Opinion
E076063
09-15-2021
THE PEOPLE, Plaintiff and Respondent, v. KINZIE NOORDMAN, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FRE006600. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, ACTING P. J.
This appeal involves the denial of defendant's postjudgment motion. Therefore, the statement of facts from the underlying case is not pertinent to this appeal and will be omitted.
On February 17, 2005, an information charged defendant and appellant Kinzie Noordman and codefendant Damien Matthew Guerrero with murder under Penal Code section 187, subdivision (a) (count 1). The information also alleged that (1) defendant and codefendant had intentionally killed the victim by means of lying in wait under section 190.2, subdivision (a)(15); and (2) defendant had personally and intentionally discharged a firearm, a handgun, under section 12022.53, subdivisions (b), and (c).
Codefendant Guerrero is not a party to this appeal.
All further statutory references are to the Penal Code unless otherwise specified.
On March 9, 2005, a jury convicted defendant of first degree murder as charged in count 1, and found true the firearm enhancements. The jury found the lying-in-wait special circumstance not true.
On May 13, 2005, the trial court sentenced defendant to 45 years to life in state prison as follows: 25 years to life for count 1, and a consecutive 20 years to life for the personal and intentional discharge of a firearm enhancement. The court stayed imposition of the enhancement for personal use of a firearm under section 1170.1, subdivision (f).
Defendant appealed and we affirmed the judgment. (People v. Noordman (Aug. 17, 2006, E038123) [nonpub. opn.].)
On December 5, 2019, the Secretary (Secretary) of the California Department of Corrections and Rehabilitation (CDCR) sent a letter to the trial court. In the letter, the Secretary recommended that defendant's sentence be recalled so that the court may consider resentencing defendant. The Secretary included the CDCR's cumulative case summary and evaluation report with the letter.
On December 27, 2019, following an in-chambers hearing wherein the parties were not present, the trial court noted that it had reviewed the materials provided by the Secretary under section 1170, subdivision (c)(1). The court, however exercised its discretion “to not recall the defendant's sentence and not to resentence defendant.”
Defendant filed a notice of appeal.
On June 11, 2021, the People filed a request to take judicial notice of exhibit No. 1 (defendant's habeas petition in case No. E075476) and exhibit No. 2 (our prior unpublished opinion in case No. E038123) submitted with the request. On June 29, 2021, we granted the People's request and have taken judicial notice of both exhibits.
DISCUSSION
A. THE TRIAL COURT'S SUMMARY DENIAL OF THE SECRETARY'S RECOMMENDATION TO RECALL DEFENDANT'S SENTENCE IS AFFIRMED
Defendant contends that the trial court “prejudicially abused its discretion in summarily denying the Secretary's recommendation to recall [her] sentence without notifying her of the recommendation and providing her an opportunity to be heard.” In sum, defendant claims that “[t]he trial court's order should be reversed and the matter remanded with instructions requiring the trial court to notify appellant of the CDCR recommendation; her right to request counsel; her right to present supplemental and additional information relevant to the trial court's recall decision; her right to some type of hearing; and a court's statement of reasons.” For the reasons set forth below, we affirm the trial court's summary denial of the Secretary's recommendation to recall defendant's sentence.
1. ADDITIONAL FACTS
On December 5, 2019, the Secretary sent a letter to the trial court requesting that defendant's sentence of 45 years to life be recalled and that she be resentenced. The recommendation letter was based on defendant's exemplary behavior while in custody and her efforts toward rehabilitation. The Secretary noted that defendant (1) had remained “disciplinary free since being received to CDCR on May 24, 2005, ” (2) “has been commended for her participation and facilitation in self-help groups, ” and (3) has substantial community support.
A cumulative case summary accompanied the Secretary's letter. The summary noted defendant's lack of a criminal history prior to the underlying offense, her work and educational classes, and her multitude of certificates of achievement. The case summary also noted eight letters of support, including a letter from the Director of California Reentry Program based out of San Quentin State Prison. The Director gave his “unconditional support and recommendation... for commutation of [defendant's] sentence.” The director characterized defendant s a “model case for commutation; she has insight into her life crime, a solid understanding of the factors that led to it, and feels deep remorse and has done everything in her power to rehabilitate herself through a clean disciplinary record, as well as taking advantage of numerous programs available to her.” The attachment also listed defendant's extensive family and community support.
On December 27, 2019, pursuant to section 1170, subdivision (d)(1), “[t]he Court reviewed materials provided by the secretary of California Department of Corrections to the court” and “exercise[d] its discretion to not recall the defendant's sentence and not to resentence defendant.”
2. LEGAL BACKGROUND
Section 1170, subdivision (d)(1) authorizes the Secretary of the CDCR to recommend to the trial court that the court recall a previously imposed sentence and resentence the defendant “ ‘for any otherwise lawful reason.' ” (People v. Loper (2015) 60 Cal.4th 1155, 1165, quoting Dix v. Superior Court (1991) 53 Cal.3rd 442, 450 (Dix).) The goal of such resentencing is “to eliminate disparity of sentences and to promote uniformity of sentencing.” (§ 1170, subd. (d)(1).)
Specifically, section 1170, subdivision (d)(1) authorizes the court, “within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates... [to] recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence.” This provision thus creates “an exception to the common law rule that the court loses resentencing jurisdiction once execution of sentence has begun.” (Dix, supra, 53 Cal.3rd at p. 455; accord, People v. McCallum (2020) 55 Cal.App.5th 202, 210 (McCallum).)
The CDCR can only recommend to the trial court that it recall and resentence the defendant. The court retains the authority to accept or decline the CDCR's recommendation. The statute is clearly permissive, not mandatory; it uses the verb “may, ” not “shall.” (§ 1170, subd. (d)(1); People v. Frazier (2020) 55 Cal.App.5th 858, 866 (Frazier); People v. Humphrey (2020) 44 Cal.App.5th 371, 378; Dix, supra, 53 Cal.3rd at p. 459, fn. 12; People v. Gibson (2016) 2 Cal.App.5th 315, 324; People v. Delson (1984) 161 Cal.App.3rd 56, 62.) Although the CDCR's recommendation vests the court with authority to recall the defendant's sentence, the recommendation “is but an invitation to the court to exercise its equitable jurisdiction.” (Frazier, at p. 866.) The recommendation does not trigger a due process right to a hearing or to the recommended relief. (Ibid.)
In deciding whether to recall a sentence pursuant to section 1170, subdivision (d)(1), the trial court may exercise its authority for any reason rationally related to lawful sentencing. (People v. Loper, supra, 60 Cal.4th at p. 1166.) The statute expressly authorizes the court in resentencing to consider postconviction factors, including the inmate's disciplinary record and record of rehabilitation while incarcerated, evidence whether age, time served, and diminished physical condition have reduced the inmate's risk for violence, and any evidence reflecting a change of circumstances so that continued incarceration is no longer in the interest of justice. (McCallum, supra, 55 Cal.App.5th at p. 210.)
Section 1170, subdivision (d)(1) contains a two-step process. In the first step, the trial court decides whether to recall the sentence. If not, the inquiry is ended. If the court decides to recall the sentence, however, the inquiry moves onto the second step and the court holds a resentencing hearing. “[S]ection 1170(d) permits the sentencing court to recall a sentence for any reason which could influence sentencing generally, even if the reason arose after the original commitment.” (Dix, supra, 53 Cal.3rd at p. 463.) We review the court's decision for declining to follow the CDCR's recommendation for an abuse of discretion. (Frazier, supra, 55 Cal.App.5th at p. 863; McCallum, supra, 55 Cal.App.5th at p. 211 [the abuse of discretion standard involves “abundant deference” to the court's ruling].) A trial court abuses its sentencing discretion when its decision is arbitrary or capricious, patently absurd resulting in a manifested miscarriage of justice, 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; People v. Gibson, supra, 2 Cal.App.5th at p. 325.) It is defendant's burden to clearly show the sentencing decision was so irrational or arbitrary no reasonable person could agree with it. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) “ ‘The abuse of discretion standard “involves abundant deference” to the court's ruling.' ” (McCallum, at p. 211.)
“In deciding whether to recall a sentence under section 1170, subdivision (d)(1), the trial court may exercise its authority ‘for any reason rationally related to lawful sentencing.' [Citation.] Further, section 1170, subdivision (d)(1), expressly authorizes the court in resentencing a defendant to consider ‘postconviction factors, including, but not limited to, the inmate's disciplinary record and record of rehabilitation while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the inmate's risk for future violence, and evidence that reflects that circumstances have changed since the inmate's original sentencing so that the inmate's continued incarceration is no longer in the interest of justice.' ” (McCallum, supra, 55 Cal.App.5th at p. 210, italics added.)
3. ANALYSIS
In this case, defendant contends that the court abused its discretion when it declined to recall defendant's sentence and resentence her. We discern no abuse of discretion. Here, the trial court noted that he had “reviewed materials provided by the secretary of California Department of Corrections to the court pursuant to PC 1170(d)(1).” Thereafter, the court “exercise[d] its discretion to not recall the defendant's sentence and not to resentence defendant.” The ultimate decision to recall of the sentence rested with the court, not the CDCR. Here the court expressly considered the material the Secretary included with the recommendation to recall defendant's sentence. Although defendant disagrees with the court's conclusion after balancing the factors does not mean the court's decision is unreasonable. Reasonable minds could differ whether to grant or deny the request, reflecting that it was a discretionary judgment, not an error of law.
Moreover, although defendant argues that her due process rights were violated, she has not cited, nor have we located, any case law holding that a section 1170, subdivision (d)(1), recommendation for recall and resentencing triggers a due process right to a hearing, submission of additional material or representation by counsel. Recent case law, however, supports the trial court's handling of the Secretary's recommendation. Indeed, the Frazier and McCallum cases make it clear due process is not implicated by the type of recommendation letter the Secretary issued in this case. The Second District Court of Appeal concluded that inmates have no due process right to be heard on a recommendation for recall, and we agree. (McCallum, supra, 55 Cal.App.5th at pp. 215-16; Frazier, supra, 55 Cal.App.5th at p. 866.) “It is only after the petitioner's eligibility has been established and the statutory mandate for resentencing triggered... that due process protections, including the right to a hearing, attach to the determination whether the defendant will be awarded the relief sought.” (Frazier, at p. 867.) We agree with the Second District Court of Appeal. Here, as noted above, the trial court summarily denied the recommendation to recall defendant's sentence. The due process protections, therefore, were not triggered.
As noted above, in Frazier and McCallum, the court recognized that section 1170, subdivision (d), empowers trial courts to recall a defendant's sentence for resentencing upon receipt of a recommendation from the Secretary. However, because the decision to recall is a discretionary one-section 1170, subdivision (d)(1), says the trial court may recall a defendant's sentence under certain circumstances, not that it must do so-the trial court is not required to act on the recommendation. (Frazier, supra, 55 Cal.App.5th at p. 844; McCallum, supra, 55 Cal.App.5th at pp. 211-216.) In other words, while the Secretary's recommendation vests the trial court with authority to recall the defendant's sentence, the recommendation “is but an invitation to the court to exercise its equitable jurisdiction.” (Frazier, supra, 55 Cal.App.5th at po. 866.) The recommendation “does not trigger a due process right to a hearing [citation], let alone any right to the recommended relief.” (Ibid.)
Moreover, the Secretary's recommendation does not implicate the constitutional right to counsel. That right attaches “at every ‘critical stage' of the criminal process up to and including sentencing and imposition of judgment.” (Frazier, supra, 55 Cal.App.5th at p. 864.) But, as the Frazier court explained, it does “not apply to postjudgment collateral challenges [citations], including statutory petitions seeking a more ameliorative sentence [citations], at least prior to the actual recall of sentence.” (Id. at pp. 865-866.) Therefore, we reject defendant's arguments analogizing section 1170, subdivision (d)(1)'s procedural requirements to the procedural requirements for parole revocation or parole eligibility hearings.
In summary, we hold that the Secretary's letter itself does not trigger the right to a hearing or the appointment of counsel. Those rights would surely kick in if the trial court exercised its discretion in favor of recalling appellant's sentence, i.e., if the trial court determined she was eligible for resentencing. (Frazier, supra, 55 Cal.App.5th at p. 867; McCallum, supra, 55 Cal.App.5th at p. 215.) However, they do not arise at the eligibility stage, where the trial court is merely deciding whether to recall the defendant's sentence in the first place. (Frazer, at p. 867; McCallum, at p. 216.) Accordingly, we conclude the trial court did not violate defendant's rights by summarily denying the Secretary's recommendation for recall and resentencing.
DISPOSITION
The trial court's postjudgment order denying the motion to recall and resentence defendant pursuant to section 1170, subdivision (d), is affirmed.
We concur: SLOUGH J., RAPHAEL J.