pleading and proof requirement in California

2016As he acknowledges, however, courts have repeatedly rejected this argument too. ( Bradford, supra, 227 Cal.App.4th at pp. 1334–1335; Blakely, supra, 225 Cal.App.4th at pp. 1059– 1063; Osuna, supra, 225 Cal.App.4th at p. 1039 .) Lastly, Winn argues in his reply brief that our supreme court has stated that “the parallel structure of the Act’s sentencing and resentencing provisions appears to contemplate identical sentences in connection with identical criminal histories, unless the trial court concludes that resentencing would pose an unreasonable risk to public safety.” (People v. Johnson (2015

2016As he acknowledges, however, courts have repeatedly rejected this argument too. ( Bradford, supra, 227 Cal.App.4th at pp. 1334–1335; Blakely, supra, 225 Cal.App.4th at pp. 1059– 1063; Osuna, supra, 225 Cal.App.4th at p. 1039 .) Lastly, Winn argues in his reply brief that our supreme court has stated that “the parallel structure of the Act’s sentencing and resentencing provisions appears to contemplate identical sentences in connection with identical criminal histories, unless the trial court concludes that resentencing would pose an unreasonable risk to public safety.” (People v. Johnson (2015

2014(People v. Mancebo (2002) 27 Cal.4th 735, 743 .) The three strikes statutes contain a pleading and proof requirement. (§§ 667, subd. (c), 1170.12, subd. (a).) Defendant does not dispute that the fact of his two prior convictions for lewd conduct was proven.

2013(People v. Mancebo (2002) 27 Cal.4th 735, 743 [§ 667.61 special circumstances must be pleaded and proved]; People v. Hernandez (1988) 46 Cal.3d 194, 197 , overruled on other grounds by People v. King (1993) 5 Cal.4th 59, 78, fn. 5 [§ 667.8 special circumstance must be pleaded and proved].) Section 1170.15 does not impose additional punishment based on facts beyond those required for conviction of the underlying offense, so there is no reason why a pleading-and-proof requirement would apply.

2016As he acknowledges, however, courts have repeatedly rejected this argument too. ( Bradford, supra, 227 Cal.App.4th at pp. 1334–1335; Blakely, supra, 225 Cal.App.4th at pp. 1059– 1063; Osuna, supra, 225 Cal.App.4th at p. 1039 .) Lastly, Winn argues in his reply brief that our supreme court has stated that “the parallel structure of the Act’s sentencing and resentencing provisions appears to contemplate identical sentences in connection with identical criminal histories, unless the trial court concludes that resentencing would pose an unreasonable risk to public safety.” (People v. Johnson (2015

2016This court expressly rejected Chubbuck’s argument, pointing out that the Reform Act “explicitly distinguishes between the procedures applicable to resentencing and the procedures applicable prospectively, to defendants who are being sentenced for a new offense.” (Chubbuck, supra, 231 Cal.App.4th at p. 746 .) We further noted, “Several published cases have held that the Reform Act does not contain a pleading and proof requirement with respect to factors that disqualify defendants from resentencing, including People v. White (2014) 223 Cal.App.4th 512 (White ) (Ct. App., Fourth Dist., Div. One),

2021(Cf. In re Varnell (2003) 30 Cal.4th 1132, 1141 [“ ‘when a pleading and proof requirement is intended, the Legislature knows how to specify the requirement’ ”]; People v. Eckard (2011) 195 Cal.App.4th 1241, 1247 [“the Legislature clearly knows how to write a statute that permits convictions from other jurisdictions to be used as the basis for registration requirements, enhancements, and alternative sentencing schemes”].) Thus, we will follow Bolden and Noble, and hold that the NGI scheme does not place a burden on the People to prove a defendant is dangerous even if medicated.

2020(See People v. Thurston (2016) 244 Cal.App.4th 644, 657, 662 [section 1170.126 does not impose a pleading and proof requirement for a prior conviction, and does not require that the trial court use the prior conviction to increase the penalty to which defendant was exposed]; see also In re Varnell (2003) 30 Cal.4th 1132, 1138 [despite dismissing prior strike allegation under § 1385, court could still rely on underlying fact of prior conviction to determine whether petitioner was eligible for resentencing under § 1210.1, subd. (b)].) The authority on which defendant relies lends him no support.

2013(People v. Mancebo (2002) 27 Cal.4th 735, 743 [§ 667.61 special circumstances must be pleaded and proved]; People v. Hernandez (1988) 46 Cal.3d 194, 197 , overruled on other grounds by People v. King (1993) 5 Cal.4th 59, 78, fn. 5 [§ 667.8 special circumstance must be pleaded and proved].) Section 1170.15 does not impose additional punishment based on facts beyond those required for conviction of the underlying offense, so there is no reason why a pleading-and-proof requirement would apply.

2010For instance, in People v. Hernandez (1988) 46 Cal.3d 194, 208 [ 249 Cal.Rptr. 850 , 757 R2d 1013] (Hernandez), criticized on other grounds in People v. King (1993) 5 Cal.4th 59, 78 , footnote 5 [ 19 Cal.Rptr.2d 233 , 851 P.2d 27 ], it was held that a sentencing court may not impose an additional three-year sentence under former section 667.8 “when the defendant’s violation of that section was neither pleaded nor proven, and was only mentioned for the first time in a probation report. {Hernandez, supra, 46 Cal.3d at p. 197 .) We concluded ‘such additional term may not be imposed, since a plead

2003(Id. at p. *1141 1350; see also People v. Ibarra, supra, 60 Cal.2d at pp. 467-468 [suggesting that a prior conviction should be charged in the Information when it left “ ‘no alternative, under the law as it is written, but to impose a state prison sentence’ ”]; People v. Huffman, supra, 71 Cal.App.3d at p. 82 [“if a defendant is going to be found ineligible for probation by reason of a prior felony conviction, it appears only just and fair that the prosecution allege and prove the prior”].) By contrast, the provisions of section 1203, subdivision (e)(4), which merely made probation less likely

2003(Id. at p. 1350; see also People v. Ibarra, supra, 60 Cal.2d at pp. 467-468 [suggesting that a prior conviction should be charged in the Information when it left “ ‘no alternative, under the law as it is written, but to impose a state prison sentence’ ”]; People v. Huffman, supra, 71 Cal.App.3d at p. 82 [“if a defendant is going to be found ineligible for probation by reason of a prior felony conviction, it appears only just and fair that the prosecution allege and prove the prior”].) By contrast, the provisions of section 1203, subdivision (e)(4), which merely made probation less likely, “are

2016(See People v. Griffis (2013) 212 Cal.App.4th 956, 962-965 .) Nevertheless, defendant argues a pleading and proof requirement should be implied here because the penalty for violating section 11350 is increased if a defendant has a disqualifying factor.

2013Griffis rejected this contention, as well, explaining ― ‗ ― ‗when a pleading and proof requirement is intended, the Legislature knows how to specify the requirement.‘ ‖. . . .‘ [Citation.]‖ (Griffis, supra, 212 Cal.App.4th at p. 964 .) Since ―[t]he Legislature included no such requirement in the Realignment Act, we must presume that its choice in that regard was intentional.‖ (Id. at pp. 964–965.) Defendant acknowledges Griffis rejected the ―pleading and proof‖ argument he has advanced, but contends Griffis was wrongly decided.

2023(See e.g., People v. Dorsch (1992) 3 Cal.App.4th 1346, 1350 [trial court properly denied probation under § 1203, subd. (e)(4), even though People did not plead and prove defendant had prior felony convictions because “[t]he provisions of Penal Code section 1203, subdivision (e)(4), are not the equivalent of an increase in penalty” and there is an “absence of any express statutory pleading and proof requirement within Penal Code section 1203, subdivision (e)”].) “The Legislature has demonstrated in numerous penal statutes that when a pleading and proof requirement is intended, the Legislature k

2012Defendant argues we should adopt the rule that credit disabilities must formally be pled and proved in order to bring them within the court’s *902 discretionary power under section 1385 to strike the “charges and allegations in a criminal action.” (People v. Thomas, supra, 35 Cal.4th 635, 644 .) Absent constitutional compulsion, however, the matter is in the first instance one of legislative intent. “ ‘[W]hen a pleading and proof requirement is intended, the Legislature knows how to specify the requirement’ ” (In re Varnell, supra, 30 Cal.4th 1132 , 1141, quoting People v. Dorsch (1992) 3 Cal.

2013(People v. Mancebo (2002) 27 Cal.4th 735, 743 [§ 667.61 special circumstances must be pleaded and proved]; People v. Hernandez (1988) 46 Cal.3d 194, 197 , overruled on other grounds by People v. King (1993) 5 Cal.4th 59, 78, fn. 5 [§ 667.8 special circumstance must be pleaded and proved].) Section 1170.15 does not impose additional punishment based on facts beyond those required for conviction of the underlying offense, so there is no reason why a pleading-and-proof requirement would apply.

2010For instance, in People v. Hernandez (1988) 46 Cal.3d 194, 208 [ 249 Cal.Rptr. 850 , 757 R2d 1013] (Hernandez), criticized on other grounds in People v. King (1993) 5 Cal.4th 59, 78 , footnote 5 [ 19 Cal.Rptr.2d 233 , 851 P.2d 27 ], it was held that a sentencing court may not impose an additional three-year sentence under former section 667.8 “when the defendant’s violation of that section was neither pleaded nor proven, and was only mentioned for the first time in a probation report. {Hernandez, supra, 46 Cal.3d at p. 197 .) We concluded ‘such additional term may not be imposed, since a plead

2016“The statute *661 did not expressly require the prior conviction establishing the defendant’s ineligibility be pleaded and proved, but we recognized an implied pleading and proof requirement under People v. Ford (1964) 60 Cal.2d 772 [ 36 Cal.Rptr. 620 , 388 P.2d 892 ], in which ‘we held that “before a defendant can properly be sentenced to suffer the increased penalties flowing from ... [a] finding ... [of a prior conviction] the fact of the prior conviction . . . must be charged in the accusatory pleading, and if the defendant pleads not guilty thereto the charge must be proved and the truth

2016“The statute *661 did not expressly require the prior conviction establishing the defendant’s ineligibility be pleaded and proved, but we recognized an implied pleading and proof requirement under People v. Ford (1964) 60 Cal.2d 772 [ 36 Cal.Rptr. 620 , 388 P.2d 892 ], in which ‘we held that “before a defendant can properly be sentenced to suffer the increased penalties flowing from ... [a] finding ... [of a prior conviction] the fact of the prior conviction . . . must be charged in the accusatory pleading, and if the defendant pleads not guilty thereto the charge must be proved and the truth

2014(Accord, Kaulick, supra, 215 Cal.App.4th at pp. 1304-1305, citing Dillon v. United States (2010) 560 U.S. 817, 828-829 [ 177 L.Ed.2d 271 ]; see Blakely, supra, 225 Cal.App.4th at p. 1060 & Osuna, supra, 225 Cal.App.4th at pp. 1039-1040 [both citing Kaulick].)9 Finally, defendant suggests it is improper to allow a trial court to find a defendant ineligible on the basis of facts in the underlying proceeding that the parties did not have any incentive to litigate at the time, in the absence of a pleading and proof requirement. 9 Defendant contends for the first time in his reply brief that Pepper

2014(Accord, Kaulick, supra, 215 Cal.App.4th at pp. 1304-1305, citing Dillon v. United States (2010) 560 U.S. 817, 828-829 [ 177 L.Ed.2d 271 ]; see Blakely, supra, 225 Cal.App.4th at p. 1060 & Osuna, supra, 225 Cal.App.4th at pp. 1039-1040 [both citing Kaulick].)9 Finally, defendant suggests it is improper to allow a trial court to find a defendant ineligible on the basis of facts in the underlying proceeding that the parties did not have any incentive to litigate at the time, in the absence of a pleading and proof requirement. 9 Defendant contends for the first time in his reply brief that Pepper

2014(Accord, Kaulick, supra, 215 Cal.App.4th at pp. 1304-1305, citing Dillon v. United States (2010) 560 U.S. 817, 828-829 [ 177 L.Ed.2d 271 ]; see Blakely, supra, 225 Cal.App.4th at p. 1060 & Osuna, supra, 225 Cal.App.4th at pp. 1039-1040 [both citing Kaulick].)9 Finally, defendant suggests it is improper to allow a trial court to find a defendant ineligible on the basis of facts in the underlying proceeding that the parties did not have any incentive to litigate at the time, in the absence of a pleading and proof requirement. 9 Defendant contends for the first time in his reply brief that Pepper

2014(Accord, Kaulick, supra, 215 Cal.App.4th at pp. 1304-1305, citing Dillon v. United States (2010) 560 U.S. 817, 828-829 [ 177 L.Ed.2d 271 ]; see Blakely, supra, 225 Cal.App.4th at p. 1060 & Osuna, supra, 225 Cal.App.4th at pp. 1039-1040 [both citing Kaulick].)9 Finally, defendant suggests it is improper to allow a trial court to find a defendant ineligible on the basis of facts in the underlying proceeding that the parties did not have any incentive to litigate at the time, in the absence of a pleading and proof requirement. 9 Defendant contends for the first time in his reply brief that Pepper

2001Nonetheless, “a pleading and proof requirement should be implied as a matter of statutory interpretation and must be implied as a matter of due process.” (People v. Hernandez (1988) 46 Cal.3d 194,197 [ 249 Cal.Rptr. 850 , 757 P.2d 1013 ], italics added, superseded by statute on another point as noted in People v. Rayford (1994) 9 Cal.4th 1, 8-9 [ 36 Cal.Rptr.2d 317 , 884 P.2d 1369 ], and disapproved on another ground in People v. King (1993) 5 Cal.4th 59, 78, fn. 5 [ 19 Cal.Rptr.2d 233 , 851 P.2d 27 ]; accord, People v. Jackson (1985) 37 Cal.3d 826, 835, fn. 12 [ 210 Cal.Rptr. 623 , 694 P.2d 7

2001Nonetheless, “a pleading and proof requirement should be implied as a matter of statutory interpretation and must be implied as a matter of due process.” (People v. Hernandez (1988) 46 Cal.3d 194,197 [ 249 Cal.Rptr. 850 , 757 P.2d 1013 ], italics added, superseded by statute on another point as noted in People v. Rayford (1994) 9 Cal.4th 1, 8-9 [ 36 Cal.Rptr.2d 317 , 884 P.2d 1369 ], and disapproved on another ground in People v. King (1993) 5 Cal.4th 59, 78, fn. 5 [ 19 Cal.Rptr.2d 233 , 851 P.2d 27 ]; accord, People v. Jackson (1985) 37 Cal.3d 826, 835, fn. 12 [ 210 Cal.Rptr. 623 , 694 P.2d 7

2016(In re Varnell (2003) 30 Cal.4th 1132, 1141 ; see People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1303, fn. 26 [finding no requirement to plead and prove under retrospective part of Proposition 36 because the drafters omitted any such requirement]; accord People v. Elder (2014) 227 Cal.App.4th 1308, 1314-1315 .) A pleading and proof requirement will generally not be implied.

2014(See Kaulick, supra, 215 Cal.App.4th at p. 1293 .) White claims the pleading and proof requirement set forth in both sections 667(e)(2)(C) and 1170.12(c)(2)(C) “is incorporated into section 1170.126.” We reject this claim.

2016This court expressly rejected Chubbuck’s argument, pointing out that the Reform Act “explicitly distinguishes between the procedures applicable to resentencing and the procedures applicable prospectively, to defendants who are being sentenced for a new offense.” (Chubbuck, supra, 231 Cal.App.4th at p. 746 .) We further noted, “Several published cases have held that the Reform Act does not contain a pleading and proof requirement with respect to factors that disqualify defendants from resentencing, including People v. White (2014) 223 Cal.App.4th 512 (White ) (Ct. App., Fourth Dist., Div. One),

2015(See Osuna, supra, 225 Cal.App.4th at p. 1033 ; People v. Blakely, supra, 225 Cal.App.4th at p. 1058 ; People v. White, supra, 223 Cal.App.4th at pp. 526-527.) Those cases held that the omission of a pleading and proof requirement in section 1170.126 was dispositive.

2016This court expressly rejected Chubbuck’s argument, pointing out that the Reform Act “explicitly distinguishes between the procedures applicable to resentencing and the procedures applicable prospectively, to defendants who are being sentenced for a new offense.” (Chubbuck, supra, 231 Cal.App.4th at p. 746 .) We further noted, “Several published cases have held that the Reform Act does not contain a pleading and proof requirement with respect to factors that disqualify defendants from resentencing, including People v. White (2014) 223 Cal.App.4th 512 (White ) (Ct. App., Fourth Dist., Div. One),

2016(In re Varnell (2003) 30 Cal.4th 1132, 1141 ; see People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1303, fn. 26 [finding no requirement to plead and prove under retrospective part of Proposition 36 because the drafters omitted any such requirement]; accord People v. Elder (2014) 227 Cal.App.4th 1308, 1314-1315 .) A pleading and proof requirement will generally not be implied.

2016Generally speaking, a pleading and proof requirement will not be implied.”]; People v. 8 Chubbuck (2014) 231 Cal.App.4th 737, 747 (Chubbuck) [while § 1170.126, subd. (e)(2) expressly cross-references § 667, subd. (e)(2)(C)(i)–(iii) and § 1170.12, subd. (c)(2)(C)(i)–(iii), nothing in the language of § 1170.126, subd. (e)(2) or of any of the other subdivisions of § 1170.126 governing resentencing references the plead-and-prove language].) Section 1170.126, subdivision (f) provides that, “Upon receiving a petition for recall of sentence under this section, the court shall determine whether the pe

2016This court expressly rejected Chubbuck’s argument, pointing out that the Reform Act “explicitly distinguishes between the procedures applicable to resentencing and the procedures applicable prospectively, to defendants who are being sentenced for a new offense.” (Chubbuck, supra, 231 Cal.App.4th at p. 746 .) We further noted, “Several published cases have held that the Reform Act does not contain a pleading and proof requirement with respect to factors that disqualify defendants from resentencing, including People v. White (2014) 223 Cal.App.4th 512 (White ) (Ct. App., Fourth Dist., Div. One),

2017As this court said in People v. Guilford (2014) 228 Cal.App.4th 651 (Guilford): “Because the electorate required pleading and proof of these disqualifying facts in the prospective part of the Act, but not the retrospective part, we presume the intention was 7 to dispense with a pleading and proof requirement in the latter case.” (Guilford, at p. 657.) Contrary to defendant’s contention, the fact that the resentencing portion of the Act cross-references the prospective portions does not necessarily lead to the conclusion that the electorate intended to impose a pleading and proof requirement fo

2016Generally speaking, a pleading and proof requirement will not be implied.”]; People v. 8 Chubbuck (2014) 231 Cal.App.4th 737, 747 (Chubbuck) [while § 1170.126, subd. (e)(2) expressly cross-references § 667, subd. (e)(2)(C)(i)–(iii) and § 1170.12, subd. (c)(2)(C)(i)–(iii), nothing in the language of § 1170.126, subd. (e)(2) or of any of the other subdivisions of § 1170.126 governing resentencing references the plead-and-prove language].) Section 1170.126, subdivision (f) provides that, “Upon receiving a petition for recall of sentence under this section, the court shall determine whether the pe

2014Thus, the People contended, a pleading and proof requirement would be “absurd” because each part of a statute must be deemed to have effect (see People v. Clark (1992) 10 Cal.App.4th 1259, 1266 [ 13 Cal.Rptr.2d 209 ]) and in their view, defendant’s interpretation would nullify part of the Act because nobody would be subject to that provision.

2014Thus, the People contended, a pleading and proof requirement would be “absurd” because each part of a statute must be deemed to have effect (see People v. Clark (1992) 10 Cal.App.4th 1259, 1266 [ 13 Cal.Rptr.2d 209 ]) and in their view, defendant’s interpretation would nullify part of the Act because nobody would be subject to that provision.

2014“We presume the [electorate] intended everything in a statutory scheme, and we do not read statutes to omit expressed language or to include omitted language. [Citation.] When ‘ “ ‘ “a statute on a particular subject omits a particular provision, the inclusion of such a provision in another statute concerning a related matter indicates an intent that the provision is not applicable to the statute from which it was omitted.” ’ ” ’ ” (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 850 [ 60 Cal.Rptr.3d 486 ].) Defendant nonetheless contends that because the resentencing portion of the Ac

2014“We presume the [electorate] intended everything in a statutory scheme, and we do not read statutes to omit expressed language or to include omitted language. [Citation.] When ‘ “ ‘ “a statute on a particular subject omits a particular provision, the inclusion of such a provision in another statute concerning a related matter indicates an intent that the provision is not applicable to the statute from which it was omitted.” ’ ” ’ ” (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 850 [ 60 Cal.Rptr.3d 486 ].) Defendant nonetheless contends that because the resentencing portion of the Ac