Filed 11/30/21 P. v. Mitchell CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B308527
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA091753)
v.
JOSE PEPE MITCHELL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Roger Ito, Judge. Affirmed.
Linda L. Gordon, 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, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Jose Pepe Mitchell appeals the
postjudgment order denying his request to strike a five-year
enhancement after we remanded for resentencing to allow the
trial court the opportunity to consider whether to exercise its
discretion to strike the enhancement pursuant to recently
enacted legislation.
We affirm.
BACKGROUND
Defendant was charged with criminal conspiracy, three
counts of second degree robbery and three counts of attempted
second degree robbery. The jury acquitted him on one of the
robbery counts but otherwise convicted him as charged. The
court sentenced defendant to 21 years in prison and awarded
1,624 days of presentence custody credits. Defendant appealed,
arguing the trial court erred in denying his motion for mistrial
based on juror misconduct and that none of the six counts on
which he was convicted was supported by substantial evidence.
In our original unpublished opinion filed October 11, 2018,
we affirmed defendant’s conviction in its entirety. The Supreme
Court granted review and transferred the case to us with
directions to vacate our decision and reconsider the cause in light
of the then-recent passage of Senate Bill No. 1393 (2017–2018
Reg. Sess.). Senate Bill No. 1393 became effective January 1,
2019, and granted trial courts the discretion to strike recidivist
enhancements imposed under Penal Code section 667,
subdivision (a)(1). (Stats. 2018, ch. 1013, § 1.) At the time
defendant was originally sentenced in 2017, imposition of the
enhancement was mandatory.
We vacated our original decision and remanded for
resentencing to allow the trial court the opportunity to consider
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whether to strike defendant’s five-year enhancement pursuant to
Penal Code section 1385 as amended by Senate Bill No. 1393.
(Stats. 2018, ch. 1013, § 2.) We reissued the balance of our
opinion unchanged. (People v. Mitchell (Apr. 5, 2019, B281476)
[nonpub. opn.].)
Following remand, the resentencing hearing was held on
September 22, 2020. The case had been reassigned as the
original sentencing judge was no longer available. Defendant
was present, represented by counsel, and the proceedings were
reported.
Defendant requested the court exercise its discretion to
strike the five-year enhancement pursuant to Penal Code
section 667, subdivision (a)(1) because he had expressed remorse
and contrition and had an exemplary record of conduct in prison.
The prosecutor argued that defendant’s arguments were more
appropriately addressed to the parole board and asked the court
to leave the original sentence intact because of the seriousness of
the offenses for which defendant was convicted.
The court declined to strike the five-year enhancement.
Defendant appealed.
DISCUSSION
Defendant contends he is entitled to another sentencing
hearing because, according to him, the trial court misunderstood
the scope of its discretion in considering whether to strike the
five-year enhancement. Defendant says the trial court did not
understand that his postsentencing prison conduct was a
relevant factor. And, “[w]here a sentencing court is unaware of
‘the full scope’ of its discretionary power, ‘the appropriate remedy
is to remand for resentencing unless the record “clearly
indicate[s]” that the trial court would have reached the same
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conclusion “even if it had been aware that it had such
discretion.” ’ ” (People v. Yanaga (2020) 58 Cal.App.5th 619, 628
(Yanaga).)
We do not find the trial court misunderstood its discretion
or the relevance of defendant’s conduct in prison.
At the hearing, the court specifically stated the case was
before the court on remand from our court to exercise its
discretion whether to strike the five-year enhancement, and that
the court had “thoroughly considered” the matter. The court
received considerable evidence of defendant’s rehabilitation while
in prison and spoke at some length about the gains defendant
had made in prison and the court’s belief defendant’s statements
of remorse and contrition were genuine. The court then went on
to explain its view that defendant’s criminal history and the
aggravated nature of the crimes for which he was convicted were
“very, very bad,” and that it was “almost inconceivable”
defendant would commit such crimes in light of the support and
love he had received from his family.
The court made plain it did not find defendant’s good
behavior in prison was sufficiently mitigating to outweigh the
aggravating factors. In arguing the trial court did not appreciate
the scope of its discretion, defendant points to the following
statements by the court: “[T]here are avenues for which an
individual who has done an exemplary job in state prison custody
can make a petition to the court for additional leniency. [¶] 1393
in my estimation is not that code section.” And, “I am mindful of
the fact that you have done well. Okay? Well since you’ve been
in state prison custody. But that does not in my estimation give
this court the reason or rationale, at least based on this motion in
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this—the underpinnings of this particular bill number, to grant
that type of leniency.”
The court’s explanation of its reasons for declining to strike
the enhancement demonstrates the court understood its
discretion, and that it considered defendant’s postsentencing
conduct, but in its estimation, defendant’s good behavior in
prison was insufficient to outweigh the other relevant sentencing
factors. It is not our role to reweigh the sentencing factors or
substitute our own judgment for that of the sentencing judge.
This case is not like Yanaga where the trial court expressly
stated it would not consider the postsentencing prison conduct by
the defendant (Yanaga, supra, 58 Cal.App.5th at p. 625) and
that, for purposes of ruling on the defendant’s motion, the court
believed it was appropriate to put itself “ ‘back in the situation of
[the original sentencing judge] at the time of sentencing’ ” (id. at
p. 624).
We find no abuse of discretion by the trial court, nor do we
find the record supports the conclusion the court misunderstood
the scope of its discretion.
DISPOSITION
The postjudgment order denying defendant’s request to
strike the five-year enhancement is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J. HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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