People v. Mathis CA2/2 ( 2024 )

Filed 2/14/24 P. v. Mathis CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B329383
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA102983)
v.
GERALD MATHIS,
Defendant and Appellant.
THE COURT:
Defendant and appellant Gerald Patrick Mathis (defendant)
appeals from the sentence entered after the trial court recalled his
prior sentence pursuant to Penal Code section 1172.1.1 Defendant’s
appointed counsel found no arguable issues and filed a brief requesting
we follow the procedures set forth in People v. Delgadillo (2022) 14
Cal.5th 216 (Delgadillo). Following the standard articulated in
Delgadillo, we consider defendant’s supplemental brief and exercise our
1 All further unattributed code sections are to the Penal Code
unless otherwise stated.
discretion to conduct an independent review of the record. (See id., at
pp. 230–232.) Finding the record indicates the parties agreed to a
reduction in sentence which the court imposed, we affirm the order.
BACKGROUND
The original sentence and resentencing
In 2017, defendant was convicted by jury of having committed
two counts of second degree robbery in violation of section 211 and four
counts of false imprisonment by violence in violation of section 236.
After defendant waived a jury trial as to allegations of prior
convictions, the trial court found the allegations to be true. The court
denied defendant’s Romero motion to strike his prior serious or violent
felony convictions alleged under the Three Strikes law,2 and sentenced
him on each of counts 1 and 2, to a third strike prison term of 25 years
to life, plus two five-year enhancements pursuant to section 667,
subdivision (a) and one-year pursuant to section 667.5, subdivision (b).
The court imposed the middle term of two years as to each of counts of
3 and 4 and stayed the terms under section 654. As to count 5, the
court imposed a consecutive two-year term, doubled to four years as a
second strike, plus a five-year enhancement pursuant to section 667,
subdivision (a), and a one-year enhancement pursuant to section 667.5,
subdivision (b). Defendant was sentenced on count 6 to one-third the
middle term of eight months, doubled as a second strike, plus a five-
year enhancement pursuant to section 667, subdivision (a), and a one-
year enhancement pursuant to section 667.5, subdivision (b).
Defendant’s aggregate prison term was 88 years and four months to
life.
2 Under People v. Superior Court (Romero) (1996) 13 Cal.4th 497,
529–530, a trial court has discretion to dismiss a strike conviction
allegation under section 1385.
2
On appeal, we affirmed the judgment of conviction but struck the
enhancements imposed as to counts 5 and 6 pursuant to section 667,
subdivision (a)(1), and remanded the matter to permit the trial court to
exercise its discretion whether to strike other enhancements imposed
pursuant to that section. (People v. Mathis (Mar. 27, 2019, B282869)
[nonpub. opn.]. On September 16, 2019, the trial court chose not to
strike the remaining enhancements. An amended abstract of judgment
showing no enhancements imposed on count 5 pursuant to section 667,
subdivision (a)(1) was issued.
In an August 18, 2022 letter to the trial court,3 the Department of
Corrections and Rehabilitation (CDCR) recommended recalling
defendant’s sentence and to consider resentencing defendant in
accordance with section 1172.1, subdivision (a)(1). The trial court
scheduled a hearing for March 8, 2023.
At the hearing, the trial court ordered the enhancements
previously imposed under section 667, subdivision (a) and section
667.5, subdivision (b) stricken. The court resentenced defendant on
each of counts 1 and 2 to a consecutive term of 25 years to life in prison,
and to the middle term of four years on count 5, and on count 6, to the
middle term of 16 months. The court imposed the original sentences on
counts 3 and 4 (two years each), and again they were stayed pursuant
to section 654.
Defendant filed a timely notice of appeal from the judgment.
DISCUSSION
Where, as here, appointed counsel finds no arguable issues in an
appeal that is not from the first appeal after conviction, we may, but
are not required to conduct an independent review of the record. (See
Delgadillo, supra, 14 Cal.5th at pp. 226, 232.) Whether or not we
3 We grant defendant’s motion to augment the record with a copy
of the CDCR letter and a minute order issued by the court on
September 15, 2023.
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independently review the record to identify unraised issues in such a
case, we give the defendant the opportunity to file his or her own
supplemental brief or letter and we evaluate any specific arguments
raised. (See id., at p. 232.)
Here, counsel provided defendant with a copy of the record on
appeal and informed him of his right to file his own supplemental brief.
We notified defendant of counsel’s brief, gave him 30 days to file his
own letter or brief stating any grounds for an appeal, contentions, or
arguments that he wished to be considered, and advised him that if no
supplemental brief or letter is timely filed the court might dismiss the
appeal as abandoned. Defendant filed a supplemental brief within the
time allowed, that we have reviewed and considered. We exercise our
discretion to independently review the record for arguable issues.
Defendant contends he was entitled to full resentencing with
consideration of his mental illness and developmental disabilities
discovered and documented in his C-file.4 He criticizes defense counsel
for failing to advocate full resentencing based upon the evidence
contained in his C-files, his rehabilitation efforts, the letter he sent to
defense counsel describing the childhood trauma he suffered, his many
years of substance abuse, and how they influenced his criminal
behavior. Defendant attached a copy of that letter to his supplemental
brief, as well as copies of letters of apology he wrote to the victims in
March and April 2022, certificates of completion of rehabilitative
programs, and a self-prepared “Criminal Lifestyle Intervention &
Prevention Plan.” Defendant asserts he provided these materials to
defense counsel on November 8, 2022, but counsel did not present them
to the court. Defendant also criticizes appellate counsel, as defendant
disclosed to counsel the documents described above to which counsel
allegedly replied, “The record is brief, and [defendant’s] personal
4 C-files are confidential inmate files maintained by the CDCR.
(People v. Landry (2016) 2 Cal.5th 52, 71.)
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achievements in the rehabilitative process ‘do-not’ have any significant
impact on the re-sentencing hearing.”
Resentencing pursuant to section 1172.1
Defendant was originally sentenced in 2017 and resentenced in
2019. At all relevant times prior to January 1, 2022, former section
1170, subdivision (d)(1) (former § 1170(d)(1)) provided the trial court
with jurisdiction to recall and resentence defendant. (People v. Braggs
(2022) 85 Cal.App.5th 809, 817 & fn. 4 (Braggs); Stats. 2020, ch. 29,
§ 14, eff. Aug. 6, 2020.) With the passage of Assembly Bill 1540, which
became effective January 1, 2022, the Legislature added former section
1170.03 in order to make clarifying changes to former section
1170(d)(1), and made clear the statute’s intent was to require that
resentencing proceedings pursuant to section 1170.03 include the
application of “ameliorative laws . . . that reduce sentences or provide
for judicial discretion, regardless of the date of the offense or
conviction.” (Stats. 2021, ch. 719, § 1(i).) (Braggs, supra, at pp. 817–
818.) Section 1170.03 was renumbered section 1172.1 effective
June 30, 2022, without substantive changes and continues to authorize
the trial court, upon the recommendation of the secretary of the CDCR
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.” (§ 1172.1, subd. (a)(1).)5 At
5 In addition, upon such a request from the CDCR, “[t]here shall be
a presumption favoring recall and resentencing of the defendant, which
may only be overcome if a court finds the defendant currently poses an
unreasonable risk of danger to public safety, as defined in subdivision
(c) of Section 1170.18.” (§ 1172.1, subd. (b)(2).) Section 1170.18,
subdivision (c) refers in turn to section 667, subdivision (e)(2)(C), clause
(iv) which “ ‘identifies eight types of particularly serious or violent
felonies, known colloquially as “super strikes.” ’ ” (Braggs, supra, 85
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defendant’s March 2023 resentencing, section 1172.1, subdivision (a)(4)
provided “the court may consider postconviction factors,” although
effective January 1, 2024, that provision was renumbered subdivision
(a)(5) and now states that “the court shall consider postconviction
factors.” (Stats. 2023, ch. 795. § 1.5., italics added.)
If the court recalls and resentences the defendant, it must “apply
the sentencing rules of the Judicial Council and apply any changes in
law that reduce sentences or provide for judicial discretion so as to
eliminate disparity of sentences and to promote uniformity of
sentencing.” (§ 1172.1, subd. (a)(2).) Postconviction factors to consider
include but are “not limited to, the disciplinary record and record of
rehabilitation of the defendant while incarcerated, evidence that
reflects whether age, time served, and diminished physical condition, if
any, have reduced the defendant’s risk for future violence, and . . . if
the defendant has experienced psychological, physical, or childhood
trauma . . . .” (§ 1172.1, subd. (a)(5).) In addition to adding former
section 1170.03, Assembly Bill 1540 amended former section 1170 by
adding subdivision (b)(6)(A) requiring the court to consider a lower
term if childhood trauma was a contributing factor in the commission of
the alleged offense. (Stats. 2021, ch. 719.)
Defendant’s resentencing
The prosecutor filed a response to the CDCR letter requesting the
trial court recall and resentence defendant in accordance with section
1172.1, subdivision (a)(1). The prosecutor recommended striking the
allegations under section 667, subdivisions (a)(1) and (b)(1) and leaving
the remainder of the sentence for a total term of 55 years, four months
to life in prison. The prosecutor acknowledged there was insufficient
Cal.App.5th at p. 818, quoting People v. Valencia (2017) 3 Cal.5th 347,
351.) Here, the prosecution conceded it had no affirmative evidence
that defendant might commit a super strike.
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evidence that defendant might commit a super strike, which would
permit the court to deny resentencing, but contends defendant
remained a risk to public safety and it would not serve the interests of
justice to reduce the sentence further. The response notes defendant
was 44 years old when he committed the robberies and false
imprisonment by violence, as well as defendant’s lengthy criminal
history, in-custody conduct and rules violations. Also listed was
defendant’s criminal history from 1987 to 2017, his work history in
prison, and his rehabilitative and educational programming since 2017.
Defense counsel submitted no written reply or oral argument at
the March 8, 2023 hearing. Counsel advised the trial court that she
shared with the prosecutor defendant’s C-files, and counsel reviewed
the CDCR letter and the prosecution’s response. Counsel expressed a
willingness to submit the matter on the prosecution’s sentencing
calculations because striking the enhancements would reduce the
sentence by double digits. Defendant appeared at the hearing via
Webex and defense counsel explained to him on the record that because
some enhancements would be stricken in addition to those already
stricken by the court of appeal, she recommended he submit the matter
rather than oppose it. She advised defendant he would have the right
to appeal, but since the resentencing has “gone in your favor,” it would
be strictly his choice. Counsel asked for and obtained defendant’s
concurrence.
Upon recall, it is within the trial court’s discretion to engage in
full resentencing so long as it does not impose a sentence greater than
the original. (People v. Vaesau (2023) 94 Cal.App.5th 132, 142.) Full
resentencing also allows the court to revisit all prior sentencing
decisions as to all counts (People v. Garcia (2022) 76 Cal.App.5th 887,
902), and allows the court to consider a renewed Romero motion (see
People v. Hubbard (2018) 27 Cal.App.5th 9, 12–13), to reconsider the
terms of probation (People v. Garcia, supra, at p. 902), and whether to
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impose concurrent or lower terms (see People v. Salazar (2023) 15
Cal.5th 416, 426–427, 428, 431).
Section 1172.1 provides “[r]esentencing may be granted without a
hearing upon stipulation by the parties.” (§ 1172.1, subds. (a)(8)(A).)
Here defense counsel essentially stipulated to the court’s proceeding
without a hearing by submitting the matter upon the prosecution’s
response, after assuring the court that counsel had reviewed the
relevant documents and verified the “calculation as accurate.” Defense
counsel also explained her intention to defendant on the record, and
sought and obtained his concurrence.
The trial court confirmed and accepted the agreement, and
resentenced defendant by striking the serious felony enhancements.
We conclude the record indicates the trial court was aware of the
current law and accepted the parties’ agreement, including defendant’s
concurrence. We therefore affirm the trial court’s order.
DISPOSITION
The judgment is affirmed.
____________________________________________________________
LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
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