Opinion
C098597
04-25-2024
THE PEOPLE, Plaintiff and Respondent, v. STEVEN LYNN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. CRF01245901)
Wiseman, J. [*]
A jury convicted defendant Steven Lynn of three counts of second degree robbery, one count of being a felon in possession of a firearm, and one count of theft. A jury also found true the allegations that he personally used a firearm during the commission of the crimes and that he had two prior serious felony convictions.
The trial court sentenced defendant to an aggregate term of 115 years to life, which included 30 years for firearm enhancements. Twenty years later, the Secretary of the Department of Corrections and Rehabilitation (Secretary) sent a letter to the trial court recommending that defendant's sentence be recalled under Penal Code section 1172.1 due to a change in the law giving the trial court discretion to strike or dismiss the firearm enhancements. The trial court declined to recall defendant's sentence.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends that the trial court abused its discretion in declining to recall and resentence him pursuant to section 1172.1. We will reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
In 2002, the trial court sentenced defendant to an aggregate term of 115 years to life comprised of: 25 years to life for each of the three counts of second degree robbery because of two prior strikes, totaling 75 years to life; 10 years for the personal use of a firearm enhancement (§ 12022.53, subd. (b)) for each robbery count, totaling 30 years; and five years for each of the two prior serious felony conviction enhancements (§ 667, subd. (a)) stemming from a conviction in 1985 in Arizona and a conviction in 1987 in Nevada, totaling 10 years. The trial court ran concurrent the term for possession of a firearm by a felon and stayed the term for theft and all other enhancements, including an additional firearms enhancement (§ 12022.5, subd. (a)(1)) attendant to each robbery count and the theft count.
In August 2022, the Secretary issued a letter recommending that the trial court recall and resentence defendant pursuant to section 1172.1, because an amendment to section 12022.53, subdivision (h), gave the trial court discretion to strike or dismiss personal use of a firearm enhancements pursuant to section 1385. The cumulative case summary and evaluation report attached to the letter stated that defendant and an accomplice robbed a grocery store, pointed handguns at the victims, and threatened them. The report also listed defendant's prior convictions: misdemeanor drunk driving in 1978, second degree burglary in 1981, transporting a controlled substance in 1984, robbery in Arizona in 1984, and three counts of robbery in Nevada in 1987. In addition, during his incarceration, defendant was found guilty of two rules violations for fighting, one in 2013 and one in 2022, and received seven counseling "chronos" for disobeying orders, violating living quarters standards, disrespect, and failure to report.
At a September 2022 hearing on the Secretary's recommendation, the trial court identified the threshold issue as whether defendant's sentence should be recalled and he should be resentenced. The trial court stated that if it found it should recall defendant's sentence, it would then need to consider the resentencing issues: 1) dismissing the firearm enhancements under sections 12022.53, subdivision (b) and 12022.5; 2) changing the sentencing structure on the convictions under section 29800; and 3) striking the prior serious felony enhancements.
The trial court requested briefing from both parties. Defendant argued that he was eligible for recall and resentencing because he did not pose an unreasonable risk to public safety, meaning he did not pose a risk of committing a "super strike" offense.
In October 2022, the trial court requested the records for defendant's two rules violations for fighting during incarceration and a copy of defendant's handwritten letter of remorse addressed to the Board of Parole Hearings. In December 2022, the trial court requested additional briefing from the parties about the legal effect of the presumption in favor of recall and resentencing given the Secretary's recommendation (§ 1172.1, subd. (b)(2)); how the presumption related to the interest of justice finding that the court must still make under section 1172.1, subdivision (a)(3); and what factors the trial court can consider in deciding whether to grant recall and resentencing (§ 1172.1, former subd. (a)(4); Stats. 2022, ch. 58, § 9). Defendant argued that he would be ineligible for recall only if the trial court found that he posed an "unreasonable risk of danger to public safety" and that nothing in his criminal history or conduct while incarcerated indicated that he currently was a risk to public safety.
Section 1172.1, former subdivision (a)(4), was amended and renumbered and is now set forth in section 1172.1, subdivision (a)(5). The substantive changes to former subdivision (a)(4) are not relevant to the issues on appeal.
At the March 2023 hearing on the Secretary's recommendation, the trial court explained, "my understanding of the presumption issue is this, that the request being generated from [the Secretary] generated a presumption in favor of the recall and resentencing unless the Court finds that there is an unreasonable risk the defendant will commit a new super strike. That presumption is just then part of the equation that the Court uses to determine whether it's in the interest of justice to grant the request and recall and proceed to resentencing of the defendant." The trial court further clarified that "should the Court find the presumption applies, the Court is to apply that presumption and then still make a determination in light of that presumption and any other factors, some of which are specified in the Code, some which aren't. The Court is to determine whether it's in the interest of justice to grant the recall and that would initiate the resentencing process."
In support of his request for recall and resentencing, defendant reiterated that nothing in his history indicated he would commit a "super strike." The People responded that the presumption should not apply to defendant because he was "too dangerous to consider resentencing." After both parties submitted, the trial court assessed whether the presumption in favor of recall and resentencing applied to defendant. The court found that while there was a risk that defendant would commit another strike offense, it could not find that there was a likelihood he would specifically commit a super strike. Based on that finding, the trial court stated, "So the Court does as an initial matter find the presumption in favor of recall and resentence does apply in this case given that it was initiated by the [Secretary]. [¶] However, even though the presumption applies in this case, the Court must still find that it is in the interest of justice to recall and resentence [defendant].... And that's under [section] 1172.1[, subdivision ](a)(3) of the Penal Code. [¶] The statute lays out some factors that the Court may consider in determining whether it is in the interest of justice to recall and resentence the defendant in one of those proceedings. Those are laid out in Penal Code [section] 1172.[1, subdivision ](a)(4)."
The trial court then assessed each factor delineated in section 1172.1, former subdivision (a)(4)), including defendant's disciplinary record and record of rehabilitation; whether evidence that reflects whether age, time served, and diminished physical condition, if any, reduced his risk for future violence; and evidence of trauma, being a prior victim, or youthfulness being contributing factors in the commission of the crime. After evaluating all the factors, the trial court concluded that "based on the seriousness of offenses for which [defendant] was convicted here in Sutter County, his prior criminal history, and the seriousness of that prior criminal history, and the trauma to the victims that [defendant] inflicted during this case, that it is not in the interest of justice to recall [defendant's] sentence in this case." The trial court added that "[defendant] is exactly the type of individual why the law has a three-strike sentencing scheme, why the law has gun enhancements and prior serious felony enhancements. They are for individuals who have demonstrated that they either cannot or will not rehabilitate themselves to the point where they can be safely released into the public. [¶] So although the Court recognizes that there is a presumption in favor of granting the recall and resentencing today, I am denying the request to recall and resentence [defendant] as I do not find that it is in the interest of justice to do so."
When defense counsel asked the trial court if it considered the length of the sentence, the trial court stated, "I believe there is a separate argument in a case like this for cruel and unusual punishment. That's not before me today [¶] . . . but I have considered the length of the sentence and still find it is not in the interest of justice to recall and resentence him for the reasons I've already stated."
DISCUSSION
Defendant contends that the trial court abused its discretion by declining to resentence him even after it found he did not pose an unreasonable risk of danger to public safety because the letter from the Secretary provided ample grounds for recall and resentence. The People respond that even though the trial court did not find defendant posed an unreasonable risk of danger to public safety, it did not abuse its discretion in finding that it would not be in the interest of justice to resentence defendant. We conclude that the trial court abused its discretion because it improperly applied the presumption in favor of recall and resentencing.
A. Legal Background
Under section 1172.1, subdivision (a)(1), upon the recommendation of the Secretary, the trial court may "recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence." If the trial court chooses to recall and resentence, it "shall apply the sentencing rules of the Judicial Council and apply any changes in law that reduce sentences or provide for judicial discretion." (§ 1172.1, subd. (a)(2).) The court may, in the interest of justice, reduce the term by modifying the sentence. (§ 1172.1, subd. (a)(3)(A).) When the Secretary recommends resentencing, there is 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).)
Section 1170.18, subdivision (c) states that" '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." That clause includes several enumerated offenses, including several sex offenses, "[a]ny homicide offense, including any attempted homicide offense," and "[a]ny serious or violent felony offense punishable in California by life imprisonment or death." (§ 667, subd. (e)(2)(C)(iv).) The presumption favoring recall evinces the Legislature's intent that trial courts generally accept the Secretary's recommendations. (People v. McMurray (2022) 76 Cal.App.5th 1035, 1040.)
At the time the trial court declined to recall and resentence defendant, section 1172.1, former subdivision (a)(4) provided: "In recalling and resentencing pursuant to this provision, 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. The court shall consider if the defendant has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence, . . . and whether those circumstances were a contributing factor in the commission of the offense."
B. Standard of Review
We review the trial court's discretionary resentencing determinations for abuse of discretion. (People v. Frazier (2020) 55 Cal.App.5th 858, 863.) The trial court abuses its sentencing discretion when its decision is arbitrary or capricious, inconsistent with the letter and spirit of the law, or based on circumstances that constitute an improper basis for decision. (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
C. Analysis
The Secretary recommended resentencing, so there was a presumption in favor of recall and resentencing, which could "only be overcome if [the trial court] finds the defendant currently poses an unreasonable risk of [committing a super strike]." (§ 1172.1, subd. (b)(2), italics added.) The trial court found defendant did not pose an unreasonable risk of committing a super strike and that therefore, the presumption in favor of recall and resentencing applied to defendant. (§ 1172.1, subd. (b)(2).)
At this point, the trial court should have granted recall and set defendant's case for resentencing. Instead, after concluding the presumption applied, the court stated it was still required to find it was in the interest of justice to recall defendant's sentence using the factors set forth in section 1172.1, former subdivision (a)(4). After considering those factors, the court determined it was not in the interest of justice to recall the sentence, in spite of the presumption. This was error. Because the trial court found defendant did not pose an unreasonable risk of committing a super strike, and no other finding could overcome the presumption in favor of recall and resentencing, the trial court was obligated to recall defendant's sentence. The trial court misapplied the presumption in favor of recall and resentencing and, as a result, did not exercise informed discretion consistent with the law.
" '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.)" 'A court [that] 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.'" (Ibid.) In such situations, "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion" had it been aware of the scope of its discretion. (Ibid.)
Since the trial court found it should not recall defendant's sentence, it did not assess any of the numerous issues that it stated it would need to consider at the resentencing stage, including dismissing the firearm enhancements under sections 12022.53, subdivision (b) and 12022.5; changing the sentencing structure on the convictions under section 29800; and striking the prior serious felony enhancements.
In addition, at resentencing, the trial court also would have been required to apply any changes in the law that reduce the sentence. (§ 1172.1, subd. (a)(2).) Thus, the trial court would have been required to apply section 1385 in determining whether to dismiss or strike any enhancements. Among the mitigating factors that weigh in favor of dismissal of an enhancement are if multiple enhancements are alleged (§ 1385, subd. (c)(2)(B)) and if the enhancement is based on a prior conviction that is over five years old (§ 1385, subd. (c)(2)(H)). Both of these mitigating factors are present here. The presence of these factors weighed in favor of dismissing enhancements, unless the court found that dismissal would "endanger public safety," meaning "a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others." (§ 1385, subd. (c)(2).)
Also, the trial court suggested that if it had proceeded to the resentencing stage, it would have considered an argument based on cruel and unusual punishment in assessing the length of defendant's sentence. Because we cannot say that the trial court would not have dismissed even a single enhancement had it correctly proceeded to resentencing, we will remand for further proceedings. We express no opinion as to how the trial court should exercise its discretion on remand.
DISPOSITION
The order declining to recall and resentence defendant is reversed. The matter is remanded for reconsideration of the Secretary's recommendation in accordance with section 1172.1.
We concur: Earl, P. J. Hull, J.
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.