Opinion
A159833
05-27-2021
THE PEOPLE, Plaintiff and Respondent, v. GREGORY D. GADLIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 167072)
Following conviction for murder, defendant Gregory D. Gadlin was sentenced to 117 years to life, which incorporated 25 years to life for a personal use of a firearm enhancement and two one-year terms for the prior prison term enhancements. Postconviction, the Legislature amended certain provisions of the Penal Code to grant sentencing judges discretion to strike or dismiss firearm enhancements and prior serious felony convictions for sentencing purposes. Defendant obtained a resentencing hearing on the firearm and prior prison term enhancements pursuant to these statutory amendments. At resentencing, the court declined to exercise discretion to strike the firearm enhancement, but it stayed the two one-year prior prison term enhancements.
On appeal, defendant contends he is entitled to resentencing because the sentencing judge lacked sufficient familiarity with the matter to properly exercise its discretion. He further asserts the prior prison term enhancements should have been stricken rather than stayed, and a clerical error in the abstract of judgment must be amended. We agree the judgment must be amended to strike the two one-year prior prison term enhancements and correct the clerical error, but affirm the judgment in all other respects.
On January 19, 2021, defendant filed a request for judicial notice of the records and briefs filed in People v. Gadlin, case No. A149764. The Attorney General joined in defendant's request. We grant the request. (Evid. Code, §§ 459, subd. (a), 452, subd. (d).)
I. BACKGROUND
Our prior nonpublished opinion in this case, People v. Gadlin (Nov. 7, 2018, A149764) (Gadlin I), sets forth the factual background in detail, and we briefly summarize it here. In short, Evan Meisner attempted to sell a quarter-pound of marijuana to pay his rent. The next day, he was found dead, having been shot at close range. Defendant was arrested thereafter on unrelated charges and a parole violation. Defendant made a telephone call from the booking area and asked his friend to go to his vehicle and remove something located under a box in the trunk. He stated it was "very important." His friend failed to do so, and the police searched the trunk and located a loaded firearm. The toolmarks unique to the firearm matched those on the bullet fragment recovered from Meisner's body and the casing recovered from the crime scene. (Gadlin I, supra, A149764.)
Following a jury trial, defendant was convicted of first degree murder and possession of a firearm by a felon. The jury also found true the allegations that defendant personally used and intentionally discharged a firearm proximately causing great bodily injury or death pursuant to Penal Code section 12022.53, subdivisions (b) to (d). Defendant admitted having three prior serious felony convictions under California's "Three Strikes" law and section 667, subdivision (a), two of which also qualified as one-year prior prison offenses under section 667.5, subdivision (b). The court imposed an aggregate term of 117 years to life. The term was comprised of 25 years to life for the first degree murder, tripled under the Three Strikes law for a total of 75 years, plus a consecutive 25 years to life for the firearm enhancement, five years for each of the three prior serious felony convictions, and one year for each of the two prior convictions under section 667.5, subdivision (b). The sentence for the felon in possession of a firearm conviction, which constituted a total of 27 years to life, was ordered to run concurrently with the murder sentence. On appeal, this court struck a $250 probation investigation fee but otherwise affirmed the judgment. (Gadlin I, supra, A149764.)
All statutory references are to the Penal Code unless otherwise indicated.
The sentencing provisions set forth in sections 667, subdivisions (b)-(j), and 1170.12 are known as the Three Strikes law. (People v. Laanui (2021) 59 Cal.App.5th 803, 814.)
During this period, the California Legislature passed Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) and Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620). Senate Bill 1393 amended sections 667, subdivision (a) (section 667(a)) and 1385, subdivision (b) (section 1385(b)) to give courts discretion to dismiss or strike a prior serious felony conviction for sentencing purposes. Similarly, Senate Bill 620 amended sections 12022.5 and 12022.53 to grant trial courts discretion to strike or dismiss firearm enhancements.
In February 2019, Defendant filed a petition for writ of habeas corpus with this court, In re Gadlin, case No. A156534, requesting the matter be remanded to the trial court for resentencing under Senate Bills 1393 and 620. This court issued an order to show cause in May 2019, noting "the parties agree that petitioner has articulated a prima facie case for relief concerning his claim that he is entitled to remand to permit the superior court to exercise its discretion under newly amended Penal Code sections 667, subdivision (a), 1385, subdivision (b), and 12022.53, subdivision (h)." The superior court subsequently informed this court that it would proceed with a resentencing hearing.
He also challenged various fees and fines. The court rejected that challenge and it is not relevant to this appeal. (In re Gadlin, case No. A156534.)
In advance of the resentencing hearing, defendant submitted a letter brief in support of his request to strike the firearm enhancement. Defendant first argued any sentence in excess of 100 years "borders on cruelty" and thus requested the court "grant him mercy and the grace of striking the gun use enhancements." Next, defendant asserted striking the gun use enhancement would resolve all outstanding issues and "put an end" to further appeals. Finally, defendant argued he "carries a lot of empathy" for the victim's family and "does not want to be the cause of their pain" but seeks "this tiny bit of grace." The prosecution opposed the request.
At the resentencing hearing on January 29, 2020, defendant argued he was not responsible for the murder and emphasized he was not found with a gun or seen with a gun. Rather, it was located in the trunk of a vehicle on his property. Defendant thus requested that the court exercise its discretion because the additional sentence for the gun enhancement was not "necessary for the punishment to fit the crime." In response, the prosecutor noted firearms have played a central role in defendant's criminal history. He further noted defendant attempted to cover up the crime by having a friend dispose of the murder weapon.
The court indicated it had reviewed all the materials and letters submitted by the parties. The court described these materials as "a two-page cover letter, plus a probation report, plus some police reports, I believe" from the prosecution and a two-page letter from defendant. In assessing the factors in mitigation and aggravation, the court concluded "all [those factors] weigh very heavily against [defendant]" and declined to alter the 25-year-to-life firearm enhancement. After discussing the other enhancements with the parties, the court declined to vacate the five-year priors, but stayed the one-year priors pursuant to section 667.5, subdivision (b).
The court subsequently filed an amended abstract of judgment reflecting the changed sentence from 117 years to life, to 115 years to life. Defendant timely appealed.
II. DISCUSSION
A. Resentencing
At the time of resentencing, the judge who presided over defendant's trial had retired. Defendant acknowledges he has no right to be sentenced by the same judge who presided over his trial, and the subsequent sentencing judge was properly aware of his discretionary powers in resentencing. However, defendant asserts the sentencing judge must be familiar with the material facts in order to properly exercise judgment, and the court abused its discretion by failing to have sufficient knowledge of his case.
Defendant correctly states the law on this point. A defendant has no right to be sentenced by a judge after his or her retirement. (See People v. Jacobs (2007) 156 Cal.App.4th 728, 733 [" 'It is settled that it is not error for a judge other than the one who tried a criminal case to pronounce judgment and sentence.' "]; People v. Rodriguez (2016) 1 Cal.5th 676, 693.) Likewise, courts must be aware of their discretionary power in order to exercise informed discretion. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [" '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.' "].)
1. Relevant Law
Pursuant to section 12022.53, subdivision (d), "any person who, in the commission of a felony specified in subdivision (a) . . . personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." However, the statute further provides: "The court may, in the interest of justice . . . and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (§ 12022.53, subd. (h).)
In order for a sentencing judge to exercise proper discretion, all material facts in evidence must be known and considered. (In re Cortez (1971) 6 Cal.3d 78, 85-86.) When a judge presides at sentencing after another judge conducted the trial, we do not presume that the sentencing judge was unfamiliar with the record of the defendant. (People v. Connolly (1951) 103 Cal.App.2d 245, 248.) To the contrary, we presume, absent evidence to the contrary, the sentencing judge was familiar with the facts of the case before making a sentencing choice. (See Evid. Code, § 664.)
" ' "[A] court's discretionary decision to dismiss or to strike a sentencing allegation under section 1385 is" reviewable for abuse of discretion.' [Citation.] 'In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, " '[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " [Citations.] Second, a " 'decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." ' " [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.' " (People v. Pearson (2019) 38 Cal.App.5th 112, 116.)
2. Forfeiture
As a preliminary matter, the Attorney General contends defendant waived his argument that the trial court failed to have sufficient knowledge of the case because he failed to raise it at sentencing. In response, defendant contends any objection would have been futile because it would have been too late to object by the time defense counsel realized the sentencing judge was unfamiliar with the case. Defendant further argues this court has discretion to address his objection even if waived.
"[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356.) "[T]he waiver doctrine [applies] to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices." (Id. at p. 353.) "[C]laims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (Id. at p. 354; see also People v. Boyce (2014) 59 Cal.4th 672, 730-731 [complaints about the manner in which the trial court exercises its sentencing discretion or a court's " 'failure to properly make . . . discretionary sentencing choices' " cannot be raised for the first time on appeal].)
The waiver doctrine applies here. At the beginning of the resentencing hearing, the court erroneously stated it reviewed the probation report as part of the materials submitted by the prosecution. Defendant did not object. Nor did defendant object at the end of the hearing when the court provided its reasoning for declining to strike the firearm enhancement and asked if counsel had "anything further." Accordingly, defendant waived his objection to the court's denial of his request to strike the firearm enhancement. Moreover, even if defendant had not forfeited his argument, he has failed to demonstrate reversal is warranted, as discussed in part II.A.3., post.
3. The Firearm Enhancement
Defendant argues the sentencing judge was not sufficiently aware of the material facts established at trial. Defendant does not identify any specific facts at issue, but relies on various comments made by the court during the resentencing hearing to assert a more general "lack of knowledge" argument.
First, defendant notes the court misstated that it had reviewed the probation report attached to the prosecution's brief. While it is true the document attached to the prosecution's brief was its own "Report After Jury Trial Verdict" and not the probation report, the court clearly stated it reviewed the materials submitted. But noticeably absent from defendant's argument is the identification of any material facts that were not encompassed within the materials submitted in connection with resentencing. Nor does defendant identify any mitigating factors that were contained in the probation report but excluded from those materials reviewed by the sentencing judge. The fact the sentencing judge misstated the title of a document does not indicate he was unaware of any material facts.
The court stated to the prosecutor, "[Y]ou filed a 58-page document, including exhibits, which is a two-page cover letter, plus a probation report, plus some police reports, I believe, and I reviewed all that material." While defendant argues the court "believe[d]" but was not certain about whether it reviewed the materials, we interpret the court's comment as expressing a degree of uncertainty regarding the titles of the exhibits attached to the prosecution's submission, not whether the court reviewed those materials.
Second, defendant asserts the court's questions regarding his claim of innocence, his trial testimony, and the jury verdict indicate the court did not read the record of the previous trial or the prior appellate opinion. We disagree. As to the question of innocence, defendant raised a new issue at the hearing that was not part of his brief or the prior proceedings—namely, that he continued to maintain his innocence. In light of defendant's position, it was logical for the sentencing judge to seek further clarification and confirm his understanding of defendant's argument.
We also do not find the court's questions regarding defendant's testimony at trial or the jury verdict indicative of a lack of knowledge. During his argument to strike the firearm enhancement, defense counsel did not reference any underlying facts relevant to the enhancement and was prepared to submit without making such arguments. Accordingly, it was reasonable for the sentencing judge to ask questions to explore and understand defendant's position on certain key facts, such as defendant's position regarding his role in the murder, how the firearm was discovered, and the jury finding on the personal firearm use enhancement.
Contrary to defendant's position, the record indicates the court was familiar with details of the matter and had spent time considering the case. For example, when defense counsel commented that the victim "was alleged to have been selling a large amount of marijuana for a couple hundred dollars," the court clarified that the transaction involved "[a] quarter pound for 600 bucks." Similarly, the court on its own volition raised the question of whether it should also rule on the validity of the five-year and one-year priors. In determining the court was entitled to consider those issues and with the consent of counsel, the judge proceeded to rule, noting, "For the record, in looking at this also, I also spent time thinking about the five-year priors here . . . ."
Finally, defendant contends the sentencing judge had not reviewed the transcript of the prior sentencing hearing. While possibly true, defendant has not explained what portion of that transcript constitutes a "material fact" relevant to resentencing. While the judge may have been interested in reading the transcript, sentencing judges are required to exercise their independent judgment, and the court had no need to rely on the prior sentencing hearing. (People v. Hernandez (1984) 160 Cal.App.3d 725, 750 ["Judges are mandated to use their independent judgment in sentencing"]; accord People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [entitled to a resentencing based on " 'the exercise of the "informed discretion" [by] the sentencing court' "].)
Notably absent from defendant's argument is any reference to facts that would justify leniency. At most, defendant argued he was not the shooter, but the court correctly noted the jury found otherwise. California Rules of Court, rules 4.421 and 4.423 set forth various factors in aggravation and mitigation for courts to consider. At the hearing and in his resentencing brief, the prosecutor identified multiple factors in aggravation that applied to defendant. For example, the crime involved great bodily harm, defendant used a weapon, defendant sought to cover up his crime by soliciting a friend to hide the murder weapon, defendant has prior convictions involving weapons, and defendant was on probation at the time of the murder. (See Cal. Rules of Court, rule 4.421.) Conversely, defendant's argument for mercy and grace are not tied to any factual circumstances justifying mitigation. He does not assert, for example, the victim was the aggressor or the crime was committed because of an unusual circumstance. In fact, defendant does not identify a single factor listed in rule 4.423 of the California Rules of Court that would justify mitigation. Nor are we aware of any. (See People v. Mayfield (2020) 50 Cal.App.5th 1096, 1104 ["as the party seeking section 1385 relief in the trial court, it was [the defendant's] duty to provide this information to the court"].)
At most, defendant's argument could be classified as addressing the general sentencing objectives set forth in California Rules of Court, rule 4.410, such as protecting society or punishing the defendant. But defendant acknowledges the 25-year-to-life firearm enhancement has no meaningful impact on his overall sentence. Accordingly, the court could have reasonably concluded the general sentencing objectives were not a key factor in its decision whether to strike the enhancement.
Defendant relies on People v. Strunk (1995) 31 Cal.App.4th 265 and People v. Jacobs, supra, 156 Cal.App.4th 728 (Jacobs) to support his position. Both cases, however, are distinguishable. In Strunk, the court sentenced the defendant based on the mitigating and aggravating factors " 'as determined by the probation officer' " and noting that no mitigating factors were identified. (Strunk, at p. 273.) On appeal, the defendant objected in relevant part that the court failed to consider mitigating factors contained in the record but excluded from the probation report. (Id. at pp. 273-274.) The appellate court reversed, explaining, "[T]he sentencing judge exercised his sentencing discretion based solely on the probation officer's report with respect to the conclusion there were no mitigating factors. Because the judge had not sat through the trial, and only reviewed the probation report which did not list at least three of the mitigating factors claimed by [the defendant] in the trial record, we cannot find that the judge exercised its required independent sentencing discretion or properly weighed all the circumstances." (Id. at p. 275.) Here, defendant does not contend mitigating factors exist that the sentencing judge failed to consider. Nor does he identify any mitigating factors or other relevant information that was not encompassed within the materials reviewed by the sentencing judge. Rather, defendant merely complains other materials were allegedly not reviewed without identifying how such materials would impact sentencing.
Similarly, in Jacobs, the defendant argued the court abused its discretion by denying his request for a short continuance so the trial court judge could preside over his sentencing hearing. (Jacobs, supra, 156 Cal.App.4th at p. 735.) On appeal, the court noted that while the defendant "had no right to be sentenced" by the trial judge, "the strongly preferred procedure" was to have the trial judge handle sentencing. (Id. at p. 738.) It thus concluded the trial judge should handle sentencing if he or she is " 'reasonably available,' " and the court erred in disallowing the short delay. (Id. at p. 740.) Here, there is no dispute the trial judge was unavailable, having retired. Defendant does not object to his sentence on these grounds. Rather, he argues the sentencing judge was not sufficiently familiar with the facts—a completely different issue than that raised in Jacobs. And, as explained above, defendant fails to support this claim.
Even assuming the sentencing judge erred by not reviewing the probation report or other trial materials, any error was harmless. (See People v. Dobbins (2005) 127 Cal.App.4th 176, 182; People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant has not identified any factors in mitigation that should have been considered by the court, or how they would have impacted his sentence. A conclusory assertion the sentencing judge should have, but did not review certain trial materials is not sufficient. Defendant did not meet his burden of showing a reasonable probability that, in the absence of the asserted error, he would have obtained a more favorable result. (Dobbins, at p. 182.) Accordingly, we conclude the court did not abuse its discretion in declining to strike the firearm enhancement pursuant to section 12022.53, subdivision (d). B. Prior Convictions Pursuant to Section 667 .5 , Subdivision (b)
Defendant asserts the trial court erred by staying, rather than striking, his one-year prior prison term enhancements under section 667.5, subdivision (b). The Attorney General agrees the court should have stricken these enhancements.
"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.] Courts nevertheless had discretion to strike that enhancement pursuant to section 1385, subdivision (a). [Citation.] Effective as of January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) amend[ed] section 667.5, subdivision (b) to limit its prior prison term enhancement to only prior prison terms for sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b)." (People v. Jennings (2019) 42 Cal.App.5th 664, 681.) Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136) applies retroactively to all defendants whose judgments were not yet final as of the statute's effective date. (Jennings, at pp. 681-682.)
Because Senate Bill 136 applies in this instance and defendant's prior convictions were not for sexually violent crimes, the court should have stricken those one-year enhancements. (See People v. Hernandez (2020) 55 Cal.App.5th 942, 947-948.) Accordingly, the superior court should prepare an amended abstract of judgment reflecting that these enhancements were stricken and not stayed. Additionally, the modified judgment should ensure it reflects the correct date of sentencing.
III. DISPOSITION
The judgment is modified to reflect that the two one-year enhancements imposed under Penal Code section 667.5, subdivision (b) are stricken. In all other respects the judgment is affirmed.
MARGULIES, J. WE CONCUR: HUMES, P. J. BANKE, J.