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Court of Appeal:
Judge Must Generally Grant CDR’s Resentencing Request
Opinion Says Hearing Required Absent a Finding That Defendant Is Likely to Commit Super-Strike Offense
By a MetNews Staff Writer
The Third District Court of Appeal has held that when the secretary of the Department of Corrections and Rehabilitation requests that a defendant’s sentence be recalled, a presumption requires the court to grant that request and set the matter for resentencing unless the judge finds that the defendant is likely to commit an enumerated super-strike offense.
The decision comes in a case where the defendant had been sentenced to 115 years in prison for armed robbery.
Sitting by assignment, former-Justice Rebecca A. Wiseman, now retired from the Fifth District, wrote the unpublished opinion, filed Thursday, reversing an order by Sutter Superior Court Judge David Ashby declining to recall and resentence. Presiding Justice Laurie M. Earl and Justice Harry E. Hull joined in the opinion.
Appealing the denial was Steven Lynn, who had served 20 years of his sentence when the Department of Corrections issued a letter recommending the recall in August 2022. The basis for the recommendation was that an amendment to Penal Code §12022.53(h) now affords the trial court discretion to strike or dismiss personal use of a firearm enhancements, which account for 30 years of Lynn’s sentence.
At play in the case is a presumption in §1172.1 which provides:
“If a resentencing request pursuant to subdivision (a) is from the Secretary of the Department of Corrections and Rehabilitation….[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.”
Wiseman’s View
Wiseman reasoned that the presumption requires—not just favors—recall and resentencing in this case, saying:
“The Secretary recommended resentencing, so there was a presumption in favor of recall and resentencing, which could ‘only be overcome if [the trial court] finds the defendant currently poses an unreasonable risk of [committing a super strike]’…. The trial court found defendant did not pose an unreasonable risk of committing a super strike and that therefore, the presumption in favor of recall and resentencing applied to defendant.”
She continued:
“At this point, the trial court should have granted recall and set defendant’s case for resentencing. Instead, after concluding the presumption applied, the court stated it was still required to find it was in the interest of justice to recall defendant’s sentence using the factors set forth in section 1172.1, former subdivision (a)(4). After considering those factors, the court determined it was not in the interest of justice to recall the sentence, in spite of the presumption. This was error.”
Wiseman commented that Ashby, by failing to recall Lynn’s sentence, did not have the opportunity to fully assess all factors to be considered and wrote:
“[A]t resentencing, the trial court also would have been required to apply any changes in the law that reduce the sentence….Thus, the trial court would have been required to apply section 1385 in determining whether to dismiss or strike any enhancements. Among the mitigating factors that weigh in favor of dismissal of an enhancement are if multiple enhancements are alleged…and if the enhancement is based on a prior conviction that is over five years old….Both of these mitigating factors are present here.”
She declared:
“Because we cannot say that the trial court would not have dismissed even a single enhancement had it correctly proceeded to resentencing, we will remand for further proceedings. We express no opinion as to how the trial court should exercise its discretion on remand.”
Ashby’s View
Ashby took a more limited view of the effect of the presumption.
The judge opined that there was a risk that Lynn, who had two prior strikes for robberies, would commit another strike offense but said that he could not find that there was a likelihood that he would specifically commit a super-strike. Based on that finding, he said:
“[T]he Court does as an initial matter find the presumption in favor of recall and resentence does apply in this case given that it was initiated by the [Secretary].
“However, even though the presumption applies in this case, the Court must still find that it is in the interest of justice to recall and resentence [defendant].”
He proceeded to assess the factors delineated in section 1172.1 for resentencing, and concluded:
“[Defendant] is exactly the type of individual why the law has a three-strike sentencing scheme, why the law has gun enhancements and prior serious felony enhancements….So although the Court recognizes that there is a presumption in favor of granting the recall and resentencing today, I am denying the request to recall and resentence [defendant] as I do not find that it is in the interest of justice to do so.”
The case is People v. Lynn, C098597.
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