California Cases June 29, 2023: People v. Hidalgo

Case Description

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NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. LA067967 Michael V. Jesic, Judge. Reversed and Remanded.

Jeffrey Manning-Cartwright, 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, Senior

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Assistant Attorney General, Noah P. Hill and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.

MORI, J.

In 2013, a jury convicted appellant Elbert Ernesto Hidalgo of burglary and possession of a smoking device, and he was sentenced to an aggregate term of 22 years, which included two five-year enhancements for having suffered serious felony prior convictions.

In 2021, the California Department of Corrections and Rehabilitation (CDCR) sent a letter to the trial court pursuant to Penal Code section 1172.1 (formerly section 1170, subdivision (d)(1) and section 1170.03) recommending the court recall appellant's sentence and resentence him in light of new law granting courts discretion to strike serious felony prior conviction enhancements. The People joined in the CDCR's request. After a hearing, the trial court denied the resentencing request, finding appellant posed an "unreasonable risk of danger to public safety" within the meaning of the recall statute.

On appeal, appellant contends the trial court erred in denying the recall and resentencing request because the court's "unreasonable risk" finding was unsupported by the evidence. In the alternative, appellant argues that the trial

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court's decision cannot be deemed an exercise of informed discretion because the trial court failed to fully comprehend its statutory obligations under section 1172.1. Respondent agrees, as do we, that the latter point has merit, and we accordingly remand the matter for a new resentencing hearing under section 1172.1.

BACKGROUND

A. Procedural History

In 2013, a jury convicted appellant of first degree residential burglary (§ 459; count 1) and possession of a smoking device (Health &Saf. Code, § 11364, subd. (a); count 2). In a bifurcated proceeding, the trial court found appellant had suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), two prior serious felony convictions (§ 667, subd. (a)(1)), and served two prior prison terms (§ 667.5, subd. (b)).

The trial court dismissed one of appellant's prior strikes and sentenced him to a term of 22 years in state prison, consisting of the upper term of six years on count 1 (doubled for the prior strike), plus five years each, for a total of 10 years, for his two prior serious felony convictions (§ 667, subd. (a)(1)). The court imposed, but stayed, two one-year terms for the prior prison term enhancements (§ 667.5, subd. (b)).

In 2015, in an unpublished appellate opinion, this court modified the judgment by striking the two one-year

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enhancements for the prior prison terms but otherwise affirmed the judgment. ( People v. Hidalgo (May 27, 2015, B252675) 2015 Cal.App.Unpub.LEXIS 3684 at *1 [nonpub. opn.] ( Hidalgo ).)

In a letter to the superior court dated November 3, 2021, the Secretary of the CDCR recommended recalling the sentence pursuant to former section 1170, subdivision (d)(1), to allow the trial court to consider striking the two five-year serious felony prior convictions. The Los Angeles County District Attorney's Office subsequently joined in the CDCR's request and filed briefs in support of resentencing appellant to a lesser term.

On June 27, 2022, following a hearing in which the parties argued the matter, the trial court declined to strike the felony priors or otherwise reduce appellant's sentence.

Appellant timely appealed the trial court's ruling.

B. CDCR's Request and Relevant Proceedings

1. CDCR's Letter

The CDCR's November 3, 2021, recall and resentencing request pointed out that since the time of appellant's sentencing, the law had changed regarding a trial court's discretion to dismiss section 667, subdivision (a) prior serious felony conviction enhancements. At the time of appellant's original sentencing in 2013, courts were prohibited from striking serious felony enhancements under section 667, subdivision (a)(1). ( People v. Jones (2019) 32 Cal.App.5th 267, 272.)

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Effective January 1, 2019, however, Senate Bill No. 1393 removed that prohibition, permitting trial courts to dismiss serious felony enhancements in furtherance of justice. (See People v. Cepeda (2021) 70 Cal.App.5th 456, 461; Stats. 2018, ch. 1013, §§ 1, 2.) Citing the new law and a review of appellant's commitment offense and in-prison conduct, the CDCR recommended the sentence "be recalled and that [appellant] be resentenced in accordance with [former] section 1170, subdivision (d)(1)."

2. District Attorney's Motion to Join CDCR Request

On January 14, 2022, the district attorney filed a motion to join the CDCR's request, with an amended motion filed on January 25, 2022. While both motions filed by the district attorney argued that resentencing appellant to a lesser sentence would be appropriate (and urged the court to strike both of his five-year section 667 subdivision (a) enhancements), the amended motion pointed out that effective January 1, 2022, section 1170.03 (formerly 1170, subdivision (d)(1)) states that "'[t]here shall be 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 [within the meaning of] Section 1170.18.'" The district attorney indicated this means that "[t]he Court should recall and resentence [appellant] unless the Court finds that [appellant] will commit a 'super-strike' upon release." The district attorney's motion, however, did not list the series of

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offenses that qualify as "super-strike[s]" within the meaning of section 1170.18.

In addressing appellant's 2013 conviction that resulted in the 22-year sentence at issue in the instant case, the prosecution summarized the facts as follows:

"On May 19, 2011, the victim was in her residence when she heard a knock at her front door. The victim ignored the knocking. There was a second knocking at the door, to which the victim responded and answered the door; there was no one there. The victim entered her bedroom to see [appellant] standing outside at her bedroom window. The bedroom window that was previously closed was now open. The window screen had been bent and removed. When [appellant] and the victim made eye contact, [appellant] fled the scene.

On May 26, 2011, suspecting that [appellant] was involved in the May 19, 20[11] burglary, Police Detectives went to his home to do a parole compliance check. [Appellant] told the Detectives he slept in his father's closet. In searching the closet, the Detectives recovered [appellant's] identification card and four glass methamphetamine pipes, in addition to a debit card."

In discussing appellant's criminal history, the district attorney stated that appellant "had a very limited criminal history at the time of sentencing on this case" which, "coupled with his conduct while incarcerated" "establish that

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there is insufficient evidence to overcome the presumption in favor of recalling and resentencing [appellant]."

Appellant's prior record, summarized by the district attorney, indicated that appellant had two prior felony convictions as an adult, each of which was used to enhance his 2013 sentence. The first felony, to which appellant pled guilty in 2004, was for attempted robbery. After being denied a job, appellant pretended to have a weapon and demanded the victim's necklace. The victim pushed appellant out of the door and called the police. The second felony, to which appellant pled guilty in 2005, was for corporal injury to a spouse or cohabitant with a great bodily injury enhancement. Appellant struck the mother of his children several times. According to her testimony, appellant stopped when he saw that she was bleeding. The victim lost a tooth as a result of the battery, and appellant was sentenced to two years in state prison following his guilty plea.

Insofar as his juvenile record, appellant had sustained petitions for three offenses committed at the ages of 15 and 16: Vehicle theft, possession of a controlled substance, and attempted burglary. In each case, appellant was sent home, with probation.

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On June 21, 2022, defense counsel filed a brief supporting the recall and resentencing request. Counsel agreed that the court should strike the two five-year enhancements and further argued that the trial court should apply other new laws that created ameliorative and/or beneficial changes for appellant.

3. Trial Court Hearing on Recall Request

At the hearing on June 27, 2022, both parties indicated that they would be amenable to resentencing Appellant to a reduced term and a structured transition back into society that included drug treatment and counseling. The prosecutor also pointed out "the presumption is in favor of resentencing unless there's some evidence that [appellant] is likely to commit a super strike."

The court indicated that it had concerns because of appellant's criminal history, which the court described as "very violent." The court stated "[h]e's got the 273.5's," though appellant's record included only a single section 237.5 (corporal injury to spouse or cohabitant) offense. The court described the underlying burglary conviction as "very serious," while both parties disagreed, stating appellant knocked on a door and then immediately fled when seen by a resident. The court stated appellant, while in prison, was an "active suspect in the Surenos security threat group," and thus "it sounds like he was affiliated with . . . a prison gang." The court opined that appellant had not been rehabilitated. The prosecutor stated that pursuant to the CDCR records,

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appellant had disavowed his affiliation with the gang, an act that required the prison to place him in protective custody to keep him safe from attacks from members of his former gang.

Turning to the central issue before the trial court - whether appellant posed an unreasonable risk to public safety - the prosecutor explained that the newly enacted statute "requires that upon a motion for resentencing . . . the court shall grant the motion unless the court has evidence that the individual . . . is likely to commit a super strike: rape of a child, murder, something that is considered very significantly violent."

The trial court asked, "[a]re those the only super strikes?" After the prosecutor responded, "there's a whole list" of super strike offenses, the court asked, "robberies are part of that?" Although robberies are not, in fact, "super strikes," the prosecutor did not answer the court's inquiry and instead stated, "I don't know that robbery is. It's very - it's the level of murder and raping of children." The matter of which offenses constitute super strikes and the fact that robbery is not one of them (see § 667, subd. (e)(2)(C)(iv)) was never revisited at the hearing.

The prosecutor also noted that before the 2013 trial, the People had offered appellant a plea deal to serve only eight years, causing the prosecutor to observe that even before the changes to the sentencing laws, the underlying case was viewed as being "only worth 8 [years]."

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After additional discussion of appellant's history, his conduct in prison, and the joint recommendation that he was a good candidate for a reduced sentence, the prosecutor closed by repeating that the new laws required evidence that appellant is likely to commit a super strike, "[a]nd we don't believe that that's present. And we're requesting him to be resentenced."

The trial court declined to reduce appellant's sentence, stating:

"The motion to resentence is granted in part. The court will strike the two 667.5 priors that were imposed and stayed. It's denied as to the remaining sentence. The remaining sentence of 22 years will stay in effect. The court does find the defendant is an unreasonable risk of safety to safety as division - in subdivision s [ sic ] of 1170.18. I do have a fear that he will commit a super strike upon release based on his history, not and only as a juvenile but as an adult prior to being sentenced, and in prison, and the fact that he was, at least at 1 time, affiliated with a prison gang in prison."

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DISCUSSION

A. The Relevant Statutory Framework

1. Recall and Resentencing Procedure

The statutory recall and resentencing procedure is "an exception to the common law rule that the court loses resentencing jurisdiction once execution of sentence has begun." ( Dix v. Superior Court (1991) 53 Cal.3d 442, 455.) Former section 1170(d)(1) authorized a trial court, at any time upon the recommendation of the Secretary of the CDCR, to "recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence." This same language was retained in section 1170.03, which is where Assembly Bill No. 1540 moved the recall and resentencing provisions of former section 1170(d)(1). (§ 1170.03, subd. (a)(1); Stats 2021 ch. 719 § 3.1; People v. McMurray (2022) 76 Cal.App.5th 1035, 1040 ( McMurray ).) Assembly Bill No. 1540 also added guidelines and procedures to be followed when the Secretary of the CDCR or other specified public official recommends recall and resentencing. ( Id. at pp. 1040-1041.) Assembly Bill No. 200, which took effect June 30, 2022, renumbered section 1170.03 to section 1172.1, but made no substantive changes to the recall and resentencing provisions. ( People v. Salgado (2022) 82 Cal.App.5th 376, 378, fn. 2 ( Salgado ); see Stats. 2022, ch. 58, § 9.)

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2. Presumption in Favor of Recall and "Super Strike" Exception

One of the new procedural requirements added to the recall and resentencing procedure by Assembly Bill No. 1540, is a presumption in favor of recall when the request is initiated by a specified public official. ( McMurray , supra, 76 Cal.App.5th at pp. 1035, 1040.) Thus, pursuant to section 1172.1, if the resentencing request comes from the CDCR or the prosecuting agency, "[t]here shall be 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, as defined in subdivision (c) of Section 1170.18." (§ 1172.1, subd. (b)(2).)

Subdivision (c) of section 1170.18, in turn, provides that an "'unreasonable risk of danger to public safety' means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667." (§ 1170.18, subd. (c).)

The violent felonies listed in section 667, subdivision (e) are known as "super strikes" ( People v. Jefferson (2016) 1 Cal.App.5th 235, 242) and consist of the following crimes: (1) sexually violent offenses; (2) oral copulation with a child; (3) a lewd or lascivious act involving a child; (4) any homicide offense, including attempted homicide; (5) solicitation to commit murder; (6) assault with a machinegun on a peace officer or firefighter; (7) possession of

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a weapon of mass destruction; and (8) any serious or violent felony offense punishable by life imprisonment or death. (§ 667, subd. (e)(2)(C)(iv).)

3. Standard of Review

We review a superior court's denial of recall and resentencing for abuse of discretion. ( People v. Mendez (2021) 69 Cal.App.5th 347, 353; People v. E.M. (2022) 85 Cal.App.5th 1075, 1082.) A court abuses its discretion when it applies the wrong legal standard or bases its decision on express or implied factual findings that are not supported by substantial evidence. ( People v. Moine (2021) 62 Cal.App.5th 440, 449; see also People v. Knoller (2007) 41 Cal.4th 139, 156.)

B. Remand is Necessary for Reconsideration of the CDCR Recommendation in Compliance with Section 1172.1

Here, the parties agree that remand for reconsideration of the CDCR's recommendation is appropriate. We agree with the parties.

"'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court.'" ( People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 ( Gutierrez ).) "A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a

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defendant's record." ( Ibid ., citing People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.)

Here, the trial court denied the recall request because it concluded appellant would be "an unreasonable risk of safety to safety as division - in subdivision s [ sic ] of 1170.18." However, the record reflects that the trial court was not informed about which offenses constitute super strikes. Neither the CDCR letter nor the parties' motions set forth the super strike offenses listed in section 667, subdivision (c). At the hearing, the trial court asked the prosecutor whether the examples provided were "the only super strikes" and subsequently asked whether "[r]obberies are part of that?" Robberies are not, in fact, super strikes, but neither the prosecutor nor defense counsel disabused the court of that notion, with the prosecutor simply stating, "I don't know that robbery is."

Given the state of the briefing on the recall request and the arguments at the hearing, it appears the trial court may have ruled without knowing which offenses are super strikes and while under the incorrect impression that robbery constitutes a disqualifying super strike offense. In light of this record, a remand for reconsideration of the recall and resentencing request is the most appropriate, and prudent, course of action. ( Gutierrez, supra , 58 Cal.4th at p. 1391; People v. McDaniels (2018) 22 Cal.App.5th 420, 427.)

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DISPOSITION

The order denying the California Department of Corrections and Rehabilitation Secretary's recommendation to recall appellant's 2013 sentence is reversed. The matter is remanded to the trial court for reconsideration of the recommendation in accordance with the requirements of section 1172.1.

We concur: CURREY, Acting P. J., ZUKIN, J.