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Monday, July 11, 2022

 

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C.A. Orders Resentencing in Case That Was Final Feb. 28

Panel Says Recall of Remittitur Appropriate Where Appellate Counsel, After Briefing Was Completed, Did Not

Take Cognizance of New Legislation and Seek Additional Briefing or Bring It Up in Rehearing Petition

 

By a MetNews Staff Writer

 

 

Div. One of the Fourth District Court of Appeal on Friday recalled its remittitur and ordered a resentencing in a case after the appellant’s lawyer pointed to an issue he had not spotted until after the court’s initial decision became final on Feb. 28, criticized counsel for not bringing the matter up sooner, and directed the clerk to forward the new opinion to the State Bar for possible disciplinary action.

Presiding Justice Judith L. Haller authored Friday’s opinion, and also wrote the one filed on Jan. 28. Both opinions were certified only for partial publication.

In each, she declared in the published portion that defendant Hayden Abraham Gerson, who was convicted of two counts of attempted voluntary manslaughter and other crimes, had failed to make an adequate showing that he suffers from bipolar disorder and that San Diego County Superior Court Judge Kenneth K. So therefore did not abuse his discretion in denying a motion for pretrial diversion.

In a new section that is certified for publication, Haller announced that the remittitur is being recalled, the 33¾-year sentence is vacated, and the matter is remanded to the San Diego Superior Court, directing that Gerson be resentenced under Assembly Bill 124, which became effective Jan. 1. That legislation creates a presumption in favor of imposing the low term where the defendant “has experienced psychological, physical, or childhood trauma.”

Gerson claims to have suffered a trauma during the Dec. 12, 2016 incident leading to his arrest when a police officer with whom he was scuffling hit him in the head with her baton.

Chronology of Events

The case was fully briefed as of Feb. 17, 2021. AB 124 was signed by Gov. Gavin Newsom on Oct. 8, 2021.

On Jan. 12, the case was argued and submitted, with the court filing its opinion on Jan. 28. On Feb. 14, Gerson’s attorney, George L. Schraer of San Diego, filed a petition for a rehearing which was denied two days later.

The California Supreme Court on April 26 denied review. On June 6, Schraer filed a motion to recall the remittitur.

The Office of Attorney General questioned the appropriateness of the motion. Haller responded:

“We agree that Gerson could have filed a petition for a writ of habeas corpus to raise his claim of ineffective assistance of counsel, but we disagree that this was the only remedy available to him.”

She pointed to California Rules of Court, rule 8.272(c)(2)), which provides that “[o]n a party’s or its own motion or on stipulation, and for good cause, the court may stay a remittitur’s issuance for a reasonable period or order its recall.” The presiding justice cited the California Supreme Court’s 1982 decision in Pacific Legal Foundation v. California Coastal Commission for the proposition that a remittitur may be recalled based on “inadvertence.”

That case refers to inadvertence on the part of the court, rather than counsel.

Ineffective Assistance

Finding that Schraer rendered ineffective assistance to Gerson by not bringing up AB 124 sooner, Haller said that between the time Newsom signed the bill and oral argument, the lawyer “could have requested permission to file a supplemental opening brief asking this court to remand Gerson’s case for a new sentencing hearing” under the new legislation.

“Alternatively, after we issued the opinion on January 22, 2022, appellate counsel could have included an issue related to Assembly Bill 124 in the petition for rehearing he filed on February 14, 2022, but did not do so,” she wrote.

Haller went on to say:

“We reject the People’s assertion that the record clearly indicates the trial court would have imposed the same sentence had Assembly Bill 124 been in effect at the time of sentencing. The probation report, prepared in July 2019, well before the language of Assembly Bill 124 was introduced on December 18, 2020, notes that Gerson has diagnosed mental disorders and suffered a traumatic brain injury during the incident. However, at the time of Gerson’s sentencing in 2019, the trial court had no statutory reason to make, and Gerson had no reason to seek, a finding that past psychological or physical trauma was a contributing factor to his commission of any of his offenses.”

Schraer’s Comments

Schraer said Friday:

“The case is significant for a couple of reasons.

“First, it reaffirms that a defendant can raise the issue of ineffective assistance of appellate counsel by filing a motion to recall the remittitur. The Attorney General argued that the only proper remedy was a petition for a writ of habeas corpus. The court of appeal disagreed. Habeas corpus has a number of arcane procedural requirements. A motion to recall the remittitur is a more streamlined procedure. It requires much less time and less work for both the litigants and the court. This promotes judicial efficiency and avoids unnecessary delay.

“Second, the case recognizes that the defendant should not be denied a right under the sentencing laws simply because his or her attorney was late in recognizing the defendant had that right. The most important consideration is to apply the law to everyone who falls under its provisions.”

The opinion takes the lawyer to task for not having known of the new legislation prior to the Jan. 28 opinion becoming final (which also escaped the attention of the court) and is not credited with showing continued devotion to his client by bringing the matter up when there had apparently been a final resolution. In response to an inquiry, he said:

 “I do not believe the court treated me unfairly. The relief is based on ineffective assistance of counsel, and cases involving ineffective assistance of counsel routinely get referred to the State Bar.”

(Such a referral is required under Business & Professions Code §6086.7(a)(2) where “a modification or reversal of a judgment in a judicial proceeding is based in whole or in part on the misconduct, incompetent representation, or willful misrepresentation of an attorney.”)

Schraer added:

“On the merits, claims of ineffective assistance have two components: (1) deficient performance by the attorney and (2) prejudice — a reasonable probability of a different outcome. In this case the bar will most likely conclude that component 2 is missing since the court of appeal granted the relief the defendant would have received if the issue had been raised earlier. I do not think I will need to look for a new gig. No harm, no foul, one hopes.”

Numbering Confused

The discussion in the opinion contains three parts. Part I deals with the motion for pre-trial diversion.

In Part II, Haller proclaimed, on equal protection grounds, that Gerson is entitled to 608 days of custody credit and inadvertence 91 days of preconviction conduct credit based on time spent in home detention with electronic monitoring while on bail, though not statutorily authorized, because he is similarly situated to persons in such a situation who are on their own recognizance, who do have statutory entitlement to such credits.

Part III deals with the effect of AB 124.

There is no Part IV and the footnote implies that the discussion of AB 124 is not certified for publication.

The footnote is apparently carried over from the Jan. 28 opinion, which did contain four parts. Two parts—one on instructional error and another on sufficiency of the evidence—were omitted from Friday’s opinion, with a footnote indicating the lack of a need to discuss other matters.

Haller said in the discussion that the motion to recall the remittur and remand for resentencing was to be discussed in a “new published part VI” which actually refers to the new Part III.

The case is People v. Gerson, 2022 S.O.S. 2946.

 

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