Judge Denied PC 1170(d)(2) Resentencing in Error

Under Senate Bill 9 in 2012, Penal Code § 1170(d)(2) provides that an inmate sentenced to life without the possibility of parole (LWOP) may petition for recall of his sentence and resentencing if the inmate was under age 18 when the crime was committed and the inmate has served at least fifteen years of the sentence.

The petition must describe the inmate’s remorse for the crime and the inmate’s efforts toward rehabilitation, as well as a statement or showing of any one of the following four mitigating circumstances : (1) the conviction was under the felony-murder rule or as an aider and abettor; (2) the inmate has no juvenile adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for the sentence which is being considered for recall; (3) the crime was committed with at least one adult confederate; and/or (4) the inmate has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, taking rehabilitative, educational or vocational programs in prison, if available, using self-study for self-improvement, or showing evidence of remorse.  Penal Code § 1170(d)(2)(B)(i) – (iv).

Upon reviewing the petition and any opposition thereto, the court may order a recall of the sentence and resentencing if it “finds by a preponderance of the evidence that one or more of the statements specified in (i) to (iv), inclusive, of subparagraph (B) is true.  The judge then must hold a hearing to resentence the defendant in the same manner as if the defendant had not been previously sentenced, provided that the new sentence, if any, is not greater than the initial sentence.  Penal Code § 1170(d)(2)(E).

It is against this legal background that this article summarizes the Fifth Appellate District Court’s ruling in People v. David Lee Harring, Jr. (2021 DJDAR 10195).

In 1997, when Mr. Harring was 17 years old, he and three others approached brothers Arnulfo and Arturo Sorio, who were walking home from an English language class they had just completed.  During an altercation, Harring shot them both.  Arnulfo was shot in the neck and the head and died.  Arturo was shot by a bullet that hit his arm and passed into his chest.  He survived.

In 1998, a jury convicted Harring of first degree premeditated murder (Penal Code § 187(a)), committed during the commission of a robbery (Penal Code § 190.2(a)(17)) and attempted first degree premeditated murder (Penal Code §§ 664/187(a)), both charges with an enhancement allegation of personal use of a firearm under Penal Code § 12022.5(a), and inflicting great bodily harm under Penal Code § 12022.7, as well as attempted robbery (Penal Code §§ 664/212.5) toward each Sorio brother.

The judge sentenced Harring to life without the possibility of parole for the murder, plus ten years for the 12022.5(a) enhancement, as well as a term of life with the possibility of parole for the attempted murder, plus ten years on the 12022.5(a) enhancement and three years for the 12022.7 enhancement.  He was also sentenced to three years for each attempted robbery, which were stayed under Penal Code § 654.

In 2018, after approximately twenty years of serving his sentence, Harring filed a petition with the Kern County Superior Court for recall and resentencing under Penal Code § 1170(d)(2) (SB 9).  Harring submitted a statement of remorse and rehabilitation.  He also stated that he met two of the four criteria in mitigation because he had no other juvenile felony adjudication for assault or other felony crimes with a significant potential for personal harm to victims (Penal Code § 1170(d)(2)(B)(ii)) and he had performed acts that tend to indicate rehabilitation or the potential for rehabilitation (Penal Code § 1170(d)(2)(B)(iv)).

The People opposed the petition by pointing out that Harring had a prior juvenile adjudication for attempted commercial burglary, but was charged with attempted robbery and attempted commercial burglary.  The People pointed out, further, that when he was stopped during the crime, he fought with a security guard, which had potential for harm to a victim.

The People also cited to Harring’s extensive prison disciplinary records (13 CDC 115 violations), some of which involved assault and drug possession (heroin), to argue that this does not suggest rehabilitation or the potential for rehabilitation.

A hearing then was held in court, at which Harring’s mother and Harring himself testified. 

The judge denied the petition, concluding that neither two of the circumstances under Penal Code § 1170(d)(2)(B) (ii) and (iv) were true by a preponderance of the evidence.

Harring appealed, arguing the judge erred by looking at the actual facts of a prior juvenile adjudication, rather than only the statutory elements.

The Fifth Appellate District agreed and remanded the matter to the trial court to conduct a resentencing under 1170(d)(2).

We present this summary because what the prosecution did and how the judge considered such arguments is quite common in the SB 9 context, as well as in other resentencing contexts.  In each context, it may be improper, depending upon how the court ultimately rules.

The citation for the Fifth Appellate District Court ruling discussed above is People v. David Lee Harring, Jr. (5th App. Dist., 2021) 69 Cal. App. 5th 483, 284 Cal. Rptr. 3d 546.

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