California Cases March 02, 2022: People v. Bryant

Case Description

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. BA248242, Michael D. Abzug, Judge. Remanded with directions.

G. Martin Velez, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen, Paul M. Roadarmel, Jr., and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

ROTHSCHILD, P. J.

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Defendant and appellant Jeffrey Bryant is currently serving a sentence of more than 60 years for taking part in five armed robberies and attempted robberies of check cashing stores in 2002 and 2003. In January 2020, the Secretary of the Department of Corrections and Rehabilitation (CDCR) sent a letter to the trial court recommending that the court recall Bryant's sentence under former Penal Code section 1170, subdivision (d) and resentence him in light of recent amendments to the law giving trial courts the discretion to strike certain sentence enhancements that had previously been mandatory.

In a previous opinion, we affirmed the trial court's decision not to strike the enhancements, but the Supreme Court ordered us to vacate our decision and reconsider the case in light of Assembly Bill No. 1540 (Stats. 2021, ch. 719) (Assembly Bill No. 1540), which created new requirements for trial courts considering whether to resentence defendants in Bryant's position. We remand the case to the trial court to reconsider Bryant's case in light of the new law.

FACTUAL AND PROCEDURAL SUMMARY

In 2004, a jury convicted Bryant of three counts of robbery (§ 211), two counts of attempted robbery (§ 211, 664), three counts of false imprisonment (§ 236), and one count of possession of a firearm by a felon (former § 12021, subd. (a)(1)). The jury also found that Bryant was armed with a firearm during the commission of the offenses, and that he had previously suffered three serious felony convictions (see § 667, subd. (a)(1)). Bryant admitted that he

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had three prior strike convictions, but the trial court struck two of these convictions for purposes of sentencing pursuant to People v. Superior Court (Romero ) (1996) 13 Cal.4th 497.

The trial court imposed an aggregate sentence of 60 years 8 months in prison. The sentence included three then-mandatory five-year serious felony enhancements under section 667, subdivision (a)(1), as well as more than 23 years of mandatory enhancements under sections 12022.5 and 12022.53 for personally using a firearm in the commission of the crimes. In all, the enhancements accounted for more than 38 years of the 60 years 8 months aggregate sentence.

In 2017, the Legislature enacted Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2, pp. 5104-5106) (Senate Bill No. 620), which amended sections 12022.5 and 12022.53 to provide that "[t]he court may, in the interest of justice pursuant to [s]ection 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.5, subd. (c); accord, § 12022.53, subd. (h).) Similarly, in 2018, the Legislature enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1013) (Senate Bill No. 1393), which amended section 1385 to delete a provision barring the trial court from "strik[ing] any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667." (Former § 1385, subd. (b).) The effect of these laws was to give the trial court discretion to strike serious felony and firearm enhancements that had previously been mandatory. (See People v. Johnson (2019) 32 Cal.App.5th 26, 67-68.)

In January 2020, the CDCR sent the trial court a letter recommending under section 1170, subdivision (d) that the court

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recall Bryant's sentence and resentence him in light of Senate Bill No. 1393. In May 2020, Bryant filed a request with the trial court to dismiss his serious felony and firearm enhancements. The trial court denied the motion, finding that "a lengthy sentence . . . remains a lawful and appropriate reply" to Bryant's crimes.

DISCUSSION

At the time the CDCR sent its letter, section 1170, subdivision (d)(1) gave the trial court authority to recall a defendant's sentence and resentence him at any time upon the recommendation of the Secretary of the CDCR or certain other officials. The statute allowed the court to "resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence." (Former § 1170, subd. (d)(1).) As the Supreme Court explained, "under the recall provisions of section 1170, subdivision (d), the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall." ( People v. Buycks (2018) 5 Cal.5th 857, 893.) It "may . . . impose any otherwise lawful resentence suggested by the facts available at the time of resentencing." ( Dix v. Superior Court (1991) 53 Cal.3d 442, 456.) But the statute did not establish any procedural requirements that the court must follow in addressing a recommendation from the CDCR; indeed, it "apparently [did] not require the court to respond to the recommendation." ( Id. at p. 459.)

Assembly Bill No. 1540 amended this law effective January 1, 2022, moving the resentencing provisions previously codified at section 1170, subdivision (d)(1) to a newly created section 1170.03. The bill also changes the law in several respects.

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Section 1170.03 preserves the procedure by which the Secretary of the CDCR and certain other officials may recommend recalling a defendant's sentence. Under the new statute, however, when an official submits a resentencing recommendation, the court must "provide notice to the defendant and set a status conference within 30 days after the date that the court received the request. The court's order setting the conference shall also appoint counsel to represent the defendant." (§ 1170.03, subd. (b)(1).) Before the court can deny a defendant resentencing, it must provide "a hearing where the parties have an opportunity to address the basis for the intended denial or rejection." (§ 1170.03, subd. (a)(8).) The court must also "state on the record the reasons for its decision to grant or deny recall and resentencing." (§ 1170.03, subd. (a)(6).)

Under the new law, the court gains the authority to "[v]acate the defendant's conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading, and then resentence the defendant to a reduced term of imprisonment," subject to the concurrence of the defendant and the local district attorney. (§ 1170.03, subd. (a)(3)(B).) Finally, the law creates "a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety." (§ 1170.03, subd. (b)(2).)

In this case, the trial court appointed counsel to represent Bryant, held a hearing, and explained its reasons for denying recall and resentencing. But because the trial court denied Bryant's petition before Assembly Bill No. 1540 was enacted, it did not decide the issue according to the standards of the new law. In particular, the court did not apply a presumption in favor of recalling and resentencing Bryant.

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We agree with the Attorney General that it is in the interest of judicial economy to remand the case for reconsideration of the CDCR recommendation under section 1170.03. The CDCR has already decided that Bryant is a worthy candidate for recall and resentencing. Even if we decided that Assembly Bill No. 1540 does not apply retroactively to his case, the CDCR could simply file a new recommendation to recall Bryant's sentence under the standards of section 1170.03. Remanding the case now will avoid wasting resources.

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DISPOSITION

The case is remanded to the trial court with instructions to vacate its order denying resentencing and to commence new proceedings under section 1170.03.

We concur: CHANEY, J., BENDIX, J.

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Notes:

Unless otherwise specified, subsequent statutory references are to the Penal Code.

In 2010, the Legislature repealed section 12021 and enacted section 29800, subdivision (a), which continues section 12021, subdivision (a) without substantive change.

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