People v. Salone CA4/2 ( 2021 )

Filed 10/22/21 P. v. Salone CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076373
v. (Super.Ct.No. RIF1202138)
HAKIM RASHAD SALONE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Robert L. Hernandez, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Deputy
Attorney General, for Plaintiff and Respondent.
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In 2012, Hakim Rashad Salone pled guilty to attempted second degree robbery
and second degree robbery and was sentenced to 24 years in prison. In 2020, the
California Department of Corrections and Rehabilitation (CDCR) recommended recalling
and reducing his sentence based on his exemplary behavior while in prison. (Pen. Code,
§ 1170, subd. (d).) The trial court declined the CDCR’s recommendation. On appeal,
Salone argues this was an abuse of discretion. We conclude the court’s decision not to
recall his sentence was reasonable and affirm.
I
FACTS
On April 13, 2012, Salone and a codefendant entered a jewelry store armed with
handguns. One of the employees was able to trip the silent alarm, and another eventually
wrestled control of a handgun from Salone. Police arrived while the robbery was in
progress, and after 40 minutes Salone exited the store where police arrested him.
The Riverside County District Attorney charged Salone with kidnapping (Pen.
Code, § 209, unlabeled statutory citations refer to this code), two counts of attempted
robbery (§§ 664/211), and possession of a firearm by a felon (§ 29800) in connection
with the April 13 attempted robbery. In addition, they charged him with one count of
robbery for an incident which occurred on March 15, 2012. The complaint also alleged
Salone personally used a gun in the commission of each of these crimes (§ 12022.53,
subd. (b)), and that he had one prior serious felony conviction (§ 667, subd. (a)(1)) which
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was also a prior strike conviction (§§ 667, subds. (c) & (e)(1); 1170.12, subd. (c)(1)) and
two prior prison convictions (§ 667.5, subd. (b)).
Salone pled guilty to attempted second degree robbery and second degree robbery,
and admitted the enhancements for firearm use, prior strike, prior serious felony, and one
prison prior. Following the terms of the plea agreement, the trial court sentenced him to
24 years in prison, composed of three years for the attempted robbery (doubled to six due
to the prior strike), 10 years for the firearm enhancement, two years for the robbery
conviction (one third the midterm of three years, doubled), five years for the prior serious
felony enhancement, and one year for the prison prior enhancement.
In February 2020, the Secretary of the CDCR sent the trial court a letter
recommending it recall Salone’s sentence in accordance with section 1170,
subdivision (d). The prosecution opposed the recommendation, arguing Salone’s crime
was extremely serious and premeditated, that he didn’t show progress addressing the
underlying issues which led to the offense, and that he received the benefit of his
bargained for sentence.
The trial court held a hearing on the recommendation on December 10, 2020, and
declined to recall the sentence. Salone timely appealed.
II
ANALYSIS
Section 1170, subdivision (d)(1), authorizes the court, “at any time upon the
recommendation of the secretary or the Board of Parole Hearings in the case of state
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prison inmates . . . [to] recall the sentence and commitment previously ordered and
resentence the defendant in the same manner as if they had not previously been
sentenced, provided the new sentence, if any, is no greater than the initial sentence.”
(§ 1170, subd. (d)(1).) “This provision thus creates ‘an exception to the common law rule
that the court loses resentencing jurisdiction once execution of sentence has begun.’ ”
(People v. Frazier (2020) 55 Cal.App.5th 858, 863.)
“We review the trial court’s decision whether to recall a defendant’s sentence for
an abuse of discretion.” (People v. McCallum (2020) 55 Cal.App.5th 202, 211
(McCallum).) “ ‘ “Where, as here, a discretionary power is statutorily vested in the trial
court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing
that the court exercised its discretion in an arbitrary, capricious or patently absurd manner
that resulted in a manifest miscarriage of justice. [Citations.]’ ” [Citation.] The abuse of
discretion standard “involves abundant deference” to the court’s ruling.’ ” (Ibid., italics
omitted.)
In exercising this discretion, “the trial court may exercise its authority ‘for any
reason rationally related to lawful sentencing.’ ” (McCallum, supra, 55 Cal.App.5th at
p. 210). It may also “consider ‘postconviction factors, including, but not limited to, the
inmate’s disciplinary record and record of rehabilitation while incarcerated, evidence that
reflects whether age, time served, and diminished physical condition, if any, have
reduced the inmate’s risk for future violence, and evidence that reflects that
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circumstances have changed since the inmate’s original sentencing so that the inmate’s
continued incarceration is no longer in the interest of justice.’ ” (Ibid.)
Salone argues the trial judge erred by declining to recall his sentence because he
mistakenly believed he didn’t have discretion to modify a negotiated disposition. He also
argues the judge’s decision was an abuse of discretion because he didn’t consider all
relevant factors, most notably whether Salone’s continued incarceration was in the
interest of justice, particularly where certain terms imposed due to enhancements are now
discretionary or outright prohibited.
Both of these arguments lack merit. First, the record doesn’t indicate the judge
misunderstood his discretion, or believed he was prohibited from modifying a negotiated
sentence. The judge’s only comment to this effect was that he believed that “on balance,
[Salone] is receiving the full benefit of his negotiated disposition.” This is not a statement
indicating the judge felt he couldn’t modify a negotiated disposition, merely that he
wouldn’t in this case.
Second, the record indicates the judge considered multiple relevant factors—
including whether continued incarceration served the interests of justice given the
changes in the law—and simply decided against Salone. The judge explicitly stated that
he was “doing nothing with respect to the [section] 667.5[, subdivision (b)]
[enhancement,]” and acknowledged “[i]f I were to resentence him, I would be obliged at
the time of sentencing to apply the facts,” with the knowledge that enhancements under
section 667.5, subdivision (b) have been eliminated. Thus, the court explicitly considered
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the change in the law, acknowledged he would be obligated to apply it if he recalled the
sentence, and decided not to recall the sentence anyway. Far from a failure to consider
the changed law, this indicates the judge’s decision was based on his understanding of the
changes. That is, the court implicitly concluded that Salone shouldn’t receive the
ameliorative benefits of the changes in the law.
The judge was also explicit about his reasons why Salone shouldn’t receive any
relief. He said Salone’s crime was “extraordinarily violent,” that it involved an armed
invasion with Salone “put[ting] the gun to someone’s head, and t[elling] them that that
person might die if things did not go well.” Moreover, “[e]ven after the victims were able
to make it out of the jewelry store, [Salone] spent some 40 minutes in the store after
police arrived refusing to come back out.” In short “[t]his was about as aggravated as an
attempt[ed] robbery could possibly be.”
In contrast, the judge acknowledged Salone “has done a very good job,”
“completed his GED and [] has started on college,” and “also attended NA and AA.”
However, the judge felt there was “nothing else that is extraordinary about his prison
record,” like in other cases “where people have done extraordinary things to convince the
Court that they have . . . become rehabilitated.” Therefore, though the judge “applaud[ed]
[Salone’s] efforts,” he felt they were not sufficient to demonstrate Salone was
rehabilitated to a degree that would warrant recall and resentencing.
In other words, the court considered several of the factors contemplated by
section 1170, subdivision (d), but concluded they did not weigh in Salone’s favor given
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his record. Even if we were to disagree with this assessment, we would not be able to say
it was arbitrary or irrational.
Because we conclude the trial court did not abuse its discretion in declining to
resentence Salone, we do not address the People’s argument that section 1170,
subdivision (d), does not permit a trial court to modify a sentence entered after a
negotiated plea.
III
DISPOSITION
We affirm.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
McKINSTER
Acting P. J.
MENETREZ
J.
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