Opinion
A165249
06-26-2023
THE PEOPLE, Plaintiff and Respondent, v. JEFFERY OWEN SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. SC077889A)
RICHMAN, J.
In 2014, appellant Jeffery Smith was sentenced to 17 years in prison. In 2021 the Secretary of the California Department of Corrections and Rehabilitation (CDCR) set a letter requesting resentencing pursuant to Penal Code section 1170, subdivision (d)(1). At resentencing, the trial court granted the request in one respect, but denied it in others, and appellant appeals from the partial denial. The People agree that the trial court erred, and that the matter be remanded for sentencing, and that we do.
All further undesignated statutory references are to the Penal Code.
BACKGROUND
The facts of the offense and appellant's prison stay come from the CDCR summary accompanying its resentencing request.
On December 25, 2012, at 12:30 p.m., a Redwood City police officer sitting in a patrol car saw a man, later identified as appellant, grab an elderly Asian woman by her arms as she was walking on the sidewalk, pull her arm back, search her pants pocket, and grab a plastic bag from her hands. The officer got out of his car and yelled, "Police stop." Appellant ran to his car and fled at a high rate of speed with the officer in pursuit until appellant lost control and ran into a parked car. Appellant got out of the car with money and the woman's bag in his hand, and then refused several times to get down on the ground as the officer instructed, to be eventually arrested after the officer threatened him with a Taser.
The Charges
On April 10, 2013, the San Mateo County District Attorney's Office filed an amended information, amended February 10, 2014, charging appellant with five counts: count 1, robbery of an elderly person (§ 212.5, subd. (c)); count 2, false imprisonment of an elderly person (§ 368, subd. (f)); count 3, reckless driving (Veh. Code, § 23103, subd. (a)); count 4, resisting, delaying, and obstructing a peace officer (§ 148, subd. (a)(1)); and count 5, unlawful possession of a device for smoking or injecting a controlled substance (Health and Saf. Code, former § 11364.1). The information also alleged that appellant had suffered two prior strike convictions (§ 1170.12, subd. (c)(2)), two serious felony priors (§ 667, subd. (a)), and one prison term prior. (§ 667.5, subd. (b).)
The 2013 Evaluations
In 2013 the superior court requested that appellant be evaluated under sections 1367 and 1368, and two experts evaluated him: Dr. Robert Cassidy and Dr. George Wilkinson. Dr. Cassidy's report addressed appellant's mental health following the arrest, that appellant complained of "longstanding and persistent command auditory hallucinations" that began when he was a child and necessitated inpatient treatment. Appellant had been assessed as "meeting the criteria for a diagnosis of Schizoaffective Disorder," and was treated with psychiatric medications. Appellant requested that his medications be discontinued, and "he was described as being irritable, abrupt, minimally communicative and angry ...." Appellant also had a history of substance abuse. Dr. Cassidy agreed with the diagnosis of Schizoaffective Disorder and substance abuse, and found appellant competent to stand trial.
Dr. Wilkinson found appellant to be "marginally competent to stand trial." Dr. Wilkinson's diagnosis of appellant was slightly different from Dr. Cassidy's, diagnosing appellant with "Other Specified Schizophrenia Spectrum and Other Psychotic Disorders . . .," as well as "Episodic Depressive Symptoms."
The 2014 Sentencing Hearing
A sentencing hearing was held on February 10, 2014. The parties first discussed the plea agreement appellant would be entering into, and the court accepted the prosecutor's oral motion to amend the information to remove the case "from the three strikes posture." Before accepting appellant's plea, the court confirmed that he understood the maximum penalty he faced was 21 years in state prison. Following that, appellant pleaded no contest to counts 1 and 2, robbery and false imprisonment of an elder. In addition, appellant admitted to three prior convictions, all of which involved robberies, as well as a prison prior. The court then sentenced appellant on count 1 "to the midterm of three years, doubled for a total of six years," and stayed the sentence on count 2 under section 654. As to the two section 667, subdivision (a) priors, the court imposed five years for each, and one year for the section 667, subdivision (b) prison prior, for a total aggregate term of 17 years in state prison.
The Request to Resentence
On October 19, 2021, the secretary of CDCR wrote to the trial court requesting that it recall appellant's sentence and resentence him by striking one of the consecutive section 667, subdivision (a) priors. The letter referenced section 1170, subdivision (d)(1), which authorizes the secretary to recommend to the sentencing court that the sentence and commitment previously imposed on an inmate be recalled and that the court resentence the inmate for any reason, subject to the secretary's sound discretion.
Effective January 1, 2022, Assembly Bill No. 1540 moved the recall and resentencing provisions of section 1170, subdivision (d)(1) to newly added section 1170.03 and revised its terms. (Assem. Bill No. 1540 (Reg. Sess. 2021-2022) Stats. 2021, ch. 719, §§ 2.1, 3.1.) The bill was drafted in response to the recommendations of the Committee on Revision of the Penal Code (committee). (Assem. Com. on Pub. Saf., Analysis, Assem. Bill No. 1540 Reg. Sess. 2021-2022) Apr. 27, 2021, p. 5.) And among the committee's recommendations was the establishment of a judicial process for existing recall and resentencing under section 1170, subdivision (d)(1) and to clarify and expand the use of this resentencing. (Assem. Com. on Pub. Saf., supra, at pp. 5-6, citing Com. on Rev. of Pen. Code, 2020, Ann. Rep., p. 65; Sen. Com. on Pub. Saf., Analysis, Assem. Bill No. 1540 (Reg. Sess. 2021-2022) Jul. 6, 2021, pp. 4-5.) Effective June 30, 2022, section 1170.03 was renumbered section 1172.1, with no change in text. (Stats. 2022, ch. 58, § 9.)
The secretary's letter explained that under previous law courts were barred from striking consecutive prior serious felony enhancements under section 667, subdivision (a)(1) However, the Legislature amended this section, effective January 1, 2019, and now allowed courts to use discretion whether to impose them and if so, whether to impose them consecutively. The secretary explained that in appellant's case, the trial court's 2014 sentence included two consecutive, five-year serious prior felony enhancements under section 667, subdivision (a)(1), and imposed a total sentence of 17 years with a release date of August 20, 2024. And the letter added: "personally reviewing inmate Smith's commitment offense and inprison conduct, I recommend that inmate Smith's sentence be recalled and that he be resentenced in accordance with" section 1170, subdivision (d)(1).
The CDCR letter included a Cumulative Case Summary and Evaluation Report (report), containing a description of the robbery, a summary of appellant's prior criminal history, and his conduct while in prison. The report included that appellant had only one rule violation, in March 2019, for fighting. It also noted that appellant did not require drug tests and was not a security threat, though he was registered as a violent offender under section 3058.6. The report included that appellant engaged in self-help programs while incarcerated and had been recognized for attending classes about substance abuse, re-entry, self-development, and victim awareness, and that he received commendations for participating in seminars and workshops that dealt with self-improvement, being a positive example to his peers, parenting, alternatives to family violence, and parole readiness. Appellant also obtained educational certificates for technical publishing, computer and digital literacy, and becoming an electronics customer service specialist. Finally, the report noted that the prison managed appellant's mental health issues on an infrequent outpatient basis.
The court held hearings on November 18 and December 21, 2021, with the trial attorneys present and appellant appearing virtually. It ordered that appellant appear personally for a "resentencing/modification hearing" on February 18, 2022, which it later rescheduled to March 11.
The March 11 Resentencing Hearing
On March 9, appellant's attorney filed a "Re-Sentencing Memorandum" requesting that the court "resentence Mr. Smith and strike and or stay the prior convictions under [section] 667[, subdivision] (a) (five-year priors) and [section] 667.5[, subdivision] (b) (one year prior) of the Penal Code." He argued that appellant had been a model inmate and "has made good use of his time in prison" and was deserving of the court's striking the section 667, subdivision (a) enhancements.
Two letters were attached to the attorney's memorandum supporting appellant's request for re-sentencing. One was from appellant's mother, who wrote that upon release appellant could stay with her and that he is on the Santa Cruz County Housing Authority wait list. And she added, "His goal is to get a job and go back to college. I am willing to help my son with moral and financial support." The other letter was from appellant's sister, who wrote that she would provide moral and financial support to him if needed.
On March 11, 2022, the prosecutor filed a "Memorandum For Resentencing," conceding that the section 667.5, subdivision (b) enhancement should be stricken due to the change in the law, but objecting to the court striking the section 667, subdivision (a) enhancements. The prosecutor recounted the facts of robberies appellant had committed in 2008 and the subject case in 2012, arguing that the CDCR request letter did not describe the details of appellant's past robberies. And he argued that appellant received the "benefit of a bargain" in 2014 when he was sentenced to 17 years when his potential was 36 years to life.
At the hearing counsel for appellant advised the court that the prosecutor and he agreed that the court should strike the one-year section 667.5, subdivision (b) enhancement, and clarified that he was only requesting that the court strike one of the section 667, subdivision (a) enhancements. Counsel added that appellant had been attending Narcotics Anonymous or Alcoholics Anonymous meetings weekly, and had been participating in other programs, including one that pertained to behavioral modification. In counsel's words, appellant's behavior in prison was so positive that "he's exceeded the amount of credits that can be applied towards his case."
Following that, appellant next had the opportunity to address the court. He began by apologizing to his victims, explained that he had dedicated his time in prison to self-improvement, and recounted the work he had completed in prison. Appellant explained that while he still sometimes had cravings for drugs and alcohol, he had overcome them by concentrating on changing himself, and he did not want to spend the rest of his life in a "box, so I will not hurt anyone else."
The prosecutor then addressed the court. He commended appellant for his honesty, but drew the court's attention to appellant's admitted cravings for drugs and alcohol. The prosecutor argued that these cravings should "unsettle" the court and the community, because appellant's substance abuse was "the driver behind these repeated violent robberies." And although defense counsel represented that appellant was going to weekly meetings to manage his substance abuse, the prosecutor said, "[w]e don't know when those classes started. We don't know how long they last." The prosecutor argued that the CDCR packet supplied too little information about appellant.
The prosecutor asked that the court sentence appellant as if it were 2014 by reviewing factors in mitigation and aggravation and what appellant had done since then, and concluded that the court should not "feel comfortable" reducing appellant's sentence.
Defense counsel responded that appellant had a good record while in prison and that if the court were to strike one five-year enhancement, it was not asking for very much time from the allowable 16-year sentence.
The trial court then announced its ruling, beginning with commending appellant for the programs he completed in prison and the efforts he made to turn his life around. However, the court did not believe appellant had received adequate treatment for substance abuse because prison does not offer the type of long-term program appellant needed. The court noted other issues, including the nature of his crime against an elderly victim, a history of violent multiple robberies, and the fact that this was a three-strike case. And, the court added, most judges in other counties would have treated the case as a "36-to-life sentence," adding: "I think that there's too much of a community risk for me to grant the motion to strike the [section] 667[, subdivision] (a) priors, but, you know, you are going to be out in a couple of years, Mr. Smith. I urge you to look at a long-term program, such as Delancey Street . . . that can really turn your life around, so the issue is . . . I'm going to strike the [section] 667.5[, subdivision] (b) prior, because I have to under the law."
The court decided it would pronounce the whole sentence "just to be safe, 'cause I think the abstract is going to be-to be completed." The court then decided to re-sentence "based upon the original sentence, and then strike the [section 667.5, subdivision (b)] prior" because there would need to be a new abstract. As in 2014, the court chose the midterm of three years for Count 1 and two years for Count 2.
Appellant appealed.
DISCUSSION
Appellant's counsel has filed a well-written, comprehensive 35-page brief that begins its argument section with this: "The Court Erred When It Denied Appellant's Resentencing Request to Strike One of Two Consecutive Section 667[, subdivision] (a) Priors Because There Was No Evidence to Support That Appellant Was Likely to Commit A 'Super Strike.'" And the argument itself begins as follows:
"At the time of appellant's March 11, 2022, resentencing hearing, section 1170.03 (renumbered 1172.1) required that:
"(b) If a resentencing request . . . is from the Secretary of the [CDCR] . . . all of the following shall apply: (2) There shall be 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 the public safety, as defined in [section 1170.18].
"Section 1170.18, subdivision (c) defines 'unreasonable risk of danger to public safety' to mean 'an unreasonable risk that the petitioner will commit a new violent felony within the meaning of [section 667, subdivision (e)(2)(C)(iv)].'
"Section 667, subdivision (e)(2)(C)(iv) lists priors that are known as 'super strikes.' (People v. Tennard (2017) 18 Cal.App.5th 476, 480-481.) They include particularly heinous crimes such as sex offenses against children, homicide and attempted homicide, use of a machinegun on a peace officer, possession of a weapon of mass destruction, and a serious or violent felony punishable in California by life imprisonment or death. ([§] 667[, subd.] (e)(2)(C)(iv)(I-VIII).) Appellant's priors involved purse snatching robberies, not 'super strikes.' Therefore, did not legally fall within the category of defendants who present an unreasonable risk to the public.
"The CDCR drafted a strong recommendation that the trial court strike one of the two [section] 667[, subdivision] (a) priors, citing facts demonstrating that appellant had been an exceptionally hard-working inmate. [Citation.] This Court must review such a denial of the CDCR recommendation under the abuse of discretion standard. ([People v.] Frazier [(2020)] 55 Cal.App.5th [858,] 863-864[, superseded by statute on other grounds as stated in People v. McMurray (2022) 76 Cal.App.5th 1035, 1041].)"
Then, following four more pages of argument, the brief argues that "Remand Is Required for the Court to Reconsider CDCR's Request to Recall and Resentence Appellant Upon Proper Application of Section 1172.1."
The Attorney General has filed an equally well-written, albeit shorter, brief that, after exposition of the pertinent background, has a one and one-half page "Argument" that read as follows:
"I. THE TRIAL COURT'S FINDINGS DID NOT SATISFY THE REQUIREMENTS OF SECTION 1172.1, SUBDIVISION (B)(2)
"Appellant contends that the court erred when it found that he presented an unreasonable danger to public safety because there was no evidence that indicated he might commit a future super strike. [Citation.] His claim appears to be well taken."
Then, after a brief statement about section 1172.1, the argument proceeds: "Where, as here, the CDCR recommends recall and resentencing, the court must hold a hearing (unless the parties otherwise stipulate), state on the record its reasons for its decision, provide notice to the defendant, and appoint counsel for the defendant. (§ 1172.1, subds. (a)(6)-(8), (b)(1).) . . . In addition, there is a presumption in favor of 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' under section 1170.18, subdivision (c). (§1172.1, subd. (b)(2).) Section 1170.18, subdivision (c), refers to an enumerated list of violent felonies in section 667, subdivision (e)(2)(C)(iv), which includes, among others, sexually violent offenses and homicide.
"Here, it appears the court found that appellant posed an unreasonable risk of danger to public safety because he had a history of committing violent robberies due to his substance abuse issues, and he had not received adequate treatment for these issues. [Citation.] In other words, the court was concerned that appellant would repeat the same type of violent behavior had [sic] he had engaged in previously. However, robbery is not among the enumerated felonies in section 667, subdivision (e)(2)(C)(iv), and the court did not in any way explain otherwise how appellant posed a risk of committing one of said felonies. Thus, the possibility that appellant could commit another robbery or be violent in general was not sufficient to overcome the presumption in favor of resentencing, and it does not appear that the court applied to presumption in ruling on the recommendation to resentence appellant. Accordingly, this Court should remand the matter for reconsideration of the CDCR's recommendation."
The People's brief notes in a footnote that "Appellant appears to raise as a separate argument that the court erred by failing to consider whether it was required to strike one of two consecutive section 667, subdivision (a) priors under section 1385." And as to it, the brief adds: "However, appellant has forfeited this issue by not raising it in his sentencing memorandum or at the resentencing hearing. A 'defendant cannot challenge the trial court's sentencing choice for the first time on appeal because "defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention" at the time of sentencing.' [Citations.] In any event, appellant can raise the claim when the matter is remanded to superior court."
DISPOSITION
The matter is reversed, and the matter is remanded for reconsideration of the Secretary's recommendation.
We concur: Stewart, P.J. Markman, J. [*]