Opinion
E076182
01-14-2022
THE PEOPLE, Plaintiff and Respondent, v. PERISH VALDEZ LASTER, Defendant and Appellant.
Jean Ballantine, 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, Michael Pulos, Seth Friedman, and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FMB1000338 Daniel W. Detienne, Judge. Reversed and remanded.
Jean Ballantine, 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, Michael Pulos, Seth Friedman, and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I
INTRODUCTION
In 2010, defendant and appellant Perish Valdez Laster and Edmond Warren Richardson threatened a college student and robbed him of his backpack. In 2011, after a mistrial, a jury convicted defendant and Richardson in a second trial for robbery (Pen. Code, § 211; count 1) and making criminal threats (§ 422; count 2). The trial court subsequently found that defendant had a prior conviction for robbery that qualified as both a prior strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious felony (§ 667, subd. (a)). Defendant was sentenced to a total term of 15 years in state prison.
Unless otherwise stated, all future references are to the Penal Code.
Approximately eight years later, in 2020, the Secretary of the California Department of Corrections and Rehabilitation (CDCR) recommended in a letter that defendant's sentence be recalled pursuant to former section 1170, subdivision (d). The trial court declined to exercise its discretion under former section 1170, subdivision (d), and defendant appealed. On appeal, defendant argues the trial court erred in declining to exercise its discretion because the court misunderstood the applicable law, focused on factors it considered at the time of his initial sentencing, and ignored or minimized his commendable postconviction conduct.
We granted defendant's request for supplemental briefing on the effect of the newly enacted legislation, Assembly Bill No. 1540 (2021-2022 Reg. Sess.), on defendant's appeal, including specifically whether reversal of the order is required to allow the trial court to apply the presumption of this new legislation. (Stats. 2021, ch. 719, §§ 1-7). Because defendant's recall request will eventually be considered under the terms of the new statute, the People request we reverse and remand for reconsideration of defendant's request after the new law takes effect. We reverse and remand.
II
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts are taken from our nonpublished opinion from defendant and codefendant Richardson's direct appeal. (People v. Richardson (Apr. 10, 2014, E056401) [nonpub. opn.] (Richardson).)
After 1:00 a.m. on August 23, 2010, in the community of Joshua Tree, A.H. went outside to the carport of his apartment building to smoke a cigarette. It was "pitch black" and two men approached him, yelling at him not to move or his "head or face" would be "blown off." Because it was so dark, he could not see the suspects or their height, weight, or the color and length of their hair. The assailants searched his pockets and ordered him to place his keys on his car and to lie face down between the car and a wall. A.H. did not try to look at them because he was convinced they were armed and his life was in jeopardy. He did not actually see a gun, although he initially said he had because he was so upset. He listened to them rummaging through his car and thought they sounded African-American from their speech patterns. Thereafter, his backpack, containing his college books and papers, was missing from his car. The men left in a vehicle with a loud modified or performance-type exhaust system. A.H. then called the police. (Richardson, supra, E056401, at pp. 2-3.)
A deputy sheriff was parked in his patrol car, doing paperwork when a dark passenger vehicle with a loud exhaust system drove by at a high rate of speed and did not make a full stop at a stop sign. The deputy followed the vehicle to a residential driveway at a Desert Air address where he watched two African-American men leave the car and enter the residence. The deputy then left to respond to the robbery report by A.H. (Richardson, supra, E056401, at p. 3.)
After obtaining A.H.'s statement and collecting evidence at the scene, the deputy and a sergeant went to the Desert Air residence. The home belonged to defendant's sister. Richardson was present. Defendant was later found hiding in the home. During a search of the home, the deputy found rubber gloves and Shaq athletic shoes with a square pattern on the sole, matching the shoe prints found at the carport and the driveway. In the attic, the deputies found a school backpack, a loaded nine-millimeter semiautomatic handgun, a cloth mask, a police scanner, and a pair of Reebok athletic shoes. The Reebok shoes had a "wavy W" pattern in the soles and matched one set of the shoe impressions found at the carport and the driveway. Inside the backpack were books and a binder containing a receipt for A.H. (Richardson, supra, E056401, at pp. 3-5.)
Richardson and defendant were detained in the patrol car. After the deputy showed them the backpack, one of them was recorded saying, "oh, my God, they found it." (Richardson, supra, E056401, at p. 5.)
The handgun, magazine, and ammunition booked in evidence were processed for fingerprints and DNA. No fingerprints were found, and no DNA evidence was presented by the prosecution. (Richardson, supra, E056401, at p. 6.)
B. Procedural Background
After a mistrial, on December 22, 2011, a jury convicted defendant and Richardson in a second trial of second degree robbery (§ 211; count 1) and making criminal threats (§ 422; count 2). The trial court later found that defendant had a prior conviction for robbery that qualified as both a prior strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious felony (§ 667, subd. (a)). After denying his motion to strike his prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the trial court sentenced defendant to a total term of 15 years in prison⸺the upper term of five years, doubled to 10 years due to the prior strike on count 1, plus five years for the prior serious felony conviction; sentence on count 2 was stayed pursuant to section 654.
Defendant subsequently appealed, and on April 10, 2014, this court affirmed the judgment. (Richardson, supra, E056401, at pp. 2, 25.)
On February 4, 2020, the Secretary of the CDCR sent a letter to the superior court. The letter described its purpose as "provid[ing] the court with authority to resentence [defendant] pursuant to Penal Code section 1170, subdivision (d)." The letter stated, "Courts were previously barred from striking prior serious felony convictions [under section 667, subd. (a)] for purposes of enhancement under this section. However, effective September 30, 2018, courts are now authorized to exercise their discretion to strike prior serious felony convictions for purposes of enhancement under this section, or to strike the punishment for the enhancement under this section, pursuant to section 1385. [¶] In light of the court's newfound authority to not impose a consecutive enhancement pursuant to section 667, subdivision (a)(1) (authority which did not exist at the time of [defendant]'s sentencing) I recommend that inmate [defendant]'s sentence be recalled and that he be resentenced in accordance with section 1170, subdivision (d)." The letter included a memorandum dated July 30, 2020, commending defendant as one of the "unsung heroes" waging war on Covid-19, for his volunteer work repairing and maintaining the physical building and grounds of the prison facility. The letter also included an "Inmate Assignment History" and "Rules Violation Report[ ]." The assignment history indicated defendant had been employed in various capacities at his state prison housing, commencing in September 2012, and that he had attended college in 2017, 2018, and 2019. The violation report noted defendant had possessed a cellular telephone once in October 2016 and once in December 2017 (classified as "Serious") and two violations of "Misuse of State Property" in May 2019 (classified as "Administrative" and "Counseling Only").
At a hearing on July 31, 2020, the trial court questioned whether former section 1170, subdivision (d), was mandatory or discretionary, but after some consideration, recognized it had discretion to decide whether to recall the sentence and then set a resentencing hearing. The prosecutor argued the court's analysis should be the same as its prior analysis of defendant's Romero motion made at the time of sentencing. The trial court then ordered up the court file so that it could review the Romero motion.
On August 6, 2020, the People filed opposition to the petition for resentencing, arguing defendant should not be resentenced in the interest of justice. In support, the People attached their opposition motion to defendant's Romero motion filed April 9, 2012, and the probation officer's report dated April 13, 2012.
At a subsequent hearing on August 7, 2020, the trial court determined that while it was not mandatory to do so, it would set a hearing and allow the defense to present "what they want." The court noted it could consider postconviction factors, suggested continuing the matter to allow defendant to present postconviction factors, and ordered a transcript of its original sentencing hearing because it did not recall everything and "just to see what [the court] said." Defense counsel also requested a copy of the prior Romero motion as it was not in his file, and the court indicated it would provide counsel a copy from the court's file.
On November 17, 2020, the trial court held a recall and resentencing hearing. Defendant was present and represented by counsel. The court informed the parties that it had ordered a copy of the 2012 Romero motion be provided to both parties and that it had presided over the trial and sentencing in this matter. The court noted that defendant had appealed his judgment and the Supreme Court denied review on July 16, 2014. Defendant's conviction was thus final, and therefore, under In re Estrada (1965) 63 Cal.2d 740 (Estrada), the amendments to sections 667, subdivision (a)(1), and 1385, subdivision (b), did not apply retroactively to defendant's case.
The court thereafter asked counsel to "tell me if they think why the Department of Corrections and Rehabilitation would send this back. I haven't seen a letter like this in all the cases that I've done. I don't know if there is a specific reason that I'm not⸺they don't say in the letter, if there is a specific reason why they sent this case back and they're inviting me to exercise my discretion. [¶] I don't know if they're doing it in every case. I just haven't seen it before, or there is something particular about this case. So if you have any opinion about that, I would like to know what your opinion is."
In response, the prosecutor stated she had never seen a "letter like this" from CDCR, but knew that "nickle [sic] priors are very common." Defense counsel stated that to his understanding, the court had stated the Estrada rule correctly. The court and counsel then retired to chambers for an off-the-record conference. After the chambers conference, the court noted defendant would probably be eligible for immediate release if the section 667, subdivision (a)(1) enhancement was stricken and opined the CDCR may have sent its recommendation because of the pandemic with the goal of reducing the state prison population for the safety of inmates and prison staff, which the court recognized as a legitimate goal it would consider in deciding the recommendation.
The court also considered the prosecutor's current brief opposing resentencing, the prosecution's 2012 brief opposing defendant's Romero motion, the transcript of the June 1, 2012 sentencing hearing, the 2012 probation report, its independent recollection of the case, defendant's postconviction exemplary conduct, and defendant's age at the time the offenses were committed. Defense counsel argued the Secretary's recommendation recognized defendant's commendable postconviction performance, including a certification of appreciation and a commendation letter for his participation in fire camp, and a letter of appreciation for helping the prison run smoothly to get through the spread of COVID-19. Defense counsel also pointed out that he had submitted a letter from defendant's father stating that defendant had a home and job waiting for him when he was released.
The prosecutor argued defendant probably already received some benefit for his fire camp work responding to the August 2020 Ca-LNU Lightning Complex Fire by way of additional custody credits, so that any additional benefit from striking the section 667, subdivision (a)(1) enhancement was not warranted. The prosecutor then re-focused the court's attention on the facts of the offenses, i.e., that at the time defendant was apprehended, he was hiding and denied involvement in the robbery, which was not "conduct of someone who took responsibility for what happened" and did not change what was done to the victim. The prosecutor therefore argued the five-year enhancement should not be stricken.
The court recognized the Secretary had probably not sent the resentencing recommendation "on a whim," that defendant had done some commendable things while in prison, reiterated the commendable postconviction documents submitted by defense counsel, and the state prisons' desire to reduce their populations due to the pandemic, in deciding whether to rule on the recommendation. The court then stated it had researched post-amendment section 667, subdivision (a)(1) appellate cases holding that where the record made clear the trial court would not have struck the enhancement if it had discretion to do so, the appellate court would not remand for a new sentencing hearing. Based on those appellate cases, the court reviewed the 2012 sentencing transcript, including its consideration at that time that a firearm was found in the attic of the house where defendant and his codefendant were apprehended, the "5, 10, 15, minutes of absolute terror" experienced by the victim during the robbery, defendant's prior record, and the circumstances in aggravation listed in the probation report. In conclusion, the court explained: "And while I do appreciate what [defendant] has done in the California State Prison, and I'm impressed by what he has done, and I hope this is indicative of what the kind of life he's going to lead when he does get out of prison . . . and while I also take the COVID-19 worldwide pandemic very seriously and want to do everything I can to make sure that people⸺their health is not jeopardized by this virus, I think everything that I've just mentioned, I will not exercise my discretion to strike the five-year [section] 667[, subdivision (a)](1) prior. I do not think it's appropriate in this case." Defendant timely appealed.
III
DISCUSSION
Defendant contends the trial court abused its discretion in declining to exercise its discretion to strike the section 667, subdivision (a)(1) five-year prior serious felony enhancement because the court misunderstood applicable law, focused primarily on the factors it considered in denying his Romero motion at the time of his initial sentencing, and ignored or minimized his commendable postconviction conduct. Defendant believes the court's ruling should be vacated and the case remanded for reconsideration.
While this appeal was pending, the Governor signed Assembly Bill No. 1540, which effective January 1, 2022, moves the resentencing and recall provisions of former section 1170, subdivision (d)(1), to new section 1170.03 (Stats. 2021, ch. 719, §§ 1-7). We granted defendant's request for supplemental briefing on the effect of this new legislation on this appeal. The parties agree the matter must be remanded to allow the trial court to reconsider the request after the new law takes effect.
Initially, we note, in its findings and declarations, the Legislature explicitly indicated its intent that these resentencing proceedings, "apply ameliorative laws passed by this body that reduce sentences or provide for judicial discretion, regardless of the date of the offense or conviction." (Assem. Bill No. 1540, Stats. 2021, ch. 719, § 1, subd. (i); People v. Pillsbury (2021) 69 Cal.App.5th 776, 788 ["[W]hen the Secretary recommends recall and resentencing under section 1170[, subdivision] (d)(1), trial courts have the authority to resentence defendants at any time based on an ameliorative change in the law giving courts discretion to strike or dismiss enhancements under section 1385, subdivision (a), even after the defendant's judgment is final and even when the original sentence was the product of a plea agreement."].)
Section 1170.03 adds a number of requirements to the recall and resentencing process, including notice, appointment of counsel, a hearing, and a statement of reasons for the ruling on the record. (Assem. Bill No. 1540, Stats. 2021, ch. 719, § 3.1, subd. (a)(6), (7), & (8).) The new statute also provides that where, as here, the recall and resentencing recommendation is made by the CDCR, "[t]here 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 public safety, as defined in subdivision (c) of Section 1170.18." (Assem. Bill No. 1540, Stats. 2021, ch. 719, § 3.1, subd. (b)(2).) This provision adds a new element to the trial court's exercise of its discretion.
"'"Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record."'" (People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081.) At the time the court considered the CDCR recommendation, there was not a statutory presumption favoring recall and resentencing unless a defendant presents an unreasonable risk of danger to public safety. Accordingly, we must remand the matter to allow the trial court to exercise its discretion in light of that presumption.
Because the judgment as to the CDCR's recall and resentencing petition will not be final until after the new section 1170.03 takes effect, we remand the matter to the trial court for further proceedings, to occur after January 1, 2022. (People v. Cepeda (2021) 70 Cal.App.5th 456, 471-472; People v. Garcia (2018) 28 Cal.App.5th 961, 973 (Garcia) [because the defendant's judgment will not be final until after effective date of relevant Senate Bill, it is appropriate to remand for proceedings after the effective date].)
IV
DISPOSITION
The order declining to recall defendant's sentence is reversed. The matter is remanded to the trial court for further proceedings on the recall and resentencing recommendation, to be held after January 1, 2022, applying the newly enacted section 1170.03 as added by Assembly Bill No. 1540. (See Garcia, supra, 28 Cal.App.5th at p. 974.)
We concur: RAMIREZ, P. J., FIELDS J.