Filling a void in the law

Argentine poet Antonio Porchia wrote, "We become aware of the void as we fill it." Judges fill voids in the tapestry of the law all the time, but rarely have occasion to step back and ponder different approaches to doing so.

The California courts have a unique opportunity to do so right now, as they are repeatedly confronting an issue relatively new to the criminal law: When the Legislature or voters reduce the terms of imprisonment for some people already convicted and sentenced, but do not spell out who has the burden of establishing that retrospective relief is warranted or which standard of proof applies, what rules are the courts to use?

Until now, courts have usually dealt with new criminal laws that apply prospectively to persons not yet convicted or sentenced. In these instances, due process and the Sixth Amendment demand that the People prove to a jury beyond a reasonable doubt every fact necessary (1) to convict the person of the charged crime(s); and (2) to fix the lower and upper ends of the applicable sentencing range, except for the fact of a prior conviction. Apprendi v. New Jersey, 530 U.S. 466, 476-77 (2000); Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013); Almendarez-Torres v. United States, 523 U.S. 224, 243-47 (1998). Within a sentencing range so fixed, however, a trial court may impose any sentence based on facts proven by only a preponderance of the evidence. People v. Towne, 44 Cal. 4th 63, 86 (2008).

Recently, California voters enacted laws that have not only prospectively reduced the classification and sentences for certain crimes, but have also granted a subset of persons already convicted of those crimes a right to seek a retrospective reduction in their sentences or convictions. Proposition 36 (aka The Three Strikes Reform Act of 2012) limits "third strike" sentences of 25 years to life to persons whose third conviction is for a "serious" or "violent" felony. Penal Code Sections 667(e)(2)(C), 1170.12(c)(2)(C), 1170.126. Proposition 47 (aka. The Safe Neighborhoods and Streets Act) downgrades several theft and drug offenses from felonies to misdemeanors with a corresponding reduction in sentence. Id. Section 1170.18.

The courts have struggled - and in the process, divided - over how to evaluate a convicted defendant's request for retrospective relief under these statutes. Both statutes hinge relief on two findings: (1) the defendant's eligibility for relief; and in all Prop. 36 cases and in some Prop. 47 cases, (2) her suitability for relief (that is, whether she poses an "unreasonable risk of danger to public safety"). Penal Code Sections 1170.18(b), (g); 1170.126(b), (e), (f).

Determining eligibility can be tricky because many of the facts upon which eligibility can turn - for example, the value of the property taken in a burglary or forgery, or whether the defendant intended to inflict great bodily injury - are not elements of any crime or statutorily defined enhancement. Those facts were simply not important at the time of trial or sentencing. As a result, the records in those cases are usually silent on those facts as well as on the issue of the defendant's dangerousness (insofar as dangerousness is to be assessed at the time he or she seeks retrospective relief). The courts entertaining petitions for this relief have consequently been required to make these findings for the first time.

Their ability to do so has turned on three considerations: (1) which party - the defendant or the prosecution - has the burden of proving the issues of eligibility and suitability?; (2) by what standard are those issues to be established?; and (3) what can the trial court look at -just facts necessarily found by the jury, any fact in the record, or any new evidence that parties wish to introduce?

Take the first two issues - the burden of proof and the standard of proof. (I wrote about the third issue a few months back.)

Thus far, the California courts have agreed that the defendant has the burden of proving eligibility for Prop. 47 relief, People v. Sherow, 239 Cal. App. 4th 875, 879-80 (2015), and that the prosecution has the burden of proving the defendant's lack of suitability by a preponderance of the evidence, People v. Jefferson, 1 Cal. App. 5th 235, 241 (2016). (The courts have split on how to define future dangerousness, and that issue is pending before the California Supreme Court. See People v. Chaney, S223676.)

The courts have split on what to do with Prop. 36 relief. They all seem to agree that the defendant must prove that his third conviction is neither a "serious" nor "violent" felony by a preponderance of the evidence and that the prosecution must prove his lack of suitability by a preponderance of the evidence, People v. Superior Court (Kaulick), 215 Cal. App. 4th 1279, 1301-02 & n.25 (2013). But they disagree as to who bears the burden of proving the facts that render a defendant ineligible for relief and as to the standard of proof by which those facts must be established. Compare People v. Arevalo, 244 Cal. App. 4th 836, 849-53 (2016) (prosecution must prove disqualifying factors beyond a reasonable doubt) with People v. Frierson, 1 Cal. App. 5th 788, 793-94 (2016) (prosecution must prove disqualifying factors by a preponderance) with People v. Newman, 2 Cal. App. 5th 716, 727-32 (2016) (factors must be proven by a preponderance; not addressing who bears burden); People v. Osuna, 225 Cal. App. 4th 1020, 1040 (2014) (same) with People v. Superior Court (Martinez), 225 Cal. App. 4th 979, 987 (2014) (prosecution must prove disqualifying factors; not addressing standard of proof).

This disagreement is not the product of constitutional mandate. That is because statutes granting retrospective relief are "act[s] of lenity" that reduce the applicable sentencing range. As a result, they do not implicate the due process or Sixth Amendment guarantees that apply when the prosecution is trying to set that range in the first place. Dillon v. United States, 560 U.S. 817, 828-29 (2010).

Instead, the courts' disagreement seems to stem a variety of sources:

(1) The text of the statutes at issue. Each statute provides that an eligible defendant is entitled to relief "unless" he is found unsuitable. Penal Code Sections 1170.18(b), 1170.126(f). This has prompted some courts to assign the burden of proving eligibility to the defendant and unsuitability to the prosecution.

(2) Policies animating constitutional guarantees. The courts have sometimes looked to the policy considerations underlying the constitutional rules for allocating the burden of proof and fixing the standard of proof. The burden is usually assigned to the party seeking relief, Evidence Code Section 500, but may be assigned elsewhere depending on (1) which party has better knowledge or access to the pertinent evidence; (2) which result is the most desirable in the absence of evidence; and (3) the probability of the existence or non-existence of the fact to be proven by the evidence. Aydin Corp. v. First State Ins. Co., 18 Cal. 4th 1183, 1193 (1998). The standard of proof is generally the preponderance standard, Evidence Code Section 115, but may be elevated depending on (1) the importance of the individual interest at stake; (2) the importance of the government interest; and (3) the risk of getting it wrong under the applicable standard of proof. Addington v. Texas, 441 U.S. 418, 424-25 (1979); Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

(3) Symmetry. Courts have also looked to whether the statute's grant of prospective relief mirrors its grant of retrospective relief. See Arevalo.

(4) Perception. The Arevalo court was concerned by the cognitive dissonance arising from a court's use of acquitted conduct to deny a defendant retrospective relief, even though it is constitutionally permissible to do so, United States v. Watts, 519 U.S. 148, 156 (1997).

The Supreme Court recently granted review in Frierson, one of the Prop. 36 cases. See 236728. Regardless of how Frierson resolves the specific Prop. 36 issues, it raises a more fundamental question: Should the courts answer these question on an enactment-by-enactment basis or instead adopt a default rule that applies to all retrospective criminal relief? The Supreme Court took the latter approach in In re Estrada, 63 Cal. 2d 740, when it held that reductions in sentencing statutes would automatically apply to any non-final sentences unless the Legislature otherwise prescribed. Id. at 744.

Whether or not applying Estrada's approach to other retrospective criminal statutes is a good idea, now - while the void is still open - is the best time to consider how best to stitch it back together.