Order Denying CDCR Resentence Recommendation Reversed

In 2010, Defendant Yusef Lamont Pierce was charged in Fresno County Superior Court with four counts of second degree robbery involving different victims (Penal Code § 211), kidnapping (Penal Code § 209(b)), four counts of false imprisonment against different victims (Penal Code § 236), being a felon in possession of a firearm (Penal Code § 12021(a)(1)), being a felon in possession of ammunition (Penal Code § 12316(b)(1)), felony evasion of a police officer while operating a motor vehicle (Vehicle Code § 2800.2(a)), misdemeanor hit and run driving (Vehicle Code § 20002(a)) and misdemeanor resisting arrest (Penal Code § 148(a)(1)).

The counts involving second degree robbery and kidnapping further alleged that Mr. Pierce used a firearm within the meaning of Penal Code § 12022.53(b). The false imprisonment charges alleged a firearm use enhancement within the meaning of Penal Code § 12022.53(a).

Mr. Pierce was also charged with a prior prison term enhancement (Penal Code § 667.5(b)).

Through a plea bargain, Mr. Pierce agreed to a prison term of 19 years and four months in exchange for pleading no contest to two counts of second degree robbery and one count of felony evasion of a police officer. Mr. Pierce also admitted two firearm enhancements under Penal Code § 12022.53(b) and the prior prison term enhancement. The remaining allegations and enhancements were dismissed by the judge under Penal Code § 1385 upon a motion by the People.

The sentence was composed of five years (high term) for the first of two second degree robbery counts, plus ten years for the firearm enhancement, plus a consecutive term of one year (one-third the mid-term) for the second robbery count, plus three years and four months (one-third of ten years) for the second firearm enhancement as to the second robbery. The three year term for felony evading a police officer was to run concurrent with the other terms. The judge stayed the sentence on the prior prison term.

In 2020, the CDCR send a letter to the trial court recommending that the sentence be recalled for possible resentencing under Senate Bill (“SB”) 620, which became effective January 1, 2018. As the reader of this article may be well aware, SB 620 empowered judges with the discretion to strike or reduce a personal firearm enhancement at sentencing or resentencing under Penal Code § 1170(d)(1) in the interest of justice under Penal Code § 1385.

The trial court judge summarily denied the request from the CDCR to recall Piece’s sentence and resentence him, explaining: he “pleaded to extremely violent and serious crimes. He victimized three individuals by utilizing a loaded firearm, threatening to shoot them while robbing the business at which they worked . . . He attempted to evade arrest by driving with a willful disregard for the safety and lives of the people of Fresno County at estimated speeds of 100 miles per hour . . . He was only apprehended after he crashed his vehicle . . . [G]ranting the request would, in effect, negate a negotiated plea agreement . . . Additionally, I don’t believe that the interest of justice would . . . be served by granting this request and following the recommendation of the CDCR.”

After this order from the trial court, Assembly Bill 1540 came into effect on January 1, 2022. It clarified the required procedures, including the court’s obligations to apply any changes in the law that reduce sentences or provide for judicial discretion.

Assembly Bill 1540 established that there is now a presumption in favor or recall and resentencing unless the judge finds the defendant is an unreasonable risk of danger to public safety as defined in Penal Code § 1170.18(c). People v. McMurray (2022) 76 Cal. App. 5th 1035, 1040.

In considering whether to resentence, the judge may consider post-conviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served and diminished physical condition, if any, have reduced defendant’s risk for future violence and if defendant was a youth as defined under Penal Code § 1016.7 [i.e. under the age of 26 at the time of commitment of the offense, and whether this circumstance was a contributing factor in the commission of the offense].

The Second Appellate District, on receiving the appeal on transfer from the Fifth Appellate District, remanded the case to the trial court for reconsideration of the recommendation in accordance with the requirements of Penal Code § 1172.1, which codified AB 1540.

It merits mention that Justice Yegan concurred, but expressing frustration that the Legislature, in drafting AB 1540, “erased defendant’s signature from a negotiated disposition.” She also reminded the reader that Mr. Pierce faced life in prison, yet was able to negotiate a determinate term of just 19 years and four months. She concluded her concurrence by warning and stating that even with an evidentiary hearing with an attorney, Mr. Pierce was unlikely to obtain relief, “which will undoubtedly spawn yet another appeal.”

For more information about CDCR recommendations to resentence, please click on the following articles: