People v. Frazier

55 Cal.App.5th 858

269 Cal.Rptr.3d 806

The PEOPLE, Plaintiff and Respondent,

v.Virginia FRAZIER, Defendant and Appellant.

B300612

Court of Appeal, Second District, Division 7, California.

Filed October 13, 2020

Wayne C. Tobin, Newbury Park, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and William N. Frank, Deputy Attorney General for Plaintiff and Respondent.

PERLUSS, P. J

The Secretary of the Department of Corrections and Rehabilitation (Secretary) recommended the trial court recall Virginia Frazier's 23-year prison sentence imposed more than a decade earlier and resentence her pursuant to Penal Code section 1170, subdivision (d)(1),¹ citing Frazier's exemplary postconviction conduct. The court entered an order summarily declining to recall Frazier's sentence. On appeal Frazier contends the court violated due process by making its decision without appointing counsel for her. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Frazier's Underlying Conviction and Sentence

In November 2007 Frazier attacked her boyfriend with a steak knife and slashed his arm, which he had raised defensively to protect himself during the assault. A jury convicted Frazier of one count of assault with a deadly weapon and found true the special allegation that Frazier had personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)).

In a bifurcated proceeding on specially alleged prior conviction allegations, Frazier admitted she had suffered three prior serious or violent felony convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12) and three prior serious felony convictions within the meaning of section 667, subdivision (a)(1). The court dismissed two of Frazier's qualifying strike convictions in the interest of justice and sentenced her to 23 years in prison, eight years for the aggravated assault (the upper term of four years, doubled under the three strikes law), plus five years for the great bodily injury enhancement and five years for each of her two, separately tried, prior serious felony convictions. (§ 667, subd. (a)(1).)

We affirmed Frazier's conviction and sentence. ( People v. Frazier (June 29, 2009, B208449), 2009 WL 1842666 [nonpub. opn.].)

2. The Secretary's Request for Recall of Sentence and Resentencing and the Court's Summary Denial

On May 31, 2019 the Secretary sent a letter and supporting case summary to the trial court pursuant to section 1170, subdivision (d)(1), recommending the court recall Frazier's sentence and resentence her. The Secretary informed the court that Frazier, nearly 70 years old, had demonstrated exemplary behavior while in prison; had completed a 24-week Alcoholics Anonymous program and multiple educational courses, including classes addressing conflict resolution and responses to violence; and had served as a role model for other students in the prison population. Frazier's only disciplinary issue during her more than decade-long incarceration was a refusal to perform an assigned duty in September 2017.

On July 3, 2019 the trial court issued a minute order stating, "The court has received and reviewed the letter from the [Secretary] dated 5/31/19 requesting a review and resentencing of defendant pursuant to Penal Code section 1170, subdivision (d)(1). The court declines to exercise its discretion pursuant to that section. The original sentence is to remain in full force and effect." Frazier appealed.²

DISCUSSION

1. Governing Law and Standard of Review

Section 1170, subdivision (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 v. Superior Court (1991) 53 Cal.3d 442, 455, 279 Cal.Rptr. 834, 807 P.2d 1063 ; accord, People v. McCallum (Sept. 30, 2020, B301267) 55 Cal.App.5th 202, ––––, 269 Cal.Rptr.3d 336, 341 [2020 Cal.App. Lexis 914] (McCallum ) [" ‘[s]ection 1170, subdivision (d), represents a limited statutory exception to the general rule that a trial court loses jurisdiction to reconsider a denial of probation or vacate or modify the sentence when a defendant is committed and execution of sentence begins’ "]; People v. Delson (1984) 161 Cal.App.3d 56, 62, 207 Cal.Rptr. 244 [same].)

We review the court's order declining to follow the Secretary's recommendation for abuse of discretion. ( McCallum, supra , 55 Cal.App.5th at p. ––––, 269 Cal.Rptr.3d 336, 341–42 ; cf. People v. Gibson (2016) 2 Cal.App.5th 315, 324-325, 206 Cal.Rptr.3d 253 [court's decision whether to recall defendant's sentence under section 1170, subdivision (d)(2), is reviewed for abuse of discretion].) We review Frazier's constitutional claim on undisputed facts de novo. ( In re Taylor (2015) 60 Cal.4th 1019, 1035, 184 Cal.Rptr.3d 682, 343 P.3d 867 [" ‘[w]hen the application of law to fact is predominantly legal, such as when it implicates constitutional rights and the exercise of judgment about the values underlying legal principles, [the appellate] court's review is de novo’ "].)

2. The Secretary's Filing of a Letter Recommending Recall of Sentence and Resentencing Did Not Trigger a Due Process Right To Counsel

Frazier contends the court erred in summarily declining to recall her sentence without appointing counsel to represent her. While recognizing that nothing in section 1170, subdivision (d)(1), authorizes appointment of counsel following the Secretary's recommendation for recall and resentencing, Frazier argues appointment of counsel is required as a matter of due process at this "critical stage" of a criminal proceeding to marshal necessary evidence and address at a hearing any reservations the court may have about the Secretary's recommendation.⁴

a. The constitutional right to counsel: a brief overview

The Sixth Amendment right to counsel, binding on states through the Fourteenth Amendment, affords an indigent defendant facing incarceration the right to court-appointed counsel for his or her defense at every "critical stage" of the criminal process up to and including sentencing and imposition of judgment. ( Marshall v. Rodgers (2013) 569 U.S. 58, 62, 133 S.Ct. 1446, 185 L.Ed.2d 540 ["[i]t is beyond dispute that ‘[t]he Sixth Amendment safeguards to an accused who faces incarceration the right to counsel at all critical stages of the criminal process’ " up to and including sentencing]; Gardner v. Appellate Division of Superior Court (2019) 6 Cal.5th 998, 1003, 245 Cal.Rptr.3d 58, 436 P.3d 946 [same].)

The Sixth Amendment provides no right to appeal and thus no guarantee of counsel on direct appeal. ( Martinez v. Court of Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152, 155, 120 S.Ct. 684, 145 L.Ed.2d 597.) However, when the state provides a defendant with a direct appeal as a matter of right, the right to counsel on appeal is required as a matter of due process and equal protection under both the state and federal constitutional guarantees. ( Ibid. ; In re Barnett (2003) 31 Cal.4th 466, 472, 3 Cal.Rptr.3d 108, 73 P.3d 1106 ; see Pennsylvania v. Finley (1987) 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 [due process and equal protection clauses of United States Constitution guarantee a right to counsel on "the first appeal of right, and no further"].)

There is no federal constitutional right to counsel in connection with a postconviction habeas corpus petition attacking the validity of a judgment. ( Coleman v. Thompson (1991) 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 ; Murray v. Carrier (1986) 477 U.S. 478, 487, 106 S.Ct. 2639, 91 L.Ed.2d 397.) However, the California Supreme Court has held, "if a petition attacking the validity of a judgment states a prima facie case leading to issuance of an order to show cause, the appointment of counsel is demanded by due process concerns." ( In re Clark (1993) 5 Cal.4th 750, 780, 21 Cal.Rptr.2d 509, 855 P.2d 729 ; People v. Shipman (1965) 62 Cal.2d 226, 232, 42 Cal.Rptr. 1, 397 P.2d 993 [same constitutional right to counsel upon prima facie showing and issuance of order to show cause applicable to habeas corpus proceedings also applies in coram nobis proceeding]; see Cal. Rules of Court, rule 4.551(c)(1), (2) [following the filing of a petition for writ of habeas corpus, the superior court must issue an order to show cause if the petitioner has made a prima facie showing that he or she is entitled relief; "[o]n issuing an order to show cause, the court must appoint counsel for any unrepresented petitioner who desires but cannot afford counsel"].)

b. The Secretary's filing of a section 1170, subdivision (d)(1), recommendation for recall and resentencing does not trigger a due process right to counsel for an indigent defendant

Emphasizing the Sixth Amendment guarantees a right to counsel at all critical stages of a criminal proceeding, Frazier asserts the Secretary's recommendation for recall and resentencing pursuant to section 1170, subdivision (d)(1), is a "critical stage" that, as this case demonstrates, can mean the difference between an inmate receiving an ameliorative sentence (including, perhaps, immediate release based on time served) and potentially spending the rest of her life in prison. However, as discussed, the Sixth Amendment right to counsel at critical stages of a criminal proceeding through...