People v. Mullenix CA4/3

Filed 6/17/21 P. v. Mullenix CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent, G059194
v. (Super. Ct. No. 06WF2607)
RACHAEL SCARLETT MULLENIX, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Terri K.
Flynn-Peister, Judge. Reversed.
Richard Power, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Senior Assistant Attorney General, A. Natasha
Cortina and Lynne G. McGinnis, Deputy Attorneys General for Plaintiff and Respondent.
In 2008, a jury convicted Rachael Scarlett Mullenix (Rachel) of first degree
murder and she is serving a 25-years-to-life prison term. In October 2019, the Secretary
of the California Department of Corrections and Rehabilitation (CDCR) sent a letter to
the superior court recommending that due to Mullenix’s conduct in prison, her sentence
be recalled and she be resentenced. The trial court issued an order summarily denying
Mullenix’s request to resentence and denying her subsequent motion to vacate that order
in order to permit a hearing with representation and evidence.
Mullenix argues the trial court abused its discretion because it did not
afford her an opportunity to present evidence in support of CDCR’s recommendation
before denying the resentencing request. The Attorney General concedes that for the
limited purpose of determining whether to recall a sentence following CDCR’s
recommendation, the court should consider information from either the inmate or the
prosecution if requested. We accept the concession and reverse.
FACTS
A complete recitation of the facts can be found in People v. Mullenix (May
12, 2010, G041068) [nonpub. opn.]. Suffice it to say, on September 13, 2006, the
Newport Beach Police Department found the body of Barbara Mullenix (Barbara)
floating in Newport Harbor. She suffered more than 50 stab wounds; criminalists later
determined three or four different knives had been used in the murder. A butter knife
remained embedded beneath one eye. The body was wrapped in sheets and a blanket.
Investigators found a half-closed, four-inch pocketknife in the bedding. They also found a
cardboard box for a large television floating near the body. Laboratory testing revealed
Rachael’s DNA on the duct tape used to seal the box.
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The location of the homicide was a home in Huntington Beach where
Rachael and her divorced parents resided. At the home, investigators found blood on the
headboard, footboard, wall, mini blinds, nightstands, and carpet in Barbara’s bedroom.
The mattress and box spring were missing. Testing revealed Racheal’s DNA on the non-
bloodstained portions of Barbara’s pillowcase. The body had been placed in a large
cardboard box that was dragged to a vehicle near the home and then taken to the harbor.
Police arrested Rachael and her boyfriend, Ian Allen, in Louisiana. When
interviewed, Racheal blurted out she had been kidnapped. After being advised of her
rights, she told the detectives she fell asleep between 10:00 and 11:00 p.m. the night
Barbara was killed. In the middle of the night, she awoke, hearing her mother screaming
for her. She ran to Barbara’s room and found Allen on top of her and stabbing her.
Rachael tried to push Allen away, but he shoved her, knocking her out. According to
Rachael, after Allen killed Barbara, he held a gun to Rachael’s head, stating, “You’re
coming with me.” She denied any involvement in the killing.
After being transported back to California, Rachael told the booking officer
at the Huntington Beach jail that she feared Allen. She sought reassurance several times,
“You’re not going to let him hurt me, promise?” About 30 minutes later, as arranged by
the detectives, the booking officer placed Rachael in a patrol car with Allen, where a tape
recorder was hidden. She assured Allen, “If you go to prison and I get out, I’ll wait for
you.” When she asked, “Did you tell them you kidnapped me,” Allen responded, “They
didn’t buy that for a second . . . .” Rachael advised Allen to “plead insanity.” She
assured him, “I don’t hate you . . . I’ll never hate you. I’ll love you til the day I die, do
you understand that?” She promised, [I]f I make bail, and I get out of this somehow, I’m
gonna change my identity and change my appearance and I’ll come see you.” The couple
proceeded to tell each other several times, “I love you.” Allen said he had killed Barbara
for trying to get between him and Rachael.
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At trial, Rachael testified she and Allen decided to run away together to
escape her mother’s abuse. They chose the night of September 12 because her father
would be away. Their plan was to wait until Barbara fell asleep, then she would meet
Allen outside her home in his truck and they would drive to Florida. According to
Rachael, Allen entered the condominium around 1:45 a.m. through the sliding glass
doors. Barbara awoke when she heard Rachael and Allen talking. Allen and Barbara
argued, and Barbara threatened to call the police to report Allen was kidnapping Rachael.
When Barbara entered her bedroom to use the phone, Allen followed her, shut the door,
and attacked Barbara. Hearing the struggle, Rachael entered the bedroom and tried to
intervene, but Allen shoved her into a wall. After the killing, Allen slammed Rachael
against a wall and directed her to retrieve cleaning materials from downstairs and assist
him in disposing of Barbara’s body and belongings. Allen did not want Rachael to “get
in trouble” for assisting him after the murder, so they agreed that if they were arrested,
she would say she had been kidnapped. The jury was unpersuaded by Rachael’s
testimony and convicted her of first degree murder for the stabbing death of Barbara, but
found the allegation she personally used a knife in the slaying not to be true.
On October 28, 2019, the CDCR sent a letter to the superior court
recommending Mullenix’s sentence be recalled pursuant to Penal Code section 1170,
subdivision (d). On February 5, 2020, the trial court read and considered the letter in
chambers and denied the request to recall and resentence Rachael. There were no
appearances by the parties. The court directed the clerk to send notice of the ruling to the
parties.
In March 2020, Mullenix filed a motion to vacate the trial court’s ex parte
ruling, contending she had been denied the rights to be personally present, to be
represented and assisted by counsel, and to due process of law under the Sixth and
Fourteenth Amendments to the United States Constitution. The prosecution filed
opposition asserting that no hearing was required to address the CDCR’s request for
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recall and resentencing, contending that the language in Penal Code section 1170,
subdivision (d), is permissive, not mandatory, in respect to holding a hearing to address
the CDCR’s request.
On June 22, 2020, with no appearance of the parties, the trial court issued
its order denying Mullenix’s motion to vacate. Rachael filed a timely notice of appeal.
DISCUSSION
Mullenix cites People v. McCallum (2020) 55 Cal.App.5th 202(McCallum), which addressed the identical issue in this appeal. The McCallum court
held that while there was no right to a hearing, the trial court abused its discretion by
rejecting the CDCR’s recommendation without first allowing defendant to submit
information necessary for the court to exercise its discretion whether to follow the
recommendation. (Id. at p. 216.) The McCallum court reversed the trial court’s order
declining to recall defendant’s sentence and remanded the matter to the court to allow the
parties to submit information relevant to the CDCR’s recommendation and to provide
briefing on whether the trial court should follow the recommendation. After allowing the
parties to submit evidence, the trial court was directed to exercise its discretion whether
to recall and resentence the defendant. (Id. at p. 219.)
The Attorney General agrees that for the limited purpose of determining
whether to recall a sentence following the CDCR’s recommendation, the court should
consider information from either the inmate or the prosecution if requested. We agree
and accept the concession. However, we disagree with Rachel she has a right to
personally appear before the court. (See McCallum, supra, 55 Cal.App.5th at p. 215.)
DISPOSITION
The trial court’s order denying Mullinex’s motion to vacate is reversed.
The matter is remanded, and the trial court is directed to consider evidence relevant to the
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decision of whether to recall Mullinex’s sentence submitted by either Mullinex or the
prosecution.
O’LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
MOORE, J.
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