Hernandez v. Superior Court CA4/3

Filed 10/31/22 Hernandez v. Superior Court CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

GUADALUPE VINCENT HERNANDEZ, G060472 Petitioner, (Super. Ct. No. 94WF1745) v. OPI NION THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

THE PEOPLE OF THE STATE OF CALIFORNIA,

Real Party in Interest.

Petition for Writ of Mandate to vacate an order of the Superior Court of Orange County, Cheri T. Pham, Judge. Petition granted. Motion to dismiss denied. Three Strikes Project and Milena Blake for Petitioner.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Genevieve Herbert, Deputy Attorneys General, for Respondent. * * *

FACTS Some cases do not sit well. This is one of them. In March 2021, the Secretary of the California Department of Corrections and Rehabilitation (CDCR) recommended that Guadalupe Hernandez’s sentence be recalled, and that he be resentenced in light of his stellar behavior during his 25 years of incarceration. On May 4, 2021, despite the fact that Hernandez had retained counsel, the CDCR’s recommendation was denied by the trial court—an order that affected Hernandez’s “substantial liberty interest” (People v. Mendez (2021) 69 Cal.App.5th 347, 351)—without attempting to notify Hernandez or his counsel that it was considering the issue. The court thereafter failed to provide notice to Hernandez that it had issued the order; instead, it served notice only on the Secretary of the CDCR. After Hernandez’s counsel learned directly from the CDCR of its resentencing recommendation, she appeared in the trial court and moved to set a case management conference to address the issue. The trial court denied the motion in an order stating it had already rejected the recommendation. Hernandez then moved for reconsideration of the resentencing recommendation, citing cases holding that it is an abuse of discretion for the court to reject a CDCR resentencing recommendation without first notifying the defendant and affording him or her an opportunity to submit additional information bearing on the issue. On July 2, 2021, the court denied that motion as well. The court advised Hernandez that