Opinion
E079532
07-21-2023
THE PEOPLE, Plaintiff and Respondent, v. RONALD JAMES DOWNS, Defendant and Appellant.
Shay Dinata-Hanson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, and Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FSB13463, J. David Mazurek, Judge. Reversed and remanded.
Shay Dinata-Hanson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, and Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER ACTING P.J.
At a resentencing hearing pursuant to Penal Code former section 1711.1, the court declined to grant defendant and appellant's, Ronald James Downs, counsel's request for a continuance. On appeal, defendant contends the court abused its discretion by being unaware of the scope of its discretion at a full resentencing hearing. We reverse and remand the matter for reconsideration.
All further statutory references are to the Penal Code unless otherwise stated. "Senate Bill No. 483 added section 1171.1 to the Penal Code, which was subsequently renumbered without substantive change as section 1172.75. (Stats. 2022, ch. 58, § 12, eff. June 30, 2022.)" (People v. Monroe (2022) 85 Cal.App.5th 393, 399 (Monroe).)
I. FACTUAL AND PROCEDURAL BACKGROUND
By order filed January 31, 2023, we granted defendant's request that we take judicial notice of the record in his appeal from the judgment. (People v. Downs (Sept. 29, 1998, E021221) [nonpub. opn.] (Downs).) (Evid. Code, §§ 452, 459; Cal. Rules of Court, rule 8.1115(b).)
"Defendant took two bottles of vitamins, valued at $11.08, from a Stater Bros. market without paying. After defendant waived a jury, the court found him guilty of petty theft with a prior, in violation of [] [] section 666. The court further found defendant had suffered prior 'strike' convictions for murder in 1975 and robbery in 1980. [¶] Pursuant to the three strikes law, the court imposed a sentence of 25 years to life, with a one-year consecutive enhancement for a prison prior ...." (Downs, supra, E021221.)
At a hearing pursuant to section 1172.75, defense counsel noted, "Your Honor, our file is-it shows that this is the second attempt and that he's got a [section] 187 strike. But other than that, we haven't been able to locate our file yet. If we can put this over-it's a 1997 case. We should-if we represent him, we should have the file somewhere."
The court observed that the matter was on for resentencing hearing pursuant to section 1172.75. Thus, the court noted, "Not that it's going to make that much of a difference, but he did have one [section] 667.5(b) prior for one year added to his sentence which is 26 years instead of 25 years to life. So since it's on the CDCR list, that's all it's on for is 117[2.75]. [¶] I'll recall his original sentence. I will strike the [section] 667.5(b) prior, resentence the defendant on Count 1 for the murder to 25 years to life."
Defendant's counsel responded, "Thank you, your Honor. And it might make a big difference since it's a [19]97 case. We might get the 25[.]" The court interrupted, "What?" Defense counsel continued, "The one-year enhancement. He might be doing 25 to life. He might get the 25 [be]cause it's a [19]97 case, but we don't have a file."
The court replied, "Yeah. He originally got sentenced to 26 years to life, and so the Court will strike the one-year prior." Defense counsel concluded, "Thank you, your Honor."
II. DISCUSSION
Defendant contends the court abused its discretion by failing to afford him a full resentencing hearing. Defendant maintains the denial of his request for a continuance to prepare for a full resentencing hearing deprived him of effective assistance of counsel and due process.
The People agree that defendant was entitled to, but did not receive, a full resentencing hearing. They further note that, "in order [to] forestall a claim of ineffective assistance of counsel or denial of due process, the matter should be remanded for [] full resentencing in compliance with section 1172.75." We agree.
"Section 1172.75, subdivision (a), provides that '[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense . . . is legally invalid.' [Citation.] Once the Department of Corrections and Rehabilitation identifies those persons 'currently serving a term for a judgment that includes an enhancement described in subdivision (a)' to the sentencing court, 'the court shall recall the sentence and resentence the defendant.' [Citation.]" (Monroe, supra, 85 Cal.App.5th at p. 399.)
"In resentencing, '[t]he court shall 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.' [Citation.] '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.' [Citation.]" (Monroe, supra, 85 Cal.App.5th at p. 399.) "By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly 'invalid' enhancements." (Id. at p. 402 [reversing and remanding for resentencing where court thought it was without jurisdiction to strike firearm enhancements]; People v. Hubbard (2018) 27 Cal.App.5th 9, 12-13 [full resentencing includes jurisdiction to rule on Romero motion].)
On appeal, defendant suggests the filing of a potential Romero motion.
"' "Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court. [Citations.] 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 defendant's record."' [Citation.]" (People v. Fredrickson (2023) 90 Cal.App.5th 984, 988; accord People v. Lopez (2022) 78 Cal.App.5th 459, 466-467.)
Here, it is apparent from defense counsel's two attempts to inform the court of the importance of acquiring defendant's case record, that he understood there might be other potential issues he could raise on defendant's behalf. However, the court appeared focused on the striking of the section 667.5, subdivision (b), enhancement, as if that was the only matter to be considered at the hearing. As such, the court appears to have been unaware of the scope of its sentencing discretion at a full resentencing hearing. Therefore, the matter must be reversed and remanded for reconsideration at a full resentencing hearing at which defense counsel has had adequate time to prepare.
III. DISPOSITION
The order is reversed, and the matter is remanded for reconsideration. We express no opinion on whether defendant is entitled to relief following the hearing.
We concur: MILLER J., FIELDS J.