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C.A. Vacates Its Decision Ordering Resentencing
A.G.’s Office Alleges Misconception
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal has vacated an April 24 opinion reversing an order denying resentencing under Penal Code §1172.75 and remanding the case to the Orange Superior Court after the Office of Attorney General came upon information that the appellant is no longer serving the sentence imposed in that county.
That office filed a petition for a rehearing on May 9 which Div. Three granted on May 21. In an unpublished opinion by Acting Presiding Justice Joanne Motoike filed Tuesday, the court said:
“The Attorney General argues, inter alia, [Patrick Damian] Brady’s judgment in this case cannot be the basis for relief under section 1172.75 because he is not currently serving a term for that judgment. The Attorney General asserts Brady already completed his sentence for this case and he is currently in custody on a separate judgment from a case in Los Angeles County Superior Court. The Attorney General further contends Brady was sentenced to an indeterminate term of 25 years to life in the Los Angeles County Superior Court case, and the judgment in this Orange County Superior Court case cannot be considered merged or aggregated with the judgment in the Los Angeles County Superior Court case because the sentence in the Los Angeles County Superior Court case was to run concurrent to the Orange County judgment.
“The trial court does not appear to have considered this issue and whether it requires denying Brady’s petition. Thus, we vacate the trial court’s order and remand to the court to consider this issue in the first instance. On remand, the court may also address, if the court deems it necessary to do so, the other arguments raised by the parties regarding whether Brady qualifies for relief under section 1172.75.”
The case is People v. Brady, G063549.
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