People v. Gadlin

THE PEOPLE, Plaintiff and Respondent, v. GREGORY D. GADLIN, Defendant and Appellant.

A159833

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

May 27, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Alameda County Super. Ct. No. 167072)

Following conviction for murder, defendant Gregory D. Gadlin was sentenced to 117 years to life, which incorporated 25 years to life for a personal use of a firearm enhancement and two one-year terms for the prior prison term enhancements. Postconviction, the Legislature amended certain provisions of the Penal Code to grant sentencing judges discretion to strike or dismiss firearm enhancements and prior serious felony convictions for sentencing purposes. Defendant obtained a resentencing hearing on the firearm and prior prison term enhancements pursuant to these statutory amendments. At resentencing, the court declined to exercise discretion to strike the firearm enhancement, but it stayed the two one-year prior prison term enhancements.

On appeal, defendant contends he is entitled to resentencing because the sentencing judge lacked sufficient familiarity with the matter to properly exercise its discretion. He further asserts the prior prison term enhancements should have been stricken rather than stayed, and a clerical error in the abstract of judgment must be amended. We agree the judgment must be amended to strike the two one-year prior prison term enhancements and correct the clerical error, but affirm the judgment in all other respects.¹

I. BACKGROUND

Our prior nonpublished opinion in this case, People v. Gadlin (Nov. 7, 2018, A149764) (Gadlin I), sets forth the factual background in detail, and we briefly summarize it here. In short, Evan Meisner attempted to sell a quarter-pound of marijuana to pay his rent. The next day, he was found dead, having been shot at close range. Defendant was arrested thereafter on unrelated charges and a parole violation. Defendant made a telephone call from the booking area and asked his friend to go to his vehicle and remove something located under a box in the trunk. He stated it was "very important." His friend failed to do so, and the police searched the trunk and located a loaded firearm. The toolmarks unique to the firearm matched those on the bullet fragment recovered from Meisner's body and the casing recovered from the crime scene. (Gadlin I, supra, A149764.)

Following a jury trial, defendant was convicted of first degree murder and possession of a firearm by a felon. The jury also found true the allegations that defendant personally used and intentionally discharged a firearm proximately causing great bodily injury or death pursuant to Penal Code² section 12022.53, subdivisions (b) to (d). Defendant admitted havingthree prior serious felony convictions under California's "Three Strikes" law³ and section 667, subdivision (a), two of which also qualified as one-year prior prison offenses under section 667.5, subdivision (b). The court imposed an aggregate term of 117 years to life. The term was comprised of 25 years to life for the first degree murder, tripled under the Three Strikes law for a total of 75 years, plus a consecutive 25 years to life for the firearm enhancement, five years for each of the three prior serious felony convictions, and one year for each of the two prior convictions under section 667.5, subdivision (b). The sentence for the felon in possession of a firearm conviction, which constituted a total of 27 years to life, was ordered to run concurrently with the murder sentence. On appeal, this court struck a $250 probation investigation fee but otherwise affirmed the judgment. (Gadlin I, supra, A149764.)

During this period, the California Legislature passed Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) and Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620). Senate Bill 1393 amended sections 667, subdivision (a) (section 667(a)) and 1385, subdivision (b) (section 1385(b)) to give courts discretion to dismiss or strike a prior serious felony conviction for sentencing purposes. Similarly, Senate Bill 620 amended sections 12022.5 and 12022.53 to grant trial courts discretion to strike or dismiss firearm enhancements.

In February 2019, Defendant filed a petition for writ of habeas corpus with this court, In re Gadlin, case No. A156534, requesting the matter be remanded to the trial court for resentencing under Senate Bills 1393 and620.⁴ This court issued an order to show cause in May 2019, noting "the parties agree that petitioner has articulated a prima facie case for relief concerning his claim that he is entitled to remand to permit the superior court to exercise its discretion under newly amended Penal Code sections 667, subdivision (a), 1385, subdivision (b), and 12022.53, subdivision (h)." The superior court subsequently informed this court that it would proceed with a resentencing hearing.

In advance of the resentencing hearing, defendant submitted a letter brief in support of his request to strike the firearm enhancement. Defendant first argued any sentence in excess of 100 years "borders on cruelty" and thus requested the court "grant him mercy and the grace of striking the gun use enhancements." Next, defendant asserted striking the gun use enhancement would resolve all outstanding issues and "put an end" to further appeals. Finally, defendant argued he "carries a lot of empathy" for the victim's family and "does not want to be the cause of their pain" but seeks "this tiny bit of grace." The prosecution opposed the request.

At the resentencing hearing on January 29, 2020, defendant argued he was not responsible for the murder and emphasized he was not found with a gun or seen with a gun. Rather, it was located in the trunk of a vehicle on his property. Defendant thus requested that the court exercise its discretion because the additional sentence for the gun enhancement was not "necessary for the punishment to fit the crime." In response, the prosecutor noted firearms have played a central role in defendant's criminal history. Hefurther noted defendant attempted to cover up the crime by having a friend dispose of the murder weapon.

The court indicated it had reviewed all the materials and letters submitted by the parties. The court described these materials as "a two-page cover letter, plus a probation report, plus some police reports, I believe" from the prosecution and a two-page letter from defendant. In assessing the factors in mitigation and aggravation, the court concluded "all [those factors] weigh very heavily against [defendant]" and declined to alter the 25-year-to-life firearm enhancement. After discussing the other enhancements with the parties, the court declined to vacate the five-year priors, but stayed the one-year priors pursuant to section 667.5, subdivision (b).

The court subsequently filed an amended abstract of judgment reflecting the changed sentence from 117 years to life, to 115 years to life. Defendant timely appealed.

II. DISCUSSION

A. Resentencing

At the time of resentencing, the judge who presided over defendant's trial had retired. Defendant acknowledges he has no right to be sentenced by the same judge who presided over his trial, and the subsequent sentencing judge was properly aware of his discretionary powers in resentencing.⁵However, defendant asserts the sentencing judge must be familiar with the material facts in order to properly exercise judgment, and the court abused its discretion by failing to have sufficient knowledge of his case.

1. Relevant Law

Pursuant to section 12022.53, subdivision (d), "any person who, in the commission of a felony specified in subdivision (a) . . . personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." However, the statute further provides: "The court may, in the interest of justice . . . and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (§ 12022.53, subd. (h).)

In order for a sentencing judge to exercise proper discretion, all material facts in evidence must be known and considered. (In re Cortez (1971) 6 Cal.3d 78, 85-86.) When a judge presides at sentencing after another judge conducted the trial, we do not presume that the sentencing judge was unfamiliar with the record of the defendant. (People v. Connolly (1951) 103 Cal.App.2d 245, 248.) To the contrary, we presume, absent evidence to the contrary, the sentencing judge was familiar with the facts of the case before making a sentencing choice. (See Evid. Code, § 664.)

" ' "[A] court's discretionary decision to dismiss or to strike a sentencing allegation under section 1385 is" reviewable for abuse of discretion.' [Citation.] 'In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, " '[t]he burden is on the party attacking thesentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " [Citations.] Second, a " 'decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." ' " [Citations.] Taken together, these precepts...