People v. Benitez CA6

Filed 3/14/22 P. v. Benitez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H048647 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1118634)

v.

JACOB ANDREW BENITEZ,

Defendant and Appellant.

Jacob Andrew Benitez is currently serving a 26-year sentence for multiple counts of robbery with firearm enhancements. His earliest release date is January 30, 2032. In October 2020, the Secretary of the California Department of Corrections and Rehabilitation (CDCR) recommended that the trial court recall Benitez’s sentence pursuant to Penal Code section 1170, subdivision (d)(1),1 and resentence him in light of recent amendments to section 12022.53, subdivision (h), which now gives courts discretion to strike or dismiss certain firearm enhancements. The trial court declined to recall the sentence. Benitez appealed, contending due process required the trial court to hold a hearing, provide notice and an opportunity to be heard, and appoint counsel before denying the request, and that the trial court abused its discretion by basing the denial on improper factors.

1 Undesignated statutory references are to the Penal Code.

While this appeal was pending, Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Assembly Bill No. 1540) was signed into law in October 2021 and became effective on January 1, 2022. (Stats. 2021, ch. 719.) The bill moves the recall-and-resentencing provisions of section 1170, subdivision (d)(1) to a new section, 1170.03, and revises its terms. In supplemental briefing, both Benitez and the Attorney General ask this court to reverse and remand to the trial court for reconsideration of the Secretary’s recommendation in light of this new legislation. We grant the request in the interest of judicial economy, and accordingly reverse and remand. I. FACTUAL AND PROCEDURAL BACKGROUND2 In 2013, Benitez was sentenced to a 26-year term following a negotiated plea bargain in which he pleaded guilty to 10 counts of robbery, one count of attempted robbery, and one count of being a felon in possession, along with five firearm enhancements and six deadly weapon enhancements, pursuant to sections 12022.53, subdivision (b) and 12022, subdivision (b)(1), respectively. On October 8, 2020, the trial court received a letter from the Secretary of the CDCR, addressed to the Honorable David A. Cena, recommending a recall of sentence and resentencing of Benitez pursuant to former section 1170, subdivision (d)(1). (Stats. 2018, ch. 1001, § 2.) The recommendation was based on a recent amendment to section 12022.53, subdivision (h), which now gives courts discretion to strike or dismiss enhancements for use of a firearm in the commission of enumerated felonies, whereas previously such enhancements were mandatory. The Secretary also provided a “cumulative case summary and evaluation report,” which summarized Benitez’s underlying offenses and prior criminal history and