (id. at p.

1040), citing Evidence Code section 115, which states that “[e]xcept as otherwise

provided by law, the burden of proof requires proof by a preponderance of the

evidence.” Osuna reasoned in part that “section 1170.126 does not impose the

same requirements in connection with the procedure for determining whether an

inmate already sentenced as a third strike offender is eligible for resentencing as a

second strike offender” (id. at p. 1033), noting that it omits any pleading and proof

requirement.

People v. Arevalo (2016) 244 Cal.App.4th 836 disagreed with Osuna and

concluded the beyond a reasonable doubt standard applies to ineligibility factors

for resentencing. Arevalo noted the parallel structure of the prospective and

retrospective portions of the Reform Act and reasoned “not only must there be a

heightened standard of proof for section 1170.126 resentencing eligibility

determinations, but that—in order to safeguard the intended parallel structure of

the Act—the heightened standard of proof should be beyond a reasonable doubt.

Under a lesser standard of proof, nothing would prevent the trial court from

disqualifying a defendant from resentencing eligibility consideration by

completely revisiting an earlier trial, and turning acquittals and not-true

enhancement findings into their opposites.” (Id. at p. 853.)

The parties’ arguments here mirror the reasoning of Arevalo and Osuna.

Defendant argues the parallel structure of the prospective and retrospective

portions of the Reform Act reflects an intent that the same beyond a reasonable

doubt standard applies for the finding of ineligibility for a second strike sentence

in both contexts. The People urge that the lack of a pleading and proof

9

requirement in the resentencing provision reflects an intent that the default

preponderance of the evidence standard of Evidence Code section 115 should

apply.

Defendant has the better view. The preponderance standard of Evidence

Code section 115 applies “[e]xcept as otherwise provided by law . . . .” Although

the resentencing provision of Penal Code section 1170.126 does not expressly

reference a standard of proof, as explained below, we conclude that the parallel

construction of the prospective and retrospective portions of the Reform Act

reflects an electoral intent to apply the same standard for proof of ineligibility for

second strike sentencing in both contexts. As such, the Reform Act “otherwise

provide[s]” for a different standard of proof, beyond a reasonable doubt, and the

default preponderance standard does not apply.

As Arevalo observed, we have previously noted that “the parallel structure

of the Act’s amendments to the sentencing provisions and the Act’s resentencing

provisions reflects an intent that sentences imposed on individuals with the same

criminal history be the same, regardless of whether they are being sentenced or

resentenced. Both the sentencing scheme and the resentencing scheme provide for

a second strike sentence if the current offense is not a serious or violent felony,

and they set forth identical exceptions to the new sentencing rules.” (People v.

Johnson (2015) 61 Cal.4th 674, 686 (Johnson), italics added.) We conclude the

parallel structure of the Act and section 1170.126’s wholesale incorporation of the

ineligibility criteria of section 1170.12, subdivision (c)(2)(C) reflects an intent to

apply the same burden of proof regardless of whether the Three Strikes law is

being applied prospectively or retrospectively through a resentencing petition.

The People’s position would create an anomaly with respect to proof of the

ineligibility factors. Although prospective application of such a factor would

require proof of it beyond a reasonable doubt, the People’s position would allow a

10

similar defendant seeking resentencing to be declared ineligible based upon a

finding of the same factor supported by a preponderance of the evidence. Nothing

in the parallel structure of the Act would suggest an electoral intent that similar

defendants be subject to vastly different sentences simply by application of a

different standard of proof.

We disagree with the People’s suggestion that the failure to include a

pleading and proof requirement in section 1170.126 reflected an intent to apply a

different, and lesser, standard of proof. On this point, People v. Conley, supra, 63

Cal.4th 646, is instructive. There, the Reform Act became effective after Conley’s

sentencing but while his appeal was pending. He argued that he was entitled to

automatic resentencing under the new provisions of the Three Strikes law without

having to file a recall petition. He claimed the rule of In re Estrada (1965) 63

Cal.2d 740, should apply: “When the Legislature amends a statute so as to lessen

the punishment it has obviously expressly determined that its former penalty was

too severe and that a lighter punishment is proper as punishment for the

commission of the prohibited act. It is an inevitable inference that the Legislature

must have intended that the new statute imposing the new lighter penalty now

deemed to be sufficient should apply to every case to which it constitutionally

could apply. The amendatory act imposing the lighter punishment can be applied

constitutionally to acts committed before its passage provided the judgment

convicting the defendant of the act is not final.” (Id. at p. 745.)

Conley rejected the claim, noting that “the Reform Act is not silent on the

question of retroactivity” and section 1170.126 created “a special mechanism that

entitles all persons ‘presently serving’ indeterminate life terms imposed under the

prior law to seek resentencing under the new law.” (Conley, supra, 63 Cal.4th at

p. 657; see § 1170.126, subd. (a).) Conley further observed that the Act did “more

than merely reduce previously prescribed criminal penalties” but also established

11

“a new set of disqualifying factors that preclude a third strike defendant from

receiving a second strike sentence” and required such factors be pled and proved.

(Conley, at p. 659.) We observed it was unclear how the pleading and proof

requirement would apply to a defendant who had already been convicted and

sentenced, especially with respect to factors that “prosecutors may have had no

reason to plead and prove” before the Act. (Ibid.) While noting that “mini-trials

for the sole purpose of determining” a disqualifying factor “would not be

unprecedented,” Conley concluded: “But the question before us is not whether

such trials are possible. The question is whether this is the system the voters

intended to create, though no provision of the Act contains any affirmative

indication to that effect. We find it difficult to escape the conclusion that the Act

does not address the complexities involved in applying the pleading-and-proof

requirements to previously sentenced defendants precisely because the electorate

did not contemplate that these provisions would apply. Rather, voters intended for

previously sentenced defendants to seek relief under section 1170.126, which

contains no comparable pleading-and-proof requirements.” (Id. at pp. 660-661.)

Although Conley was addressing the retroactive application of the Three

Strikes law’s new ineligibility criteria, its reasoning regarding the awkward

application of a pleading and proof requirement to an already-sentenced defendant

applies equally here to explain why such a requirement was omitted from the

resentencing statute. Section 1170.126 places upon defendants the burden of

petitioning for resentencing and specifying their current and prior offenses, which

would indicate initial eligibility. A pleading requirement aimed at prosecutors

would not fit well under such a scheme. The statute simply requires that the court

thereafter determine at the outset “whether the petitioner satisfies the criteria in

subdivision (e).” (§ 1170.126, subd. (f).)

12

Thus, the most reasonable explanation for the omission of a pleading and

proof requirement in the resentencing statute is not that this omission was an

implicit comment on the applicable burden of proof, but simply that the

ineligibility inquiry happens in a different procedural context. The Three Strikes

law was amended for prospective application. In this context, a pleading and

proof requirement makes sense. If the prosecution wishes to have a third strike

sentence imposed, it must indicate what circumstance makes a defendant subject

to an indeterminate sentence and prove that circumstance beyond a reasonable

doubt at trial. By contrast, a resentencing proceeding under section 1170.126

necessarily looks backwards. “Although the statute refers to it as the ‘current’

conviction because it is the conviction for which the petitioner is seeking to be

resentenced, the underlying case has been fully litigated. The trial has been held

or a plea has been taken, and the defendant is serving his or her sentence.”

(People v. Bradford (2014) 227 Cal.App.4th 1322, 1337; see People v. White

(2014) 223 Cal.App.4th 512, 527 [acknowledging the prospective and retroactive

parts of the Reform Act]; People v. Superior Court (Kaulick) (2013) 215

Cal.App.4th 1279, 1292 (Kaulick) [same].)

The People urge that because the current offense has been fully litigated,

the preponderance standard is appropriate: “[I]mposing a beyond a reasonable

doubt standard would in many cases make the prosecution unable to prove

ineligibility even for those defendants who truly did have a disqualifying factor—

merely because of the happenstance that the prosecution, having no need to prove

such a factor years ago, made a less than complete record. Such a windfall for

dangerous defendants would not fulfill the voters’ intent.”6 However, nothing in

6 We have no occasion here to consider what kinds of evidence may be

offered on the subject of eligibility at a resentencing hearing. The exhibits that

(footnote continued on next page)

13

the Reform Act’s language suggests the electorate contemplated that a lower

standard of proof should apply at resentencing to compensate for any potential

evidentiary shortcoming at a trial predating the Act. As discussed, the parallel

structure of the Act would suggest an opposite intent.

The primary difference between the prospective and retroactive portions of

the Act supports application of a reasonable doubt standard as to ineligibility

criteria. “The main difference between the prospective and the retrospective parts

of the Act is that the retrospective part . . . contains an ‘escape valve’ from

resentencing [for] prisoners whose release poses a risk of danger.” (Kaulick,

supra, 215 Cal.App.4th at p. 1293.) It is this “ ‘escape valve’ ” the electorate had

envisioned would prevent dangerous felons from being released under the Reform

Act, not application of a lower burden of proof as to ineligibility criteria. Indeed,

that the scheme included an additional requirement for resentencing reflects the

electorate was aware of the differences between the prospective and retrospective

portions of the Act and explicitly distinguished between them when it desired.7

The determination whether a defendant poses an unreasonable risk of

danger to public safety is discretionary (§ 1170.126, subd. (f)), and several Courts

of Appeal have properly concluded that “[t]he facts upon which the court’s finding

of unreasonable risk is based must be proven by the People by a preponderance of

the evidence . . . and are themselves subject to [appellate] review for substantial

evidence.” (People v. Buford (2016) 4 Cal.App.5th 886, 901; see also People v.

(footnote continued from previous page)

were received at Frierson’s hearing had been part of the record in the original

prosecution proceedings.

7 In light of our resolution, we do not address defendant’s argument that due

process requires application of the beyond a reasonable doubt standard.

14

Flores (2014) 227 Cal.App.4th 1070, 1075-1076; Kaulick, supra, 215 Cal.App.4th

at pp. 1301-1305.) As Kaulick reasoned, “it is the general rule in California that

once a defendant is eligible for an increased penalty, the trial court, in exercising

its discretion to impose that penalty, may rely on factors established by a

preponderance of the evidence. [Citation.] As dangerousness is such a factor,

preponderance of the evidence is the appropriate standard.” (Id. at p. 1305.)

Defendant does not argue otherwise, and recognizes that “to adjust for situations

in which a dangerous defendant is deemed eligible for a sentence recall, for

whatever reasons including shortcomings in the record of the prior, the recall court

has discretion to decline resentencing to safeguard the public.”

Our conclusion is both consistent with the intent behind the Reform Act

and harmonizes its prospective and retroactive portions. As we have explained:

“There can be no doubt that the Reform Act was motivated in large measure by a

determination that sentences under the prior version of the Three Strikes law were

excessive. . . . But voters were motivated by other purposes as well, including the

protection of public safety. The ballot materials explained that ‘dangerous

criminals are being released early from prison because jails are overcrowded with

nonviolent offenders who pose no risk to the public.’ [Citation.] Voters were told

that the Reform Act would protect public safety by ‘prevent[ing] dangerous

criminals from being released early’ [citation] and would have no effect on ‘truly

dangerous criminals’ [citation].” (Conley, supra, 63 Cal.4th at p. 658; see

Johnson, supra, 61 Cal.4th at p. 686.) The Reform Act expressly states it should

apply to those “whose sentence under this act would not have been an

indeterminate life sentence.” (§ 1170.126, subd. (a).) As noted, a prospective

sentence under the Act could not be an indeterminate life term unless the

prosecution establishes beyond a reasonable doubt that the defendant qualifies for

a third strike term. Applying a reasonable doubt standard to proof of ineligibility

15

for resentencing preserves the parallel structure between the prospective and

retroactive application of the Three Strikes law as contemplated by the Reform

Act. Simultaneously, the trial court’s discretion to deny resentencing to a

defendant who poses an unreasonable danger to the public acts as a safeguard in

cases where the record does not establish ineligibility criteria beyond a reasonable

doubt. In exercising its discretion, the court may consider a wide variety of

factors, such as the petitioner’s whole criminal history, including “the extent of

injury to victims, the length of prior prison commitments, and the remoteness of

the crimes,” a petitioner’s “disciplinary record and record of rehabilitation while

incarcerated,” and any other relevant evidence. (§ 1170.126, subd. (g)(1)-(3).)

Placing on the People a burden of proof beyond a reasonable doubt to establish

ineligibility for resentencing, while permitting the court to exercise its broader

discretion to protect public safety, is an approach that comports with the overall

structure and language of the Act and its dual intent.8

8 We disapprove the following cases to the extent they are inconsistent with

our opinion: People v. Perez (2016) 3 Cal.App.5th 812, 833; People v. Newman

(2016) 2 Cal.App.5th 718, 727-732; People v. Osuna (2014) 225 Cal.App.4th

1020, 1038-1040.

16

III. DISPOSITION

The Court of Appeal’s judgment is reversed and the matter is remanded

with directions to return the case to the trial court for further proceedings on

defendant’s petition.

CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CHIN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

MILLER, J.*

* Associate Justice of the Court of Appeal, First Appellate District, Division

Two, assigned by the Chief Justice pursuant to article VI, section 6 of the

California Constitution.

17

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Frierson

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 1 Cal.App.5th 788

Rehearing Granted

__________________________________________________________________________________

Opinion No. S236728

Date Filed: December 28, 2017

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: William C. Ryan

__________________________________________________________________________________

Counsel:

Richard B. Lennon and Suzan E. Hier, under appointments by the Supreme Court, for Defendant and

Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney

General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews, Louis W. Karlin and Robert

C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Richard B. Lennon

California Appellate Project

520 S. Grand Avenue, 4th Floor

Los Angeles, CA 90071

(213) 243-0300

Robert C. Schneider

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 269-6064