Opinion
E076325
10-14-2021
THE PEOPLE, Plaintiff and Respondent, v. LINDA MARIE FILL, Defendant and Appellant.
McConville Law and Karen McConville for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles Ragland 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NOT TO BE PUBLISHED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. FSB040619, Ronald M. Christianson, Judge. Affirmed.
McConville Law and Karen McConville for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles Ragland and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
In 2003, defendant and appellant Linda Marie Fill fatally shot a mobile home park manager multiple times in the head with a rifle because she had been evicted by the manager. Defendant also shot another resident of the mobile home park in the face, but the resident survived. In 2004, pursuant to a negotiated plea agreement, defendant pleaded guilty to murder (Pen. Code, § 187, subd. (a)) with the personal use of a firearm (§ 12022.5, subd. (a)). In return, the remaining charges and enhancement allegations were dismissed, and defendant was sentenced to a stipulated term of 35 years to life in prison.
All future statutory references are to the Penal Code.
Less than halfway into her negotiated sentence or approximately 15 years later, in 2019, the Secretary of the California Department of Corrections and Rehabilitation (CDCR) recommended in a letter that defendant's sentence be recalled pursuant to section 1170, subdivision (d)(1) (hereafter, section 1170(d)(1)). The trial court declined to exercise its discretion under section 1170(d)(1), and defendant appealed. On appeal, defendant argues the trial court failed to exercise informed discretion and violated her due process rights when it made its determination without a noticed evidentiary hearing. We disagree and affirm the order.
I
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from CDCR's Cumulative Case Summary and Evaluation Report.
On August 5, 2003, at about 1:19 a.m., the San Bernardino County Sheriff's Department received a 911 call from a resident of a mobile home park to report a shooting that had occurred in the manager's home. The resident indicated that she had fled the scene after being shot in the face by defendant and ran to another residence for help. The resident informed the responding deputies that defendant also shot and killed the manager of the complex. The manager had been shot multiple times to the head with what appeared to be a.22-caliber sawed-off rifle. The manager had evicted defendant and her roommate from the park the prior year due to problems they were causing during their time living at the park. A deputy noted that he had responded to the same mobile home park the previous year and arrested defendant for burglary and assault with a deadly weapon.
On September 26, 2003, an information was filed alleging defendant had committed murder (§ 187, subd. (a); count 1), premeditated attempted murder (§§ 664/187, subd. (a); count 2), and kidnapping (§ 207, subd. (a); count 3). The information also alleged that in the commission of counts 1 and 2, defendant had personally and intentionally discharged a firearm, proximately causing great bodily injury or death (§ 12022.53, subd. (d)). As to count 1, the information further alleged a special circumstance allegation that the manager was a witness to a crime and was intentionally killed for preventing her testimony in a criminal proceeding (§ 190.2, subd. (a)(10)). Finally, the information alleged that defendant had suffered three prior prison terms (§ 667.5, subd. (b)).
On April 1, 2004, the second day of trial, defendant entered into a negotiated plea agreement with the People. Pursuant to the negotiated disposition, defendant pleaded guilty to first degree murder with the personal use of a firearm. In exchange, the People dismissed the remaining counts and enhancement allegations, and defendant was sentenced to a stipulated term of 35 years to life in prison.
On April 17, 2019, the Secretary of the CDCR sent the superior court a letter recommending that defendant's sentence be recalled under section 1170(d)(1) so that it may consider whether to resentence her.
On October 6, 2020, defendant's retained counsel filed a brief in support of the CDCR's recommendation to recall defendant's sentence. The brief explained the reasons why the trial court should follow the CDCR's recommendation. The brief included approximately 150 pages of exhibits showing defendant's postconviction conduct in support of the CDCR's recommendation. The exhibits included, among others, the recommendation and evaluation reports from the CDCR, numerous letters in support, awards and certificates of completion from various programs, medical diagnoses, relapse prevention plans, drug test results, and letters of remorse.
The record does not contain any response briefs from the People.
On November 3, 2020, the trial court declined to exercise its discretion under section 1170(d)(1). In an ex parte minute order dated November 3, 2020, the court explained: “In response to the April 17, 2019 recommendation of the Secretary of the Department of Corrections and Rehabilitation under Penal Code section 1170(d) to recall the sentence of the Defendant, the court has conducted a review of the court file and the materials sent to the court by the Secretary. [¶] The Defendant was originally charged with the crimes of murder (with a special circumstance allegation that the killing was of a witness to another crime), attempted murder and kidnapping with gun use enhancements on all counts, and faced a potential exposure of LWOP plus 25 years to life just on the murder charge. [ ] During jury selection, the parties reached a plea agreement wherein the Defendant pled to first degree murder with the use of a firearm and on April 4, 2004 was sentenced to 35 years to life in prison. [¶] Based upon the heinous nature and circumstances of the crime and the fact that the parties reached a plea bargain agreement wherein the Defendant obtained a resulting sentence significantly less severe than the potential had there been a conviction as charged at trial, the court declines to exercise its discretion under Penal Code section 1170(d). The original sentence imposed on April 4, 2004 is to remain in full force and effect. [¶] A copy of this Minute Order to be sent to the Secretary of the Department of Corrections, the District Attorney and the Public Defender.”
The minute order incorrectly states the sentencing occurred on April 4, 2004. Defendant was sentenced on the same day she pleaded guilty on April 1, 2004.
On December 18, 2020, defendant filed a notice of appeal from the trial court's order declining to recall her sentence.
II
DISCUSSION
Defendant argues the trial court abused its discretion and violated her due process rights when it declined to recall her sentence without holding a noticed hearing where she could present relevant evidence. She believes the court's failure to “consider probative, material evidence regarding [her] post-conviction rehabilitation, meritorious conduct and robust reentry plans” left it in a position where it was unable to “exercis[e] informed discretion in making its determination.”
The People assert that we should reject defendant's claims because section 1170(d)(1) does not grant superior courts the authority to unilaterally modify stipulated judgments. Alternatively, the People argue the trial court did not abuse its discretion and violate defendant's due process rights in declining to recall defendant's sentence without a noticed hearing. The People further contend that any error was harmless.
A. General Legal Background
The trial court “may” recall a sentence “at any time upon the recommendation” of the CDCR and “resentence the defendant in the same manner as if they had not previously been sentenced.” (§ 1170, subd. (d)(1); see People v. Loper (2015) 60 Cal.4th 1155, 1165 (Loper); Dix v. Superior Court (1991) 53 Cal.3d 442, 450 (Dix).) In deciding whether to recall a sentence, the court may exercise its authority for any reason rationally related to lawful sentencing. (Loper, at p. 1166.) “The court resentencing under this paragraph may reduce a defendant's term of imprisonment and modify the judgment, including a judgment entered after a plea agreement, if it is in the interest of justice.” (§ 1170, subd. (d)(1).) In a two-step process, the court first decides whether to recall the sentence; if it recalls the sentence, it then holds a sentencing hearing. This provision thus creates “an exception to the common law rule that the court loses resentencing jurisdiction once execution of sentence has begun.” (Dix, at p. 455; accord, People v. McCallum (2020) 55 Cal.App.5th 202, 210 (McCallum).)
At resentencing, “[t]he court may 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.” (§ 1170, subd. (d)(1); McCallum, supra, 55 Cal.App.5th at p. 214 [the “postconviction factors” guide resentencing, not the initial decision whether to recall].)
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 (Humphrey); Dix, supra, 53 Cal.3d at p. 459, fn. 12; People v. Gibson (2016) 2 Cal.App.5th 315, 324 (Gibson); People v. Delson (1984) 161 Cal.App.3d 56, 62 (Delson).) Although 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.; McCallum, supra, 55 Cal.App.5th at pp. 215-216 [defendant has no statutory or due process right to a hearing on decision to recall sentence].) In fact, section 1170(d)(1) “apparently does not [even] require the court to respond to the recommendation.” (Dix, at p. 459, italics omitted.) It “allows the sentencing court to recall and resentence at any time upon recommendation of [CDCR], but... it does not require the court to ‘consider' any such recommendation.” (Id. at p. 459, fn. 13.)
The denial of a CDCR recommendation to recall a sentence is appealable. (McCallum, supra, 55 Cal.App.5th at p. 210; § 1237, subd. (b) [appeal lies from “any order made after judgment, affecting the substantial rights of the party”].) We review the order for an abuse of discretion; the ruling will not be disturbed unless it was exercised in an arbitrary, capricious, or patently absurd manner resulting in a manifest miscarriage of justice. (McCallum, at p. 211 [the abuse of discretion standard involves “ ‘ “abundant deference”' ” to the court's ruling].) Questions of statutory construction are reviewed de novo. (Ibid.; Frazier, supra, 55 Cal.App.5th at pp. 864, 867 [there is no constitutional right to counsel when CDCR submits a request to recall a sentence].)
In interpreting a statute, “ ‘our fundamental task... is to determine the Legislature's intent so as to effectuate the law's purpose. [Citation.] We begin by examining the statute's words, giving them a plain and commonsense meaning.' ” (People v. Acosta (2002) 29 Cal.4th 105, 112.) We do not consider provisions in isolation, but rather, look to the entire substance of the statute for context to determine the scope and purpose of a given provision. (Ibid.) “ ‘We must harmonize “the various parts of a statutory enactment... by considering the particular clause or section in the context of the statutory framework as a whole.”' ” (Ibid.)
B. Analysis
In this case, defendant contends the trial court abused its discretion when it declined to recall defendant's sentence because it made its decision without a noticed evidentiary hearing and it did not have sufficient information to exercise informed discretion. We discern no abuse of discretion. Here, the trial court noted that it had “conducted a review of the court file and the materials sent to the court by the Secretary” of the CDCR. The court file included defendant's brief and voluminous exhibits in support of the CDCR's recommendation. The court, thereafter, declined to exercise its discretion to recall defendant's sentence under section 1170(d)(1). The ultimate decision to recall the sentence rested with the court, not the CDCR. And based on our review of the record, the trial court declined to recall defendant's sentence for lawful reasons.
In deciding whether to recall, the superior court may consider “any reason which could influence sentencing generally, even if the reason arose after the original commitment.” (Dix, supra, 53 Cal.3d at p. 463.)
Furthermore, we find that the CDCR's recommendation letter did not trigger a right to a hearing. Section 1170(d)(1) does not by its terms provide that the trial court must hold a hearing on receiving a recommendation to recall an inmate's sentence or in considering whether to recall a sentence. Moreover, as explained above, any action to be taken upon receiving a recommendation is clearly permissive-the statute uses the verb “may, ” not “shall.” (§ 1170, subd. (d)(1); Humphrey, supra, 44 Cal.App.5th at p. 377; Delson, supra, 161 Cal.App.3d at p. 62 [no abuse of discretion in refusing to set a hearing on the department of corrections' recommendation for alternative sentencing].)
McCallum dealt with the same issue of “whether the trial court must hold a hearing prior to ruling on the Secretary's recommendation for recall and resentencing.” (McCallum, supra, 55 Cal.App.5th at p. 212.) Observing that the statutory provision itself is silent on the issue, the court reviewed other subdivisions of section 1170 in which the Legislature has required a hearing. (McCallum, at p. 212.) For example, in the case of terminally ill or permanently incapacitated prisoners, subdivision (e)(3) of section 1170 explicitly requires the court to “ ‘hold a hearing to consider whether the prisoner's sentence should be recalled.' ” (Ibid.; see Gibson, supra, 2 Cal.App.5th at p. 324 [subdivision (d)(2)(E) of section 1170 includes the language, “conduct a hearing”].) “A review of section 1170 shows the Legislature was well aware of what language to use to require the trial court to hold a hearing before acting on a recommendation or petition to recall a sentence.” (McCallum, at p. 212.) The Legislature did not include a “hearing” requirement in section 1170(d)(1). (McCallum, at p. 213.) We agree with McCallum's reasoning.
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(d)(1) recommendation for recall and resentencing triggers a due process right to a hearing, presentation, or submission of additional material. Recent case law, however, supports the trial court's handling of the CDCR's recommendation. Indeed, the Frazier and McCallum cases make it clear due process is not implicated by the type of recommendation letter the CDCR issued in this case. McCallum 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. 215-216; 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.) Here, the trial court summarily denied the recommendation to recall defendant's sentence. The due process protections, therefore, were not triggered.
Defendant's reliance on People v. Rocha (2019) 32 Cal.App.5th 352, 355 (Rocha), to support her position that the CDCR's recommendation letter triggered a hearing right and a due process right, is unavailing. In Rocha, the defendant's murder conviction was not yet final when Senate Bill No. 620 was passed. Senate Bill No. 620 gave trial courts discretion to strike or dismiss firearm enhancements imposed under section 12022.53, subdivision (h). The Court of Appeal affirmed the defendant's conviction and remanded his case to give the trial court an opportunity to exercise its discretion on the firearm enhancements. On remand, without holding a hearing, the trial court issued a written statement declining to strike defendant's firearm enhancement. (Rocha, at p. 355.) The appellate court concluded that the trial court was required to hold a hearing at which defendant was entitled to be present, with counsel. (Rocha, at pp. 359-360.)
Rocha merely “comports with principles generally applicable to resentencing law. For example, it is well settled that when a case is remanded for resentencing after an appeal, the defendant is entitled to ‘all the normal rights and procedures available at his original sentencing' [citations], including consideration of any pertinent circumstances which have arisen since the prior sentence was imposed [citation].” (Dix, supra, 53 Cal.3d at p. 460; Rocha, supra, 32 Cal.App.5th at p. 359.)
Unlike in Rocha, defendant's conviction is final. Similarly, defendant's case was not remanded to the trial court for resentencing. Because the court declined to recall defendant's sentence as an initial matter, her case did not reach the resentencing stage. (Dix, supra, 53 Cal.3d at p. 456.)
In addition, we are mindful that defendant received “ ‘all the normal rights and procedures available at [her] original sentencing.' ” (Dix, supra, 53 Cal.3d at p. 460.) Indeed, she stipulated to a 35-year-to-life prison sentence, which is considerably less than what she faced had she been convicted by a jury. Defendant was facing life without the possibility of parole on the murder charge alone. There is no indication in the record that any sentencing-related decision in defendant's case was made on improper grounds.
Defendant argues that the reasoning of McCallum supports her position, and thus we must remand the case and allow her the opportunity to present evidence to the trial court. In McCallum, after the CDCR's recommended recall and resentencing to the trial court, McCallum's attorney requested a case management conference to discuss and potentially brief and argue the merits of the recommendation. (McCallum, supra, 55 Cal.App.5th at p. 209.) Without holding the requested case management conference, the trial court issued a written order declining to recall McCallum's sentence. (Ibid.) Among the reasons given for its decision, the court noted that McCallum had “ ‘tenuous' ” family and community support. (Ibid.) However, McCallum had not been allowed to provide any input on this matter. (Id. at pp. 218-219.)
The Second District Court of Appeal found that the trial court abused its discretion in ignoring McCallum's request for a conference and not allowing him to submit specified information relevant to the CDCR's recommendation. (McCallum, supra, 55 Cal.App.5th at pp. 218-219.) The defendant did in fact appear to have support for reentry in the community; unknown to the trial court, “McCallum had been accepted into an inpatient substance abuse and mental health counseling program with vocational training upon his release.” (Id. at p. 218.)
We are not convinced that the Second District's finding of an abuse of discretion in McCallum established a rule requiring trial courts to consider supplemental evidence at a hearing or supplemental paperwork from inmates in all other cases. (See Frazier, supra, 55 Cal.App.5th at pp. 868-869 [approving McCallum yet finding no abuse of discretion in trial court's summarily declining to recall sentence].) Moreover, the McCallum finding of an abuse of discretion appears specific to the facts of that case.
The Legislature has not set forth a procedure in section 1170(d)(1) for an inmate to be notified of the CDCR's recommendation, and without notice, it is unclear how the inmate would know to submit materials to the trial court. Regardless, in this case, defendant retained counsel, and counsel filed a brief and numerous documents in support of the CDCR's recommendation on defendant's behalf. The exhibits included, among others, evaluation reports from the CDCR, awards defendant had received while in prison, letters of support, certificates of completion in various programs defendant had completed while in prison, and defendant's reentry plans. McCallum, therefore, is distinguishable from the present case.
The concerns in McCallum, which allowed defendant's submission of certain information, are lacking here. Following the CDCR's recommendation letter, defendant submitted a host of materials relating to her “rehabilitation and reentry plans” (McCallum, supra, 55 Cal.App.5th at p. 217) in support of modification of her sentence. She described work she had done, skills she had acquired to live productively, and rehabilitation programs she had completed. On appeal, defendant does not identify any specific additional information, like that identified in McCallum, which would materially impact the trial court's decision.
“[A] defendant does not have the right to be present at every hearing held in the course of the trial; the touchstone is whether the proceeding in question bears a reasonable and substantial relationship to his or her full opportunity to defend against the charges.” (Rocha, supra, 32 Cal.App.5th at p. 357; People v. Wallace (2008) 44 Cal.4th 1032, 1052; People v. Rodriguez (1998) 17 Cal.4th 253, 260.)
We reiterate that, under section 1170(d)(1), the court may recall a sentence on its own initiative within 120 days of the date of commitment. (Dix, supra, 53 Cal.3d at p. 459.) Certainly, no hearing is required when the sentencing court recalls (or declines to recall) a sentence on its own cognizance within this period. (Id. at p. 463.) Beyond the 120-day period, “the Secretary's recommendation letter is but an invitation to the court to exercise its equitable jurisdiction.” (Frazier, supra, 55 Cal.App.5th at p. 866.) Under these circumstances, we are not persuaded that state or federal constitutional principles command an inmate's personal appearance before the trial court.
In support of her due process argument, defendant also relies on People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1297 (Kaulick). In that case, the trial court granted the defendant's petition for resentencing based on Proposition 36, which amended the Three Strikes law, without giving notice or an opportunity to be heard to the prosecution. The Court of Appeal found that due process required a noticed hearing on the issue of whether resentencing would pose an unreasonable risk of danger to public safety as well as any subsequent resentencing. (Kaulick, at pp. 1285-1286, 1296-1299.) The relevant statutory language at issue in Kaulick, that of section 1170.126, subdivision (f), states in pertinent part: “Upon receiving a petition for recall of sentence under this section, the court shall determine whether the petitioner satisfies the criteria in subdivision (e). If the petitioner satisfies the criteria in subdivision (e), the petitioner shall be resentenced... unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f), italics added; Kaulick, at p. 1299.)
Thus, the actions to be taken by a trial court after it receives a satisfactory petition under section 1170.126, subdivision (f), are mandatory. The defendant is statutorily entitled to resentencing unless the court finds an unreasonable risk of danger to the public. The parties in Kaulick agreed that both determinations under section 1170.126, subdivision (f) (resentencing and danger-posed-by-resentencing), required a hearing. (Kaulick, supra, 215 Cal.App.4th at p. 1299.) Notably, however, the defendant in Kaulick conceded that a hearing was not required on the “initial” eligibility determination. (Ibid.)
Kaulick is distinguishable. Under section 1170(d)(1), any action to be taken by the trial court upon receiving a recommendation for recall and resentencing is permissive. The CDCR's recommendation letter provides defendant no statutory entitlement to relief. “Section 1170(d) allows the sentencing court to recall and resentence at any time upon recommendation of the Board or the Director, but... it does not require the court to ‘consider' any such recommendation.” (Dix, supra, 53 Cal.3d at p. 459, fn. 13.) Further, the inclusion of postconviction factors in section 1170(d)(1) “provid[es] guidance for the trial court's resentencing decision, not its initial decision whether to recall the sentence.” (McCallum, supra, 55 Cal.App.5th at p. 214.) This case cannot be properly analogized to Kaulick.
In summary, the record indicates the trial court made an informed decision when it declined to recall defendant's sentence. Furthermore, the CDCR's recommendation letter did not trigger a statutory hearing right on whether to recall defendant's sentence, and the trial court was not required to allow presentation of additional information at an evidentiary hearing. Finally, defendant had no due process right to a hearing on the CDCR's recommendation letter. (McCallum, supra, 55 Cal.App.5th at pp. 215-216; Frazier, supra, 55 Cal.App.5th at p. 866.) Defendant has failed to establish reversible error. (Delson, supra, 161 Cal.App.3d at pp. 61-62.) Accordingly, we conclude the trial court did not abuse its discretion and/or violate defendant's rights by summarily denying the CDCR's recommendation for recall.
III
DISPOSITION
The trial court's postjudgment order declining to recall defendant's sentence is affirmed.
We concur: MILLER J., FIELDS J.