Gonzalez v. Madden

• Court: District Court, S.D. California
• Decided: April 8, 2020
• Docket: 3:19-cv-02326
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANIEL GONZALEZ, Case No.: 19-CV-2326-GPC-(WVG)

12 Petitioner, REPORT AND 13 v. RECOMMENDATION ON MOTION TO DISMISS 14 RAYMOND MADDEN, Warden,

15 Respondent. [Doc. No. 7] 16 17

18 19 On December 5, 2019, Petitioner Daniel Gonzalez filed a petition for writ of habeas 20 corpus under 28 U.S.C. § 2254. Respondent has moved to dismiss based on the running of 21 the statute of limitations. The matter is before the undersigned Magistrate Judge for 22 preparation of a Report and Recommendation. For the reasons stated below, the Court 23 RECOMMENDS that Respondent’s motion to dismiss be DENIED. 24 I. BACKGROUND 25 On June 18, 2015, a jury found Petitioner guilty of second-degree murder and assault 26 with a deadly weapon, a firearm. The court sentenced him to 40 years to life plus seven 27 years, including a 25 years-to-life “firearm enhancement” under California Penal Code 28 § 12022.53, which was amended, effective January 1, 2018, to allow courts “in the interest 1 of justice and at the time of sentencing or resentencing, to strike or dismiss [a gun use] 2 enhancement otherwise required to be imposed by [section 12022.53].” Cal. Penal Code 3 § 12022.53(h). 4 Petitioner filed a direct appeal of his sentence with the California Court of Appeal. 5 He argued, in part, that the 2018 amendment of section 12022.53 applied retroactively, 6 thereby providing the trial court discretion to strike or dismiss the 25 years-to-life firearm 7 enhancement that was applied to his sentences. 8 On March 28, 2018, the California Court of Appeal issued an initial opinion 9 affirming the judgment and holding that remand for resentencing was not necessary. 10 Although the court agreed that the section 12022.53 amendment applied retroactively to 11 all nonfinal judgments, it found remand is not required if the record shows a trial court 12 would not have exercised its discretion to lessen the sentence, even if it had known it had 13 that discretion. The court found remand for resentencing in this case was not necessary 14 because “the record clearly shows the court would not exercise its new discretion . . . to 15 strike or dismiss the section 12022.53 enhancement if we were to remand the matter for 16 resentencing.” (Doc. No. 5-7 at 70.) 17 However, on April 20, 2018, the California Court of Appeal issued an order 18 modifying the aforementioned opinion. It concluded the record did not clearly indicate that 19 the trial court would have declined to strike or dismiss the section 12022.53(h) firearm 20 enhancement if it had the discretion to do so. Therefore, the court held the appropriate 21 remedy was to remand for resentencing. Specifically, the Court of Appeal held: 22 Based on our reasoning post, we remand the matter for resentencing Gonzalez to allow the trial court to consider whether to exercise its discretion 23 to strike the section 12022.53, subdivision (h) enhancement under section 24 1385. In all other respects, the judgments are affirmed.

25 . . . . 26 Gonzalez argues that because section 12022.53, subdivision (h), applies 27 retroactively to his nonfinal judgment, the matter should be remanded for 28 resentencing to allow the trial court to decide whether to exercise its discretion 1 tehnehraenucnedmere ntot tshtraitk eit oorr idgiisnmalilsys itmhep o2s5e-dy eoanr- thoi-mlif ep usrescutaionnt t1o2 0fo2r2m.5e3r fsiercetairomn 2 12022.53. We agree. 3 “‘Defendants are entitled to sentencing decisions made in the exercise 4 of the “informed discretion” of the sentencing court. [Citations.] A court 5 which is unaware of the scope of its discretionary powers can no more exercise that “informed discretion” than one whose sentence is or may have 6 been based on misinformation regarding a material aspect of a defendant’s 7 record.’ [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’ 8 that the trial court would have reached the same conclusion ‘even if it had 9 been aware that it had such discretion.’” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) 10

11 In this case, the record does not clearly indicate the trial court would have declined to strike or dismiss the section 12022.53, subdivision (h), 12 firearm enhancement if it had the discretion to do so at the time of Gonzalez’s 13 sentencing. Although the court expressed its concern regarding his criminal history, his “senseless” shooting of Crook, and his use of a gun while he 14 (Gonzalez) was out on bail on a previous gun charge, the court nevertheless 15 exercised its sentencing discretion to impose a lower two-year term for his count 2 conviction for assault with a deadly weapon rather than the upper four- 16 year term recommended by the probation department. The court explained 17 that it did not “think that [it] is quite fair” to impose on Gonzalez, as an aider and abettor of that offense, an upper four-year term when the probation 18 department recommended only a lower two-year term for Chavez, who was 19 the actual perpetrator of that offense. Contrary to the People’s assertion, the court therefore did not impose the maximum sentence allowed under the law. 20

21 Furthermore, the record does not contain any statement by the trial court indicating that it would have imposed the section 12022.53, subdivision 22 (h), enhancement even if it had the discretion to strike or dismiss that 23 enhancement at the time of Gonzalez’s sentencing. In People v. Gutierrez (1996) 48 Cal.App.4th 1894 (Gutierrez), cited by the People, the trial court 24 indicated that it would not have exercised its discretion to impose a lesser 25 sentence even if it had the discretion to do so. First, the court imposed an upper term for the defendant’s robbery conviction. (Id. at p. 1896.) Second, 26 noting that the defendant was “‘the kind of individual the law was intended to 27 keep off the street as long as possible,’” the court chose not to strike either of two section 667.5, subdivision (b), enhancements. (Ibid.) Because the trial 28 1 “cnoou rtp iumrppoossee dw tohuel dm abxei mseurmve dse ninte rnecme aonnd tihneg ”d effoern dreasnetn, tGenuctiienrgr etzo caolnlocwlu dthede 2 court to exercise its new discretion to strike or dismiss the three strikes 3 allegation under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. (Gutierrez, at p. 1896.) 4

5 Unlike the trial court in Gutierrez, the trial court in this case did not impose on Gonzalez the maximum sentence possible and, in particular, 6 imposed a lower two-year term for his count 2 conviction for assault with a 7 deadly weapon. Also unlike the trial court in Gutierrez, the court in this case did not state that Gonzalez should be “[kept] off the street as long as possible” 8 or make any other statement clearly indicating that it would not have exercised 9 discretion to strike or dismiss the section 12022.53, subdivision (h), enhancement even if it had the discretion to do so at the time of Gonzalez’s 10 sentencing. (Gutierrez, supra, 48 Cal.App.4th at p. 1896.) Absent such a clear 11 indication, the appropriate remedy is to remand for resentencing to allow the trial court to consider whether to exercise its discretion to strike or dismiss the 12 section 12022.53, subdivision (h), enhancement under section 1385. (People 13 v. Gutierrez, supra, 58 Cal.4th at p. 1391.) We express no opinion regarding how the trial court should exercise its discretion under section 12022.53, 14 subdivision (h). 15 . . . . 16

17 Gonzalez’s sentence is vacated and the matter is remanded for resentencing for the limited purpose of allowing the trial court to consider 18 whether the section 12022.53, subdivision (h), enhancement should be 19 stricken or dismissed under section 1385. The trial court is directed to issue a new minute order and an amended abstract of judgment after such 20 resentencing to reflect the correct consecutive two-year term imposed for 21 count 2 and whether it strikes or dismisses, or imposes, the section 12022.53, subdivision (h) enhancement. The court shall forward the amended abstract of 22 judgment to the Department of Corrections and Rehabilitation. In all other 23 respects, the judgments are affirmed.

24 (Order Modifying Opinion and Denying Rehearing Change in Judgment, Doc. No. 6-1 at 25 4-7; see also People v. Chavez, No. D069533, 2018 Cal. App. LEXIS 358 (Cal. Ct. App. 26 Apr. 20, 2018).) 27 In accordance with the modified opinion, the superior court held a resentencing 28 hearing. Before the hearing, Petitioner filed a motion to dismiss the section 12022.53 1 firearm enhancement (“motion to reduce sentence”), and Respondent filed a Statement in 2 Aggravation. 3 After receiving briefing and holding an oral argument hearing, the superior court 4 denied Petitioner’s motion to reduce his sentence on December 7, 2018. The present 5 Petition was filed on December 5, 2019. Respondent now moves to dismiss the Petition 6 on the basis that it is untimely. 7 II. LEGAL STANDARD 8 28 U.S.C. § 2244 mandates a one-year statute of limitations within which an inmate 9 must file a federal habeas corpus petition, subject to tolling provisions and certain 10 exceptions. It states: 11 (d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. 12 The limitation period shall run from the latest of-- 13 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 14 (B) the date on which the impediment to filing an application created 15 by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such 16 State action; 17 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly 18 recognized by the Supreme Court and made retroactively applicable to 19 cases on collateral review; or (D) the date on which the factual predicate of the claim or claims 20 presented could have been discovered through the exercise of due 21 diligence. (2) The time during which a properly filed application for State post- 22 conviction or other collateral review with respect to the pertinent judgment or 23 claim is pending shall not be counted toward any period of limitation under this subsection. 24 25 28 U.S.C. § 2244(d). 26 III. DISCUSSION 27 The parties disagree on the date from which the one-year statute of limitations began 28 to run. Petitioner contends the statute of limitations began to run on December 7, 2018, 1 when the superior court issued its minute order denying Petitioner’s motion to reduce his 2 sentence. Respondent contends it began to run on September 25, 2018,1 ninety days after 3 Petitioner’s direct appeal matter was decided. Petitioner is correct. 4 A. The Statute of Limitations Was Tolled. 5 28 U.S.C. § 2244(d) provides that the “time during which a properly filed application 6 for State post-conviction or collateral review with respect to the pertinent judgment or 7 claim is pending shall not be counted toward” the one-year statute of limitations period for 8 a writ of habeas corpus. The Supreme Court defines “collateral review” as “a form of 9 review that is not part of the direct appeal process.” Wall v. Kholi, 562 U.S. 545, 552 10 (2011). 11 The phrase “collateral review,” as used in section 2244(d)(2) refers to a judicial 12 reexamination of a judgment or claim in a proceeding outside of the direct review process, 13 including a motion seeking a discretionary sentence reduction. Id. at 551. In Wall v. Kholi, 14 a prisoner filed a habeas corpus petition after the date his conviction became final on direct 15 review. Id. at 550. However, in addition to taking a direct appeal, the prisoner filed a Rule 16 35 motion to reduce his sentence. Id. The Supreme Court found the petition was timely 17 because the motion to reduce sentence triggered the tolling provision. Id. at 556. The Court 18 reasoned that “not only is a motion to reduce sentence . . . ‘collateral,’ but it also 19 undoubtedly calls for ‘review’ of the sentence. The decision to reduce a sentence, while 20 largely within the discretion of the trial justice, involves judicial reexamination of the 21 sentence to determine whether a more lenient sentence is proper.” Id. at 555-56. 22 Here, the running of the statute of limitations was tolled until December 7, 2018, 23 when the superior court issued the order denying Petitioner’s motion to reduce his sentence. 24 The fact that the California Court of Appeal directed the trial court to reexamine the issue 25

26 1 Both parties agree that “under ordinary circumstances, the one-year limitations period 27 would have expired . . . on September 25, 2019.” (Doc. No. at 1-2.) However, as Petitioner argues and as addressed in this R&R, Respondent ignores very salient procedural facts 28 1 further supports tolling in this case. The trial court’s consideration of the discretionary 2 sentence reduction was a judicial reexamination of a judgment, consistent with the 3 Supreme Court’s definition of “collateral review,” and thus triggers the tolling provision 4 of section 2244(d). 5 1. The December 7, 2018 Order Did Not Correct a Clerical Error. 6 Respondent contends that the California Court of Appeal ordered the superior court 7 to issue a new minute order to “correct a clerical error on the abstract of judgment.” (Doc. 8 No. 4-1 at 2.) Generally, correcting a clerical error does not reset the statute of limitations. 9 Brownlee v. Rommoro, No. 14-CV-1990-LJO-SAB(HC), 2015 WL 1013154, at *4 (E.D. 10 Cal. March 6, 2015). However, judicial evaluation or change in judgment does toll the 11 statute of limitations. See Brumfield v. Cate, No. C-09-4914-MHP, 2010 WL 2267504, at 12 *2 (N.D. Cal. June 4, 2010). In California, a clerical error is one inadvertently made, 13 whereas a judicial error is one made advertently in the exercise of judgment or discretion. 14 People v. Jack, 213 Cal. App. 3d 913, 915 (1989); In re Candelario, 3 Cal.3d 702, 730 15 (1970). 16 For example, in Brownlee v. Romorro, the state trial court orally sentenced the 17 defendant to seventeen years-to-life. No. 14-CV-1990-LJO-SAB(HC), 2015 WL 1013154, 18 at *4 (E.D. Cal. March 6, 2015). However, the sentence was erroneously recorded as fifteen 19 years-to-life. Id. The state court then issued an amended judgment correcting the error. Id. 20 On habeas review, the district court found this to be clerical error, specifically noting that 21 “[t]he trial court did not reconsider the correctness of the original sentence and 22 independently decide to impose a seventeen years to life sentence. The trial court did not 23 receive evidence or reopen any issue . . . [it] simply exercised its ability to correct a clerical 24 error by amending the judgment.” Id. Thus, the statute of limitations period was not reset 25 by the entry of the amended judgment. Id. at *5. 26 Here, in contrast, the California Court of Appeal remanded the matter for 27 resentencing, expressly “to allow the trial court to consider whether to exercise its 28 discretion to strike the section 12022.53, subdivision (h) enhancement.” (Doc. No. 5-11 at 1 126-27) (emphasis added). Indeed, the Court of Appeal’s order modifying its original 2 opinion is replete with references to “resentencing” and the trial court’s exercise of its 3 discretion to impose the firearms enhancement. Although the court also directed the trial 4 court to “issue a new minute order and an amended abstract of judgment after such 5 resentencing to reflect the correct consecutive two-year term imposed for count 2,” (Doc. 6 No. 6-1 at 7), this directive clearly was by far dwarfed by the court’s discussion related to 7 remanding the matter for resentencing to allow the trial court an opportunity to exercise its 8 discretion with respect to the firearms enhancement. And although Respondent ignores all 9 of this and disingenuously characterizes the trial court’s subsequent action as simply 10 correcting a clerical error, the Court of Appeal made clear the dual purpose of the remand: 11 “The trial court is directed to issue a new minute order and an amended abstract of 12 judgment after such resentencing to reflect the correct consecutive two-year term imposed 13 for count 2 and whether it strikes or dismisses, or imposes, the section 12022.53, 14 subdivision (h) enhancement.” (Id. (emphasis added).) 15 Finally, the fact that the superior court received briefing, held a hearing, and heard 16 argument prior to issuing the minute order demonstrates its exercise of judicial discretion 17 and that the proceedings involved judicial evaluation and were substantive in nature. The 18 record shows that the superior court exercised judgment in ordering that Petitioner’s 19 sentence was to remain unchanged after it considered whether the firearms enhancement 20 should remain in force. Therefore, the superior court’s December 7, 2018 sentencing order 21 clearly cannot be said to be merely correcting a clerical error. 22 B. The Petition is Timely. 23 This Court finds the California Court of Appeal’s order to remand the matter for 24 resentencing, and the superior court’s subsequent consideration, is consistent with the 25 Supreme Court’s definition of “collateral review.” Thus, the tolling provision of 28 U.S.C. 26 § 2244(d) was triggered, and the statute of limitations began to run when the minute order 27 was issued on December 7, 2018. Thus, the present petition is timely because it was filed 28 on December 5, 2019—less than one year later. 1 IV. CONCLUSION 2 Based on the foregoing, this Cour. RECOMMENDS that Respondent’s motion to 3 || dismiss be DENIED. 4 This Report and Recommendation is submitted to the United States District Judge 5 || assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1) and Federal Rule 6 ||of Civil Procedure 72(b). 7 IT IS ORDERED that no later May 8, 2020, any party to this action may file written 8 || objections with the Court and serve a copy on all parties. The document shall be captioned 9 || “Objections to Report and Recommendation.” 10 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the 11 |}Court and served on all parties no later than May 29, 2020. The parties are advised that 12 failure to file objections within the specified time may waive the right to raise those 13 || objections on appeal of the Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 14 || IT IS SO ORDERED. 15 ||} DATED: April 8, 2020 UN Ss 17 Hon. William V. Gallo 13 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28