Metropolitan News-Enterprise


Tuesday, October 9, 2018


Page 1


C.A. Yanks Judge Sandoval Off Case Based on Delays

Cites ‘Unconscionable’ Continance of Resentencing More Than 20 Times Over a Three-Year Period;

New Resentencing Required Because Defendant Denied Right to Be Present at First Resentencing


By a MetNews Staff Writer


The Court of Appeal for this district on Friday vacated a sentence because the defendant was not allowed to be personally present at the sentencing and disqualified Los Angeles Superior Court Judge Jose I. Sandoval from handling further proceedings based on his “unconscionable” three-year delay in resentencing the man following a 2013 remand.

Acting Presiding Justice Victoria G. Chaney of Div. One wrote the opinion, which was not certified for publication.

Smith was convicted of custodial possession of a weapon, resisting an executive officer, and battery by gassing based on incidents which occurred while he was in county jail. (Battery by gassing refers to the hurling of one or more types of bodily fluid at a guard by an inmate.)

Sandoval initially sentenced Smith to 150 years to life for the crimes. Smith had several prior strikes under the three strikes sentencing enhancement law.

Earlier Appeal

In the defendant’s first appeal (“Smith I”), Div. One on Feb. 24, 2012 vacated his sentence and held that Sandoval had abused his discretion by failing to consider the man’s mental illness, the impropriety of his incarceration in county jail after he had been ordered to state prison, and the minor nature of his commitment offenses. The state Supreme Court granted review affirmed the Court of Appeal’s decision on July 18, 2013; and the Court of Appeal issued its remittitur to the Superior Court on Aug. 30, 2013.

The case was returned to Sandoval the next month. Sentencing was continued more than 20 times over the next three years.

In October 2016, Sandoval reduced several of Smith’s felony convictions to misdemeanors, and sentenced him to 25 years to life on the one remaining felony, with concurrent terms of six months each on the five misdemeanors.

Absence From Resentencing

Smith was not present for his second sentencing, nor for any other hearing conducted during the three-year period after Div. One’s remittitur.

When Smith’s counsel told the court that the defendant wished to be present at his sentencing, Sandoval replied:

“Well, I’m ordered to [have him here] if I sentence him to more time; I’m certainly not going to do that….If you can show me some authority that says I must have him here I will comply, but I don’t want to incur—I’m being dead frank with you, I don’t want to incur the costs of all of that when I’m going to significantly reduce the sentence.”

He added:

“My understanding is when somebody is in prison and I’m resentencing them [sic] on a remittitur if I’m increasing their [sic] sentence they must be here [sic]; if I’m not, and I’m substantially reducing his sentence, I don’t believe I’m under any obligation to bring him here.”

Chaney’s Opinion

Chaney wrote:

“The fundamental premise behind the trial court’s statement of the law reflects a foundational misunderstanding of the disposition of Smith I. To be clear, we vacated Smith’s sentence. Our Supreme Court has clarified that remand for sentencing can take different forms….

“We did not ‘remand for correction of sentencing errors.’…We vacated the sentence….It was, therefore not accurate that the trial court was going to reduce a pre-existing sentence; there was no sentence to reduce.”

She noted that a felony defendant is entitled to be present during sentencing, subject to certain exceptions not relevant to Smith’s case. She added:

“We agree with both Smith and the People that the trial court erred when it refused to allow Smith to be present for resentencing.”

The jurist rejected the government’s contention that the error was harmless, as it had implicated both a statutory and constitutional right and the prosecution had “not even attempted to show that the trial court’s error was harmless beyond a reasonable doubt.”

CCP §170.1(c)

Smith requested that his sentencing be done by a judge other than Sandoval. Code of Civil Procedure §170.1(c) states:

“At the request of a party or on its own motion an appellate court shall consider whether in the interests of justice it should direct that further proceedings be heard before a trial judge other than the judge whose judgment or order was reviewed by the appellate court.”

Chaney declared:

“The three-year delay between remittitur and resentencing here was unconscionable. The record does not disclose the cause of the vast majority of the more-than-20 continuances. But unless the trial court had already determined when it first started continuing resentencing in this case that it was going to sentence Smith to more than the length of the continuances (taken together with whatever custody and other credits Smith was entitled to), then the delay had the very real possibility of implicating Smith’s liberty rights. We will grant Smith’s request to be resentenced before a different trial judge.”

The case is People v. Smith, B278596.

Melanie K. Dorian of Los Angeles argued for Smith, under appointment by the Court of Appeal. Deputy Attorney General Ryan M. Smith of Los Angeles represented the prosecution on appeal.

Sandoval was appointed to the Superior Court in 2000 by then-Gov. Gray Davis.


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