People v. McCallum

55 Cal.App.5th 202

269 Cal.Rptr.3d 336

The PEOPLE, Plaintiff and Respondent,

v.Gene MCCALLUM, Defendant and Appellant.

B301267

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

Filed September 30, 2020

Milena N. Blake and Michael Romano, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Jaime L. Fuster and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

FEUER, J.

Penal Code section 1170, subdivision (d)(1),¹ authorizes the trial court to modify a defendant's sentence upon a recommendation from the Secretary of the Department of Corrections and Rehabilitation (Department), the Board of Parole Hearings, or the district attorney to "recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced ...." After serving 12 years of his third strike sentence of 30 years to life for residential burglary, the Secretary of the Department recommended McCallum's sentence be recalled and McCallum be resentenced based on his violation-free conduct while in prison and his completion of nine college classes, a substance abuse program, and other counseling and self-awareness programs. Upon receiving the recommendation from the Secretary, McCallum's attorney requested the court hold a case management conference to discuss the Secretary's recommendation, and if necessary, to set a briefing and hearing schedule.

The trial court considered the Secretary's recommendation and supporting materials, but in a minute order it declined to exercise its discretion to recall McCallum's sentence. The court acknowledged McCallum's efforts to take substance abuse counseling and academic classes while in prison, but it noted McCallum's family and community support was "tenuous, with no identifiable base of support." The court did not hold a case management conference or hearing, and it did not provide McCallum or the People an opportunity to submit additional information for the court's consideration. McCallum contends on appeal he had a due process right to a hearing, and further, the trial court abused its discretion in failing to allow him to submit additional information on changed circumstances since he was first sentenced. McCallum asserts he would have submitted, among other information, documentation showing he had been accepted into a substance abuse and mental health inpatient counseling program upon his release, providing the community support the court found lacking.

We conclude the statutory language of section 1170, subdivision (d)(1), read in the context of section 1170 as a whole, shows the Legislature did not intend to require a trial court to hold a hearing before acting on a recommendation by the Secretary for recall and resentencing. It is up to the Legislature to address in the first instance whether an inmate should be afforded a hearing in response to a recommendation by the Secretary for recall and resentencing.

However, in light of McCallum's substantial right to liberty implicated by the Secretary's recommendation to recall McCallum's sentence ( People v. Loper (2015) 60 Cal.4th 1155, 1158, 1163, 184 Cal.Rptr.3d 715, 343 P.3d 895 ( Loper )), the trial court abused its discretion in denying McCallum an opportunity to present information relevant to the Secretary's recommendation. Further, the trial court based its rejection of the Secretary's recommendation in part on a finding that McCallum had no family or community support, apparently relying on information provided by the Secretary showing McCallum did not have visitors during his 12 years in prison. Whether McCallum would have family and community support upon his release is precisely the type of information that would be known to McCallum, not the Department. We reverse and remand for the trial court to allow McCallum and the People an opportunity to present additional information relevant to the Secretary's recommendation, and for the trial court in light of this information and any briefing provided by the parties to exercise its discretion whether to recall McCallum's sentence. If the court recalls McCallum's sentence, he would have a right to be present at a resentencing hearing.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Residential Burglary and Sentencing

On the morning of September 5, 2006 Brandi Irick left her room at the Evergreen Inn to do her laundry. When she returned, she discovered someone had locked the deadbolt to her door from the inside. As the manager was assisting Irick to open the door, McCallum unlocked the door and walked out of the room. McCallum had been staying with another resident of the motel. When Irick asked McCallum why he was inside her room, he responded he needed to use the restroom. McCallum appeared to be under the influence of alcohol. Irick observed the window screen near the door to her room had been broken. Further, a coin purse Irick had left closed on the table was open and on the bed; her overnight bag had been moved; and a bottle of hand cream had been taken from the overnight bag and left on the sink. The bed covers had been pulled back. The manager and another resident detained McCallum. Los Angeles County Sheriff's Deputy Gregory Carr responded to the scene and placed McCallum under arrest. Deputy Carr described McCallum as "kind of spacey, mentally ill." McCallum admitted to Deputy Carr he had entered Irick's room and knew it was wrong, but he again claimed he entered to use the bathroom. ( People v. McCallum (Aug. 27, 2008, B199212, 2008 WL 3919177) [nonpub. opn.] ( McCallum I ).)

After a court trial, McCallum was convicted of first degree residential burglary (§ 459), and the court found true the allegations McCallum suffered two prior convictions of violent or serious felonies under the three strikes law (§§ 667, subds. (b)-(i), 1170.12), one of which was a serious felony within the meaning of section 667, subdivision (a)(1).² The court denied McCallum's motion to strike his prior convictions, noting McCallum had been convicted 17 times of various offenses, including two robberies, theft, battery, and drug offenses. Further, he had violated probation and parole on numerous occasions. The court acknowledged McCallum had a substance abuse problem, but McCallum had never addressed his addiction. The court sentenced McCallum to 25 years to life plus five years for the prior serious felony conviction enhancement under section 667, subdivision (a)(1). This court affirmed. ( McCallum I, supra , B199212.)

B. The Secretary's Recommendation To Recall McCallum's Sentence and Resentence Him

On May 21, 2019 the Secretary sent a letter to the trial court recommending McCallum's sentence be recalled and he be resentenced pursuant to section 1170, subdivision (d)(1).³ The Secretary "commended [McCallum] for remaining disciplin[e] free since being received to [state prison] on May 4, 2007." The letter highlighted that McCallum was taking college classes while in custody and had been "commended for his academic accomplishments." McCallum also successfully completed a drug and alcohol treatment program in prison. The Secretary attached to the letter a five-page cumulative case summary and evaluation report (cumulative case summary), the abstract of judgment, minute orders, the amended information and felony complaint, a Division of Adult Parole Operations checklist of pre- and postrelease services, and a Department handout answering "frequently asked questions" about section 1170, subdivision (d)(1).

The cumulative case summary described McCallum's commitment offense, extensive adult criminal history, and parole violations. During the period from 1990 to 2004, McCallum was convicted of being under the influence of alcohol or drugs while in a vehicle (two convictions), two robberies (the two prior strikes), possession of alcohol by a business, urinating in public, two petty thefts with priors, battery, and grand theft. In connection with his 1998 conviction for petty theft with priors, McCallum violated his parole on five occasions.

McCallum did not receive any rules violations reports during his 12 years in prison. He completed numerous courses offered by Patten University at San Quentin, including classes in English, macroeconomics, statistics, algebra, and precalculus, and he completed an adult school program in computer literacy. McCallum also participated in various cultural, recreational, and educational groups and completed programs addressing self-awareness, addiction recovery, and anger management. Further, he completed a 13-session substance abuse program.

McCallum was approved for three relatives or associates to visit him, but he did not receive any visits while in prison. The cumulative case summary noted two letters of support, one from an unknown source dated February 6, 2019 "pledging full support of McCallum to ensure a successful parole by assisting with a residence, insurance, transportation, and work with and stay in contact with all release support programs," and a June 2017 letter of support from a substance recovery program acknowledging he completed an addiction recovery counseling drug and alcohol treatment program while in prison. McCallum is eligible for parole as of April 15, 2029 and for elderly parole on August 21, 2031.

The Secretary sent the recommendation and cumulative case summary to the district attorney's office and the public defender's office. On June 4, 2019 McCallum's attorney lodged in the trial court a notice of appearance and a separate motion for case management conference.⁴ The motion requested "a case management conference with the [c]ourt and [d]istrict [a]ttorney to discuss [the Department's] recommendation and, if necessary, set a briefing and hearing schedule for the matter." A case management conference was never held.

C. The Trial Court's Ruling on the Secretary's...