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How Binding is the CDCR Resentencing Recommendation?

In 2013, Anthony Braggs entered a Santa Clara County bank and gave the teller a paper bag and a note demanding money.  The teller put approximately $7,786 into the bag and gave it to defendant.  Mr. Braggs then left the bank, but was apprehended by police a short time later.  The police found the bag nearby with all the money.

In 2014, in Santa Clara Superior Court, he pleaded no contest to second degree robbery (Penal Code §§ 211, 212.5(c)) and second degree burglary (Penal Code §§ 459, 460(b)).  He also admitted that he had suffered two prior strike convictions (Penal Code §§ 667(b) – (i), 1170.12), that he had suffered one prior serious felony conviction (Penal Code § 667(a)) and that he had served two prior prison terms (Penal Code § 667.5(b). 

The judge then sentenced him to 13 years in state prison.  In doing so, the judge struck one of Mr. Braggs’ prior strikes under People v. Superior Court (Romero) (1996) 13 Cal. 4th 497.  The prison term was based on six years, the middle term on count one (three years), doubled for Braggs’ prior strike, plus five years for the prior serious felony enhancement (§ 667(a)) and two consecutive one-year terms for the prior prison enhancements (Penal Code § 667.5(b)).  The judge stayed the term for count 2 pursuant to Penal Code § 654.

Six years later, in 2020, the Secretary of the Department of Corrections and Rehabilitation (CDCR) recommended that defendant’s sentence be recalled and that he be resentenced pursuant to then section 1170(d)(1) [now it is at 1170.03 under Assembly Bill 1540].

The recommendation by the Secretary of the CDCR was based on a change in the law (Senate Bill 1393) that gives a trial court the discretion to strike a prior serious felony enhancement (see Penal Code § 667(a)(1), 1385).  Various documents were attached to the letter, including documents reflecting defendant’s participation in prison work assignments, education, and/or other programming and his prison disciplinary record, which showed three rule violations between 2016 and 2017.

On January 28, 2021, defendant filed a memorandum in support of the Secretary’s recommendation.  He contended that based on changes in the law (SB 1393), the judge could strike his five-year prior serious felony conviction enhancement and the one-year prison-prior enhancements no longer applied to him (Penal Code § 667.5(b)).

Mr. Braggs further argued that he was entitled to full resentencing, meaning the judge could strike the second strike as well.  He argued that he was entitled to this because he was at the lowest security level in the prison yard and participated in mental health counseling, work assignments in various positions in the prison, his attempt to obtain a G.E.D., and that he only lost custody credits once, for an incident in 2016.  He had no disciplinary record in prison since 2017.

At the same time, the prosecution filed a letter with the trial court stating that the People did not join in the resentencing recommendation.

On May 26, 2021, the judge appointed counsel for Mr. Bragg and provided him an opportunity to file any additional documents he wanted the court to consider in support of recall of his sentence.

On June 29, 2021, Mr. Bragg submitted additional documentation, including a certificate recognizing him as the mental health patient of the month and release from prison plan prepared by the social work team for the public defender’s office.

On September 27, 2021, without a hearing, the trial court judge filed an order denying the request to recall defendant’s sentence.

Mr. Bragg thereafter filed a motion for reconsideration and the judge granted the motion, setting the matter for a further hearing in January 2022.

At the January 2022 hearing, the judge resentenced Mr. Bragg to eleven years by removing each of the one-year prison prior enhancements (Penal Code § 667.5(b)), but declined to follow the recommendation of the CDCR to strike the five-year prior serious felony conviction, although the judge acknowledged he had such discretion.

On appeal to the Sixth Appellate District, the Sixth Appellate District affirmed the trial court, finding that the trial court was not required to follow the CDCR’s recommendation to strike the five-year prior serious felony conviction enhancement.

For more information about resentencing, please click on the following articles:
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