CDCR Recommends Resentencing, SB1393, Long Beach

On April 11, 2018, Judge Richard Romero in the Long Beach Courthouse sentenced Julio Arturo Cepeda to 15 years in state prison, consisting of a five year middle term for carjacking (Penal Code § 215(a)), doubled for a prior strike enhancement (Penal Code §§ 667(b) – (i), 1170.12(a) – (d)), plus a five year prior serious felony enhancement (Penal Code § 667(a)(1)).  Cepeda had “pled in the open” and did not appeal Judge Romero’s sentence.

At the time of Cepeda’s plea, judges were prohibited from striking serious felony enhancements under Penal Code § 667(a)(1).  People v. Jones (2019) 32 Cal. App. 5th 267, 272.  Effective January 1, 2019, however, Senate Bill 1393 removed that prohibition, permitting trial courts to dismiss serious felony enhancements in the furtherance of justice.  People v. Stamps (2020) 9 Cal. 5th 685, 693.

In 2020, the secretary of the CDCR sent a letter to the trial court (Long Beach) invoking the recall provisions of Penal Code § 1170(d)(1) with respect to Cepeda’s case.  The letter noted Cepeda’s sentence included a five-year enhancement under Penal Code § 667(a)(1) and that SB 1393 had given courts discretion to strike such enhancements.

The letter included several documents related to Cepeda’s incarceration for the prior two years.  Those documents showed that he had not been reported for any rule violations, had received 16.25 hours of credit for participating in rehabilitative or self-help programs and had been assigned to four educational, employment and rehabilitative programs.  The letter recommended that “inmate Cepeda’s sentence be recalled and that he be resentenced in accordance with § 1170(d).”

The matter was assigned to Judge Richard Goul, who our office knows from appearing before him many times.  We regard him as patient and extremely fair, with a good judicial demeanor.  Judge Goul recalled the sentence and held a resentencing hearing.

At the hearing, he indicated that he had “will certainly hear whatever you want to say.”  Defense counsel argued that the court had jurisdiction under § 1170(d))(1) to apply SB 1393 retroactively based on the CDCR letter, which is correct. 

Defense counsel argued that it would be improper for the judge to accept Judge Romero’s prior acceptance of the plea and sentence because the original sentencing court had no opportunity to consider striking the serious felony enhancement.  The prosecution did not offer any response.

Judge Goul indicated he would make a two-part ruling.  First, relying on People v. Davis (2020) 48 Cal. App. 5th 843 and out of deference to Judge Romero’s acceptance of the plea and the sentence, he would not strike the serious felony enhancement.  Second, he said that based on his own independent review of the trial court file, he would not strike the enhancement.

Defense counsel asked if the judge would consider additional evidence concerning Cepeda’s behavior in prison after being sentenced.  Judge Goul declined the request, stating he would rely upon the record before him.

Cepeda appealed to the Second Appellate District in downtown Los Angeles, arguing that Judge Goul abused his discretion in declining to strike the enhancement.  He argued that the judge erred by relying on what the original sentencing judge might have done and by declining to consider the additional evidence.

The Second Appellate District agreed with Cepeda and remanded the matter for a new section 1170(d)(1) resentencing hearing.  At the hearing, the Second Appellate District directed the judge to make its own independent ruling and to consider any additional evidence Cepeda may present concerning his behavior in prison after being sentenced. 

The appellate court emphasized that under Penal Code § 1170(d)(1), the code provides therein: “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 of 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.”

Lastly, as the appellate court pointed out in a footnote, Judge Goul’s reliance on Davis, supra, was erroneous.  The California later granted review in Davis and transferred the case back to the Court of Appeal for reconsideration in light of Stamps, supra.

In closing, we caution not to celebrate too enthusiastically for this ruling.  After all, it is entirely reasonable, we think, for a judge on resentencing – Judge Goul himself in fact – to consider the post-conviction record of rehabilitation for Cepeda and decide that two years of good behavior in prison and taking classes for 16.25 hours is insufficiently long in duration for him to reduce his sentence by five years, and that the CDCR recommendation was premature.

The citation for the Second Appellate District Court ruling discussed above is People v. Julio Arturo Cepeda (2nd App. Dist., 2021) ____ Cal. App. 5th ____ (B307000).

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