Page 1
C.A. Says Defendant Appearing Remotely Was Wrongly Denied Time to Confer With Lawyer
Opinion Says Accused Has Right to Counsel at Resentencing Hearing, Judge Violated That Principle by Denying Continuance to Allow Chance to Talk With Attorney
By a MetNews Staff Writer
Div. Seven of this district’s Court of Appeal held yesterday that a trial judge erred in denying a request by a criminal defendant, who was appearing remotely from prison, for a continuance to allow him to speak with his attorney before the court proceeded on a resentencing hearing, saying that decision interfered with the right of the accused to effective assistance of counsel.
In an opinion, written by Justice John L. Segal and joined in by Presiding Justice Gonzalo Martinez and Justice Gail Ruderman Feuer, the court said that the defendant’s constitutional right to counsel attaches at a resentencing hearing under §1172.75, which provides that any prior prison enhancement, other than one for sexually violent offenses, imposed prior to Jan. 1, 2020 is legally invalid. Segal wrote:
“Had Grajeda appeared in person at the hearing, the superior court might have allowed him to speak with his attorney, and Grajeda might have been ready to proceed at that time. Though Grajeda waived his right to appear in person…, he did not waive his right to (effective) counsel, and a defendant appearing remotely must be able to communicate confidentially with his or her lawyer during the hearing.”
The jurist added:
“What good is having an attorney in a criminal case if the court won’t let you speak with her?”
Resentencing Scheme
At issue is the resentencing scheme adopted by the Legislature in 2021 and codified at §1172.75. Subdivision (b) of the section requires the Department of Corrections and Rehabilitation to identify individuals serving prison terms that include no-longer-valid enhancements.
After a trial court verifies a judgment including an invalid enhancement, the court must “recall the sentence and resentence the defendant,” who is entitled to the appointment of counsel at the hearing, and must “apply any other changes in law that reduce sentences or provide for judicial discretion.”
One such defendant was Daniel Grajeda, who was found guilty in 2012 of first-degree murder and possession of a firearm by a felon. He was sentenced to 59 years to life on these charges, as well as gang, firearm, and prior prison allegations.
His sentence included four years imposed for the prior prison allegations and a 25-year-to-life enhancement for personally using a firearm during the commission of the offense.
Following the Legislature’s enactment of §1172.75, Grajeda was scheduled to appear for a full resentencing hearing in March 2024.
His attorney asked the court to strike the four years imposed on the prior prison enhancements, vacate a two-year gang enhancement, and resentence him to a total of 53 years to life. The lawyer did not request that the court strike the firearm enhancement.
Los Angeles Superior Court Judge Judith L. Meyer asked Grajeda if he agreed to remote participation, to which he responded:
“Yes, ma’am, I do. I would like to do it on web cam, but…I want to postpone this court date so I can talk to my lawyer about something.”
Meyer said:
“Well, that’s not going to happen here today. There’s been ample opportunity, and everybody’s…ready to go….”
Grajeda’s attorney admitted that she had not spoken with her client. The court struck the prior prison and gang enhancements and resentenced the defendant to 50 years to life in prison.
At the end of the hearing, Grajeda announced that he wanted to talk to his lawyer about requesting the court to strike the firearm allegation under Senate Bill 620, which amended the governing Penal Code section in 2018 to provide that “[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section.” The judge said she was aware of the law and declined to reconsider the sentence.
Abuse of Discretion
Segal acknowledged “the court’s broad discretion in deciding whether to grant a continuance,” but said that leeway is abused when a denial of a request for more time impairs the fundamental rights of a criminal defendant.
He cited case law establishing that the right to counsel attaches at resentencing hearings held under other provisions, such as one allowing those convicted under now-defunct theories of felony-murder to have their sentences adjusted, and wrote:
“Although the defendant does not have a constitutional right to counsel at the initial eligibility stage of a statutory resentencing process…, once the defendant states a prima [facie] case for relief or reaches the resentencing stage, the defendant has that right.”
Emphasizing that the right is to the effective assistance of counsel, he opined that Meyer’s actions contradicted this principle. He pointed out that Grajeda was entitled to bring up any other laws that might reduce his sentence during the hearing and opined:
“[H]ad Grajeda and his attorney persuaded the court to exercise its discretion to strike the firearm enhancement, Grajeda’s minimum parole eligibility may have been reduced by 50 percent, from 50 years to 25 years, a meaningful reduction….Given the significant potential benefit to Grajeda of asking the court to address (and having his attorney argue that and why the court should address) the firearm enhancement, and the minor burden to the court of a delay, granting the continuance would have accomplished ‘substantial justice.’ ”
He added:
“Although Grajeda phrased his request as one to ‘postpone’ the resentencing hearing, a brief recess to allow him to speak with his lawyer probably would have been sufficient.”
Harmless Error Rejected
The Office of the Attorney General argued that any error in denying the request to continue the hearing was harmless, pointing out that Meyer said she was “well aware” of her authority under Senate Bill 620 but declined to reduce his sentence any further. Rejecting this argument, Segal said:
“Because the superior court’s order violated Grajeda’s right to communicate with his attorney, it was presumptively prejudicial. A contrary rule—requiring Grajeda to show prejudice—would require us to speculate about what Grajeda would have said to his attorney, how his attorney would have responded, what argument his attorney might have made for striking the firearm enhancement, and whether the court would have been persuaded by it.”
Continuing, he remarked:
“[T]he superior court’s refusal to allow Grajeda to consult with his lawyer impermissibly impeded his lawyer’s ability to provide effective assistance of counsel at the resentencing hearing….A defendant like Grajeda facing an indeterminate prison term of 50 years to life deserves an opportunity to discuss with his attorney the legal basis for the sentence and what, if anything, can be done about it, regardless of the likelihood of success of a particular legal or factual argument.”
The case is People v. Grajeda, B337664.
Copyright 2025, Metropolitan News Company