Opinion
B332138
08-08-2024
THE PEOPLE, Plaintiff and Respondent, v. JAVIER DE LA TORRE, Defendant and Appellant.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan S. Pithey, Assistant Attorney General, Steven D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. No. LA064769-02 Alan Schneider, Judge. Reversed with directions.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan S. Pithey, Assistant Attorney General, Steven D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
VIRAMONTES, J.
Defendant and Appellant Javier De La Torre appeals from the trial court's order summarily striking a one-year sentence enhancement under Penal Code section 1172.75 without holding a resentencing hearing or appointing counsel.
All further statutory references are to the Penal Code.
De La Torre argues he was entitled to a full resentencing hearing and the appointment of counsel under section 1172.75 after he pled no contest to carjacking (§ 215, subd. (a)) and robbery (§ 211). The Attorney General agrees, but asks us to allow the prosecution to withdraw from the plea agreement on remand if the trial court is inclined to further reduce De La Torre's sentence.
We reverse and remand with directions to the trial court to conduct a full resentencing hearing, allow De La Torre to be present, and appoint counsel. We decline to offer our opinion on the issue of whether the prosecution may withdraw from the plea agreement if the trial court is inclined to further reduce De La Torre's sentence. However, the prosecutor is not precluded from raising this argument on remand.
BACKGROUND
In 2012, De La Torre pled no contest to carjacking (§ 215, subd. (a)) and robbery (§ 211). He also admitted that he used a firearm in the commission of the carjacking (§ 12022.53, subd. (b)), that he suffered a prior "strike" conviction (§§ 667, 1170.12), and that he had served a prior prison term (§ 667.5, subd. (b)).
The trial court sentenced De La Torre to 23 years in state prison calculated by imposing the five-year middle-term sentence for carjacking plus a one-year sentence for robbery. Each term was doubled for the prior strike. The trial court also imposed a 10-year enhancement for the firearm allegation and an additional year for the prior prison term.
After the enactment of section 1172.75, the California Department of Corrections and Rehabilitation (CDCR) notified the trial court to recall De La Torre's sentence, strike the one-year enhancement for the prior prison term, and to resentence him. (Ibid.)
The trial court summarily struck the one-year enhancement, without holding a full resentencing hearing or appointing counsel.
De La Torre appealed.
DISCUSSION
De La Torre argues the trial court erred in summarily handling the recall and resentencing petition without affording him a full resentencing hearing and without appointing counsel. The Attorney General agrees, but argues the prosecution should be entitled to withdraw from the plea agreement on remand if the trial court is inclined to further reduce De La Torre's sentence.
Senate Bill No. 483 (SB 483) became effective on January 1, 2022. (2021-2022 Reg. Sess., Stats. 2021, ch. 728, § 3.) The new law added section 1171.1, subdivision (a), declaring: "Any 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." Section 1171.1 was subsequently renumbered without substantive change as section 1172.75. (Stats. 2022, ch. 58, § 12.)
Under the new law, when "a sentence is subject to recall, 'the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.'" (People v. Coddington (2023) 96 Cal.App.5th 562, 568 (Coddington); People v. Montgomery (2024) 100 Cal.App.5th 768, 773, review granted May 29, 2024, S284662 (Montgomery); People v. Carter (2023) 97 Cal.App.5th 960, 968 (Carter); People v. Monroe (2022) 85 Cal.App.5th 393, 402; People v. Hernandez (July 22, 2024, G063586) Cal.App.5th .) If the defendant is currently serving a sentence that includes such a legally invalid enhancement, "the court shall recall the sentence and resentence the defendant." (§ 1172.75, subd. (c).)
"The statute provides specific instructions for the resentencing under section 1172.75. [Citation.] First, the resentencing 'shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.' (§ 1172.75, subd. (d)(1).) Second, the trial 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.' (§ 1172.75, subd. (d)(2).) Third, 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.' (§ 1172.75, subd. (d)(3).) Fourth, '[u]nless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.' (§ 1172.75, subd. (d)(4).) Finally, the court 'shall appoint counsel' for the resentencing. (§ 1172.75, subd. (d)(5).)" (Carter, supra, 97 Cal.App.5th at pp. 966-967.)
Accordingly, De La Torre's sentence shall be vacated and the matter remanded to the trial court to conduct a full resentencing hearing at which De La Torre is entitled to be present and represented by counsel.
While the parties agree that the trial court erred by summarily striking the one-year enhancement without conducting a full resentencing hearing and without De La Torre present and without appointing counsel, the Attorney General asks that we find upon remand for resentencing that the prosecution should be afforded the opportunity to withdraw from the plea agreement if the trial court is inclined to further reduce De La Torre's sentence.
There is currently a split of authority on this issue. (Carter, supra, 97 Cal.App.5th at p. 977 [holding the prosecution may not withdraw from the plea bargain if the court imposes a lower sentence on resentencing]; Montgomery, supra, 100 Cal.App.5th at p. 777 [holding the prosecutor may not rescind the plea agreement due to a resulting sentence reduction]; but see Coddington, supra, 96 Cal.App.5th at p. 565 [holding the prosecution may withdraw its assent to the plea agreement if the court on remand indicates it is inclined to further reduce defendant's sentence].)
We decline to reach this issue here as it is unnecessary to resolve De La Torre's appeal. Nevertheless, the prosecution may argue it is entitled to withdraw from the plea agreement on remand.
DISPOSITION
The sentence is vacated and the matter remanded to the trial court for a full resentencing hearing in accordance with section 1172.75. De La Torre is entitled to be present at the hearing and represented by counsel. Upon conclusion of the new sentencing hearing, the trial court is directed to prepare and transmit a new abstract of judgment to CDCR.
WE CONCUR: STRATTON, P. J., GRIMES, J.