Metropolitan News-Enterprise

 

Wednesday, December 7, 2022

 

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Sixth District Court of Appeal Confers Anonymity on Rapist

Opinion Says Appeal From Denial of Petition for Resentencing Is Not Rendered Moot by Virtue of Withdrawal of Recommendation for Such Action by Secretary of California Department of Corrections and Rehabilitation

 

By a MetNews Staff Writer

 

The Sixth District Court of Appeal yesterday held that a rapist/robber serving a sentence of 79 years and four months in prison is entitled to a new sentencing hearing despite the secretary of the Department of Corrections and Rehabilitation’s withdrawal of her recommendation that such a proceeding take place, with the court opting, without explanation, to withhold the identity of the inmate.

Presiding Justice Mary J. Greenwood, a former Santa Clara public defender, authored the opinion. She referred to the appellant, Eric Patrick Martin, as “E.M.”

An order filed Aug. 12 says:

“Appellant’s motion under Rule 8.90(b) of the California Rules of Court to be identified by his initials in this case is granted. The opinion issued in this case shall refer to Appellant solely by his first and last initials both in the caption of the case as well as in the text of the decision.”

Content of Rule

The rule sets forth, in subd. (a) that its purpose is to provide “guidance on the use of names in appellate court opinions.” Subd. (b) says that “the reviewing court should consider referring to the following people by first name and last initial or, if the first name is unusual or other circumstances would defeat the objective of anonymity, by initials only,” proceeding to enumerate 11 classes of persons.

Those categories include “[v]ictims in criminal proceedings” but not criminals.

The circumstances of Martin’s offenses are not discussed in the opinion; no victim is mentioned.

Although use of initials to conceal identities has become frequent in appellate court opinions, shielding the identity of a criminal is extraordinary.

Martin’s name appears not only in the record, but in news reports and in three Ninth U.S. Circuit Court of Appeals opinions. He incurred convictions in Los Angeles, Santa Clara, Ventura and San Bernardino counties, accumulating sentences of 136 years eight months.

Attorney General’s Request

In yesterday’s opinion, the Sixth District spurns the request by the Office of Attorney General to dismiss as moot Martin’s appeal from the denial by Santa Clara Superior Court Judge Elizabeth C. Peterson of his request for an order recalling his sentence and imposition of a new and lesser sentence. The appeal is moot, it was contended, in light of the action by Kathleen Allison, the current secretary of the Department of Corrections and Rehabilitation, rescinding the recommendation of her predecessor that Martin be resentenced.

Resentencing is permitted under Penal Code §1172.1 “at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of a defendant incarcerated in state prison, the county correctional administrator in the case of a defendant incarcerated in county jail, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case.” The court may “recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence.”

Greenwood questioned Allison’s power to rescind a recommendation, saying:

“We see nothing in the plain language that clearly gives the Secretary the power to rescind her recommendation. Section 1172.1 provides that the trial court may recall the sentence ‘at any time upon the recommendation of the secretary.’…The phrase ‘at any time upon the recommendation’ implies the trial court’s power to recall continues indefinitely once it receives a recommendation from the Secretary. The plain language makes no mention of any power to rescind.”

Respondent’s Reasoning

She went on to say:

“The Attorney General takes the position that the trial court does not have jurisdiction until it actually recalls the sentence, such that the court’s recall must be ‘synchronous with the Secretary’s current support for resentencing.’ Because the court never recalled the sentence and the Secretary withdrew her support for it, the Attorney General argues the trial court no longer has jurisdiction to order recall. But the trial court did act when it issued the order denying recall, and in doing so, the court exercised jurisdiction over the matter. If the matter had not been within the court’s jurisdiction to adjudicate, E.M. could not have appealed the order denying recall.”

The presiding justice added:

“We need not decide whether the Secretary has the power to rescind a recommendation soon after issuing it and where the trial court has not yet acted on it; where a subsequent change in the prisoner’s circumstances may support rescission; or where the initial recommendation was erroneously issued due to administrative improvidence. None of those conditions are present in this case, and the Attorney General presents no legal authority for the proposition that the Secretary can reverse her recommendation months after the trial court has ruled and the matter is on appeal.”

Jurisdictional Question

Prior to Allison’s June 24, 2022 rescission of the recommendation for a resentencing, the Office of Attorney General conceded that Peterson erred in supposing that she lacked jurisdiction to resentence Martin because his conviction in Santa Clara is final. Greenwood said other courts of appeal have affirmed that jurisdiction does exist and declared, “We adopt the holdings of those courts.”

The matter was “remanded to the trial court to consider whether to recall E.M.’s sentence and resentence him in accordance with Penal Code section 1721.1.”

Greenwood specified:

“We note that on remand nothing would prohibit the trial court from giving weight to the Secretary’s most recent recommendation as one factor in the court’s analysis.”

The case is People v. E.M., 2022 S.O.S. 5941.

Joining in the opinion were Justices Charles E. Wilson II and Adrienne M. Grover.

 

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