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STEVE COOLEY District Attorney SHANNON PRESBY, Deputy District Attorney, SBN 169735 PAUL NUNEZ, Deputy District Attorney, SBN 179793 Justice System Integrity Division Los Angeles County District Attorney's Office 210 W. Temple Street Los Angeles, CA 90012

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SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF .LOS ANGELES

THE PEOPLE OF THE STATE OF
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) Case No.: BA357423
)

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CALfFORNIA, Plaintiff,
vs,

) PEOPLE'S SENTENCING ) MEMORANDUM
)

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STEPHANIE LAZARUS,
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) DATE: May 11,2012 ) TIME: 8:30 a.m. ) DEPT.: 104 )
) )

Defendant
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----------------------------)

I.
INTRODUCTION Defendant stands convicted of first degree willful, deliberate and premeditated murder in violation of Penal Code § 187(a). The jury also found true the allegation that the Defendant personally used a firearm in the commission of this crime pursuant to Penal Code § 12022.5. Defendant committed this murder on February 24, 1986. III III III

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Sentencing

Memorandum

II.
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THE SUBSTANTIVE LAW IN EFFECT AT THE TIME OF THE COMMISSION OF A CRIMINAL OFFENSE CONTROLS THE SENTENCE IMPOSED Application of a sentencing provision enacted after the commission of the criminal offense which disadvantages a defendant, violates the prohibition against ex post facto laws. People v. Felton, (1979) 92 Cal. App. 3d 972; see also, U.S. Const. art T, § 10; Cal Canst. art. I, § 9; see also, Weaver v. Graham (1981) 450 U.S. 24 (substantive law in effect at the time of the commission of the offense applies). The basic purpose of the ex pbstfacto clause is to

ensure fair warning of the consequences of violating penal statutes, and to reduce the potential for vindictive legislation. Hubbart v. Superior Court, (1999) 19 CalAth 1138. The standard for det rmining whether a law iolate the ex post facto clause has two components, "a law must be retrospective=that is 'it must apply to events occurring before its enactment'--and it 'must by altering the definition of criminal conduct or '" L) nee v. Mathis. (l997) 5 I 9 U.S. 433; see also'

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disadvantage the offender affected by it,' increasing the punishment for the crime

Calder v. Bull, (1798) 3 U.S. (3 Dall.) 386, 390-392' and; Beaze!! v. Ohio, (1925) 269 U.S. 167.1 Thus, in order to avoid an ex post facto application of the law, the sentencing provisions in effect at the time that the defendant committed this murder must be used to determine the applicable sentence. In 1986, first degree murder was punishable by 25 years to life in state prison. Penal Code §§ 187(a), 190 (copy of 1985 P.C. § 190 attached as Exhibit 1). In 1986, the personal use of a firearm was punishable by the imposition of an additional 2 years in state prison. Penal Code § 12022.5 (copy of 1985 statute attached as Exhibit 2).

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I Calder holds that a law violates the expost facto provision of the Constitution if the law: (1) "makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action ... " (or) (2) "aggravates a crime, or makes it greater than it was, when committed ... " (or) (3) changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed ... " (or) (4)alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender." (emphasis in original). Beazell holds ""It is settled. by decisions of this Court so well known that their citation may be dispensed with, that any stature wh ieh punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime after its commission, or which deprives one charged with crime of any defense available according to law at the tim when the act was committed, is prohibited as ex postfacto,"

2 Sentencing Memorandum

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III.
CALCULATION OF SENTENCE
Using the sentencing sentenced provisions applicable in 1986, defendant Lazarus should be

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to 27 years to life in state prison (25 years to life for first degree murder plus 2 years

for the personal use of a firearm).

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IV. COMPUTATION OF CUSTODY CREDITS
In Weaver \. Graham (1981) 450 U.S. 24, the United States Supreme Court analyzed the ex post facto clause within the context of a statute which altered the availability "gain time for good conduct.
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of postsentence

The Court held that the application

of a more restricti ve credit violated the

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computation

formula which served to extend the defendant's clause irrespective The COUlt held

period of incarceration
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ex postfacto
the defendant.

of the fact that such conduct credits were
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a "vested right" of be present

our decisions

prescribe

that two critical elements

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for a criminal or penal. law to be ex postfacto:
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it must be retrospective

that is, it must apply to

events OCCUlTingbefore its enactment,
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and it must disadvantage

the offender affected by it.

Contrary to the reasoning
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of the Supreme Court of Florida, a law need not impair a 'vested right'

to violate the expost facto prohibition."
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Id., at p. 29.2

Thus the Court concluded

that the extra gain-

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in the method of awarding

gain time, even though the change authorized of the authorities constituted

time through exemplary
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conduct at the discretion

an impermissible to gain early

ex post facto Jaw as to the petitioner because it circumscribed
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his opportunities

Weaver also holds that, "[T[he presence or absence of an affirmative, enforceable right is not relevant. , , . Critical to relief under the Ex Post Facto Clause is not all individual's right to less punishment. but the lack affair notice and governmental restraint when the legislature increase punishment beyond what was pre, cribed when the crime was consummated." Weaver, supra, at p. 30, The Weaver Court also determined that it wa unneces ary for it to decide whether the prospect of gain-time was technically part of the inmate's sentence in order "to conclude that it in fact is
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3 Sentencing Memorandum

release and therefore made his punishment more onerous. Jd., at p. 36; see also, Lynce
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1.

Mathis.

(1997) 519 U.S. 433. A) Presentence Credits:

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In 1994, Penal Code § 2933.1 became operative. Penal Code § 2933.l limited the awarding of presentence conduct credits to 15% for person convicted of violent felonies pursuant to Penal Code § 667.5(c). In 1998, Penal Code § 2933.2 became effective. Penal Code §

2933.2 prohibited the awarding of any presentence custody credits to a person convicted of murder. Pursuant to the plain language of both statutes however these limitations on the awarding of custody and conduct credits apply only to a crimes that are committed on or after the. time that the relevant code sections became operative. Pen. Code Because the defendant murdered Sherri Rasmussen in 1986, neither ~ 2933.1(d); 2933.2(d).
0 Ithese

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sections limiting tbe

awarding of presentence credits apply. See, People v. Flores (2009) 176 Cal App 4th 1171 (retroactive application of Pen Code § 2233.2 violated ex post facto provisions); see also, People
v.

Reyes (2008) 165 Cal App 4th426; People v. Ly, (2001) 89 Cal App 4th 44; People v.
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Hutchins, (2001) 90 Cal App

1308.

In 1986, Penal Code § 4019 provided that for every four days of actual presentence custody an inmate serves, she receives two additional days of credit. Pen. Code § 4019 (copy of 1985 statute attached as Exhibit 3); see also People v. McCutcheon (1986) 187 Cal. App. 3d 552. This is the formula that should be used to calculate the defendant s presentence custody credits.
B)

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Postsentence

Credits:

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Postsentence "prison credits" are generally not the concern of the sentencing court. See, People \. McCutcheon, (1986) 187 Cal. App. 3d 552. However the People note that defendant

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one determinant of petitioner's prison term -- and that his effective sentence is altered once this determinant is changed." Weaver, supra, at p. 32. 4 Sentencing Memorandum

is ineligible for the day for day post sentence worktime credit outlined in Penal Code § 2933
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b cause "[1 [h minimum terms of life sentences for murder are reduced not more than one-third by good behavior and participation credits but not by work-time credits under Penal Code section 2933." 700ps. Cal. Atty. Gen. 49. She is eligible for the 113 reduction for good

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behavior/participation credits outlined in Penal Code § 2931.

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CONCLUSION Defendant Lazarus committed this murder in 1986. Her efforts to mislead the initial homicide investigators permitted her to avoid justice for this crime for more that 20 years. It is bleakly ironic that the defendant's long running deception now benefits her with respect to sentencing. A desire to avoid irony however, does not permit a den.igration of the defendant's Constitutional rights. FOR THESE REASONS, the People respectfully request that the court sentence the defendant to 27 years to life in state prison and calculate her presentence credits based on the (+ 2) for every 4 days of actual presentence custody as outlined in Penal Code § 4019.

V.

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DATED:

Respectfully Submitted STEVE COOLEY District Attorney of Los Angeles County By

SHANNON PRESBY Deputy District Attorney By

PAUL NUNEZ Deputy District Attomey
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Sentencing Memorandum

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