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Criminal Defense Attorneys

Resentencing: Trial Court Must Allow New Evidence.

The following ruling, summarized below, was not reached in the context of a petition for resentencing under the new Assembly Bill 775 (extending SB 1437 to attempted murder and manslaughter convictions reached under the old felony murder rule and natural and probable consequences doctrine) or Assembly Bill 483 (requiring resentencing for those serving time with sentence enhancements for Penal Code § 667.5(b) or Health & Safety Code § 11370.2). However, it has direct application to these two new resentencing provisions.

Jose Alex Mendez was convicted in 2008 by a jury in the San Fernando Superior Court of twelve counts of second degree robbery (Penal Code § 211) and one count of attempted second degree robbery (Penal Code §§ 664/211), with personal weapon use enhancement (Penal Code § 12022.53(b)) findings as to twelve of the thirteen counts.

The judge sentenced Mr. Mendez to 13 years and 8 months on the thirteen counts of conviction, plus 46 years , 8 months on the weapon enhancements, for a total term of 60 years and 4 months in state prison. 

Mr. Mendez appealed his sentence to the Second Appellate District Court, arguing that his sentence was excessive.  The court of appeal denied his appeal.

Eleven years later, in 2019, by letter to the Los Angeles Superior Court, the secretary of the CDCR recommended a recall of defendant’s sentence and resentencing under Penal Code § 1170(d).  The letter was marked “received” by Department 30 in the Clara Shortridge Foltz courthouse on August 27, 2019, then “received” by Department L in the San Fernando Superior Court (Judge David Gelfund’s courtroom) and filed in the superior court on October 15, 2019.

In the letter, the secretary of the CDCR noted that Mr. Mendez’s sentence included numerous weapons enhancements under Penal Code § 12022.53(b), which were mandatory to impose in 2008.  However, under amendments to Penal Code § 12022.53(b) (Senate Bill 620), effective January 1, 2018, “courts are now empowered with discretion to strike or dismiss a personal use firearm enhancement pursuant to Penal Code § 1170(d) in the interest of justice under Penal Code § 1385.” 

Enclosed with the letter to the Los Angeles Superior Court were the abstract of judgment, minute orders, the charging documents and a cumulative case summary.  Based on all this, the secretary “recommended the inmate’s sentence be recalled and that he be resentenced.”

In a written order dated October 16, 2019, Judge Gelfund rejected the secretary’s request for recall and resentencing.  The judge stated that it had reviewed the court file, the documents enclosed with the letter and the reasons for the secretary’s recommendation, including Mr. Mendez’s record of good conduct while in prison.  Judge Gelfund then summarized appellant’s criminal history and his current offenses.  Mr. Mendez’s record included an arrest at age 18 for assault with a firearm, but prosecution was declined.  He was arrested again 18 months later for attempted murder, but the case was dismissed.  He then was convicted of a felony and place on formal probation, during which time the second degree robberies took place.

The judge then concluded that “[b]based on the facts of the commitment offenses plus his prior arrest history the defendant is clearly a danger to the community.  The request pursuant to Penal Code § 1170(d) therefore is denied.”

Mr. Mendez then appealed the denial to the Second Appellate District Court, contending Judge Gelfund abused his discretion by failing to adequately weigh his postconviction record and not affording him an opportunity to be heard regarding the recommendation of the CDCR to recall his sentence.

The Second Appellate District agreed with Mr. Mendez that Judge Gelfund had indeed erred.  Under Penal Code § 117(d)(1), “The court resentencing under this paragraph may reduce a defendant’s term of imprisonment and modify the judgment, including a judgment entered after a plea agreement, if it is in the interest of justice.  The court may consider postconviction factors, including, but not limited to, the inmate’s disciplinary record and record of rehabilitation while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the inmate’s risk for future violence, and evidence that reflects that circumstances have changed since the inmate’s original sentencing so that the inmate’s continued incarceration is no longer in the interest of justice.”  People v. McCallum (2020) 55 Cal. App. 5th 202, at 210.

The Second Appellate District then commented that it reviews the trial court’s decision not to recall an inmate’s sentence for abuse of discretion and will not disturb the ruling absent a showing that “the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.”  People v. Miracle (2018) 6 Cal. 5th 318, 346-347; McCallum, supra. at 211.

The appellate court then concluded that due process requires that the sentencing judge give the parties notice of the CDCR’s recommendation for recall and resentencing and an opportunity to submit briefing and additional information relevant to the recommendation before ruling on the sentence recall request.  In fairness to Judge Gelfund, however, the appellate court acknowledged that 1170(d)(1) contains no guidance to the trial court on providing such notice of the CDCR’s recommendation to the parties and the statute is silent as to the parties rights to be heard on the merits of the recommendation.

However, due to the “substantial right to liberty implicated by the secretary’s recommendation to recall the sentence,” another court, in McCallum, supra, found that the trial court did abuse its discretion by rejecting the secretary’s recommendation without affording the parties an opportunity to present briefing and additional information relevant to the recommendation.”  McCallum, supra, at pp. 206 – 207, 218 – 219.

Moreover, as stated in People v. Williams (2021) 65 Cal. App. 5th 828, at 833, “it is axiomatic that due process requires the sentencing court to give the parties formal notice of the CDCR’s recommendation and the opportunity to be heard if the court is considering resentencing defendant.”

Here, however, Judge Gelfund gave the parties no notice of the secretary’s recommendation, much less the court’s intent to rule on it, and there is no indication that the parties had any opportunity to supplement the recommendation with additional information or briefing.  The appellate court regarding this failure an abuse of discretion because he was bound to consider information and / or briefing that the parties might submit before he ruled on the CDCR recommendation.

Therefore, the Second Appellate District reversed Judge Gelfund’s order and remanded the matter back to him with directions to allow the parties to submit information and briefing for him to consider before deciding on whether to follow the CDCR’s recommendation and exercise its discretion whether to recall Mr. Mendez’s sentence.

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