In Resentencing a Third Strike, is Stalking Eligible?

In a Nutshell: In the following case, defendant was convicted of stalking (Penal Code § 646.9) and found ineligible for Prop 36, the Three Strike Resentencing Act, but the Second Appellate District Court suggested that its ruling was fact specific to this case, so it was not a broad rule barring all those convicted of a third strike under 646.9 from Prop 36 relief.

The answer to the question posed in the title is maybe. After all, the crime of stalking, set forth at Penal Code § 646.9, does not require the intent to carry out the threatened acts.

Consequently, under the Three Strikes Reform Act of 2012, also known as Prop 36 (at Penal Code § 1170.126), it would seem possible. Under § 1170.126(e)(2), an inmate is eligible for resentencing if his or her current sentence was not imposed for an offense appearing in Penal Code § 667(e)(2)(C)(ii), where, during the commission of the offense, defendant “intended to cause great bodily injury to another person.”

However, in determining an inmate’s eligibility for resentencing under Prop 36, the trial court may examine all relevant, reliable and admissible material in the record to determine the existence of a disqualifying factor. People v. Blakely (2014) 225 Cal.App.4th 1042, 1048, 1051; see also People v. Guererro (1988) 44 Cal.3d 343, 355.

Court of Appeal Second Appellate District Los Angeles
Frierson was then convicted of violating Penal Code § 646.9 and sentenced as a third striker to an indeterminate term of 25 years to life in prison.

Prop 36 was then passed and Frierson petitioned the Glendale trial court judge to recall his conviction and resentence him under Proposition 36. The judge denied his petition, looking at the whole record as allowed under Blakely. In doing this, the judge determined that Frierson intended to cause great bodily injury to another person, specifically his wife.

Frierson then appealed to the Second Appellate District, arguing that under Arrevalo, supra, that once petitioner makes a prima facie case of eligibility (as Frierson did here), the burden of proof is on the prosecution to show the petitioner is ineligible. Arrevalo says the burden of proof is beyond a reasonable doubt. Frierson argued that the People had failed to carry this burden of proof.

The Second Appellate Court, in People v. James Belton Frierson (2016 DJDAR 7352), ruled that Arrevalo should not apply. In considering Arrevalo, the Second Appellate District said “we are not convinced” and ruled instead that the People’s burden of proof really should be preponderance of the evidence, a much lower burden of proof. In reaching this conclusion, the court cited to People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301, wherein the preponderance of the evidence standard was used, as well as in People v. Osuna (2014) 225 Cal.App. 4th 1020, 1040.

The Second Appellate District thus affirmed the trial court, explaining that its analysis under Blakely was what mattered most, given Frierson’s threats.
For more information about resentencing on a third strike, please click on the following articles:

1. Prop 36 Resentencing Denied Due to Prior Juvenile Rape
2. Prop 36 If One’s Resentenced, How Do Excess Credits Apply?
3. Assembly Bill 327 (AB 327)- The Fix for Unfairness in California’s Three Strikes Law?
   

Contact us.

---