People v. Bracamontes CA2/5 ( 2022 )

Filed 8/23/22 P. v. Bracamontes CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B311468
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA224202)
v.
MIGUEL BRACAMONTES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Deborah S. Brazil, Judge. Reversed and
remanded.
Law Office of Helen Hoeffel and Helen Hoeffel, 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, Senior
Assistant Attorney General, Blythe J. Leszkay and Theresa A.
Patterson, Deputy Attorneys General, for Plaintiff and
Respondent.
_____________________________
Defendant and appellant Miguel Bracamontes appeals from
the superior court’s order rejecting the recommendation of the
Secretary of the California Department of Corrections and
Rehabilitation (CDCR) under former Penal Code section 1170,
subdivision (d)(1) (Pen. Code, § 1172.1),1 that the court recall
Bracamontes’s sentence based upon an amendment to section
12022.53, which gives trial courts discretion to strike or dismiss
gun enhancements, and to resentence him.2
The amendments to former section 1170, subdivision (d)(1),
specify the procedural protections that must be afforded to a
defendant that the CDCR has recommended for resentencing and
instruct courts that there shall be a presumption in favor of recall
and resentencing of the defendant. (§ 1172.1, subds. (a)(6), (8) &
(b)(1)–(2).) Bracamontes contends that the amendments are
ameliorative changes in the law, and should therefore apply to
his case retroactively under In re Estrada (1965) 63 Cal.2d 7401 Effective January 1, 2022, Assembly Bill No. 1540 (2021-
2022 Reg. Sess.) (Stats. 2021, ch. 719, §§ 1–7) (Assembly Bill
1540) amended the recall provisions in section 1170, subdivision
(d)(1), and moved them to new section 1170.03. Effective June
30, 2022, section 1170.03 was renumbered section 1172.1, with no
change in text (Stats. 2022, ch. 58, § 9).
2 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2
(Estrada).3 He urges us to remand the matter to the superior
court to conduct proceedings in accordance with section 1172.1.
The People agree that the case should be remanded, but
only because it is in the interests of judicial economy to do so; the
People do not concede that section 1172.1 applies retroactively.
The People assert that we need not address Bracamontes’s
substantive arguments regarding retroactivity if we remand for
the sake of efficiency.
We need not reach the question of whether section 1172.1 is
retroactive under Estrada. Although section 1172.1 does not
expressly address whether the statutory amendments are to be
applied to a pending appeal of an order rejecting a
recommendation, the clear implication of the uncodified
provisions of Assembly Bill 1540 is that the Legislature intended
the bill’s changes to apply retroactively. We therefore reverse the
superior court’s order and remand the matter for further
proceedings.
PROCEDURAL HISTORY
In 2002, a jury found Bracamontes guilty of second degree
robbery (§ 211 [count 1]) and attempted robbery (§§ 211/664
[count 2]). With respect to the robbery count, the jury found true
a great bodily injury enhancement. (§ 12022.7, subd. (a).) As to
both counts, the jury found true firearm use allegations.
(§ 12022.53, subd. (b).) The court found true the allegations that
Bracamontes had suffered a prior strike (§§ 667, subds. (b)–(i),
3Bracamontes makes several other contentions that we do
not address in light of our disposition.
3
1170.12 (a)–(d)) and a prior serious felony (§ 667, subd. (a)), and
served a prior prison term (§ 667.5, subd. (b)).
The court sentenced Bracamontes to a total term of 33
years 8 months. In count 1, the court imposed the upper term of
5 years, doubled to 10 years under the three strikes law, plus 10
years for the firearm enhancement, plus 3 years for the great
bodily injury enhancement. In count 2, the court imposed a
sentence of 1 year 4 months (one-third the midterm), plus 3 years
4 months for the firearm enhancement (one-third of the 10-year
term). The trial court additionally imposed a term of 5 years for
the serious felony enhancement and a term of 1 year for the prior
prison term enhancement.4
In 2021, the CDCR sent a letter to the superior court
recommending recall and resentencing under former section
1170, subdivision (d)(1), in light of Senate Bill No. 620 (Stats.
2017, ch. 682, § 2, effective Jan. 1, 2018), which amended section
12022.53 to give courts the discretion to strike or dismiss firearm
enhancements pursuant to section 1385 in the interests of justice.
The superior court did not provide Bracamontes with notice
of the request, hold a hearing, or appoint counsel. The superior
court denied the request without prejudice in a written order
stating that the court had “applied the sentencing rules set forth
by the Judicial Council, including aggravating and mitigating
factors regarding the commitment offense, as well as a
consideration of post-conviction factors provided by the
Department of Corrections. The court has considered the
4In 2018, in response to a letter from the CDCR, the court
prepared an amended abstract of judgment to reflect that the
firearm enhancement in count 2 was imposed under section
12022.53, subdivision (b).
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following facts in aggravation: (1) the inmate was an adult at the
time of the offense and worked together with four others to
commit the commitment offense; (2) inmate and each of the other
people involved were armed with a gun and used it to threaten
the victims during the course of the robbery; (3) petitioner struck
one victim in the face with the firearm and kicked the victim in
the head as he lay on the floor at gunpoint causing the victim to
lose consciousness, and thus inflicting great bodily injury upon
the victim; (4) petitioner has an extensive prior criminal record,
including other robbery convictions.” The court also considered
post-conviction factors including disciplinary actions and
participation in rehabilitative programming. Based on the
serious nature of the commitment offenses and Bracamontes’s
prior violent criminal history, the court declined to resentence
him.
DISCUSSION
At the time that the trial court sentenced Bracamontes,
former section 1170, subdivision (d)(1), provided, in pertinent
part: “[The trial court may] . . . at any time upon the
recommendation of the secretary or the Board of Parole Hearings
. . . 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. The court resentencing
under this subdivision shall apply the sentencing rules of the
Judicial Council so as to eliminate disparity of sentences and to
promote uniformity of sentencing. The court resentencing under
this paragraph may reduce a defendant’s term of imprisonment
5
and modify the judgment, including a judgment entered after a
plea agreement, if it is in the interest of justice. The court may
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
circumstances have changed since the inmate’s original
sentencing so that the inmate’s continued incarceration is no
longer in the interest of justice. . . .”
Assembly Bill 1540, which amended former section 1170,
subdivision (d)(1), and moved it to a new Penal Code section,
went into effect on January 1, 2022, while Bracamontes’s appeal
was pending. New section 1172.1 requires that the superior
court, upon a recommendation for recall and resentencing by the
CDCR or specified entities, provide notice of the recommendation,
appoint counsel for the defendant, hold a hearing, and state on
the record the reasons for its decision to grant or deny recall and
resentencing. (§ 1172.1, subds. (a)(1), (6), (8) & (b)(1).)
Additionally, there is now “a presumption favoring recall and
resentencing of the defendant, which may only be overcome if a
court finds the defendant is an unreasonable risk of danger to
public safety, as defined in subdivision (c) of Section 1170.18.”
(§ 1172.1, subd. (b)(2).) Section 1172.1 does not expressly state
whether these amendments apply retroactively, or prospectively
only.
“‘The Legislature ordinarily makes laws that will apply to
events that will occur in the future. Accordingly, there is a
presumption that laws [and statutory amendments] apply
prospectively rather than retroactively. But this presumption
6
against retroactivity is a canon of statutory interpretation rather
than a constitutional mandate. [Citation.] Therefore, the
Legislature can ordinarily enact laws [or amendments] that apply
retroactively, either explicitly or by implication. [Citation.] In
order to determine if [an amendment] is meant to apply
retroactively, the role of a court is to determine the intent of the
Legislature. . . . [Citation.]’ [Citation.]” (People v. Superior
Court (Lara) (2018) 4 Cal.5th 299, 307.) When, as here, the
Legislature has not explicitly stated whether [an amendment] is
retroactive, we look to rules of statutory construction to discern
legislative intent. (Ibid.) If nothing in the statute itself supports
the conclusion that the Legislature intended an amendment to
apply prospectively only, courts may look to other sources of
information, including the stated purposes of the statute. (Id. at
p. 309.)
There is no indication in section 1172.1 that the Legislature
intended the statutory amendments to apply prospectively only,
so we may look to other sources. Here, the Legislature’s
explanation of its reasons for enacting the legislation, contained
in an uncodified provision of Assembly Bill 1540, lead us to
conclude that the new provisions in section 1172.1 must be
applied to pending appeals of orders rejecting recommendations
made pursuant to the statute. Chief among these reasons is that
the recommending law enforcement agencies “devote significant
time, analysis, and scrutiny to each referral that they make[,]”
and that “[i]t is the intent of the Legislature for judges to
recognize the scrutiny that has already been brought to these
referrals by the referring entity, and to ensure that each referral
be granted the court’s consideration[.] . . .” (Stats. 2021, ch. 719,
§ 1 (g)–(h).) The clear implication of these statements is that, in
7
light of the scrutiny that law enforcement agencies are
exercising, it is highly probable that resentencing is appropriate,
and, in fact, the Legislature has created a presumption in favor of
that result.
The uncodified provisions go on to state that “[i]t is the
intent of the Legislature that resentencing proceedings pursuant
to Section [1172.1] of the Penal Code apply ameliorative laws
passed by this body that reduce sentences or provide for judicial
discretion, regardless of the date of the offense or conviction.”
(Stats. 2021, ch. 719, § 1 (i) [Italics added].) While this statement
does not speak directly to the intent to apply the new procedures
and the presumption in favor of resentencing retroactively, it
unmistakably expresses the intent that relief be applied as
broadly as possible, irrespective of the date of conviction.
In sum, the Legislature has indicated that the defendants
whom law enforcement agencies have recommended for
resentencing (1) are very likely to deserve the benefits of
ameliorative laws that will reduce their sentences or authorize
courts with discretion to do so, and (2) are to receive the benefit of
those ameliorative laws regardless of whether those laws had
been passed at the time of their conviction or offense. It would be
counterintuitive to restrict section 1172.1 to a prospective
application where the Legislature has expressed a belief that the
cases presented for resentencing deserve the careful
consideration by the courts that the enacted procedural
protections will ensure, and that the opportunity to be
resentenced should be available to all who meet the criteria in a
recommending law enforcement agency’s view, regardless of
when relief became available in the individual case. Accordingly,
we conclude that the Legislature intended for the amendments to
8
former section 1170, subdivision (d)(1), to apply to appeals of
orders denying section 1172.1 petitions that are still pending at
the time of the amendments’ enactment, including
Bracamontes’s.
DISPOSITION
The superior court’s order declining to follow the CDCR’s
recommendation for recall and resentencing is reversed. The
matter is remanded to the superior court for the court to
reconsider the CDCR’s recommendation and exercise its
discretion under section 1172.1 whether to recall and resentence
Bracamontes. On remand, the court is to provide Bracamontes
with all procedural protections afforded under section 1172.1, and
to evaluate the CDCR’s recommendation in light of the
presumption in favor of resentencing.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.
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