Opinion
B307542
09-16-2021
THE PEOPLE, Plaintiff and Respondent, v. JESSE JAMES ANDREWS, Defendant and Appellant.
James M. Crawford [appointed]; Law Office of Michael N. Burt and Michael N. Burt [retained] for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. A364296 George Gonzalez Lomeli, Judge. Vacated and remanded with directions.
James M. Crawford [appointed]; Law Office of Michael N. Burt and Michael N. Burt [retained] for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
BENDIX, J.
In 1984, a jury convicted defendant Jesse James Andrews of three murders with special circumstances and sentenced defendant to death. Twenty-five years later, the federal district court vacated defendant's sentence of death, and the Ninth Circuit affirmed the district court's judgment. That judgment gave the People the choice to retry the death penalty phase within a certain deadline, and if the People did not do so, the judgment provided defendant be resentenced in accordance with California law and the United States Constitution. The People elected not to retry the death penalty phase. Defendant argues that because the death penalty was no longer available, the trial court could not sentence defendant to life without the possibility of parole.
We disagree because defendant miscomprehends the meaning of an authorized sentence and the precedents on which he relies. Under the then applicable murder sentencing statutes, where a defendant is convicted of special circumstances murder, the trial court had to impose death or life without the possibility of parole unless it exercised its discretion to strike the special circumstances finding. Nothing in the federal proceedings altered defendant's convictions for special circumstance murders. Accordingly, life without the possibility of parole was, and still is, an authorized sentence for defendant's special circumstance murders.
That being said, both parties assert, and we agree, that the trial court abused its discretion in not ordering a supplemental probation report to address mitigating evidence that could inform its discretion to strike the special circumstances findings under then applicable law. The original probation report was 36 years old, and the trial court did not give reasons for not ordering a supplemental report.
Finally, defendant argues that upon remand for resentencing, we should transfer the matter to a new judge because the trial judge demonstrated bias in commenting on the seriousness of defendant's crimes and failed to order a supplemental probation report. The record does not support defendant's claim of bias, and therefore, we reject defendant's request to transfer the case to a new judge upon remand.
BACKGROUND
In 1984, a jury convicted defendant of three counts of first degree murder for murders committed in 1979. With respect to each murder, the jury found true special circumstance allegations of prior murder, multiple murder, and robbery murder. (In re Andrews (2002) 28 Cal.4th 1234, 1240.) The jury also found true a rape murder special circumstance allegation with respect to one of the murders. (Ibid.) The jury convicted defendant of rape, sodomy by a foreign object, and robbery. (Ibid.) The jury found defendant used a firearm in each offense. (Ibid.) The jury determined that his punishment should be death. (Ibid.)
Defendant previously had pleaded guilty to crimes of armed robbery, escape, and robbery in Alabama. (In re Andrews, supra, 28 Cal.4th at p. 1241.)
1. People v. Andrews (1989) 49 Cal.3d 200
Our high court described the evidence at Andrews's trial as follows: “On the evening of December 9, 1979, police were summoned to the Los Angeles apartment of Preston Wheeler. There they found the bodies of Wheeler, Patrice Brandon and Ronald Chism. Wheeler had been stabbed in the chest six times and shot in the neck at close range with either a.32- or.357-caliber weapon. His face and head were bruised, and his face had been slashed with a knife. Brandon and Chism had been strangled with wire coat hangers. Their faces were bruised, Chism's extensively. Brandon's anus was extremely dilated, bruised, reddened and torn, consistent with the insertion of a penis shortly before her death. There was also redness around the opening of her vagina, and vaginal samples revealed the presence of semen and spermatozoa. All three victims were bound hand and foot.” (People v. Andrews, supra, 49 Cal.3dat p. 206.)
Andrews's confederate, Charles Sanders, testified at Andrews's trial. “After devising a plan to rob Wheeler, a drug dealer, Sanders and defendant went to see their friend Carol Brooks on the night of December 8, 1979. Brooks lived in the same apartment building as Wheeler. Defendant was armed with a.357 magnum. Sanders had a.38- or.32-caliber automatic furnished by defendant. Following their visit to Brooks, the two men went to Wheeler's apartment. In response to their knocking, Wheeler, who apparently knew defendant, let them in. Also inside the apartment was a woman (Patrice Brandon).
“After smoking some marijuana with Wheeler, defendant and Sanders drew their guns. Sanders tied Wheeler and Brandon with belts and socks, put on a pair of gloves, and began to search the apartment for drugs and money. Except for some powder on a saucer which appeared to be cocaine, the search was unsuccessful. Defendant questioned Wheeler, who denied having any drugs or money. Saying he would make Brandon talk, defendant dragged her into the kitchen and closed the door. Sanders remained in the living room with Wheeler.
“Initially, Sanders heard defendant talking to Brandon and hitting her; later he heard ‘breathing as though they were making love.' Shortly thereafter, defendant came out of the kitchen. Through the partially open kitchen door, Sanders saw Brandon's pants around her ankles.
“Defendant put his gun in Wheeler's mouth. He threatened to kill Wheeler and Brandon unless Wheeler revealed the location of the drugs. Wheeler said the ‘dope' was in the attic, and pointed out a trap door leading up to it. Sanders climbed into the attic.
“While in the attic, Sanders heard two shots. When he came down, defendant told him he had shot Wheeler because the latter had tried to jump out the window. Sanders asked if Wheeler was dead. Defendant responded he was ‘standing right up' on Wheeler when he fired the gun. Sanders saw blood on Wheeler's neck and chest. He suggested that they clean the apartment and leave. When Sanders asked about Brandon, defendant replied he had killed her before leaving the kitchen.
“During the cleanup of the apartment, defendant responded to a knock on the door. Sanders heard the visitor (Ronald Chism) ask if everything was all right and if Wheeler was there. Defendant said Wheeler was home, and invited Chism inside. Defendant then hit Chism on the head, tied him up, and took him into the bathroom. Sanders saw defendant sitting astride Chism's back, joining and separating his clenched fists in a tugging motion, apparently strangling Chism. Sanders could not see what defendant had in his hands.
“Thereafter, Sanders saw defendant enter the kitchen and choke Brandon with a wire clothes hanger. Defendant and Sanders then left the apartment and drove away. Defendant gave Sanders some money, saying it was all he had found.” (People v. Andrews, supra, 49 Cal.3d at pp. 207-208.)
Our high court concluded that two multiple-murder and two prior-murder special circumstances were duplicative and therefore should be stricken. (People v. Andrews, supra, 49 Cal.3d at p. 224.) The high court affirmed the judgment of death. (Id. at p. 235.)
2. In re Andrews, supra, 28 Cal.4th 1234
After the high court affirmed his conviction and sentence, defendant petitioned for writ of habeas corpus arguing that his counsel rendered ineffective assistance at the penalty phase. (In re Andrews, supra, 28 Cal.4th at p. 1240.) A majority of our Supreme Court rejected defendant's argument that he received the ineffective assistance of counsel during the penalty phase. (Id. at p. 1241.)
3. Andrews v. Wong (C.D. Cal. 2009) Case No. CV 02-8969-R
In 2009, the federal district court granted in part defendant's petition for writ of habeas corpus. The district court concluded defendant's trial counsel rendered ineffective assistance of counsel in failing to present mitigating evidence at the penalty phase of defendant's trial. The district court found a “total lack of effort defense counsel expended in putting on an effective penalty phase case.” “It is clear that little effort was put into preparing a case in mitigation.” “The State Supreme Court's finding with regard to ineffective assistance of counsel at the penalty phase amounts to a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the reference hearing [ordered by the state Supreme Court].” “There is a reasonable probability that a jury, or at least one juror, would have come to a different conclusion regarding the death penalty” and defendant therefore suffered prejudice from his counsel's ineffective assistance at the penalty phase.
The district court's judgment provided: “It is hereby ordered, adjudged, and decreed that the First Amended Petition for Writ of Habeas Corpus is conditionally granted in part as follows:
“The First Amended Petition for Writ of Habeas Corpus as to the sentence of death in the case of People of the State of California v. Jesse James Andrews, Case No. A-364296 of the Superior Court of State of California in and for the County of Los Angeles is hereby granted. The sentence of death shall be vacated.
“It is further ordered that the State of California shall, within 120 days from the entry of this Judgment, either grant Petitioner a new penalty phase trial, or vacate the death sentence and resentence the Petitioner in accordance with California law and the United States Constitution.” (Some capitalization omitted.)
The district court later granted a stay of the latter order pending appeal to the Ninth Circuit.
4. Andrews v. Davis (9th Cir. 2019) 944 F.3d 1092
A majority of the Ninth Circuit's en banc panel affirmed the judgment. The court held: “[I]t is unconscionable and unreasonable to uphold a sentence of death when the jury never heard readily available mitigating evidence of the magnitude present here.” (Andrews v. Davis, supra, 944 F.3d at p. 1099.) The court summarized its reasoning as follows: The jury did not hear evidence “about Andrews's upbringing in a segregated and impoverished area of Mobile, Alabama. Andrews's counsel did not tell the jury that Andrews, as a child, had been confined at the Alabama Industrial School for Negro Children known as ‘Mt. Meigs'-a segregated, state-run institution that, in the words of one witness, was a ‘slave camp for children.' The jury was not told that, during these formative years, Andrews was repeatedly subject to brutal abuse at the hands of his state custodians. It was not told that, from the age of fourteen, Andrews was in the custody of Alabama state institutions so degrading that federal courts later found the conditions in those institutions violated the Eighth Amendment's prohibition on cruel and unusual punishment. Nor was the jury told that, in the view of mental health experts, the severe abuse Andrews suffered made his subsequent criminal behavior understandable and predictable.” (Ibid.)
5. The Trial Court Resentences Defendant 36 Years After His Original Sentence
The People did not elect to prosecute a new penalty phase trial. On July 22, 2020, the trial court held a resentencing hearing. The court noted that it had reviewed the transcript of the original sentencing hearing. The court did not have a copy of the federal opinions, and continued the resentencing hearing to allow the parties time to conduct additional research.
We granted defendant's request to take judicial notice of the federal district court's opinion and other court records. The record does not reflect that defendant provided these documents to the trial court in advance of the resentencing hearing.
At the continued hearing, on July 30, 2020, defense counsel argued that “the sentence of life imprisonment without possibility of parole is no longer an authorized sentence....” Counsel reasoned: “Mr. Andrews cannot statutorily be sentenced to life imprisonment without the possibility of parole because the death sentence is not a legally authorized option in this case.” Defense counsel further argued that the trial court had authority to strike a special circumstance under the law applicable to defendant at the time he committed his crimes. Counsel requested that the trial court obtain a current probation report before it decided whether to strike the special circumstance or whether the Eighth Amendment bar on cruel and unusual punishment would apply to defendant. Defense counsel represented that defendant suffered from a brain tumor and dementia.
The trial court rejected defendant's request for a supplemental probation report. The trial court noted that resentencing hearings were delayed because of COVID-19 and described defendant's health condition as relevant to “a petition for compassionate release.” The trial court noted that defendant's crimes were “the worst I've seen in my 21 years on the bench” and that the original sentencing judge revealed no intention to exercise his discretion to strike the special circumstance. The trial court further stated, “[T]his court would not be inclined to exercise my discretion to set aside the special circumstance[ ]” findings. The court rejected defendant's argument that under the terms of the district court's order, because defendant could not be sentenced to death given the People's failure to seek a new penalty phase trial, defendant could also no longer be sentenced to life without the possibility of parole.
The court sentenced defendant to life without the possibility of parole for each murder count.
Defendant's appellate counsel filed a Wende brief. (People v. Wende (1979) 25 Cal.3d 436.) This court granted defendant's request to substitute new counsel and permit supplemental briefing.
DISCUSSION
A. Sentence of Life Without the Possibility of Parole for Each Special Circumstance Murder is an Authorized Sentence
Defendant argues the trial court was not authorized to impose a sentence of life without the possibility of parole because defendant could not be sentenced to death. Defendant supports this contention with the following logic based largely on the federal district court's rulings: On July 27, 2009, the district court entered judgment conditionally granting defendant's petition for habeas corpus and vacated the sentence of death for ineffective assistance of counsel. The district court further ordered “that the State of California shall, within 120 days from the entry of this Judgment, either grant Petitioner a new penalty phase trial, or vacate the death sentence and resentence the Petitioner in accordance with California law and the United States Constitution.” The Ninth Circuit entered judgment on December 16, 2019. The Ninth Circuit affirmed the district court's grant of sentencing relief. (Andrews v. Davis, supra, 944 F.3d at p. 1121.) On January 27, 2020, the Ninth Circuit issued a mandate stating that its judgment takes effect “this date” and that “[t]his constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure.”
According to defendant, because the 120-day deadline for a penalty phase retrial had expired, “once it is determined that the death penalty is unauthorized, as opposed to merely not being sought by the prosecutor, the alternative punishment of life imprisonment without possibility of parole is equally unauthorized.” Defendant's logic is flawed. It is premised on the proposition that the death penalty was an unauthorized sentence because the deadline the district court had imposed on the People for a penalty phase retrial had expired.
An unauthorized sentence is one that “ ‘could not lawfully be imposed under any circumstance in the particular case,' and ‘commonly occurs where the court violates mandatory provisions governing the length of confinement.' [Citation.]” (People v. Roth (2017) 17 Cal.App.5th 694, 702-703.) Sentences of death, as well as life without the possibility of parole, are clearly authorized in Penal Code section 190.2, which requires a defendant convicted of special circumstance murder to be sentenced to either death or life without the possibility of parole. “[T]he 1978 death penalty law [applicable to defendant who committed his crimes in 1979] permits a sentence of life without the possibility of parole when an individual is convicted of first degree murder with special circumstances, regardless of whether the prosecution has exercised its discretion not to seek the death penalty.” (People v. George (1984) 157 Cal.App.3d 1053, 1058.)
Undesignated statutory citations are to the Penal Code.
Section 1385.1 was added by Proposition 115 and effective in June 1990, after defendant committed his crimes and was sentenced for them. Respondent acknowledges, and we agree, that the 1990 law cannot be applied retroactively to defendant. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 298 [section 1385.1 cannot be applied to change the legal consequences of the defendant's past conduct].) Under former law in effect when defendant committed the murders, a trial court could strike the special circumstance (People v. Williams (1981) 30 Cal.3d 470, 489), but the original sentencing court did not do so here. Williams was superseded by section 1385.1, which now provides: “Notwithstanding Section 1385 or any other provision of law, a judge shall not strike or dismiss any special circumstance which is admitted by a plea of guilty or nolo contendere or is found by a jury or court as provided in Sections 190.1 to 190.5, inclusive.”
Here, the prosecution exercised its discretion not to seek the death penalty when it chose not to retry the death penalty phase within the 120-day deadline in the federal district court's judgment, but instead, to seek life without the possibility of parole. The fact that the People did not seek a retrial on the death penalty does not mean that the death penalty was an unauthorized sentence. It only means that the People chose not to pursue that sentencing option in section 190.2. Instead, the People sought the other sentencing alternative authorized by California law, to wit, life without the possibility of parole. Indeed, such a sentence would comply with the letter of the federal district court's order upon expiration of the deadline for a death penalty retrial, that is, “vacate the death sentence and resentence the Petitioner in accordance with California law and the United States Constitution.”
Defendant principally relies on three cases he contends “clear[ly]” demonstrate that life without the possibility of parole is an unauthorized sentence: Carlos v. Superior Court (1983) 35 Cal.3d 131 (Carlos); People v. Spears (1983) 33 Cal.3d 279, 282 (Spears); and People v. Davis (1981) 29 Cal.3d 814, 819 (Davis). None of these cases is apposite because none involved a valid murder conviction with special circumstances, and thus the death penalty was not an authorized sentence.
In Carlos, our Supreme Court held that a petitioner who did not commit special circumstance murder was not eligible either for a sentence of death or life without the possibility of parole. (Supra, 35 Cal.3d at p. 153.) The defendant in Carlos could not be convicted of special circumstance murder because he did not harbor the requisite intent for that murder. In contrast, here defendant was convicted of three murders all with special circumstances, and the federal proceedings did not alter these convictions. As Carlos explained: “A finding of murder with special circumstances requires the trier of fact to choose between only two alternatives-death or life imprisonment without possibility of parole-the most severe punishments permitted under our law.” (Carlos, at p. 134.)
In Carlos, no evidence showed that the petitioner intended a killing and therefore the prosecution was “barr[ed]” from trying him on the felony murder special circumstance. (Supra, 35 Cal.3d at p. 136.) Our high court later overruled the holding that intent to kill was a prerequisite for felony murder, holding instead that “intent to kill is not an element of the felony-murder special circumstance; but when the defendant is an aider and abetter rather than the actual killer, intent must be proved before the trier of fact can find the special circumstance to be true.” (People v. Anderson (1987) 43 Cal.3d 1104, 1138-1139.) The Anderson holding later was modified by Proposition 115 permitting “aider-and-abettor liability under the felony-murder special circumstance to provide that ‘a person other than the actual killer is subject to the death penalty or life without parole if that person was a major participant in the underlying felony... and either intended to kill or acted with reckless indifference to human life.' [Citations.]” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 163, fn. 20.)
Defendant puts much stock in the following language in Carlos discussing Spears, supra, 33 Cal.3d 279: “[A]s we recently explained in People v. Spears, [citation], ‘the entire procedural scheme for disposition of a charge of special circumstances [under the 1978 initiative]... “is properly restricted to cases involving adults charged with first degree murder and subject to the death penalty.”' [Citation.] If a defendant is not subject to the death penalty, then under the reasoning of [People v. ] Davis [(1981) 29 Cal.3d 814] and Spears he is not subject to special circumstance proceedings and cannot be sentenced to life imprisonment without possibility of parole.” (Carlos, supra, 35 Cal.3d at p. 153.)
Contrary to defendant's contention, this language does not stand for the principle that upon resentencing in a valid conviction for murder with a special circumstance, the People seek an unauthorized sentence of life without the possibility of parole if they let the time to retry the death penalty phase lapse. Instead, it stands for the unremarkable principle that a defendant who cannot be charged with special circumstance murder is also ineligible for a sentence of death or life without the possibility of parole.
Spears and Davis are not dispositive either. In both cases, the high court construed murder statutes, exempting minors from the death penalty, also to exempt minors from a sentence of life without the possibility of parole. (Spears, supra, 33 Cal.3d at p. 282; Davis, supra, 29 Cal.3d at pp. 827-832.) As the Spears court explained, “[W]e hold that a person who was less than 18 years of age at the time of the commission of the crimes cannot be charged with special circumstances and sentenced to life imprisonment without possibility of parole under the present law governing the punishment for murder.” (Spears, at p. 283.) In contrast to the minors in Spears and Davis, defendant was 29 years old when he committed his special circumstance murders and other crimes. In further contrast, he could be, and was charged and convicted for, special circumstance murder. No court has reversed or vacated defendant's convictions. In short, Spears and Davis do not support defendant's claim that life without the possibility of parole would be an unauthorized sentence upon resentencing.
Defendant was born in 1950. (In re Andrews, supra, 28 Cal.4th at p. 1241.)
B. The Trial Court Abused its Discretion In Rejecting Defendant's Request for a Supplemental Probation Report
Defendant argues the trial court abused its discretion in rejecting his request for an updated probation report prior to resentencing him. Respondent agrees, as do we. Even though defendant was ineligible for probation, the trial court failed to give reasons why a supplemental report would not be necessary to exercise an informed discretion whether to strike the special circumstance findings and consider mitigating evidence not before the original sentencing court 36 years ago.
1. The trial court refused to order a supplemental report and did not give its reasons for not ordering a supplemental report given the age of the original report
At the resentencing hearing, defense counsel argued: “The court does not have in front of it a current probation report as to Mr. Andrews and his condition. In thinking about this and this issue, it may be in the interest of justice for the court to obtain a more current probation report before it sentences Mr. Andrews to any sentence, be it life imprisonment without parole or some lesser sentence in the exercise of the court's discretion under [section] 1385 or the 8th Amendment.”
The court responded: “The situation of his being 70 years old and having a brain tumor, although sad, that really is a petition for compassionate release.” The court continued: “And I read some of the facts. Horrendous. Absolutely horrendous murders. Probably the worst I've seen in my 21 years on the bench. And I've done death penalty cases and other murder cases. I haven't seen anything as horrendous as the description of these murders....” The court also indicated that the original sentencing judge was not inclined to strike the jury's special circumstance findings.
The trial court did not acknowledge the existence of the mitigation evidence relied on by the federal courts in granting defendant's petition for writ of habeas corpus. That mitigating evidence included evidence that Andrews's state custodians in Alabama severely abused him when he was young and mental health experts opined that this abuse made his criminal behavior “understandable and predictable.” (Andrews v. Davis, supra, 944 F.3d at p. 1099.)
2. Without a supplemental probation report or detailing why one was not necessary, the trial court did not make an informed decision on whether to strike the special circumstance findings
California Rules of Court, rule 4.411(a) provides: “When required [¶] As provided in subdivision (b), the court must refer the case to the probation officer for: [¶] (1) A presentence investigation and report if the defendant: [¶] (A) Is statutorily eligible for probation or a term of imprisonment in county jail under section 1170(h); or [¶] (B) Is not eligible for probation but a report is needed to assist the court with other sentencing issues, including the determination of the proper amount of restitution fine; [¶] (2) A supplemental report if a significant period of time has passed since the original report was prepared.” (Cal. Rules of Court, rule 4.411(a).)
Even though defendant was ineligible for probation, a probation report was necessary to assist the court with other sentencing issues. As respondent points out, a probation report may have assisted the trial court in determining whether to exercise its discretion to strike the special circumstance findings. (See § 1203, subd. (g) [judge has discretion to order probation report when defendant is not eligible for probation].) The trial judge misconstrued the request for the report by describing updated information as relevant only to a petition for compassionate release. The trial court gave no reasons for denying defendant's request for a supplemental report even though the original one was 36 years old. A probation report was especially important given that the federal court reversed a death penalty sentence for ineffective assistance of counsel because of the failure to raise mitigating factors.
In People v. Tatlis (1991) 230 Cal.App.3d 1266 (Tatlis), the jury convicted a defendant of two counts of forcible rape, two counts of forcible oral copulation, and one count of false imprisonment. (Id. at p. 1268.) The defendant pleaded guilty to being a felon in possession of a firearm. (Ibid.) In 1987, the trial court sentenced him to prison for 43 years. (Ibid.) Following an appeal from the judgment, the appellate court ordered a resentencing hearing at which the trial court, in 1990, denied the defendant's request for a current probation report. (Id. at p. 1269.) The Tatlis court held that consistent with a defendant's “due process right to have the court exercise informed sentencing discretion, ” a trial court must have a “substantial basis for the denial” of a defendant's request for a current probation report at a resentencing hearing. (Id. at pp. 1273-1274.)
Tatlis concluded the trial court abused its discretion in failing to order a probation report because “[t]he sole reason given for denying defendant's request was that he was ineligible for probation” and the judge did not consider mitigating evidence including the defendant's remorse. (Supra, 230 Cal.App.3d at p. 1274.) The “mitigating circumstances” showed a “reasonable probability” of changing the trial court's exercise of its sentencing discretion. (Ibid.) The appellate court remanded for the same trial court to hold a new sentencing hearing. (Id. at pp. 1274-1275.)
Here, as in Tatlis, the trial court did not consider mitigating circumstances and therefore could not exercise informed sentencing discretion. The 36-year-period from original sentencing to resentencing is much greater than the three-year time elapse in Tatlis, further supporting the conclusion that the trial court abused its discretion in failing to order a supplemental probation report. Additionally, the mitigating evidence in this case was more compelling than that found sufficient in Tatlis. Here, mitigating evidence successfully supported an ineffective assistance of counsel claim in habeas proceedings in the federal courts, and evidenced that defendant was severely abused as a child in state institutions, abuse that mental health officials opined could explain his criminal behavior. We conclude that the trial court should have ordered a supplemental probation report and accordingly, remand for resentencing.
We express no opinion as to how the trial court should exercise its discretion upon remand. We express no opinion on whether information in an updated probation report may be relevant to other potential arguments defendant may raise at the resentencing hearing, despite defendant's request that we opine on the relevance of such a report to defendant's potential claim of cruel and unusual punishment claim.
C. Defendant Fails to Make the Showing Necessary for Transfer to a Different Judge
Defendant argues: “[T]he resentencing court's sole focus on the ‘horrendous' nature of ‘some of the facts' relating to the crimes, and his willingness to sentence Mr. Andrews to life imprisonment without possibility of parole without even considering a current supplemental probation report strongly suggest a level of prejudgment which should disqualify the court from hearing this case upon any remand from this Court.” In his opening brief, defendant relies only on Tatlis, supra, 230 Cal.App.3d at p. 1274, for that proposition. As described above, the Tatlis court did not order the case transferred to another judge, and Tatlis does not support defendant's argument. (Tatlis, at pp. 1274-1275.)
In Swanson, the appellate court concluded the trial court improperly relied on its “subjective belief about the length of sentence” the court wanted to impose. (Supra, 140 Cal.App.3d at p. 574.) The appellate court remanded for resentencing, stating: “We are confident the judge would, on remand, sentence appellant based solely on the proper criteria. However, to avoid the appearance of unfairness to appellant, we have decided to order resentencing by a different judge.” (Ibid.) We need not decide whether Swanson applied the appropriate standard, because the record in this case reflects no unfairness to appellant if the case is remanded to the same resentencing judge. In his reply brief, defendant cites People v. Williams (1986) 180 Cal.App.3d 57, 64-65 and People v. Swanson (1983) 140 Cal.App.3d 571, 574 (Swanson). This is not a case such as Williams in which the “sentencing transcript unequivocally demonstrate[d] the sentencing judge's unawareness of statutory and case law requirements in sentencing....” (Williams, at p. 64.)
In arguing that the trial judge has demonstrated that it cannot be fair, defendant relies heavily on the trial court's comment that defendant's crimes were “horrendous.” Defendant's crimes, however, were objectively “horrendous.” The trial court's observation does not reflect bias, but rather, an accurate description of the crimes for which defendant was convicted. Moreover, the trial court's description of defendant's crimes is not reflective of a prejudice toward defendant. (Cf. Liteky v. U.S. (1994) 510 U.S. 540, 550-551 [for purposes of disqualification of a judge, a judge who is “ill disposed towards the defendant” based on the defendant's conduct is not biased or prejudiced].)
The trial court's abuse of discretion in failing to order a supplemental probation report because he focused on defendant's claim of dementia and a brain tumor as a claim for compassionate release also does not demonstrate that the trial court would not be fair upon resentencing aided by a supplemental probation report setting forth factors relevant to whether to strike the special circumstances murder finding. “[A] judge's ‘rulings against a party-even when erroneous-do not establish a charge of judicial bias, especially when they are subject to review.' [Citation.]” (People v. Armstrong (2019) 6 Cal.5th 735, 798.) Here, defendant demonstrates nothing more than the erroneous decision to deny defendant's request for a supplemental probation report.
DISPOSITION
The resentencing order dated July 30, 2020 is vacated. The case is remanded for resentencing at which the trial court shall order and consider a current probation report.
We concur: ROTHSCHILD, P. J., CRANDALL, J. [*]
[*] Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.