People v. MonroePeople v. Monroe
BACKGROUND
The Crime, Sentence, and Appeal
In September 2003, Monroe was convicted by a jury of residential robbery in the first degree (
On February 24, 2005, the trial court sentenced Monroe to a 31 year four month prison term, calculated as follows: eight years for the robbery; two consecutive one year four month terms for the two counts of false imprisonment; 10 years for the firearm enhancement on count 1 (
Senate Bill No. 620 and Monroe‘s First Motion
In 2017, the Legislature passed Senate Bill No. 620 (2017–2018 Reg. Sess., Stats. 2017, ch. 682, §§ 1 & 2, eff. Jan. 1, 2018), granting trial courts the discretion to strike firearm enhancements imposed under section 12022.53 “in furtherance of justice” under section 1385.
On November 13, 2020, Monroe, acting in propria persona, filed a “SB620 Motion for Resentencing Pursuant to Penal Code 1385,” asking that the trial court “exercise its judicial discretion to strike or dismiss Penal Code sections 12022.5 and 12022.53 enhancements relating to firearms.”
On November 17, at a hearing at which Monroe was not present, the trial court appointed counsel to represent Monroe.
On August 9, 2021, again at a hearing at which Monroe was not present, the trial court relieved Monroe‘s counsel and appointed another attorney to represent him.
Senate Bill No. 1393
Meanwhile, in October 2018, the Governor signed Senate Bill No. 1393 (2017−2018 Reg. Sess., Stats. 2018, ch. 1013, §§ 1–2), which took effect on January 1, 2019 and grants trial courts discretion to strike five-year serious felony enhancements (
Senate Bill No. 483 and Monroe‘s Second Motion
In October of 2021, the Governor signed Senate Bill No. 483 (2019−2020 Reg. Sess., Stats. 2021, ch. 728, § 3), effective on January 1, 2022, which added section 1171.1 to the Penal Code, subdivision (a) of which declares: “Any sentence enhancement that was imposed prior to January 1,
On October 28, 2021, before any hearing or ruling on Monroe‘s motion under Senate Bill No. 620, Monroe, in propria persona, filed a document titled “SB-483 Recall of Sentence Enhancement One Year Prison Prior,” seeking to have the trial court strike his three one-year prison prior enhancements (
On November 29, the trial court relieved Monroe‘s second attorney. The next day, the trial court appointed a third attorney to represent Monroe.
The Trial Court Decision
A hearing on both motions was held on January 4, 2022. Defense counsel was present, but Monroe was not. In response to the trial court asking how long defense counsel needed to prepare for the two motions, she stated: “I have not had the opportunity to look at the prison prior, but I have had the opportunity to look at the motion to strike the gun enhancement and I do not believe the Court has jurisdiction.” The trial court then agreed: “With regard to the motion to exercise my discretion, pursuant to [section] 1385, with regard to the weapon enhancement, this Court has no jurisdiction to do that. I‘m going to deny that motion.” The trial court continued the case to January 18 as to the motion to strike the prior prison term enhancements.
On January 18, the matter was continued again to February 14.
On February 2, Monroe filed a motion for reconsideration, again in propria persona. He stated that he had never spoken with any of the three attorneys appointed to represent him. However, Monroe indicated that his
At the hearing on February 14, the prosecutor agreed that the three one-year prison priors should be stricken under Senate Bill No. 483, and the trial court did so, resentencing Monroe to a term of 28 years four months. With respect to the motion for reconsideration, defense counsel stated “Unfortunately, Your Honor, the law is the law and there was nothing I could do.” The trial court responded:
“THE COURT: I agree with you. So I‘m going to deny the motion to reconsider, but I have granted the motion with regard to the prison priors.”
In other words, to put it in Senate Bill language, the trial court granted Monroe relief under Senate Bill No. 483 but held he was not eligible to be considered for relief under Senate Bill No. 620.
Monroe—again acting propria persona—filed a notice of appeal.
DISCUSSION
Monroe, now represented by appellate counsel, argues that he was denied the effective assistance of counsel, and that he is entitled to remand for resentencing so that the trial court can consider whether to exercise its discretion under Senate Bill No. 620 to strike the firearm enhancements. He also argues that on remand, the trial court should consider whether to exercise its discretion to strike the five-year serious felony enhancement under Senate Bill No. 1393. We conclude that Monroe was entitled to have
Senate Bill No. 483 added section 1171.1 to the Penal Code, which was subsequently renumbered without substantive change as section 1172.75. (Stats. 2022, ch. 58, § 12, eff. June 30, 2022.) Section 1172.75, subdivision (a) provides that “[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense . . . is legally invalid.” (
The resentencing “shall result in a lesser sentence than the one originally imposed . . . unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.” (
We have not found, nor have the parties cited, any cases discussing the scope of the relief available under section 1172.75, subdivision (d)(2) at a resentencing under Senate Bill No. 483. However, there is no dispute that Monroe was entitled to resentencing under section 1172.75, and the plain terms of subdivision (d)(2) required that at that resentencing, the trial court “shall apply . . . any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” (
The Attorney General concedes that the trial court erred in denying relief under Senate Bill No. 620 because it was already resentencing Monroe pursuant to Senate Bill No. 483, but asserts that this is because the authority to strike the firearm enhancements under Senate Bill No. 620 expressly applies “to any resentencing that may occur pursuant to any other law.” (
With respect to Senate Bill No. 1393, the Attorney General first argues that Monroe has forfeited his argument because he did not present it to the trial court, based on the rule that “any failure on the part of a defendant to invite the court to dismiss under section 1385 following [People v. Superior Court (Romero) (1996) 13 Cal.4th 497] waives or forfeits his or her right to raise the issue on appeal.” (People v. Carmony (2004) 33 Cal.4th 367, 375–376; see People v. Scott (1994) 9 Cal.4th 331, 352–353.) Monroe disagrees that there has been any forfeiture, and also argues that if the claim is forfeited, his counsel was ineffective in failing to raise the issue. No satisfactory explanation for counsel‘s failure to request that the trial court strike the section 667, subdivision (a)(1) enhancement pursuant to Senate Bill No. 1393 is apparent from the record—indeed, the record indicates, and respondent concedes, that Monroe‘s counsel was affirmatively mistaken regarding the availability of relief under Senate Bill No. 620 as part of Monroe‘s resentencing under Senate Bill No. 483. To forestall Monroe‘s ineffective assistance of counsel claim, we decline to find forfeiture under the circumstances of this case. In any event, we may reach the merits of Monroe‘s argument even if it has been forfeited. (See People v. Williams (1998) 17 Cal.4th 148, 161–162, fn. 6 [“An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party. [Citations.] Indeed, it has the authority to do so“].)
On the merits, the Attorney General argues that Monroe is not eligible for relief under Senate Bill No. 1393 because he was not “legally eligible for its benefits in the first instance given that his conviction was already final prior to its effective date,” and—unlike in the case of Senate Bill No. 620—
We reject both of these arguments. Senate Bill No. 483 assumes the defendant‘s conviction is final because it provides for recall of the sentence and resentencing. (See
As noted, the Attorney General argues relief is not available under Senate Bill No. 1393 because Senate Bill No. 620 provides that the authority it grants extends “to any resentencing that may occur pursuant to any other law,” whereas Senate Bill No. 1393 contains no such provision. But this is simply a second and additional reason that Senate Bill No. 620 applies in this case. (See People v. Pillsbury (2021) 69 Cal.App.5th 776, 786 [concluding this
Finally, we reject the Attorney General‘s argument that Monroe is not entitled to a full resentencing on remand because his judgment of conviction was final and the prior prison term enhancements have already been stricken, such that no enhancements are being stricken on review. (See People v. Buycks (2018) 5 Cal.5th 857, 893 [“when part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances’ “].) By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly “invalid” enhancements. For example, section 1172.75 subdivision (d)(1) creates a presumption that the resentencing “shall result in a lesser sentence than the one originally imposed,” subdivision (d)(3) expressly requires the court to consider “post conviction factors, including . . . evidence that reflects that circumstances have changed since the original sentencing,” and subdivision (d)(4) guides the trial court in selecting among the lower, middle, and upper term on each count.
DISPOSITION
The sentence is vacated and the matter is remanded for resentencing consistent with section 1172.75 and with the views expressed in this opinion, including for the trial court to exercise its discretion under Senate Bill No. 620 and Senate Bill No. 1393.
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Richman, Acting P. J.
We concur:
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Miller, J.
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Van Aken, J. *
People v. Monroe (A164777)
*Judge of the San Francisco Superior Court, Judge Christine Van Aken, sitting as assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.