People v. Vega CA2/1 ( 2021 )

Filed 12/27/21 P. v. Vega CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B312386
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA088697)
v.
ANTHONY MICHAEL VEGA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Mike Camacho, Judge. Remanded with
directions.
Jennifer Peabody, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Michael R. Johnsen, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
Defendant and appellant Anthony Michael Vega is
currently serving a sentence of more than 29 years for four
counts of armed robbery. In March 2021, the Secretary of the
Department of Corrections and Rehabilitation (CDCR) sent
a letter to the trial court recommending that the court recall
Vega’s sentence under Penal Code1 section 1170, subdivision (d)
and resentence him in light of recent amendments to the law
giving trial courts the discretion to strike certain sentence
enhancements that had previously been mandatory. Vega
contends that the trial court abused its discretion by rejecting
his request, and denied him due process by failing to allow
him an opportunity to be heard on the issue. We do not reach
the merits, but instead remand the case for reconsideration in
light of recently enacted Assembly Bill No. 1540 (2021−2022
Reg. Sess.) (Assembly Bill No. 1540), which changes the
standards and procedures for considering recommendations
to resentence defendants.
FACTUAL AND PROCEDURAL SUMMARY
In 2010, a jury convicted Vega of four counts of home
invasion robbery (§§ 211, 213, subd. (a)(1)(A)), and found that
he personally used a firearm in the commission of the crimes
(§ 12022.53, subd. (b)). The court sentenced him to 29 years
8 months in prison, including 16 years 8 months for the firearm
enhancements.
In 2017, the Legislature enacted Senate Bill No. 620
(2017−2018 Reg. Sess.) (Senate Bill No. 620), which amended
1 Unless otherwise specified, subsequent statutory
references are to the Penal Code.
2
section 12022.53 to provide that “[t]he court may, in the
interest of justice pursuant to [s]ection 1385 and at the time
of sentencing, strike or dismiss an enhancement otherwise
required to be imposed by this section. The authority provided
by this subdivision applies to any resentencing that may occur
pursuant to any other law.” (§ 12022.53, subd. (h).) The effect
of this law was to give the trial court discretion to strike
serious-felony and firearm enhancements that had previously
been mandatory. (See People v. Johnson (2019) 32 Cal.App.5th
26, 67−68.)
In March 2021, the CDCR sent the trial court a letter
recommending under section 1170, subdivision (d) that the
trial court recall Vega’s sentence and resentence him in light
of Senate Bill No. 620. The letter noted that Vega had not
violated any prison rules, and had participated in extensive
rehabilitative programming while serving his sentence. The
trial court denied the motion, stating, “[a]lthough the court
acknowledges its new-found discretion under [Senate Bill No.]
620 to strike [or] dismiss gun use enhancements, it is the court’s
position that petitioner is not entitled to the relief sought given
the gravity of the offenses for which he stands convicted. The
court’s opinion does not and will not change despite . . . Vega’s
exemplary behavior demonstrated and documented by the
[CDCR].”
DISCUSSION
Vega contends that the trial court abused its discretion
by failing to consider relevant factors such as Vega’s lack of prior
serious criminal history, his age and medical conditions—he is
63 years old and permanently disabled—and by determining that
his post-conviction conduct could never overcome the seriousness
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of the offenses to justify resentencing him. He also contends
that the trial court violated his right to due process by denying
him notice and an opportunity to be heard before ruling on his
petition.
We need not reach the merits of Vega’s contentions because
the Legislature recently enacted Assembly Bill No. 1540, which
alters both the procedural and substantive law regarding
resentencing under section 1170, subdivision (d). Because this
case will not become final until after January 1, 2022, when the
new law becomes effective, we agree with the Attorney General
that it is in the interest of judicial economy to remand the case
to the trial court to reconsider the petition under the new law.
Section 1170, subdivision (d)(1), as currently constituted,
creates a mechanism for recalling a defendant’s sentence and
resentencing him at any time upon the recommendation of
the secretary of the CDCR or certain other officials. If the court
elects to follow the CDCR’s recommendation, it must “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.” (Ibid.) “[U]nder the recall provisions
of section 1170, subdivision (d), the resentencing court has
jurisdiction to modify every aspect of the sentence, and not just
the portion subjected to the recall.” (People v. Buycks (2018)
5 Cal.5th 857, 893.) It “may . . . impose any otherwise lawful
resentence suggested by the facts available at the time of
resentencing.” (Dix v. Superior Court (1991) 53 Cal.3d 442, 456.)
The statute does not establish any procedural requirements
the court must follow in addressing a recommendation from
the CDCR; indeed, it “apparently does not require the court to
respond to the recommendation.” (Id. at p. 459.)
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Assembly Bill No. 1540 amends this law, moving the
resentencing provisions currently codified at section 1170,
subdivision (d)(1) to a newly created section 1170.03.2 The
bill also changes the law in several respects. Section 1170.03
preserves the procedure by which the secretary of the CDCR and
certain other officials may recommend recalling a defendant’s
sentence. Under the new statute, however, when an official
submits a resentencing recommendation, the court must “provide
notice to the defendant and set a status conference within
30 days after the date that the court received the request. The
court’s order setting the conference shall also appoint counsel
to represent the defendant.” (§ 1170.03, subd. (b)(1).) Before
the court can deny a defendant resentencing, it must provide
“a hearing where the parties have an opportunity to address
the basis for the intended denial or rejection.” (§ 1170.03,
subd. (a)(8).) The court must also “state on the record the
reasons for its decision to grant or deny recall and resentencing.”
(§ 1170.03, subd. (a)(6).)
Under the new law, the court gains the authority to
“[v]acate the defendant’s conviction and impose judgment on
any necessarily included lesser offense or lesser related offense,
whether or not that offense was charged in the original pleading,
and then resentence the defendant to a reduced term of
imprisonment,” subject to the concurrence of the defendant and
the local district attorney. (§ 1170.03, subd. (a)(3)(B).) Finally,
the law creates “a presumption favoring recall and resentencing
of the defendant, which may only be overcome if a court finds the
2
All citations to section 1170.03 are to the law as effective
January 1, 2022.
5
defendant is an unreasonable risk of danger to public safety.”
(§ 1170.03, subd. (b)(2).)
The trial court denied Vega’s petition before Assembly
Bill No. 1540 was enacted, and in doing so, it did not have
reason to apply the requirements of the new law. It did not
appoint counsel to represent Vega or hold a hearing, and
it did not apply a presumption in favor of recalling and
resentencing him.
We agree with the Attorney General that it is in
the interest of judicial economy to remand the case for
reconsideration of the CDCR recommendation under
section 1170.03. The CDCR has already decided that
Vega is a worthy candidate for recall and resentencing.
It would be a waste of resources to decide this case under
the existing law, potentially leading the CDCR to file a
new recommendation to recall Vega’s sentence under the
new standards of section 1170.03.
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DISPOSITION
The case is remanded to the trial court with instructions
to vacate its order denying resentencing and to commence
new proceedings under section 1170.03 after January 1, 2022.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
CRANDALL, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
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