Opinion
H049102
03-15-2023
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ANTHONY GONZALES, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. CC818758)
WILSON, J.
Richard Anthony Gonzales pleaded no contest to multiple felony counts involving carjacking, kidnapping, robbery, and assault with a deadly weapon. He also admitted enhancement allegations that he personally used a firearm in commission of these offenses and committed great bodily injury. In exchange, he received a negotiated sentence of 35 years eight months in prison.
In April 2021, the Secretary of the California Department of Corrections and Rehabilitation (the Secretary) issued a letter to the trial court recommending that it recall Gonzales's sentence and resentence him pursuant to then Penal Code section 1170, subdivision (d). The Secretary's recommendation was based on a change in the law that gives a trial court the discretion to strike an enhancement for personal use of a firearm in the commission of certain enumerated felonies.
Undesignated statutory references are to the Penal Code.
In a letter to the Secretary, the trial court declined to exercise its discretion to recall and resentence in the interests of justice based on Gonzales's criminal history, behavior in prison, and the facts of the case, particularly his actions and statements made towards the victim.
On appeal, Gonzales contends the trial court abused its discretion by summarily declining to recall and resentence him without affording him an opportunity to be heard or appointing counsel, as required under current sentencing laws.
For reasons that we will explain below, we will reverse the judgment and remand for the trial court to reconsider whether to recall Gonzales's sentence under the law as currently enacted.
I. Factual and Procedural Background
A. Charges, Pleas, and Original Sentencing
Gonzales was charged with the following felony counts: attempted murder (§§ 664, subd. (a), 187; count 1), kidnapping during a carjacking (§ 209.5; count 2), carjacking (§ 215; count 3), second degree robbery (§§ 211, 212.5, subd. (c); count 4), kidnapping (§ 207, subd. (a); count 5), assault with a firearm (§ 245, subd. (a)(2); count 7), and kidnapping to commit robbery (§ 209, subd. (b)(1); count 8). Counts 1, 2, 3, 4, and 8 also alleged personal use or discharge of a firearm (§12022.53, subds. (b)-(d)). Count 7 additionally alleged personal use of a handgun (§ 12022.5, subd. (a)). (Counts 2, 3, 4, 7, and 8 further alleged the personal infliction of great bodily injury (§§ 1203, subd. (e)(3), 12022.7, subd. (a)).
The charges in count 6 were alleged against Gonzales's codefendants only.
Gonzales pleaded no contest to carjacking, second degree robbery, kidnapping, and assault with a firearm, and admitted to the enhancements for personal use or discharge of a firearm and personal infliction of great bodily injury. In exchange, the remaining counts were dismissed, and he received a negotiated sentence of 35 years eight months in prison.
We derive our facts from the case summary included in the Secretary's letter recommending recall and resentencing.
On September l4, 2008, at approximately 12:10 a.m., officers responded to a residence on a report of an attempted murder. The victim stated that he was in his driveway when Gonzales and Jacob Valenzuela approached him and asked to use his cell phone. After the victim handed Gonzales and Valenzuela his phone, they brandished handguns which they were holding in their waistbands. The victim dropped his car keys to the ground and told Gonzales and Valenzuela that his wallet was in the car. Gonzales and Valenzuela forced the victim into the backseat of the car and began driving, at which time they located the victim's wallet. After the victim indicated that there was no money inside, Gonzales held his gun to the victim's neck and face area while pushing the barrel against his skin. Gonzales then made a phone call, where he said "We got one stupid bitch. He's lying down in the car. We got his wallet and cell phone. We are going to pick you up on the corner." They then picked up Jonathan Dena and began talking, at which time Gonzales told the victim that they were going to "waste" him. When the victim pleaded with them not to shoot him, Gonzales stated, "You think I'm going to take pity on you? I'm a butcher." They arrived at a field area where the victim was ordered out of the vehicle. Gonzales then held the muzzle of the gun up to the victim's head just before shooting. The victim heard two gunshots and saw a flash from a gun and began to feel very hot. He fell to the ground and pretended that he was dead so the suspect would not shoot him anymore. After the shooting, Gonzales, Valenzuela, and Dena ran away. The victim sustained multiple injuries, including a six-inch laceration to the left side of his forehead, a three-inch laceration to the top left side of his head, and a one-inch laceration to the lower right area of his head.
Officers subsequently observed a suspicious vehicle driving on Rocky Water Lane in San Jose, California. After the victim's call came through indicating that he had been carjacked, the officers noted that his vehicle, as described, matched the suspicious vehicle they had observed earlier. An investigation was initiated, during which Gonzales, Valenzuela, and Dena were identified by the victim. The three defendants were subsequently contacted at a residence on Rocky Water Lane and arrested. Officers recovered a Smith and Wesson .38-caliber handgun and a red, rolled up bandana that contained bullets. Officers also recovered a fully loaded, 9mm barrel handgun hidden in Valenzuela's kitchen, which was identified as the gun used in the offense.
C. The Secretary's Recommendation for Recall of Sentence and Resentencing
In a letter to the trial court dated April 5, 2021, the Secretary recommended that Gonzales's sentence be recalled and that he be resentenced pursuant to former section 1170, subdivision (d). The basis for the recommendation was a change in the law that gave trial courts the discretion to strike or dismiss a personal use firearm enhancement in the interests of justice at sentencing or resentencing (see §§ 12022.53, subd. (h), 1385). The Secretary stated, "Having reviewed the enclosed documentation, it appears that inmate Gonzales' sentence warrants the attention of the court. Pursuant to PC Section 1170, subdivision (d)(1), as the Secretary, I recommend the inmate's sentence be recalled and that he be resentenced." Various documents were attached to the letter, including documents reflecting Gonzales's participation in prison work assignments, education and counseling, and his prior history of rule violations.
The Legislature subsequently amended the recall and resentencing provision of section 1170 to section 1170.03 and then renumbered it as section 1172.1. (Stats. 2022, ch. 58, § 9.) For clarity, we cite section 1172.1 to refer to the current version of the provision, and we cite "former section 1170(d)" to refer to subdivision (d) of section 1170 as it existed prior to the recent legislation.
D. Trial Court's Denial to Resentence and Recall
On April 26, 2021, without notice to Gonzales or holding a hearing, the trial court chose not to exercise its discretion to recall and resentence Gonzales. In a written response to the Secretary, the trial court noted that Gonzales was originally charged with multiple felony counts, three of which carried potential life sentences, and his final negotiated plea of 35 years eight months led to dismissal of all three "life counts." The trial court also indicated that Gonzales had excellent representation throughout the course of his case, and the final disposition was reached after evaluating multiple factors, including his criminal history, age, and the specifics of his participation in the crime. The trial court specifically pointed to Gonzales's threat to the victim that he would "waste" him, his statement to the victim that he would not have pity on him as he was "a butcher," and him firing the gun at the victim's head. The trial court noted that it had reviewed the application for resentencing documents provided by the Secretary but concluded "[a]fter considering the totality of the circumstances . . . it does not appear that resentencing [Gonzales] would be in the interests of justice, and I decline to exercise my discretion to do so."
According to the proof of service attached to the letter, a copy was sent to the district attorney's office and the public defender's office.
Gonzales timely appealed.
II. Discussion
Gonzales argues that the trial court abused its discretion by summarily declining to recall and resentence without affording him an opportunity to be heard and present additional relevant evidence. He also argues that, under the revised version of former section 1170(d)(1), the trial court was required to hold a hearing and appoint counsel to represent him in resentencing proceedings. He further contends that the revised statute also contains a presumption in favor of recalling and resentencing, which the trial court did not apply. He requests that we remand for the court to consider whether to recall his sentence and resentence him under the procedures set forth in former section 1170.03 (later renumbered as section 1172.1).
The Attorney General contends the trial court lacked discretion to recall and resentence because the original sentence was a negotiated plea; therefore, remand is not required. The Attorney General also argues that even if the trial court erred in not holding a formal hearing, Gonzales cannot demonstrate a reasonable probability of a better result at resentencing absent this error, given the enumerated reasons in the trial court's letter for declining to recall and resentence.
A. Applicable law and standard of review
Prior to January 1, 2022, former section 1170(d)(1) "authorize[d] the Secretary of the CDCR [(California Department of Corrections and Rehabilitation)] to recommend to the superior court that the court recall a previously imposed sentence and resentence the defendant. [Citations.] The CDCR recommendation furnishe[d] the court with jurisdiction it would not otherwise have to recall and resentence and [was] 'an invitation to the court to exercise its equitable jurisdiction.'" (People v. McMurray (2022) 76 Cal.App.5th 1035, 1040 (McMurray).)
On January 1, 2022, Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719, §§ 1-7) (Assembly Bill 1540) came into effect and moved the recall and resentencing provisions of former section 1170(d)(1) to new section 1170.03. (McMurray, supra, 76 Cal.App.5th at p. 1038.) "[T]he Legislature repeatedly indicated that Assembly Bill 1540 was intended to 'make clarifying changes' to former section 1170(d)(1), including specifying the required procedure and guidelines when the CDCR recommends recall and resentencing." (Id. at p. 1041.)
Effective June 30, 2022, "[t]he Legislature . . . renumbered section 1170.03 to section 1172.1, but made no substantive changes." (People v. Salgado (2022) 82 Cal.App.5th 376, 378, fn. 2.) Section 1172.1 continues to provide that a trial court may recall and resentence a defendant at any time upon the recommendation of the Secretary or other specified public official. (§ 1172.1, subd. (a)(1); see former § 1170.03, subd. (a)(1).)
Furthermore, "[r]esentencing shall not be denied, nor a stipulation rejected, without a hearing where the parties have an opportunity to address the basis for the intended denial or rejection." (§ 1172.1, subd. (a)(8).) The trial court must provide notice to the defendant, set a status hearing within 30 days of receiving the Secretary's recommendation, and appoint counsel to represent the defendant. (Id., subd. (b)(1).)
Section 1172.1 also provides that if the "resentencing request . . . is from the Secretary of the Department of Corrections and Rehabilitation," then "[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." (Id., subd. (b)(2), italics added; see former § 1170.03, subd. (b)(2).)
We apply the abuse of discretion standard of review to a trial court's denial of recall. (People v. Frazier (2020) 55 Cal.App.5th 858, 863-864; People v. McCallum (2020) 55 Cal.App.5th 202, 211.) We review questions of statutory interpretation de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71.)
B. Analysis
1. The trial court retained discretion to recall and resentence
The Attorney General argues that the trial court correctly determined it did not have the discretion to recall and resentence because the original sentence was a negotiated plea. The Attorney General relies on People v. Brooks (2020) 58 Cal.App.5th 1099 (Brooks), in reaching this conclusion. In that case, the Court of Appeal ruled that the resentencing authority granted by section 1170.91, subdivision (b) did not apply when the original sentence was reached through a plea agreement specifying a stipulated imprisonment term. (Brooks, supra, at p. 1106.) The court stated that section 1170.91, subdivision (b) specifically referred to resentencing pursuant to sentencing triad discretion, which a trial court does not have when sentencing pursuant to a plea agreement or stipulated sentence. (Brooks, supra, at p. 1109.) The Attorney General contends that former section 1170.03 (renumbered as section 1172.1) also contains similar language regarding triad sentencing discretion such that the trial court would not have discretion to recall and resentence if the original sentence resulted from a negotiated plea agreement.
This section provides, in relevant part, that a person serving a prison sentence for a felony conviction may petition for resentencing if he or she was a member of the United States military and may be suffering from trauma as a result, if this trauma was not considered as a factor in mitigation at the time of original sentencing.
Gonzales argues that the trial court never indicated it lacked the authority to resentence and recall per the Secretary's recommendation, but clearly stated it was declining to exercise its discretion. Gonzales contends that former section 1170.03 (renumbered as section 1172.1) explicitly stated it was applicable to judgments entered after a plea agreement, thus providing the trial court with jurisdiction it would not ordinarily have to recall and resentence.
We find that the ruling in Brooks regarding plea bargaining does not extend to section 1172.1. The Brooks court distinguished the two code sections, stating that a defendant who is eligible for resentencing under section 1170.91, subdivision (b), is not in the same position as a defendant where the sentencing court chooses to recall a sentence under former section 1170(d). (Brooks, supra, 58 Cal.App.5th at p. 1108, fn. 2.) The Brooks court noted that the narrow circumstances that must be present for recalling and resentencing under former section 1170(d), which are not required when requested resentencing under section 1170.91. (Brooks, supra, at p. 1108, fn. 2.)
In addition, if the language of a statute is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. (People v. Sanchez (2021) 66 Cal.App.5th 14, 18.) Both former section 1170(d)(1), and section 1172.1, subdivision (a)(3) expressly provide that the trial court's power to recall and resentence applies to judgments entered after a plea agreement. The inclusion of this language reflects the legislative intent to include plea agreements within the scope of the trial court's discretionary power.
Former section 1170(d)(1) provided the following: "[t]he 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."
Section 1172.1, subdivision (a)(3) provides: "The resentencing court may, in the interest of justice and regardless of whether the original sentence was imposed after a trial or plea agreement, do the following: [¶] (A) Reduce a defendant's term of imprisonment by modifying the sentence. [¶] (B) Vacate 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."
Further, "as a general rule, plea agreements are deemed to incorporate the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. That the parties enter into a plea agreement does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them." (§ 1016.8, subd. (a)(1), citing Doe v. Harris (2013) 57 Cal.4th 64, 71.) Relying on this premise, other courts of appeal have found that the trial court's power to recall and resentence under former section 1170(d) extends to judgments entered after a plea bargain. In People v. Pillsbury (2021) 69 Cal.App.5th 776, the Third District Court of Appeal rejected a similar argument that the trial court lacked discretion to recall and resentence if the original sentence was a plea agreement, citing both the plain language of former section 1170(d), that specifically referred to judgments entered after a plea, and the rule from Doe referenced above. (Pillsbury, supra, at pp. 787-788.) Similarly, in People v. Cepeda (2021) 70 Cal.App.5th 456, the Second District Court of Appeal found that the trial court erred in declining to resentence on the basis it was required to defer to the existing plea agreement. (Id. at pp. 469-470.) Like the court in Pillsbury, the Cepeda court noted that the plain language of former section 1170(d), explicitly provided that resentencing is not constrained by the terms of a plea bargain. (Cepeda, supra, at p. 470.)
We agree with the reasoning in Pillsbury and Cepeda. Given the plain language of the statute, in both its prior and current form, we find that the trial court retained discretion to recall and resentence Gonzales even though his original sentence resulted from a negotiated plea agreement.
2. The trial court erred by declining to recall and resentence without holding a hearing or appointing counsel
Gonzales argues that by summarily declining to recall and resentence him, the trial court abused its discretion in several respects. He contends that the trial court violated his due process rights by: (1) not providing him notice of its receipt and consideration of the Secretary's letter recommending recall and resentencing; (2) failing to inform him of his right to provide additional documentation or evidence; (3) not providing him with a reasonable and specific time to respond; and (4) not providing him with any information regarding the precise place and time to respond. He also argues that per the revisions to former section 1170(d), as found in former section 1170.03 (renumbered as section 1172.1), the trial court was required to hold a hearing and appoint counsel to represent him. Lastly, he argues that the trial court erred by not applying the presumption in favor of recall and resentencing contained in former section 1170.03 (renumbered as section 1172.1), or, in the alternative, stating on the record its reasons for not applying the presumption.
As the Attorney General's argument rested on the premise that the trial court lacked discretion to recall and resentence, the Attorney General does not specifically address Gonzales's claims stated above. The Attorney General only argues that Gonzales fails to demonstrate that he would have reached a more favorable result if the trial court had held a resentencing hearing, given the reasons stated by the trial court in its letter declining to recall and resentence.
As a preliminary matter, we find the Attorney General's argument not pertinent to the matter at hand. As demonstrated by Pillsbury and this court's ruling in People v. E.M. (2022) 85 Cal.App.5th 1075 (E.M.), as will be discussed below, the relevant inquiry is whether the trial court erred in declining to recall and resentence, which has no bearing on whether the defendant would have received a better sentence if the trial court did not err.
Turning to the claims raised by Gonzales, his argument raises the question of whether section 1172.1 applied to his case because the trial court denied recall prior to the effective date of former section 1170.03, now renumbered as section 1172.1. This court recently addressed this issue in E.M., where this court held that section 1172.1 was enacted solely to make clarifying changes to the procedural requirements in former section 1170(d), therefore making it applicable to cases in which the Secretary recommended recalling and resentencing under the former statute. (E.M., supra, 85 Cal.App.5th at pp. 1089-1090.) We see no reason to deviate from this holding in the instant case.
In reviewing the procedures set forth in section 1172.1, subdivision (a)(8) and subdivision (b), we agree with Gonzales that the trial court erred in declining to recall and resentence without holding a hearing. Subdivision (a)(8) provides that resentencing shall not be denied without a hearing where the parties have an opportunity to address the basis for the intended denial. Accordingly, the trial court was still required to hold a hearing even if its intention was to deny resentencing. Additionally, the plain language of subdivision (b)(1) mandates that the trial court must provide notice, set a hearing date, and appoint counsel when the recommendation to recall and resentence comes from the Secretary, and there is nothing in the subdivision that allows for any exceptions or deviations from this procedure. By not taking these steps, the trial court violated Gonzales's rights under the statute.
Further, as stated above, section 1172.1, subdivision (b)(2) creates a presumption in favor of recalling and resentencing when the Secretary recommends doing so, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as set forth in section 1170.18. The trial court's letter declining to recall and resentence did not address any factors regarding any risks the defendant posed to public safety. Accordingly, the matter must be remanded for these factors to be addressed prior to a summary denial.
III. Disposition
The order denying recall is reversed, and the matter is remanded to the trial court to consider whether to recall Gonzales's sentence and resentence him in accordance with Penal Code section 1172.1.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Danner, J.