I’ve seen a number of interesting issues come up during resentencing hearings for the court to exercise its newly afforded discretion to strike nickle priors or gun enhancements under SB 1393 and SB 620. So, I thought I’d share them. If you’d like citations or briefing contact me at email@example.com
(1) Dual use of facts: a court cannot rely on the same facts to justify imposing different enhancements. I think this principle should prohibit a trial court from declining to strike a nickle prior or gun enhancement on the basis of aggravating facts that the court relied on to deny a Romero motion or to impose an aggravated or consecutive term at the original hearing.
(2) Reliance on improper facts: I have two cases where judges declined to strike the enhancements after making comments about how the tide is changing and there are all these new laws benefiting defendants so it isn’t even clear that the defendant will serve the full term. This is an inappropriate consideration that, obviously, this is not an enumerated fact to consider in the rules of court on sentencing and there is zero relationship between new beneficial laws and the defendant’s conduct which is what the court is to consider when imposing a sentence.
(3) failure to consider the entire record if it is a new judge: I’m a bit unclear over whether a defendant has the right to a resentencing hearing in front of the same judge who originally sentenced him if this was a trial. There is no Arbuckle right to have the same judge who presided over the trial also sentence you. I would object to a different judge presiding (assuming he/she will be worse). I would also object on the basis that the new judge is not considering all of the appropriate documents or at least make a record as to what the judge is considering. Seems like the judge should consider the trial transcript, probation reports, and any original sentencing memos.
(4) failure to obtain a new probation report: It appears that a trial court does not have a sua sponte duty to obtain a new probation report prior to a resentencing hearing, or that it is statutorily required. However, the law is clear that a court may consider a defendant’s conduct in prison or any new mitigating facts when resentencing a defendant. I’d investigate whether there are any new mitigating facts and request a new probation report if there are.