You gotta SB 1393 or SB 620 remand…now what?!

I’m starting to get appeals from resentencing hearings where the trial courts declined to strike SB 1393/SB 620 enhancements on remand. Here are my tips on how to effectively argue resentencing to make a nice record for an appeal that will be exceedingly difficult to win anyway:

(1) A defendant is entitled to have a trial court review any information relevant to sentencing that was not available at the time of sentencing, such as prison records that did not exist at the time of the original sentencing hearing. (Pepper v. United States (2011) 562 U.S. 476, 490; People v. Tatlis
(1991) 230 Cal.App.3d 1266, 1273.) There is no downside in getting your client’s C File to figure out if there is anything helpful such as the absence of 115s, taking classes, working, etc. You can get this quick and easy with a email or faxing a signed waiver to the litigation coordinator at your client’s prison. If your client tells you that his file won’t be pretty then disregard this. If you think it will be pretty, you can present helpful information and also ask for a new probation report (although you aren’t entitled to one.)

(2) I’ve seen multiple records where judges are saying all kinds of crazy shit at the resentencing hearing. Things like “well you will serve the same amount of time whether I strike this or not” or “the original judge gave you a break I wouldn’t have in granting your Romero” or “the goal of the law is punishment” or “there is a new trend to rehabilitation and I’m sure new laws will come out and help you it doesn’t even matter what I do.” OBJECT. Basically, if a judge says anything beyond the script, object. I’d like to encourage folks to always read the court rules on sentencing objectives, aggravating facts and mitigating facts (although I’m sure people know those.) I’ve found rereading them anytime I’m making a sentencing argument is super helpful. The objection is a due process violation for considering improper information such as facts totally irrelevant to your client, abuse of discretion for sentencing someone based on mistaken beliefs about ameliorative laws, and abusing discretion by improperly applying the rules of court on sentencing. (See, e.g. People v. Sandoval (2007) 41 Cal.4th 825, 847; Eneaji v. Ubboe (2014) 229 Cal.App.4th 1357; see also, People v. Leon (2016) 243 Cal.App.4th 1003, 1026-1027 [remanding for resentencing where sentence was based on an “erroneous assumption” about the law; accord People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8; People v. Brown (2007) 147 Cal.App.4th 1213, 1228; People v. Bolton (1979) 23 Cal.3d 208, 217-218 [trial court erred by considering improper facts to fashioning sentence].)

(3) Relatedly, if the original judge was good and the new one is bad, object on the basis that your client has the right to be sentenced by the original judge. Law is murky. Obviously that rule applies to a plea. It does not apply to sentencing following a JT–i.e. a different judge can sentence your client than the one who heard the trial, even over and objection. I’ve briefed this issue recently, email me if you want it. It’s worth preserving.

(4) I came up with a semi-novel argument. Trial court cannot use the same facts to justify more than one enhancement. (Pen. Code Ā§, 1170, subd. (d); (People v. Flores (1981) 115 Cal.App.3d 67, 79.) For example, a court cannot say well you really were a dick in the way you acted so I’m going to give you the aggravated term and a consecutive term. (See, e.g. People v. Lawson (1980) 107 Cal.App.3d 748, 752.) I have cases where at the original hearing the judges denied Romero motions because client had a terrible record. They get the case on 1393 remand and say, you guessed it, “I’m not striking this you have a terrible record.” I argued this violates the dual use of facts rule. Email me for briefing. There isn’t any law on point because this is a new rule–that they have discretion to strike the 1393. The only cases on the relationship between 1393 and Romero are about whether it violates the dual use rule to enhance a sentence in more than one way because of the same prior conviction. That is not this This is imposing two enhancements based on the same facts; the argument isn’t that it is wrong for imposing it for the same conviction. There is a creative counter to this which I will not reveal here because I just do not think any DA is creative enough to think about it. Inquire within.

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