Filed 5/6/22 P. v. Hernandez CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G059569
v. (Super. Ct. No. 08NF1682)
RUDOLPH JOSEPH HERNANDEZ, OPINION
Defendant and Appellant.
Appeal from orders of the Superior Court of Orange County, Cheri T.
Pham, Judge. Reversed and remanded with directions.
Johanna Pirko, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Julie L. Garland,
Assistant Attorneys General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy
Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Rudolph Joseph Hernandez of one count of first
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degree residential burglary (Pen. Code, §§ 459, 460, subd. (a); count 1) , two counts of
first degree robbery (§§ 211, 212.5, subd. (a); counts 2 and 3), two counts of false
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imprisonment by violence (§§ 236, 237, subd. (a); counts 4 and 7) , one count of assault
with a semiautomatic firearm (§ 245, subd. (b); count 5), and one count of carjacking
(§ 215, subd. (a); count 6). The jury also found true allegations that non-accomplices
were present during the commission of count 1 and that defendant personally used a
firearm in the commission of counts 1 through 7. (§§ 667.5, subd. (c)(21), 12022.5,
subd. (a), 12022.53, subd. (b).) The jury further found true allegations that defendant
inflicted great bodily injury in the commission of counts 2, 4, 5, and 6. (§ 12022.7,
subd. (a).)
The court sentenced defendant to 28 years in state prison as follows:
(1) one year and four months on count 3; (2) three years and four months for the firearm
enhancement under section 12022.53, subdivision (b) on count 3; (2) two years on
count 5; (3) three years and four months for the firearm enhancement under section
12022.5, subdivision (a) on count 5; (4) five years on count 6; (5) 10 years for the firearm
enhancement under section 12022.53, subdivision (b) on count 6; and (6) three years for
the enhancement under section 12022.7, subdivision (a) on count 6. The court also
stayed sentences on counts 1, 2, and 4 pursuant to section 654.
In August 2020, the California Department of Corrections and
Rehabilitation (CDCR) sent a letter recommending the court recall and resentence
defendant under provisions of former section 1170, subdivision (d)(i). The court declined
to recall the sentence.
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All further statutory references are to the Penal Code.
2
To avoid any confusion, we refer to the counts as they were alleged and
numbered in the information.
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Defendant appealed. In his opening brief, defendant initially argued the
court abused its discretion because it did not afford him an opportunity to present
additional information in support of the CDCR’s recommendation as requested in his
motion to vacate the court’s ruling. He likewise claimed the court’s denial of
resentencing without notice violated his constitutional rights.
While defendant’s appeal was pending, Assembly Bill No. 1540 (2021-
2022 Reg. Sess.) (Stats. 2021, ch. 719) became effective on January 1, 2022. The bill
moved the recall and sentencing provisions of section 1170, subsection (d) to a new
section and changed the law. (§ 1170.03.)
In supplemental briefing, both defendant and the People request that we
reverse and remand to the court for reconsideration of the CDCR’s recommendation in
light of Assembly Bill No. 1540. We reverse the order and remand in the interest of
judicial economy. We accordingly need not address defendant’s other contentions on
appeal.
FACTS
In 2013, defendant was sentenced to 28 years in state prison. The sentence
included firearm enhancements.
On August 5, 2020, the Secretary of the CDCR sent a letter to the court
recommending it recall and resentence defendant under provisions of former section
1170, subdivision (d)(i). The recommendation was based on an amendment to section
12022.53, subdivision (h), which became effective January 1, 2018 and gave the court
discretion to strike or dismiss a personal use firearm enhancement in the interest of
justice.
On August 28, 2020, the court denied the recommendation for recall and
resentencing with no prior notice to the parties. According to the minute order, the court
held a hearing with no appearance by the parties. The court found that “[w]hile there
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may be mitigating factors in support of the CDCR’s request, the court cannot overlook
the seriousness of the crime and defendant’s institutional conduct.” The court thereafter
mailed copies of the minute order to defendant, the CDCR, the Orange County District
Attorney’s Office, and the Orange County Alternate Public Defender’s Office.
On October 19, 2020, defendant filed a motion to vacate the court’s ex
parte ruling. Defendant argued he was denied the right to be personally present, the right
to counsel, and the right to due process of law. He also requested the court schedule a
hearing in the presence of counsel and the parties along with a briefing schedule to
present additional information in support of the CDCR’s recommendation. A few days
later, with no appearance of the parties, the court denied defendant’s motion to vacate.
DISCUSSION
In his opening brief, defendant initially claimed the court erred because it
failed to allow the parties an opportunity to provide information relevant to the CDCR’s
recommendation, which he requested in his motion to vacate. He also argued the court
violated his due process rights by failing to provide him with notice or an opportunity to
be heard before declining the CDCR’s recommendation.
In October 2021 while this appeal was pending, the Governor signed
Assembly Bill No. 1540, which became effective on January 1, 2022. The legislation
moved the recall and resentencing provisions of section 1170, subdivision (d) to
section 1170.03. Under the newly enacted section 1170.03, “[r]esentencing shall not be
denied . . . without a hearing where the parties have an opportunity to address the basis
for the intended denial or rejection.” (§ 1170.03, subd. (a)(8).) Where (as here) the
CDCR submits a resentencing request, “[t]he court shall provide notice to the defendant
and set a status conference within 30 days after the date that the court received the
request,” and “[t]he court’s order setting the conference shall also appoint counsel to
represent the defendant.” (Id., subd. (b)(1).) The court also must apply “a presumption
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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 . . . .”
(Id., subd. (b)(2).)
As discussed ante, both parties request that we reverse and remand for the
court to reconsider the CDCR’s recommendation by applying section 1170.03. We grant
the request and remand for rehearing in the interest of judicial economy. In light of this
conclusion, we need not address defendant’s remaining contentions on appeal.
DISPOSITION
The orders denying the CDCR’s recommendation are reversed. The matter
is remanded to the court with directions to reconsider the CDCR’s recommendation
consistent with current law. (§ 1170.03.)
MARKS, J.*
WE CONCUR:
MOORE, ACTING P. J.
SANCHEZ, J.
*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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