Opposition Brief — Lilron Ravon Jones, Petitioner v. California

No. 18-9664 ·

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LILRONRAVON JONES,

Petitioner,

v.

STATE OF CALIFORN}A,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APPEAL, FIRST APPELLATE DISTRICT

BRIEF IN OPPOSITION

XAVIER BECERRA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

DONALD E. DENICOLA

Deputy Solicitor General

SETH K. SCHALIT

Supervising Deputy Attorney General

Counsel of Record

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

(415) 510-3857

Seth.Schalit@doj.ca.gov

Counsel for Respondent

1

QUESTION PRESENTED

Whether the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), was

violated when the state court, pursuant to a recidivist sentencing law, relied

on petitioner's admitted prior juvenile adjudication of a felony to impose a

higher sentence than that authorized by the jury's verdicts.

11

DIRECTLY RELATED CASES

California Supreme Court:

People v. Bhushan et al., No. 8253098, judgment entered March 13, 2019

(this case below)

California Court of Appeal, First Appellate District, Division Two:

People v. Bhushan et al., No. A145855, judgment entered November 30,

2018 (this case below)

Alameda County Superior Court:

People v. Vijay Bhushan, Lilron Jones, and Marquise Thompson, No.

Cl 75094, judgment' entered July 10, 2015 (this case below)

..

iii

TABLE OF CONTENTS

Page

Jurisdiction ...... ;............................................................................................... 1

Statement ........................................................................................................ 1

Argument .............. :................................................................ :......................... 5

Conclusion ..................................................................................................... 11

iv

TABLE OF AUTHORITIES

Page

CASES

Apprendi v. New Jersey

530 U.S. 466 (2000) ...............................................................................passim

Banks v. California

395 U.S. 708 (1969) ........................................................................................ 6

Cox Broadcasting Corp. v. Cohn

420 U.S. 469 (1975) ..................................................... ..'..................... 1, 6, 8, 9

Cunningham v. California

549 U.S. 270 (2007) ...................................................................................... 10

Ewing v. California

538 U.S. 11 (2003) .......................................................................................... 2

Jefferson v. City of Tarrant

522 U.S. 75 (1997) .......................................................................................... 7

Johnson v. California

541 U.S. 428 (2004) ......... ,...................................................................... 6, 8, 9

Miller v. Alabama

567 U.S. 460 (2012) .................................................................................... 5, 8

People v. Jones

5 Cal. 4th 1142 (1993) ................................................................................... 2

People v. Nguyen

46 Cal.4th 1007 (2009) .................................................................................. 4

People v. Superior Court (Romero)

13 Cal. 4th 497 (1996) ................................................................................... 7

People v. West

154 Cal. App. 3d 100 (1984) .......................................................................... 3

Texas v. United States

523 U.S. 296 (1998) ........................................................................................ 9

V

TABLE OF AUTHORITIES

(continued)

Page

STATUTES

United States Code, Title 28

§ 1254(1) ..................................................................................................... 1, 9

§ 1257 .......................................................................................................... 6, 9

§.1257(a) ......................................................................................................... 1

California Penal Code

§ 18(a) ............................................................................................................. 7

§ 187(a) ........................................................................................................... 2

§ 189 ................................................................... :..................................... '. ...... 2

§ 664(a) ............................................................................................................ 2

§ 667(a) ........................................................................................................... 3

§ 667(b) ........................................................................................................... 7

§ 667(b)-U) ...................................................................................................... 2

§ 667(c) ,,,,,,,,,.,,,,,,.,,.,,., ..... ,, .. ,.. ,.,,,, ............ ,., ................................................. ,. 2

§ 667(d)(l) ...................................................................................................... 2

§ 667(d)(3) ................................ :..................................................................... 2

§ 667(e) ............................................................................................................ 2

§ 667.5(c)(9) .................................................................................................... 2

§ 1170.12 ........................................................................................................ 2

§ 1192.7(c)(l9) ......................... ;...................................................................... 2

§ 12022.53(c) .............................................................................................. 2, 3

§ 29820(b) ....................................................................................................... 2

§ 29820(c) ........................................................................................................ 7

California Welfare and Institutions Code

§ 726(b) ............................................................................................................ 7

§ 731(c) ........................................................................................................... 7

CONSTITUTIONAL PROVISIONS

United States Constitution

Sixth Amendment .......................................... :.: ....................................... 9, 10

1

JURISDICTION

The Court lacks jurisdiction to review the judgment of the California

Court of Appeal, which conditionally reversed and directed further sentencing

proceedings in the juvenile ~ourt and potentially also in the adult court. That

disposition, as explained below, is not a final judgment of a state court reviewable under 28 U.S.C. § 1257(a) and does not fall within any of the exceptions

to the finality requirement identified in Cox Broadcasting Corp. v. Cohn, 420

U.S. 469 (1975).

Petitioner's asserted basis of jurisdiction-28 U.S.C.

§ 1254(1)-does not apply.

STATEMENT

1. In July 2012, teenager Hadari Askari was shot to death in a housing

complex in Oakland, California. Pet. App. 1. Askayi's family and friends believed that another young man, Wyone Bordley, had killed Askari, and they in

turn "wanted to see Bordley dead." Id. There was an "understanding" that

several young men-.petitioner Lilron Jones, Marquise Thompson, and Vijay

Bhushan-."would 'take care of it."' Id. In December 2012, Jones and Bhushan

fired at least 20 rounds at Bordley. See id. at 1, 3. Bordley was shot in the foot

and a bystander-15-year-old Jubrille Jordan-was k'illed by a shot to her

head. Id. at 1.

2. Jones and Bhushan were tried together, while Thompson was tried

separately. Pet. App. 3. After being advised of his constitutional rights, Jones

admitted that he had suffered a juvenile adjudication for robbery, alleged as a

.

2

strike for recidivist punishment under California's Three Strikes law. Id. at 3,

11-12. A jury convicted Jones of first-degree murder, Cal. Penal Code§§ 187(a),

189; premeditated attempted murder, id. §§ 187(a), 664(a); and unlawful firearm activity, id. § 29820(b). See Pet. App. 3. It also found true various sentence-enhancing firearm allegations under Cal. Penal Code§ 12022.53(c). Pet.

App. 3.

Jones's sentence involved increased punishment for recidivism under California's Three Strikes law. See Cal. Penal Code §§ 667(b)-0), 1170.12. That

law applies where "a defendant has beeri convicted of a felony and it has been

pled and proved that the defendant has one or more prior serious or violent

convictions." Id. § 667(c). It requires that the "determinate term or minimum

term for an indeterminate term" of the sentence for the current felony conviction shall be "twice the term otherwise provided" for that felony. Id. § 667(e);

see generally Ewing v. California, 538 U.S. 11, 14-17 (2003) (plurality opinion).1

A prior conviction for robbery is a "strike."

Cal. Penal Code §§ 667(d)(l),

667.5(c)(9), 1192.7(c)(19). A prior juvenile adjudication for robbery, under certain circumstances, also may qualify as a strike. Id. § 667(d)(3).

California law further authorizes a five-year sentence enhancement-.

which is not part of the Three Strikes law, see People v. Jones, 5 Cal. 4th 1142

(1993)-for a defendant "convicted of a serious felony who previously has been

1 Jones's appendix includes the current version of the law. That is the version

the State quotes.

3

convicted of a serious felony." Cal. Penal Code § 667 (a). A juvenile court adjudication does not constitute a conviction for purposes of the five-year serious

felony enhancement. People v. West, 154 Cal. App. 3d 100, 108-110 (1984).

In this case, the trial court sentenced Jones to a prison term of 25 years

to life for the murder count, doubled to 50 years to life under the Three Strikes

law, plus consecutive terms of 20 years for the firearm enhancement and five

years as a separate enhancement based on the prior robbery. Pet. App. 3. For

the attempted murder count, the court sentenced Jones to a consecutive term

of seven years to life, doubled to 14 years under the Three Strikes law, plus an

additional 20 years for the firearm enhancement and five years as a separate

enhancement based on the prior robbery. Id. On the unlawful firearm activity

count, the court sentenced him to a concurrent term of two years, doubled on

account of the Three Strikes law. Id. 2 Jones thus was sentenced to a total

term of 1.14 years to life. Id.

3. The California Court of Appeal rejected Jones's challenges to his convictions. Pet. App. 3-5, 8-10. It struck the two 5-year serious felony enhancements, imposed on the murder and the attempted-murder counts, because

2 Jones's description of the two 20-year firearm enhancements as being a prod-

uct of Three .Strikes doubling (Pet. 23) is incorrect. Personally and intentionally discharging a firearm results in a 20-year enhancement. Cal. Penal Code

§ 12022.53(c). One 20-year term was added to the murder and a second 20year term was added to the attempted murder. Pet. App. 3.

4

Jones's prior juvenile adjudication for robbery did not constitute a prior conviction under the applicable sentencing statute. Id. at 11. But it rejected

.Jones's claim that the murder and attempted murder sentences, which were

doubled on the basis of a prior juvenile adjudication, "violated his constitutional right to a jury trial because he had no right to jury trial in the prior

proceeding." Pet. App. 12. The court explained "that this argument was rejected in People v. Nguyen, 46 Cal.4th 1007 (2009)." Id.

For a variety of additional reasons, the court of appeal vacated Jones's

sentence. Pet. App. 16. First, it concluded that Jones, who was 17 years old

when he committed the crimes and who had been charged by the district attorney directly in adult court, was entitled to the benefit of a recent change in

state law restricting the jurisdiction of adult courts over juveniles. Id. at 10.

Application of the new law, the court held, required that the judgment be conditionally reversed and the case remanded for a determination of Jones's fitness for treatment in the juvenile system. Id. at 11. The court instructed that,

if the juvenile court determines that the case would have been transferred to

adult court had the new law been in effect at the time of Jones's offenses, it

should transfer the case to adult court, which would reinstate the convictions

and reconsider the sentence in light of the appellate court's further directions

on remand. Id. If the juvenile court instead determines that it would not have

transferred the case to adult court, Jones's current convictions will be deemed

5

juvenile adjudications, and the court should enter a disposition under the juvenile court law. Id.

Second, in light of another recent change in California law broadening a

court's sentencing discretion to include striking or dismissing firearm enhancements, the appellate court remanded the case so that the trial court could consider whether to exercise that discretion. Pet. App. 12-13.

Third, the appellate court concluded that trial counsel had acted incompetently by failing to ask the trial court "to consider whether a sentence of 114

years to life-foreclosing any opportunity for release regardless of Jones's potential for change-was proportionate to the crimes committed by" Jones,

given the "constitutional obligation to consider youth related factors" under

Miller v. Alabama, 567 U.S. 460 (2012). Pet. App. 15. The court determined

that "[r]emand

required" for consideration of those matters. Id. at 16.

Jones sought discretionary review in the California Supreme Court, presenting the question: "Does the use of a prior juvenile adjudication to enhance

a sentence under the Three Strikes law violate the Sixth and Fourteenth

Amendment right to a jury trial." Jones Pet. for Review 8, People v. Bhushan

et al., 8258098, Jan. 2, 2019. On March 13, 2019, that court denied review.

Pet. App. 21

ARGUMENT

Jones contends that, under the rule of Apprendi v. New Jersey, 530 U.S.

466 (2000), the fact that he had been previously adjudicated as a delinquent

6

for felony robbery could not be used to sentence him under California's Three

Strikes law because that prior adjudication occurred in juvenile proceedings at

which he had no right to a jury trial. Pet. 15-21. Because the state court of

appeal remanded for further sentencing proceedings, there is no jurisdiction

under 28 U.S.C § 1257. Jones's case does not fall within any of the exceptions

to Section 1257's finality requirement identified in Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469 (1975). In any event, this case would be an especially poor

vehicle for addressing Jones's claim. The further sentencing proceedings could

well relieve Jones of the sentence that he challenges here, and, under the circumstances of this case, that sentence could not violate Apprendi because

Jones admitted the fact of the prior adjudication.

1. This Court lacks jurisdiction based on 28 U.S.C. § 1257. That statute

limits this Court's jurisdiction "to review of '[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had."' John-

son v. California, ?41 U.S. 428 (2004) (per curiam) (brackets added by Johnson).

Here, Jones petitioned for review in, and was denied review by, the California

Supreme Court, satisfying the "highest court" component of Section 1257. E.g.,

Banks u. California, 395 U.S. 708 (1969) (per curiam). But Sectio,n 1257 also

requires a judgment that is "subject to no further review or correction in any

other state tribunal" and "final as an effective determination of the litigation

7

and not of merely interlocutory or intermediate steps." Jefferson v. City of Tarrant, 522 U.S. 75, 81 (1997). In light of the multilayered remand order here,·

see Pet. 23 n.8, the state-court judgment lacks the requisite finality.

That remand gives rise to a variety of possible scenarios in which Jones

would be relieved of the sentence that he challenges in this petition. If the

juvenile court on remand were to retain jurisdiction, then its disposition of the

proceeding would not be based on the Three Strikes law, because that law applies to adult sentences but not to juvenile adjudications.

Cal. Penal Code

§ 667(b). 3 If the juvenile court were to transfer the case to the adult court, that

court could resentence Jones in a variety of ways that would obviate his Apprendi claim. For example, the adult court could dismiss (or strike) the recid-

ivism allegation in its discretion. See People v. Superior Court (Romero), 13

Cal. 4th 497, 504 (1996). Or it could re-impose the doubled sentence under the

Three Strikes law but strike the firearms enhancements, which would result

_in a total sentence within the range authorized by the jury verdicts alone.4

The juvenile court would calculate the maximum term an adult could serve,

Cal. Welf. & Inst. Code § 726(b), but would set Jones's maximum "based upon

the facts and circumstances of the matter," id.§ 731(c).

·

3

Without the strike (or the two inapplicable five-year serious felony enhancements), the maximum sentence authorized by the verdict was 75 years to life

(25 years to life for murder, plus 7 years to life for attempted murder, plus 40

years for the two firearm enhancements, plus 3 years for the firearm activity).

See Pet. App. 3; Cal. Penal Code §§ 18(a), 29820(c). Were the court on remand

to strike the 40 years' enhancements but apply the Three Strikes law, the maximum sentence would be 70 years to life (50 years to life for murder, plus 14

years to life for attempted murder, plus 6 years for firearm activity).

4

8

Alternatively, the court's consideration of the Miller factors could lead it to

impose a lesser sentence falling within that range.

In Cox Broadcasting, this Court recognized "four exceptional categories

of cases to be regarded as 'final' on the federal issue despite the ordering of

further proceedings in the lower state courts." Johnson v. California, 541 U.S.

at 429-430. None of those four exceptions applies here. First, this case is not

one in which "the federal issue is conclusive or the outcome of further proceedings preordained." Cox Broadcasting, 420 U.S. at 479. There are, as discussed,

a variety of outcomes that are not pre-ordained by the state appellate court's

resolution of the Apprendi issue. Second, given some of those possible outcomes, the Apprendi issue will not necessarily "survive and require decision

regardless of the outcome of future state-court proceedings." Id. at 480. Third,

this is not a case "in which later review of the federal issue cannot be had,

whatever the ultimate outcome of the case." Id. at 481. If the Apprendi issue

persists after resentencing, Jones could seek further review in the state appellate courts and in this Court. Cf. Johnson, 541 U.S. at 431.

The fourth and final Cox exception encompasses cases "in which the party

seeking review here might prevail on the merits on nonfederal grounds, thus

rendering unnecessary review of the federal issue by this Court, and where

reversal of the state court on the federal iss1:1e would be preclusive of any further litigation." Cox, 420 U.S. at 482-483. "In these circumstances, if a refusal

immediately to review the state court decision might seriously erode federal

9

policy, the Court has entertained and decided the federal issue, which itself

has been finally determined by the state courts for purposes of the state litigation." Id. at 483. Here, Jones can make no serious claim that denying review

at this time would "seriously erode federal policy." Id.; cf. Johnson, 541 U.S.

at 430.

As Cox Broadcasting noted, in most cases falling within its four exceptions, "immediate rather than delayed review would be the best way to avoid"

"economic waste," "delayed justice," and "precipitate interference with state

litigation." 420 U.S. at 477-478 (footnotes omitted). Here, given the varied

outcomes available on remand and the possibility of subsequent review in the

state appellate courts, addressing Jones's Sixth Amendment claim at this time

would be far less efficient and would risk interference with ongoing state litigation.

The petition does not address Section 1257 or Cox Broadcasting. Jones

instead asserts that there is jurisdiction under 28 U.S.C. § 1254(1). Pet. 2. But

that provision establishes jurisdiction over "[c]ases in the courts of appeals"

and therefore does not cover Jones's challenge to a state court decision.

2. Apart from the jurisdictional problem, this case presents an exceptionally poor vehicle for considering the constitutional issue raised by the petition.

See Pet. 6-14. As noted, Jones may obtain a shorter sentence-within the

range authorized by the jury verdicts alone-as a result of the ongoing proceedings in the lower state courts. Cf. Texas v. United States, 523 U.S. 296,

10

300 (1998) ("A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.")

(internal quotation marks omitted).

Moreover, the rule in Apprendi "proscribes a sentencing scheme _that allows a judge to impose a sentence above the statutory maximum based on a

fact, other than a prior conviction, not found by a jury or admitted by the de-

fendant." Cunningham v. California, 549 U.S. 270, 274-275 (2007) (emphasis

added). Jones's principal argument is that a juvenile adjudication does not

qualify for Apprendi's exception for "prior conviction[s]." Id. at 275; see, e.g.,

Pet. 5-6. But even if that were so, the sentence challenged here would not

offend the Sixth Amendment because Jones admitted that he had suffered the

juvenile robbery adjudication. Pet. App. 3.

At times, Jones appears to advance the broader argument that the fact

that a defendant suffered a juvenile adjudication can never be used to increase

the defendant's sentence, no matte·~ how that fact is proven at trial. E.g., Pet.

App. 5 (emphasizing "importance of a jury trial right in the prior proceeding to

allow the use of the prior for enhancement purposes"); id. at 14 ("the special

nature of juvenile proceedings precludes the use of prior juvenile adjudications·

as a se·ntence enhancement"). But that is different from the issue that the

court of appeal resolved below, see Pet. App. 12, and Jones does not identify

any compelling reason why it warrants review in this case.

11

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

XAVIER BECERRA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

DONALD E. DENICOLA

Deputy Solicitor General

Supervising Deputy Attorney General

October 1, 2019

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