Is Full Resentencing Proper if 1172.5 Relief Ordered?

In 2021, Senate Bill (SB) No. 483 added Penal Code § 1172.75 to the Penal Code, making SB 136 retroactive, which limited a judge’s imposition of of a one-year prison prior enhancements under Penal Code § 667.5(b) to those prisoners who had been convicted of certain sexually violent offenses as defined in Welfare and Institutions Code § 6600(b).

In San Bernardino County Superior Court in 2013, a jury found Robert Frank Velasco guilty of attempted home invasion robbery (Penal Code §§ 211, 664), assault with a firearm (Penal Code § 245(a)(2)), possession of a firearm by a felon (Penal Code § 12021(a)(1)) and street terrorism (Penal Code § 186.22(a)).  On the attempted home invasion robbery, the jury found true that Mr. Velasco personally used a firearm within the meaning of Penal Code § 12022.53(b).  Mr. Velasco also admitted that he had suffered a prior serious felony conviction within the meaning of Penal Code § 667(a)(1) and served a prior prison term within the meaning of Penal Code § 667.5(b).

The trial court judge in San Bernardino sentenced Mr. Velasco to 28 years and eight months in state prison, including five years for the prior serious felony conviction and one year for the prior prison term.

On August 2, 2022, Mr. Velasco filed a petition for a writ of habeas corpus in the San Bernardino Superior Court, requesting relief under SB 483.  The trial court denied the petition, so Mr. Velasco filed a notice of appeal, arguing that the trial court made a mistake because he did not have a prior conviction for a sexually violent offense.

Then while the appeal was pending, the trial court granted the resentencing request, striking the enhancement and resentencing Mr. Velasco accordingly.  However, Mr. Velasco was not present at the hearing and the record did not contain a written waiver of his appearance.

Mr. Velasco then appealed the second ruling to the California Court of Appeal for the Fourth Appellate District in Riverside, arguing that the hearing was invalid because he was not there and furthermore, that he was entitled to a full resentencing hearing.

The People opposed the appeal, arguing that the trial court lacked jurisdiction to resentence because Mr. Velasco’s case was on appeal to the Fourth District Court.

The Fourth Appellate District noted at the outset that generally speaking, trial courts are divested of jurisdiction to resentence a criminal defendant once it relinquishes custody of the defendant and execution of the sentence has commenced.  People v. Karaman (1992) 4 Cal. 4th 335, 344.  A defendant filing a valid notice of appeal also typically divests the trial court of jurisdiction over any matter affecting the judgment.  People v. Flores (2003) 30 Cal. 4th 1059, 1064.

However, jurisdiction survives where provided by statute.  Flores, supra, at 1064.  As Mr. Velasco pointed out, Penal Code § 1170(d) is such an exception to the above general rule.  Mr. Velasco then argued that Penal Code § 1172.75 also should be given such status.  The Fourth Appellate District agreed.

Turning then to Mr. Velasco’s argument that his right to be present at the hearing was violated by the court not having him present without a written waiver from him under Penal Code §§ 977(b)(1) – (2), the Fourth District looked to Chapman v. California (1967) 386 U.S. 18, to find whether the error was harmless and whether reversal was required unless the court could conclude beyond a reasonable doubt that Velasco’s absence did not affect the outcome of the proceeding.

“In the case, had Velasco been present at the hearing, he may have ‘offered mitigation factors that arose after his original sentencing; he may have expressed remorse; [or] he may have made a plea for leniency.”  People v. Cutting (2019) 42 Cal. App. 5th 344, at 348 (sentencing is a “critical stage” of criminal  prosecution).  Indeed, § 1172.75 expressly allows the trial court to consider postconviction factors such as “the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence. . .”  Velasco was not able to present any of these factors.

Since Mr. Velasco was entitled to full resentencing (Cutting, supra, at 348), the Fourth District found Mr. Velasco was clearly prejudiced by his absence.