Opinion
F087276
10-21-2024
THE PEOPLE, Plaintiff and Respondent, v. JAMES LEWIS CARDINEL, Defendant and Appellant.
Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. DF012262B Michael G. Bush, Judge.
Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2016, appellant and defendant James Lewis Cardinel (appellant), a state prison inmate, was charged with conspiracy to smuggle narcotics into a prison. He pleaded no contest pursuant to a negotiated disposition for an aggregate term of eight years, based on the second strike midterm of six years plus two years for two prior prison term enhancements, to run consecutively to the sentence he was already serving for an attempted murder conviction.
In 2023, the trial court dismissed the prior prison term enhancements because they were invalid pursuant to Penal Code section 1172.75, and resentenced appellant to the second strike midterm of six years.
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal from the resentencing order, appellate counsel filed a brief that summarized the facts with citations to the record, raised no issues, and asked this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Appellant has filed a supplemental brief raising various issues. We review his arguments and affirm.
PROCEDURAL BACKGROUND
On April 22, 2016, an information was filed in the Superior Court of Kern County charging appellant with count 1, conspiracy to transport narcotics on or about January 25, 2015 (§ 182, subd. (a)(1); Health &Saf. Code, § 11379, subd. (a)(1)), and alleged three overt acts: appellant asked M.C. to smuggle drugs into Kern Valley State Prison; she picked up the drugs; and she secreted the drugs in her clothing and entered the prison.
The pleadings do not identify the relationship between appellant and M.C. In appellant's opening brief, counsel states that she was appellant's wife. In appellant's letter brief on appeal, he states that she was his sister-in-law.
It was further alleged that appellant had two prior strike convictions (§ 667, subds. (c)-(j), § 1170.12, subds. (a)-(e)) for (1) attempted murder (§§ 664/187, subd. (a)) in Ventura County Superior Court case No. 2006022380, in September 2008, and (2) brandishing a firearm at an occupant of a motor vehicle (§ 417.3) in Ventura County Superior Court case No. 2002022494, in July 2002.
Finally, there were two prior prison term enhancements alleged (§ 667.5, subd. (b)), based on (1) the conviction in case No. 2002022494 in July 2002; and (2) convictions for a felon carrying a loaded firearm in a public place (former § 12031, subd. (a)(2)(A)) and unlawful possession of a weapon (former § 12020, subd. (a)) with an arming enhancement (§ 12022, subd. (a)) in Ventura County Superior Court case Nos. CR45654 &CR43532, in May 1998.
Plea and Sentence
On December 29, 2016, appellant pleaded no contest to count 1, conspiracy to transport narcotics, and admitted all the prior conviction allegations, for a negotiated disposition of eight years and the trial court's dismissal of one of the prior strike convictions.
M.C. also pleaded to conspiracy and was placed on probation for three years.
On January 31, 2017, the court dismissed one prior strike conviction and sentenced appellant to eight years, based on the midterm of three years for count 1, doubled to six years as the second strike sentence, plus two years for the prior prison term enhancements, with the sentence to be served consecutively to the sentence he was already serving for his conviction of attempted murder in Ventura County Superior Court case No. 2006022380.
PETITION FOR RESENTENCING
On September 15, 2023, defense counsel, Cynda Bunton of the public defender's office, filed a "Petition to Resentence and Strike Legally Invalid Enhancement" in the trial court. The petition asserted the prior prison term enhancements were invalid after the enactment of section 1172.75, and the court was required to strike the enhancements and resentence him.
Supporting Documents
Defense counsel also filed a sentencing statement with numerous supporting documents for his resentencing hearing.
Appellant's supporting documents included letters and certificates about his educational achievements and good behavior in prison.
There was a letter from appellant's sister, dated November 2022, that stated their father died at the time of appellant's first incarceration, the family did not have time to grieve and heal, everyone went into a downward spiral after that, but appellant's attitude and behavior had improved while in prison and his family supported him.
There were also several letters written by appellant. Appellant wrote a letter to the trial court, dated September 20, 2023, that he wanted to "point out" that while the attempted murder charges were pending, he "caught an inhouse case for attempted escape" and "then caught this case in 2015 being my second inhouse," presumably referring to the conspiracy case. Appellant asked the court to resentence him under section 654 for "one third the middle term .. along with the prison priors." Appellant shared his "side of [the] story" that he had a rough childhood, he was a childhood victim of sexual violence, and his father was abusive and he learned all the wrong lessons from him. Appellant wrote that he was diagnosed with ADHD as a child and started using methamphetamine, he joined a gang when he was 13 years old, and he was embarrassed it had taken so long for him to become positive and improve himself.
There was an undated letter that appellant wrote to the prison warden, where he asked for reinstatement of family visits with his wife and child, acknowledged the visits had been denied because he had tried to escape from Ventura County jail in 2006, and stated his behavior had improved.
In an undated letter to "Kelly," appellant apologized for committing an "unwarranted assault" with a gun, admitted that his gun almost killed "Kelly," his conduct was the result of his drug use, and stated he had changed.
Probation Department Notice
The trial court received a letter from the probation department, dated October 18 and filed October 27, 2023, that stated appellant's sentence had not been previously evaluated under section 1172.75, defense counsel had filed a petition for recall, the prior prison terms imposed as part of his sentence were now invalid, and recommended recall of his sentence and dismissal of the enhancements.
THE TRIAL COURT'S RESENTENCING ORDER
On October 27, 2023, the trial court convened the hearing on recalling appellant's sentence. Appellant was present with defense counsel, Kathy Furlong of the public defender's office. Defense counsel said she had a new letter from appellant's wife and presented it to the court. The court asked for a moment to review the file.
After the review, the trial court stated its tentative ruling was to dismiss the prior prison term enhancements and again sentence appellant to the midterm of six years. Defense counsel replied: "That's what we request, Your Honor."
The trial court dismissed the two years imposed for the prior prison term enhancements. The court reimposed the midterm of six years, to be fully consecutive to the sentence he was serving for his attempted murder conviction in Ventura County Superior Court case No. 2006022380.
Appellant's Notice of Appeal
On December 4, 2023, appellant, in propria persona, filed a notice of appeal that was apparently prepared by Bunton.
Appellant, again in propria persona, requested a certificate of probable cause based on ineffective assistance, and asserted Bunton told appellant and his family that he was allegedly eligible for resentencing as a "childhood victim of sexual violence," and that Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Assembly Bill 124) applied. Appellant also resubmitted various supporting documents, some of which were not before the trial court. The court granted the request for the certificate of probable cause.
DISCUSSION
As noted above, appellate counsel has filed a Wende brief with this court. The brief also includes appellate counsel's declaration indicating that appellant was advised he could file his own brief with this court. We invited appellant to submit additional briefing.
Appellant's Letter Brief
On July 24, 2024, appellant filed a letter brief in this appeal, and claimed that at the October 27, 2023 resentencing hearing, "court appointed counsel was not present, nor did counsel provide the presiding judge, mitigating material" such as his "mental illness history, PTSD, childhood trauma, and prior victimization or sexual violence, to serve as mitigating material against the existing aggravating factors." Appellant also complained that "[Bunton] failed to provide" the trial court with certain documents that she possessed about his childhood trauma.
Appellant stated he had submitted a letter from his stepmother, about his childhood trauma, and apologized for "not bringing up the child[hood] trauma in [his] original writ." Appellant also complained his appointed appellate counsel never contacted him to find out if he had any information for this appeal.
Appellant has not filed any writ petitions with this court. This appeal is the only matter appellant has before this court.
Attached Documents
Appellant submitted numerous documents with his letter brief, including documents about his educational achievements and good behavior in prison, which stated he did not have any rule violations since 2021. He also submitted the same letter from his sister that was filed with the trial court.
Appellant also submitted the following letters that were not before the trial court at the resentencing hearing:
(1) A letter from appellant's stepmother dated September 19, 2023, who stated appellant and his brother were sexually molested by a family friend when they were children, the family friend pleaded to the crimes, and appellant had some counseling, but his behavior became out of control because of this incident.
(2) An undated letter from appellant that was not addressed to anyone, that apologized for his past conduct of stealing property and selling drugs to survive, and admitting he shot Kelly C. in the back (apparently referring to the attempted murder conviction).
(3) An undated letter from appellant's wife, stating that appellant was a drug dealer and gang member when he committed offenses in 2006 (again presumably referring to the attempted murder conviction), he had changed in the past five years, and she supported appellant and they would live together when he was released.
(4) An undated letter from appellant to Kelly C., apologizing for shooting him in the back and leaving him on the street.
(5) An undated letter from appellant to Kevin D., apologizing for a shooting during a drug deal, he was "lucky" that "Kelly" did not die, his head was "messed up" because his father beat him when he was a child and he was sexually molested by a family friend, and he was trying to improve himself and become a better man.
(6) An undated letter from appellant to "Judge McGee," apologizing to him and the City of Ventura for his behavior on the night he was involved in a drug deal and fired his gun at people, apologized to "Kelly" and "Christina," and stating that he was sexually molested as a child and had trouble coping with it, and he improved himself in prison.
(7) An undated letter from appellant to Christina S., apologizing for his conduct on June 6, 2006, and stating that he had no right to endanger her life, and he was trying to improve himself in prison.
I. The Prior Prison Term Enhancement
"Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years. [Citation.] Effective January 1, 2020, Senate Bill No. 136 (20192020 Reg. Sess.) (Senate Bill 136) (Stats. 2019, ch. 590) amended section 667.5 by limiting the prior prison term enhancement to only prior terms for sexually violent offenses. [Citations.] Enhancements based on prior prison terms served for other offenses became legally invalid. [Citation.] The amendment was to be applied retroactively to all cases not yet final on January 1, 2020." (People v. Burgess (2022) 86 Cal.App.5th 375, 379-380 (Burgess).)
"Later, in 2021, the Legislature enacted Senate Bill No. 483 (2021-2022 Reg. Sess.) (Senate Bill 483). This bill sought to make the changes implemented by Senate Bill 136 retroactive. [Citation.] It took effect on January 1, 2022, and added former section 1171.1, now section 1172.75 ...." (Burgess, supra, 86 Cal.App.5th at p. 380.)
Section 1172.75 establishes a mechanism to provide affected defendants a remedy for those legally invalid enhancements, and the resentencing process begins with corrections officials. (People v. Cota (2023) 97 Cal.App.5th 318, 330-331.) "Subdivision (b) of section 1172.75 directs the Secretary of the Department of Corrections and Rehabilitation (CDCR) and the correctional administrator of each county to 'identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in subdivision (a) and ... provide the name of each person ... to the sentencing court that imposed the enhancement.'" (Burgess, supra, 86 Cal.App.5th at p. 380.)
"After the trial court receives from the CDCR and county correctional administrator the information included in subdivision (b) of section 1172.75, 'the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a),' and if so, 'recall the sentence and resentence the defendant.'" (Burgess, supra, 86 Cal.App.5th at p. 380.)
Analysis
There is nothing in the record to show that the CDCR notified the trial court that appellant was eligible for resentencing on the prior prison term enhancements, as required by section 1172.75, subdivision (b) to trigger the court's jurisdiction to recall and resentence him. Instead, it appears the process began with a petition filed by defense counsel. After appellant filed the petition, however, the probation department evaluated appellant's case, and advised the court that appellant's sentence should be recalled, the prior prison term enhancements should be dismissed, and resentencing should occur.
Section 1172.75, subdivision (b) also directs "the county correctional administrator of each county" to identify cases where sentences should be recalled because of now-invalid prior prison term enhancements. The probation department's subsequent notice was sufficient to vest the trial court with jurisdiction to recall and resentence appellant. (People v. Cota, supra, 97 Cal.App.5th at pp. 320, 332-334.)
II. The Trial Court's Resentencing Order
At a section 1172.75 resentencing hearing, the court must "apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing." (§ 1172.75, subd. (d)(2).) "The court may consider postconviction factors, including, but not limited to, 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, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice." (§ 1172.75, subd. (d)(3).)
"Resentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed." (§1172.75, subd. (d)(1).)
Section 1172.75, subdivision (d) "vests the superior court with broad discretion based on an inherently factual inquiry" and we review the resentencing order for an abuse of that discretion. (People v. Garcia (2024) 101 Cal.App.5th 848, 850, 856-857.) "Under an abuse of discretion standard,' "we ask whether the trial court's findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious."' [Citations.] Ultimately, the superior court's risk finding will be upheld 'if it falls within "the bounds of reason, all of the circumstances being considered." '" (Id. at p. 857.)
To the extent appellant is relying on Assembly Bill 124, it amended section 1170, effective in 2022, as to the imposition of determinate sentences by adding paragraph (b)(6) to state: "Notwithstanding paragraph (1), and unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] (A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence. [¶] (B) The person is a youth, or was a youth as defined under subdivision (b) of [s]ection 1016.7 at the time of the commission of the offense. [¶] (C) Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking." (§ 1170, subd. (b)(6), italics added; People v. Gerson (2022) 80 Cal.App.5th 1067, 1095.)
Analysis
In his letter brief, appellant asserts defense counsel was not present at the October 27, 2023 resentencing hearing, and that counsel failed to present the trial court with evidence of his childhood trauma to further reduce his sentence. The record refutes both contentions. Appellant was represented by the public defender's office. His petition for resentencing was filed by Bunton, with supporting documentation that showed his good behavior and educational achievements in prison, and letters from appellant and his family alleging he had a difficult childhood and was a victim of sexual molestation.
At the October 27, 2023 hearing, appellant was present with Furlong, who stated that she was presenting the trial court with another letter in support of his petition, from appellant's wife. The court asked for a moment to review the file, and then gave its tentative decision to dismiss the two prior prison term enhancements and reimpose the same midterm of six years for count 1, conspiracy to transport narcotics, resulting in a reduced sentence. The court asked the parties for any arguments, and Furlong stated that she agreed with the tentative ruling and that was what they were asking for.
Contrary to appellant's claims, the record shows that appellant was represented by the public defender's office, and defense counsel filed documents with the trial court both before and at the hearing, addressing his alleged childhood issues. The court reviewed the file, dismissed the enhancements, and declined to further reduce his sentence. We presume the court properly considered the evidence that had been introduced in support of appellant's petition for resentencing, and the record does not demonstrate otherwise. The record suggests the court found the mitigating evidence did not support further reducing appellant's sentence, and it did not abuse its discretion. (People v. Parra Martinez (2022) 78 Cal.App.5th 317, 322.)
In his letter brief, appellant apparently argues that defense counsel at the resentencing hearing was prejudicially ineffective for failing to argue that the trial court should have further reduced his sentence because of his alleged childhood trauma, and/or should have introduced additional evidence about his childhood trauma, presumably referring to the documents that he filed in support of his letter brief in this appeal that were not before the court.
"To demonstrate ineffective assistance of counsel, a defendant must show that counsel's action was, objectively considered, both deficient under prevailing professional norms and prejudicial. [Citation.] To establish prejudice, a defendant must show a reasonable probability that, but for counsel's failings, the result of the proceeding would have been more favorable to the defendant. [Citation.]' "Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" [Citation.] "[W]e accord great deference to counsel's tactical decisions" [citation], and we have explained that "courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight" [citation]. "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts." [Citation.]'" (People v. Hinton (2006) 37 Cal.4th 839, 876.)
"The general rule concerning appellate claims of ineffective assistance is that often the alleged deficiency of counsel is not shown by the record on appeal; such cases do not lead to reversal of the judgment on appeal; rather the defendant is relegated to the remedy of habeas corpus, wherein the defendant can bring forth evidence outside the record on appeal." (People v. Bills (1995) 38 Cal.App.4th 953, 962; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
The record is silent as to whether defense counsel had the additional documents that appellant filed with his letter brief on appeal and were not before the trial court. To the extent that counsel did not argue for a further reduction of his sentence, counsel may have concluded the court would have denied such a request given his prior convictions and the offenses he committed while in prison. Appellant's documents only addressed his attempted murder case and failed to acknowledge his subsequent conduct of attempting to escape and conviction for conspiracy to smuggle drugs into a state prison, aside from appellant's brief statement that he "caught" two cases as "inhouse" offenses.
DISPOSITION
The trial court's judgment of October 27, 2023, is affirmed.
[*] Before Hill, P. J., Levy, J. and Meehan, J.