Filed 10/19/23 P. v. Fisher CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying
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This opinion has not been certified for publication or ordered published for purposes of rule
8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B317272
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. SA026103
v.
SEAN CORNELIUS FISHER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Affirmed in part,
remanded in part with directions.
Three Strikes Project, Stanford Law School, Lara Hoffman
and Milena Blake, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Nikhil Cooper, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Sean Cornelius Fisher appeals from the order denying his
petition for recall of sentence and resentencing filed under Penal
Code section 1170.126.1 He contends reversal is required for two
reasons. First, Fisher asserts the trial court violated his due
process rights and the principle of party presentation because,
after holding an initial hearing on his suitability for resentencing
under section 1170.126, subdivision (f), it directed the People to
produce for its review documents originally not offered in support
of their opposition, and later developed arguments on the
People’s behalf relating to several of the suitability factors set
forth in subdivision (g). Second, he contends the court violated his
due process rights because it did not hold a second suitability
hearing after receiving the People’s additional documents.
For the reasons discussed below, we reject Fisher’s
arguments and affirm the order denying his section 1170.126
petition.
BACKGROUND2
In 1996, a jury convicted Fisher of recklessly evading a
police officer with willful or wanton disregard for safety of
persons or property (Veh. Code, § 2800.2) and found true two
prior strike allegations. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-
(d).) He was sentenced to a term of 25 years to life in prison. On
direct appeal, a different panel of this court modified the abstract
1 Unless otherwise specified, all further undesignated
statutory references are to the Penal Code.
2 We omit recitation of the facts giving rise to Fisher’s
conviction and sentence because they are not relevant to the
issues presented in this appeal.
2
of judgment to reflect additional custody credits awarded and
otherwise affirmed the judgment. (People v. Fisher (July 8, 1998),
B109978 [nonpub. opn.].)
In August 2014, Fisher filed his petition for relief under
section 1170.126. In opposition, the People argued: (1) Fisher was
ineligible for resentencing because he did not satisfy the criteria
set forth in section 1170.126, subdivision (e); and (2) Fisher was
unsuitable for resentencing under subdivision (f) based on the
factors enumerated in subdivision (g).3 Following a hearing on
Fisher’s eligibility for relief, the trial court issued a written
decision concluding he satisfied the criteria in subdivision (e) and
ordered the matter to proceed for determination whether he was
suitable for resentencing under subdivisions (f) and (g).
In September 2016, the People filed a supplemental
opposition to Fisher’s petition, arguing he was unsuitable for
relief because, per section 1170.126, subdivision (f), resentencing
him would pose an unreasonable risk of danger to public safety.
Among other things, the People asserted Fisher “is a member of
the ‘Black P Stone Blood[s]’, which is a Security Threat Group II
prison gang[,]” whose “moniker is ‘Chico’.”
In December 2020, at the direction of the newly-appointed
District Attorney of Los Angeles County, the People conceded
Fisher was suitable for resentencing under section 1170.126.
Subsequently, per its procedure for processing cases in which the
People file concessions, the trial court ordered the People to
provide information regarding Fisher’s criminal and disciplinary
history. In their summary of Fisher’s history, the People noted
that in December 2019, the Board of Parole Hearings (BPH)
3 The relevant provisions of section 1170.126 are set forth in
section I.A of the Discussion, post.
3
denied Fisher parole for seven years based on, among other
things: (1) his 2018 Comprehensive Risk Assessment, in which he
was given a score of “high risk”4; and (2) his “admission during
[his parole] hearing of current participation within prison Bloods,
including statements throughout the hearing that he is currently
a STG II Blood ‘elder statesman’ and peace maker” who “‘uses
violence to stop violence or the escalation of violence[.]’”
In June 2021, the trial court received into evidence the
parties’ pleadings, along with all exhibits attached. The parties
did not offer additional evidence or argument. The court then
took the matter under submission.
The next month, the trial court issued a written order
noting that, at the prior hearing, the parties did not address the
People’s assertions regarding Fisher’s recent denial of parole and
the reasons for the BPH’s decision. In light of these
circumstances, the court ruled as follows: “[T]he matter’s
submission is VACATED. The court requests that the parties
address in writing the weight and significance of the People’s
assertions of gang activity and the [BPH’s] actions. The People
are also ORDERED TO PRODUCE for the [c]ourt the parole
hearing transcript and Comprehensive Risk Assessment. Unless
otherwise ordered by this court, the further briefing shall be filed
within 15 days from the date of service of this order. The matter
4 Comprehensive risk assessments are written reports
prepared by licensed psychologists employed by the BPH. They
contain an evaluation of an inmate’s risk of violence based on
numerous factors, and are used by hearing panels for all initial
and subsequent parole consideration hearings. (See Cal. Code
Reg., tit. 15, § 2240, subds. (a), (b), & (d).)
4
will be deemed submitted following the filing of the further
briefing, unless one of the parties requests a further hearing.”
In their supplemental brief, the People “t[ook] a neutral
position as to the weight and significance of 1) the gang activity
as detailed by [Fisher] himself in the parole [hearing] transcript,
and 2) the [BPH’s] subsequent seven-year denial [of parole], and
respectfully defer[red] to the court’s expertise and judgment on
these assertions.” Although the People had yet to obtain a copy of
Fisher’s Comprehensive Risk Assessment, they did submit the
transcript of his parole hearing.
In his supplemental reply brief, Fisher “object[ed] to the
production of the additional documents [requested by the trial
court] and urge[d] th[e] [c]ourt to . . . give minimal weight to the
[People’s] overstated assertions of gang activity and action of the
[BPH].” He then argued: (1) the BPH’s denial of parole is not
dispositive of his suitability for resentencing under section
1170.126; (2) a psychologist retained by Fisher recently evaluated
him and opined that he would not pose unreasonable risk to
public safety if resentenced; and (3) while Fisher “corroborat[ed]
his association with the Black P Stone Blood[,] . . . he denied
being a member” and did not “actively work[ ] to maintain this
association.” At no point in his supplemental brief, nor at any
other point in the underlying proceedings, did Fisher request a
further hearing on his suitability for resentencing.
In October 2021, the trial court issued a comprehensive
written decision denying Fisher’s 1170.126 petition. In
determining whether resentencing Fisher would pose an
unreasonable danger to public safety under section 1170.126,
subdivision (f), the trial court discussed the evidence before it
relating to each of the factors set forth in subdivision (g). In so
5
doing, it addressed the reports from two experts retained by
Fisher, as well as the evidence relating to his commitment
offense, criminal history, disciplinary history, participation in
rehabilitative programming, classification score assigned by the
Department of Corrections and Rehabilitation, age, post-release
plans, and gang involvement. With respect to gang involvement,
the court recounted Fisher’s comments at his 2019 BPH hearing
describing his activity as an “elder statesman” in the Black P
Stone Bloods, and his intention to continue engaging in such
activity if paroled “‘[o]nly if it’s positive and only if [he’s] allowed
to.’”
Ultimately, the trial court concluded: “[Fisher’s] modest
post-release plans and the remoteness of his criminal history are
outweighed by his history of violating probation or parole,
extensive disciplinary history, gang affiliation, and modest
rehabilitative programming that failed to address [his] admitted
and current gang activity. While [Fisher] has demonstrated that
he can at times conduct himself within the bounds of the law, . . .
his inability to affirmatively denounce or distance himself from
his gang affiliation, even upon the prospect of release, remains
predictive of his behavior in the absence of further rehabilitative
efforts. Accordingly, the court finds that resentencing [Fisher]
would pose an unreasonable risk of danger to public safety at this
time.” Fisher timely appealed.
DISCUSSION
I. Governing Principles and Standards of Review
A. Relevant Statutory Framework
“Section 1170.126 allows a person presently serving a three
strikes sentence for a felony that is neither serious nor violent to
6
petition for resentencing as a second strike offender subject to
certain disqualifying exceptions not relevant here. (§ 1170.126,
subds. (a), (e).) If the prisoner is not subject to one of the
disqualifying factors, then the trial court shall resentence him
under the two strikes provision ‘unless the court, in its discretion,
determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.’ (§ 1170.126, subd.
(f).)” (People v. Williams (2018) 19 Cal.App.5th 1057, 1061.) “In
exercising its discretion in subdivision (f), the court may consider:
[¶] (1) The petitioner’s criminal conviction history, including the
type of crimes committed, the extent of injury to victims, the
length of prior prison commitments, and the remoteness of the
crimes; [¶] (2) The petitioner’s disciplinary record and record of
rehabilitation while incarcerated; and [¶] (3) Any other evidence
the court, within its discretion, determines to be relevant in
deciding whether a new sentence would result in an
unreasonable risk of danger to public safety.” (§ 1170.126, subd.
(g).)
B. Applicable Standards of Review
Ordinarily, we review the trial court’s denial of relief under
section 1170.126 based on its determination of the petitioner’s
dangerousness for abuse of discretion. (People v. Williams, supra,
19 Cal.App.5th at p. 1062.) In this case, however, Fisher asserts
the order denying his petition must be reversed for two reasons
irrelevant to the substance of the court’s dangerousness analysis.
First, Fisher asserts the trial court violated his right to due
process and the principle of party presentation by: (1) directing
the People to produce additional evidence for its review; and (2)
relying on reasons not articulated by the People to find he was
unsuitable for resentencing. Because this argument presents a
7
question of law based on undisputed facts, we review it de novo.
(Guardianship of Saul H. (2022) 13 Cal.5th 827, 847 [“‘the
application of law to undisputed facts ordinarily presents a legal
question that is reviewed de novo’” and, similarly, “review is de
novo when ‘the question is predominantly legal’ and ‘requires a
critical consideration, in a factual context, of legal principles and
their underlying values’”].)
Second, Fisher contends the trial court violated his right to
due process because it did not hold another suitability hearing
after receiving additional evidence from the People. “We review
procedural due process claims de novo because ‘“‘the ultimate
determination of procedural fairness amounts to a question of
law.’”’” (Kwan Software Engineering, Inc. v. Hennings (2020) 58
Cal.App.5th 57, 82.)
II. Analysis
A. Supplemental Evidence and Briefing
Fisher contends “[t]he trial court violated [his] due process
rights and the principle of party presentation when it developed
arguments that the [People] did not make and ordered the
[People] to provide substantiating evidence [the court] then used
to deny [his] petition.” (Capitalization and bolded text omitted.)
In so doing, he relies principally on United States v. Sineneng-
Smith (2020) ___ U.S. ___ [140 S.Ct. 1575, 206 L.Ed.2d 866]
(Sineneng-Smith). As discussed below, we are not persuaded by
his contention.
The defendant in Sineneng-Smith was convicted of
violating United States Code, title 8, section 1324, subdivision
8
(a)(1)(A)(iv) and (B)(i) (section 1324),5 among other offenses.
(Sineneng-Smith, supra, 140 S.Ct. at pp. 1577-1578, 1580.) On
appeal, the defendant argued: (1) the conduct with which she was
charged was not proscribed by the statute of conviction; (2) a
portion of that statute was unconstitutionally vague and did not
provide her fair notice that her conduct was prohibited, “or
should rank as a content-based restraint on her speech”; and (3)
her actions were protected by the petition and free speech clauses
of the First Amendment. (See id. at pp. 1579-1580.)
After receiving the parties’ briefs and holding argument,
the Ninth Circuit invited three organizations to file amicus briefs
on three new issues of its own framing, including “[w]hether the
statute of conviction is overbroad or likely overbroad under the
First Amendment, and if so, whether any permissible limiting
instruction would cure the First Amendment problem[.]”
(Sineneng-Smith, supra, 140 S.Ct. at pp. 1580-1581.) The parties
“were permitted, but ‘not required,’ to file supplemental briefs
‘limited to responding to any and all amicus/amici briefs.’” (Id. at
p. 1581, italics omitted.) In addition, at re-argument, the
defendant’s counsel was only allotted 10 minutes, whereas the
invited amici were given 20 minutes. (Ibid.) Ultimately, the
Ninth Circuit concluded section 1324, subdivision (a)(1)(A)(iv),
was facially overbroad under the First Amendment, and was not
susceptible to a permissible limiting construction. (Ibid.)
5 Section 1324 “makes it a federal felony to ‘encourag[e] or
‘induc[e] an alien to come to, enter, or reside in the United States,
knowing or in reckless disregard of the fact that such coming to,
entry, or residence is or will be in violation of the law.’ [Citation.]
The crime carries an enhanced penalty if ‘done for the purpose of
commercial advantage or private financial gain.’” (Sineneng-
Smith, supra, 140 S.Ct. at p. 1577.)
9
The United States Supreme Court held the Ninth Circuit
“departed so drastically from the principle of party presentation
as to constitute an abuse of discretion.” (Sineneng-Smith, supra,
140 S.Ct. at p. 1578.) In so doing, the court articulated the
following general principles: “In our adversarial system of
adjudication, we follow the principle of party presentation. As
this Court stated in Greenlaw v. United States [(2008) 554 U.S.
237 [128 S.Ct. 2559, 171 L.Ed.2d 399]], ‘in both civil and criminal
cases, and in the first instance and on appeal . . . , we rely on the
parties to frame the issues for decision and assign to courts the
role of neutral arbiter of matters the parties present.’ [Citation.]
In criminal cases, departures from the party presentation
principle have usually occurred ‘to protect pro se litigant’s rights.’
[Citations.] But as a general rule, our system ‘is designed around
the premise that [parties represented by competent counsel]
know what is best for them, and are responsible for advancing
the facts and argument entitling them to relief.’ [Citation.] [¶] In
short: ‘[C]ourts are essentially passive instruments of
government.’ [Citation.] They ‘do not, or should not, sally forth
each day looking for wrongs to right. [They] wait for cases to
come to [them], and when [cases arise, courts] normally decide
only questions presented by the parties.” (Sineneng-Smith, supra
at p. 1579, italics and fn. omitted.)
The Supreme Court then acknowledged, “The party
presentation principle is supple, not ironclad.” (Sineneng-Smith,
supra, 140 S.Ct. at p. 1479.) On this point, it noted that “a court
is not hidebound by the precise arguments of counsel” (id. at p.
1581), and that “[t]here are no doubt circumstances in which a
modest initiating role for a court is appropriate.” (Id. at p. 1579.)
However, the Supreme Court determined the case before it
10
“scarcely fit[ ] that bill.” (Ibid.) Noting the defendant had not, at
any point, challenged the statute of conviction on overbreadth
grounds (id. at p. 1581), the court concluded the Ninth Circuit’s
actions amounted to an unjustified “takeover of the appeal”
(ibid.) and a “radical transformation of [the] case [that went] well
beyond the pale.” (Id. at pp. 1581-1582.)
In contrast with the Ninth Circuit in Sineneng-Smith, the
trial court in this case did not invite non-parties to brief a new
legal issue of its own framing. (Cf. Sineneng-Smith, supra, 140
S.Ct. at pp. 1580-1581.) Instead, after taking the matter under
submission, the trial court observed the People’s most recent
filing referenced, but did not include, evidence relevant to its
determination whether resentencing Fisher would pose an
unreasonable risk to public safety, i.e., his 2018 Comprehensive
Risk Assessment and his comments about his gang activity at his
2019 parole hearing, which were not in the record. It then
informed the parties of this gap in the record, directed the
People—the party with the burden of proving Fisher’s
dangerousness (see People v. Superior Court (Kaulick) (2013) 215
Cal.App.4th 1279, 1292 (Kaulick))—to produce the missing
evidence, and invited the parties to brief “the weight and
significance” of that evidence with respect to the undisputed
issue pending before it, i.e., Fisher’s suitability for relief under
section 1170.126, subdivisions (f) and (g).
On these facts, we conclude the trial court’s solicitation of
supplemental evidence and briefing did not amount to an
unjustified “takeover of the [case].” (Sineneng-Smith, supra, 140
S.Ct. at p. 1581.) Instead, the court properly exercised its “power
to obtain evidence upon which the judgment of the court may
rest,” which arises out of its “inherent power, independent of
11
statute, to exercise its discretion and control over all proceedings
relating to the litigation before it.” (Johnson v. Banducci (1963)
212 Cal.App.2d 254, 260.) Its actions were also consistent with its
authority under section 1170.126, which grants the court broad
discretion not only to decide Fisher’s suitability for resentencing
(§ 1170.126, subd. (f)), but also to consider any evidence it
determines to be relevant to that issue. (Id., subd. (g)(3).)
We also conclude the trial court did not err by denying
Fisher’s petition for reasons not advanced by the People. In
arriving at its decision, the trial court expressly identified and
considered, at length, each of the factors set forth in section
1170.126, subdivision (g). Fisher does not cite—and we could not
locate—any authority establishing that, in determining his
suitability for resentencing, the trial court was strictly bound by
the People’s arguments and/or concessions. Further, Fisher’s
argument is unsupported by section 1170.126, which does not
contain any language tethering the court’s discretionary
determination of a petitioner’s suitability for relief to the
arguments set forth by the parties. (See, generally, § 1170.126.)
Nor is his assertion supported by Sineneng-Smith, which
expressly noted “[t]he party presentation principle is supple, not
ironclad” (Sineneng-Smith, supra, 140 S.Ct. at p. 1579), that
“[t]here are no doubt circumstances in which a modest initiating
role for a court is appropriate” (ibid.), and that “a court is not
hidebound by the precise arguments of counsel.” (Id. at p. 1581.)
In sum, for the reasons discussed above, we conclude the
trial court did not violate the party presentation principle or
Fisher’s due process rights by directing the People to produce the
evidence referenced in their filings and denying his 1170.126
petition based on the reasons stated in its written decision.
12
B. Second Suitability Hearing
Fisher contends the trial court violated his due process
rights because it did not hold a second hearing on his suitability
for resentencing after receiving supplemental briefing and
additional evidence per its request. Again, and as discussed
below, we do not agree with his argument.
First, Fisher’s contention is unsupported by the authority
on which he relies. In his opening brief, he cites Kaulick, supra,
215 Cal.App.4th 1279, to assert a second hearing was required
because a petitioner’s suitability hearing “must be held after all
the evidence is submitted to the court.”
In Kaulick, an inmate serving a sentence of 25 years to life
filed a petition for resentencing under section 1170.126. (Kaulick,
supra, 215 Cal.App.4th at pp. 1288-1289.) The petition was
served on the Attorney General, but not on the District Attorney.
(Id. at p. 1289.) Without holding a hearing or giving notice to the
District Attorney, the trial court granted the inmate’s petition
and resentenced the inmate as though he had only one prior
strike conviction. (Id. at pp. 1286, 1289-1290.) Subsequently, the
District Attorney filed a petition for writ of mandate, arguing the
trial court erred by granting the inmate’s petition without giving
the People notice or an opportunity to be heard. (Id. at p. 1291.)
The appellate court granted the District Attorney’s petition
for writ of mandate, holding the trial court erred by granting the
inmate’s 1170.126 petition “without insuring that the District
Attorney had received notice and an opportunity to be heard on
the issue of dangerousness.” (Kaulick, supra, 215 Cal.App.4th at
p. 1286.) It also held: (1) a petitioner seeking relief under section
1170.126 has a right to be personally present at the hearing on
their suitability for resentencing, as well as the resentencing
13
hearing itself (id. at p. 1299); (2) the victim of the commitment
offense has a right to notice of, and to be heard at, the hearings
regarding the petitioner’s dangerousness and resentencing (id. at
p. 1300); (3) section 1170.126 proceedings should be conducted by
the original sentencing judge, if available, but the petitioner may
waive the right for his petition to be considered by a particular
judge (id. at pp. 1300-1301); (4) the prosecution bears the burden
of establishing a petitioner’s dangerousness under subdivision (f)
by a preponderance of the evidence (id. at pp. 1301-1305); and (5)
the inmate’s equal protection challenge was meritless (id. at pp.
1305-1306).
The appellate court in Kaulick did not consider whether, as
a matter of law, courts must hold another hearing on a
petitioner’s suitability for resentencing under section 1170.126
after vacating the matter’s submission to receive additional
evidence and supplemental briefing relating to the issue. Nor was
the issue addressed in the published cases cited in Fisher’s reply
brief. (See People v. Jefferson (2016) 1 Cal.App.5th 235, 240-241,
245 [holding that a petitioner seeking resentencing under section
1170.18 is not entitled to a jury trial on their suitability for relief,
that the prosecution bears the burden of proving a petitioner’s
dangerousness under section 1170.18 by a preponderance of the
evidence, and that the trial court did not abuse its discretion by
denying the 1170.18 petition at issue]; People v. Esparza (2015)
242 Cal.App.4th 726, 736-745 [reversing the denial of a 1170.126
petition because the trial court misallocated the burden of
proving petitioner’s dangerousness and relied on facts not proven
by the prosecution to deny relief; rejecting the petitioner’s
contentions regarding section 1170.126’s definition of
dangerousness, as well as his arguments concerning his right to a
14
jury trial and the applicable standard of proof in 1170.126
proceedings]; People v. Valencia (2017) 3 Cal.5th 347, 375
[holding “section 1170.18, subdivision (c)’s definition of
‘unreasonable risk of danger to public safety’ [is] applicable only
to the resentencing proceedings that are authorized under
Proposition 47”].) Consequently, these cases do not assist Fisher
in demonstrating reversible error. (People v. Alvarez (2002) 27
Cal.4th 1161, 1176 [“it is axiomatic that cases are not authority
for propositions not considered”].)
Section 1170.126 likewise does not support Fisher’s
contention of error. Specifically, section 1170.126, subdivision (g)
does not—as he argues—establish “[t]he dangerousness inquiry is
a cumulative test, requiring the [c]ourt to consider all evidence on
several interconnected factors before making a final decision.”
Instead, subdivision (g) identifies the factors the court may, but is
not required, to consider in determining whether resentencing a
petitioner may result in an unreasonable risk of danger to public
safety. (§ 1170.126, subd. (g).)
Moreover, on the facts in this case, we discern no violation
of Fisher’s due process rights. “[A]lthough not subject to precise
definition [citation], [procedural due process] requires notice and
an opportunity to be heard. ‘The fundamental requisite of due
process is the opportunity to be heard at a meaningful time and
in a meaningful manner.’” (People v. Zuniga (1996) 46
Cal.App.4th 81, 84.)
The gravamen of Fisher’s due process argument is that he
was not afforded a meaningful opportunity to be heard on the
comments he made at his parole hearing regarding his gang
affiliation. Specifically, he complains that he was not given the
chance to present witness testimony clarifying his relationship
15
with the Black P Stone Bloods. In so doing, however, Fisher
overlooks that the trial court actually expressed willingness to
hold a hearing on the supplemental evidence it requested
regarding his gang activity. Specifically, after informing the
parties that it had observed a gap in the record, directing the
People to produce two specific documents, and inviting
supplemental briefing on the weight and relevance of the People’s
assertions relating to those documents, the court stated: “The
matter will be deemed submitted following the filing of the
further briefing, unless one of the parties requests a further
hearing.” (Italics added.)
In response to the order above, however, Fisher did not
request a hearing. Instead, he filed a supplemental reply brief, in
which he asserted the trial court violated the party presentation
principle by directing the People to produce additional
documents, minimized the relevance of the denial of his parole in
2019, and asked the trial court to focus on other evidence in the
record which, in his view, showed he was not an active member of
the Black P Stone Bloods and would not pose an unreasonable
risk to public safety if resentenced. While he also submitted
additional documentary evidence in support of his supplemental
reply, he did not at any point in the underlying proceedings
express a desire to present live testimony—either his own or that
of other witnesses—to rebut the evidence produced by the People
regarding his gang involvement. Nor did Fisher ask the trial
court to hold a hearing after the matter had been taken under
submission following the trial court’s receipt of the People’s
additional evidence and the parties’ supplemental briefs. And, as
discussed above, the trial court’s written decision denying
Fisher’s petition demonstrates the court considered all of the
16
evidence before it relating to the factors set forth in section
1170.126, subdivision (g), including the evidence submitted in
support of Fisher’s supplemental reply brief.
Based on the facts discussed above, we conclude Fisher was
afforded “‘the opportunity to be heard at a meaningful time and
in a meaningful manner.’” (People v. Zuniga, supra, 46
Cal.App.4th at p. 84.) We therefore conclude the trial court did
not violate Fisher’s right to due process by denying his petition
without holding a second hearing on his suitability for
resentencing under section 1170.126, subdivisions (f) and (g).
C. The abstract of judgment must be corrected.
As noted above, Fisher was convicted of the commitment
offense by a jury after trial. The abstract of judgment, however,
states he was convicted by plea. “An abstract of judgment is not
the judgment of conviction; it does not control if different from
the trial court’s oral judgment and may not add to or modify the
judgment it purports to digest or summarize.” (People v. Mitchell
(2001) 26 Cal.4th 181, 185.) Accordingly, “[c]ourts may correct
clerical errors at any time, and appellate courts . . . that have
properly assumed jurisdiction of cases” (ibid.), may order
correction of clerical errors in an abstract of judgment (see id. at
pp. 185-188). We therefore direct the trial court to correct the
error in the abstract of judgment identified above, and to forward
a copy of the corrected abstract to the Department of Corrections
and Rehabilitation.6
6 We acknowledge that, in his reply brief, “Fisher objects [to
the Attorney General’s] characterization of the error [above] as
‘administrative’ and wishes to preserve the issue for potential
future litigation.” His objection, however, is unsupported by
reasoned argument or citation to authority. Thus, we need not
17
DISPOSITION
The order denying Fisher’s petition for relief under section
1170.126 is affirmed. The matter is remanded to the trial court
with directions to prepare an amended abstract of judgment
reflecting Fisher was convicted of the commitment offense by a
jury after trial, rather than by plea, and to forward a certified
copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, P. J.
We concur:
MORI, J.
ZUKIN, J.
address it on the merits. (Benach v. County of Los Angeles (2007)
149 Cal.App.4th 836, 852.) In any event, based on our review of
the record, we agree with the Attorney General that the error is
clerical and therefore subject to correction under People v.
Mitchell, supra, 26 Cal.4th at p. 185.
18