People v. Cepeda

• Decision Date: 18 October 2021
• Docket Number: B307000
• Citation: 70 Cal.App.5th 456,285 Cal.Rptr.3d 442
• Parties: The PEOPLE, Plaintiff and Respondent, v. Julio Arturo CEPEDA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

70 Cal.App.5th 456

285 Cal.Rptr.3d 442

The PEOPLE, Plaintiff and Respondent,

v.Julio Arturo CEPEDA, Defendant and Appellant.

B307000

Court of Appeal, Second District, Division 4, California.

Filed October 18, 2021

As Modified on Denial of Rehearing October 27, 2021

Sunnie L. Daniels, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.

CURREY, J.

INTRODUCTION

In 2018, defendant and appellant Julio Arturo Cepeda pled guilty to carjacking as a second strike, and admitted he sustained a prior serious felony conviction. The trial court sentenced him to 15 years in state prison, which included a five-year enhancement for the prior serious felony conviction. At the time of Cepeda's plea and sentence, courts were prohibited from striking serious felony enhancements under Penal Code section 667, subdivision (a)(1).¹

In 2020, the secretary of the California Department of Corrections and Rehabilitation ("CDCR") sent a letter to the trial court invoking the sentence recall provision of section 1170, subdivision (d)(1). The secretary's letter noted Cepeda's sentence included a five-year enhancement imposed under section 667, subdivision (a)(1), and that Senate Bill No. 1393 ("SB 1393") had given courts the discretion to strike such enhancements. The trial court recalled the sentence and held a resentencing hearing under section 1170, subdivision (d)(1), at which it declined to strike Cepeda's enhancement. The court based its decision on (1) deference to what it thought the original sentencing judge might have done if given the option to resentence Cepeda under SB 1393; and (2) its own independent assessment of the trial court file. In making its ruling, the court declined Cepeda's request that it consider additional evidence concerning his behavior in prison after being sentenced.

On appeal, Cepeda argues the trial court abused its discretion in declining to strike the enhancement. Specifically, he contends the court erred by relying on what the original sentencing judge might have done and by declining to consider the additional evidence. The Attorney General contends the trial court was correct in declining to strike the enhancement, but for a different reason than the ones given by the trial court – that SB 1393 does not apply retroactively to final cases, and Cepeda's case was final when SB 1393 took effect. Cepeda counters that the language of section 1170, subdivision (d)(1) authorized the trial court, upon receiving the letter from the CDCR, to resentence Cepeda under current law, which included SB 1393.² We agree with Cepeda. Although SB 1393 does not apply retroactively to final cases in which the defendant directly petitions the court for relief, section 1170, subdivision (d)(1) provides the trial court the authority to recall a sentence "at any time upon the recommendation of the secretary" of the CDCR and "resentence the defendant in the same manner as if they had not previously been sentenced ...." (Italics added.) Under this broad language, the CDCR's letter allowed the trial court to recall Cepeda's sentence and resentence him in light of SB 1393.

We note that an issue similar to the one presented in this case is currently pending before our Supreme Court. In People v. Arnold , (Aug. 31, 2021, S269172) [nonpub. opn.], the Court will resolve the following issue: "Did the trial court err when it declined to accept the recommendation by the California Department of Corrections and Rehabilitation that defendant's sentence be recalled ( Pen. Code, § 1170, subd. (d) ) in order to address the statutory amendments made by Senate Bill No. 1393 in light of the court's conclusion that those amendments did not apply to final judgments?" Also, in People v. Pillsbury (Sept. 30, 2021, C089002) 69 Cal.App.5th 776, 284 Cal.Rptr.3d 824 ( Pillsbury ), our colleagues in the Third Appellate District recently held that, "upon the recommendation of the Secretary of the CDCR ..., trial courts have the authority to recall and resentence defendants based on post-judgment changes in the law giving courts discretion to strike or dismiss enhancements, even when the judgment in the case is long since final and even when the original sentence was the product of a plea agreement." ( Id. at ––––, 284 Cal.Rptr.3d 824, 2021 WL 4472882 at p. 2.) For reasons discussed in greater detail below, we agree with Pillsbury and publish this opinion to augment the analysis in Pillsbury .

In addition to concluding section 1170, subdivision (d)(1) authorized the trial court to resentence Cepeda, we conclude the court abused its discretion when it declined to strike Cepeda's prior serious felony enhancement for the reasons stated. The case is therefore remanded for a new section 1170, subdivision (d)(1) resentencing hearing. At the new hearing, the court is directed to make its own independent ruling and to consider any additional evidence Cepeda may present concerning his behavior in prison after being sentenced.

BACKGROUND³

On April 11, 2018, before Judge Richard R. Romero, Cepeda pled guilty to carjacking ( § 215, subd. (a) ) as a second strike ( §§ 667, subds. (b) - (i), 1170.12, subds. (a) - (d) ) with a prior serious felony enhancement ( § 667, subd. (a)(1) ). As part of the plea agreement, attempted carjacking ( §§ 215, subd. (a), 664 ) and hit-and-run ( Veh. Code, § 20002, subd. (a) ) charges were dismissed, along with a deadly weapon enhancement allegation on the carjacking charge ( § 12022, subd. (b)(2) ). The court sentenced Cepeda to a term of 15 years in state prison, consisting of a five-year middle term for the carjacking conviction, doubled for the prior strike enhancement, plus a five-year prior serious felony enhancement. Cepeda did not appeal.

At the time of Cepeda's plea and sentence, courts were prohibited from striking serious felony enhancements under section 667, subdivision (a)(1). ( People v. Jones (2019) 32 Cal.App.5th 267, 272, 243 Cal.Rptr.3d 722.) Effective January 1, 2019, however, Senate Bill No. 1393 (2017-2018 Reg. Sess.) removed that prohibition, permitting trial courts to dismiss serious felony enhancements in furtherance of justice. ( People v. Stamps (2020) 9 Cal.5th 685, 693, 264 Cal.Rptr.3d 769, 467 P.3d 168 ( Stamps ); see Stats. 2018, ch. 1013, §§ 1 & 2.)

In 2020, the secretary of the CDCR sent a letter to the trial court invoking the recall provision of section 1170, subdivision (d)(1) with respect to Cepeda's case. The secretary's letter noted Cepeda's sentence included a five-year enhancement under section 667, subdivision (a)(1), and that SB 1393 had subsequently given courts the discretion to strike such enhancements. The letter included several documents relating to Cepeda's conviction and incarceration. Those documents showed that, during Cepeda's incarceration, he had not been reported for any rule violations, had received 16.25 hours of credit for participating in rehabilitative or self-help programs, and had been assigned to four educational, employment, or rehabilitative programs. The letter recommended "that inmate Cepeda's sentence be recalled and that he be resentenced in accordance with section 1170, subdivision (d)."

The matter was assigned to Judge Richard M. Goul, who recalled the sentence and held a resentencing hearing. At the hearing, the court indicated the parties had conferred off the record about the request but stated: "I will certainly hear whatever you want to say." Defense counsel argued the court had jurisdiction under section 1170, subdivision (d)(1) to apply SB 1393 retroactively based on the CDCR's letter. The court responded it would "accept[ ] jurisdiction" over the matter and consider striking the enhancement.

Defense counsel argued it would be improper for the court, in making its ruling, to rely on Judge Romero's prior acceptance of the plea and sentence, because the original sentencing court had no opportunity to consider striking the serious felony enhancement. The prosecution did not offer any argument in response.

The court indicated it would make a two-part ruling. First, relying on People v. Davis (2020) 48 Cal.App.5th 543, 262 Cal.Rptr.3d 246 ( Davis ), and out of deference to Judge Romero's acceptance of the plea and sentence, the court ruled it would not strike the serious felony enhancement.⁴ Second, the court made the alternative ruling that, based on its own independent review of the trial court file, it would not strike the enhancement.

Defense counsel asked if the court would consider additional evidence concerning Cepeda's behavior in prison after being sentenced. The court declined the request, stating it would rely on the record already before it.

Cepeda timely appealed.

DISCUSSION

In his opening brief, Cepeda argues the court abused its discretion by relying on Judge Romero's acceptance of the guilty plea and by declining defense counsel's request to consider additional evidence. The Attorney General counters the trial court's ruling should be affirmed because SB 1393 did not apply retroactively to Cepeda's case, which was already final when SB 1393 took effect. The Attorney General concedes, however, that, assuming SB 1393 applies to Cepeda's case, remand would be appropriate because the trial court abused its discretion by (1) concluding the plea bargain accepted by Judge Romero precluded it from exercising its own independent discretion; and (2) declining defense counsel's request that it consider additional evidence concerning Cepeda's behavior in prison after being sentenced. In his reply brief, Cepeda contends because subdivision (d)(1) of section 1170 authorizes the application of current law when resentencing defendants upon the recommendation of the secretary of the CDCR, this provision authorized the court to...