California Court of Appeal Nov 23, 2020 No. E074541Unpublished
Filed 11/23/20 P. v. Matthews CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E074541
v. (Super.Ct.No. FSB059330)
ORLANDO MATTHEWS, OPINION
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court of San Bernardino
County. Annemarie G. Pace, Judge. Affirmed.
James M. Kehoe, 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, Assistant Attorney General, Daniel Rogers and Christopher P.
Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
1
I
INTRODUCTION
In 2009, a jury found defendant and appellant Orlando Matthews guilty of five
counts of robbery (Pen. Code,1 § 211), as well as various other true findings. Defendant
was sentenced to 24 years four months in prison. About 10 years later in June 2019,
pursuant to amended section 1170, subdivision (d)(1) (section 1170(d)(1)), the secretary
of the California Department of Corrections and Rehabilitation (CDCR) recommended
that the superior court recall the previously imposed sentence and resentence defendant
under section 1170(d)(1) in light of his efforts while in prison to rehabilitate himself.
Following a hearing, the court declined to recall the sentence without prejudice.
On appeal, defendant contends the trial court abused its discretion in refusing to
recall his sentence and resentence him because the court failed to adequately consider the
postconviction factors outlined in section 1170(d)(1). We find the trial court acted well
within its discretion in declining to recall the sentence and affirm the postjudgment order.
II
FACTUAL AND PROCEDURAL BACKGROUND2
On September 4, 5, and 7, 2006, defendant robbed two mini-marts, a gas station,
and a hamburger restaurant at gunpoint. Defendant was accompanied by another man
1 All future statutory references are to the Penal Code unless otherwise stated.
2 The factual and procedural background up until the CDCR’s request is taken from this court’s nonpublished opinion in defendant’s prior appeal. (See People v. Matthews (Oct. 27, 2010, E050028) [nonpub. opn.] (Matthews I).)
2
who brandished a gun when the two robbed one of the mini-marts. At trial, defendant
testified that the man who robbed one of the mini-marts with him had brought and
brandished his own gun, whereas when defendant robbed the other three establishments
by himself, he used only a pellet gun, not a “real gun.” (Matthews I, supra, E050028.)
The jury convicted defendant of five counts of robbery stemming from the four
incidents and made two true findings that a principal in one of the robberies was armed
with a handgun (§ 12022, subd. (d)). The jury found defendant not guilty of two counts
of attempted murder and one count of attempted robbery stemming from an incident that
allegedly occurred on September 3, 2006, found not true several allegations related to the
September 3 incident, and found not true allegations that he had personally used a firearm
in the robberies that he committed by himself. After a court trial, the trial court found
that defendant had suffered a prior conviction that qualified as both a strike (§§ 667,
subds. (b)-(i) & 1170.12, subds. (a)-(d)) and a serious felony (§ 667, subd. (a)). The trial
court sentenced defendant to 24 years and four months as follows: the upper term of five
years for one of the robberies, doubled to 10 for the prior strike conviction, plus two
years for each of the other four robbery convictions, plus one year for one of the two
handgun allegations and four months for the other, plus five years for the prior serious
felony. (Matthews I, supra, E050028.)
Defendant subsequently appealed, and in 2010, this court affirmed the judgment in
its entirety. (See Matthews I, supra, E050028.)
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On June 19, 2019, the secretary of the CDCR sent a letter to the trial court
pursuant to section 1170(d)(1), recommending that the court recall defendant’s sentence
and resentence him. The recommendation was based upon defendant’s commendable
behavior while in custody and his efforts towards rehabilitation. Specifically, the CDCR
noted that defendant had remained “disciplinary free since being received to CDCR on
January 19, 2010,” worked well with his work team, was “highly motivated,” required
“little supervision,” and participated in numerous programs, such as college classes, a
substance abuse program, and other counseling and self-awareness programs.
On September 16, 2019, the People opposed defendant’s early release, arguing the
section 1170(d)(1) factors do not weigh in defendant’s favor.
On November 19, 2019, defendant’s counsel filed a response to the People’s
opposition to resentence defendant pursuant to section 1170(d)(1).
The trial court heard the request to recall and for resentencing on November 22,
2019. Following oral argument, the trial court denied the recommendation to recall
defendant’s sentence and for resentencing without prejudice. In denying the request, the
trial court explained: “The Court in sentencing [defendant] did not take into account the
fact that he had been charged with attempted murder. I know this happened a long time
ago, but I don’t remember being shocked that he was acquitted of those counts. [¶] And
I know at the time of sentencing that I was well aware of the death of his son and that at
that time Counsel argued that I should take that into account as to the reason why he got
into this and restarted a life of crime, for lack of a better word. [¶] And I think that at the
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time, if I remember correctly, I indicated I understood why that would lead somebody to
use substances to kind of dull the pain. But I had a harder time in understanding or
discounting the robberies in this case and inflicting that fear and pain on innocent
victims. [¶] And I understand that when you use controlled substances your judgment is
skewed. But taking into account the factors I am to consider under [section] 1170, I don’t
believe that, even given the positives that [defendant] does present, a recall of the
sentence to a lesser sentence is warranted at this time. And I’m going to deny the
1170(d)(1) resentencing. [¶] I presume that this does not prejudice [defendant] in the
future should circumstances continue to go in his favor. But that he would still have the
opportunity to file a request as would the C[D]CR.”
On January 17, 2020, defendant filed a timely notice of appeal.
III
DICUSSION
Defendant contends the trial court abused its discretion when it declined the
CDCR’s request to recall his sentence and resentence him because the court failed to
properly consider the postconviction factors enumerated in section 1170(d)(1), such as
evidence of his rehabilitation, including his positive behavior and accomplishments while
in prison.
Section 1170(d)(1) authorizes the secretary of the CDCR to recommend to the
superior court that the court recall a previously imposed sentence and resentence the
defendant “‘for any otherwise lawful reason.’” (People v. Loper (2015) 60 Cal.4th 1155,
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1165, quoting Dix v. Superior Court (1991) 53 Cal.3d 442, 460 (Dix).) The goal of such
resentencing is “to eliminate disparity of sentences and to promote uniformity of
sentencing.” (§ 1170(d)(1).)
Specifically, section 1170(d)(1) authorizes the court, “within 120 days of the date
of commitment on its own motion, or at any time upon the recommendation of the
secretary or the Board of Parole Hearings in the case of state prison inmates . . . [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.”3 This provision thus creates “an
exception to the common law rule that the court loses resentencing jurisdiction once
execution of sentence has begun.” (Dix, supra, 53 Cal.3d at p. 455; accord, People v.
The CDCR can only recommend to the trial court that it recall and resentence the
defendant. The court retains the authority to accept or decline the CDCR’s
recommendation. The statute is clearly permissive, not mandatory—it uses the verb
“may,” not “shall.” (§ 1170(d)(1); People v. Humphrey (2020) 44 Cal.App.5th 371, 378;
Dix, supra, 53 Cal.3d at p. 459, fn. 12; People v. Gibson (2016) 2 Cal.App.5th 315, 324
(Gibson); People v. Delson (1984) 161 Cal.App.3d 56, 62.) If the court chooses to recall
3 The Legislature revised section 1170(d)(1), effective August 6, 2020, to replace “he or she” with “they.” For ease of reference we quote section 1170(d)(1) in its current form.
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and resentence the defendant, it must give some indication that it is doing so. (People v.
Humphrey, at p. 378.)
We review the superior court’s order declining to follow the Secretary of the
CDCR’s recommendation for abuse of discretion. (McCallum, supra, 55 Cal.App.5th at
p. 211; cf. Gibson, supra, 2 Cal.App.5th at pp. 324-325 [court’s decision whether to
recall defendant’s sentence under section 1170, subdivision (d)(2), is reviewed for abuse
of discretion].) A trial court abuses its sentencing discretion when its decision is arbitrary
or capricious, patently absurd resulting in a manifested miscarriage of justice,
inconsistent with the letter and spirit of the law, or based on circumstances that constitute
an improper basis for decision. (People v. Sandoval (2007) 41 Cal.4th 825, 847
(Sandoval); Gibson, at p. 325.) “‘The abuse of discretion standard “involves abundant
deference” to the court’s ruling.’” [Citations.] We review questions of statutory
construction de novo. [Citations.]” (McCallum, at p. 211.)
“In deciding whether to recall a sentence under section 1170, subdivision (d)(1),
the trial court may exercise its authority ‘for any reason rationally related to lawful
sentencing.’ (Dix, supra, 53 Cal.3d at p. 456.) Further, section 1170, subdivision (d)(1),
expressly authorizes the court in resentencing a defendant to 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 for future violence,
and evidence that reflects that circumstances have changed since the inmate’s original
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sentencing so that the inmate’s continued incarceration is no longer in the interest of
justice.’” (McCallum, supra, 55 Cal.App.5th at p. 210, italics added.)
Section 1170(d)(1) thus contains a two-step process. At the first step, the trial
court decides whether to recall the sentence. If the court decides not to recall the
sentence, this ends the inquiry. If the court decides to recall the sentence, however, the
inquiry moves onto the second step, and the court holds a resentencing hearing. (See
§ 1170(d)(1); see also Dix, supra, 53 Cal.3d at p. 463 [“We hold that section 1170(d)
permits the sentencing court to recall a sentence for any reason which could influence
sentencing generally, even if the reason arose after the original commitment. The court
may thereafter consider any such reason in deciding upon a new sentence.”].)
Utilizing statutory interpretation, the People argue that because the trial court here
refused to recall defendant’s sentence in the first instance, the court was not required to
consider the postconviction factors outlined in section 1170(d)(1). In other words, the
People claim the postconviction factors “may be considered by the court upon
resentencing but are not necessary when determining whether to recall the sentence in the
first place.”
Upon reviewing the record, we conclude the trial court never issued an order
recalling the sentence. Because the court never recalled the sentence, there was no need
for the court to consider the postconviction factors enumerated in section 1170(d)(1). We
therefore find no error.
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Even if the trial court was required to consider the postconviction factors outlined
in section 1170(d)(1), the record establishes that the trial court considered all relevant
factors in refusing to recall defendant’s sentence and resentence him.
Defendant contends an examination of the postconviction factors enumerated in
section 1170(d)(1) shows that the trial court abused its discretion “in denying the
resentencing because its decision was inconsistent with the letter and spirit of the law.”
We disagree. It is defendant’s burden to clearly show the sentencing decision was so
irrational or arbitrary no reasonable person could agree with it. (People v. Carmony
(2004) 33 Cal.4th 367, 376-377 (Carmony).)
The trial judge here was the original sentencing judge. At the time of the request
to recall the sentence, the court was aware of the offenses, defendant’s criminal history,
his substance abuse history, the death of his son which resulted in defendant restarting a
life of crime, and his performance while in prison. As the court noted, defendant had
made positive progress while in prison, but “taking into account the factors [the court is]
to consider under [section] 1170,” the court did not believe “a recall of the sentence to a
lesser sentence is warranted at this time.”
Defendant emphasizes the significant review that was done by the CDCR and to
some extent uses the agency’s recommendation as an implied argument it would be
unreasonable to reject such a thorough analysis. Of course, the statutory scheme places
the decision-making responsibility with the trial court, not prison authorities. While the
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CDCR’s recommendation is entitled to considerable weight, it remains the trial court’s
responsibility to decide whether to grant or deny the request.
Defendant relies on People v. Torres (2020) 48 Cal.App.5th 550, 560 (Torres) for
the proposition that a trial court cannot ignore established guidelines nor may it
summarily consider the factors enumerated in the statute. First, Torres was considering
section 1170, subdivision (e), dealing with compassionate releases under statutorily
established guidelines. That section is substantially different than section 1170(d)(1)
dealing with recall of sentences. In any event, it is not necessary to discuss Torres in the
context of this case and the applicable statute. Simply put, there is nothing in the record
to show the trial court ignored mandatory considerations or that it considered improper
material. Disagreeing with the CDCR and the defense does not constitute ignoring
established guidelines or summarily considering the factors enumerated in the statute.
Likewise, the court’s failure to explicitly mention the factors enumerated in
section 1170(d)(1) in its ruling does not show the court did not consider the factors in
declining to recall the sentence and resentence defendant. Here, the court weighed all the
material before it and reached a reasoned decision. That defendant disagrees with the
court’s weighing process does not amount to an abuse of discretion.
The record is clear that the trial court had before it all of defendant’s background
material, knowledge of the offenses, the CDCR recommendation, and supporting
materials separately submitted to the court. It is apparent the decision was made with
awareness of the court’s discretionary authority and the reasons for and against recall of
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the sentence. Undoubtedly, reasonable minds could differ on whether to grant or deny
this request, which of course only illustrates it is a discretionary judgment not simply an
evaluation of legislative established criteria.
We cannot say the court’s decision was unreasonable, arbitrary, or a miscarriage
of justice. (Sandoval, supra, 41 Cal.4th at p. 847; Carmony, supra, 33 Cal.4th at pp. 376-
377.) Accordingly, we affirm the judgment.
IV
DISPOSITION
The trial court’s November 22, 2019 postjudgment order declining to exercise its
discretion for recall and resentencing under section 1170(d)(1) is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. We concur:
RAMIREZ P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The trial court did not abuse its discretion in declining to recall the defendant's sentence under Penal Code section 1170, subdivision (d)(1), as the court acted within its authority in weighing the relevant factors and the defendant's rehabilitation.
Issues
Whether the trial court abused its discretion in refusing to recall the defendant's sentence under Penal Code section 1170, subdivision (d)(1).
Whether the trial court was required to consider postconviction factors before deciding to recall the sentence.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We find the trial court acted well within its discretion in declining to recall the sentence and affirm the postjudgment order.”
“The court retains the authority to accept or decline the CDCR’s recommendation. The statute is clearly permissive, not mandatory”
“The record is clear that the trial court had before it all of defendant’s background material, knowledge of the offenses, the CDCR recommendation, and supporting materials separately submitted to the court.”