P. v. Jackson CA2/1 filed 7/31/26

Filed 7/31/26 P. v. Jackson CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN JACKSON,

Defendant and Appellant.

B338058

(Los Angeles County
Super. Ct. No. TA126434)

APPEAL from an orderof the Superior Court of LosAngeles County,John J. Lonergan, Jr., Judge.Reversed with directions.
Gordon B. Scott, under appointment by the Court of Appeal, forDefendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
This appeal follows defendant Kevin Jackson’s resentencing pursuant to Penal Code section 1172.75.Jackson argues and weagree the trial court lacked potential information relevant to exercising its discretion.We reverse the judgment and remand for a new resentencing hearing.
BACKGROUND
In 2013, a jury convicted Jackson of attempted murder, shooting at an inhabited dwelling, and possession of a firearm by afelon, and found that in commission of the attempted murder he discharged a firearm, causing great bodily injury.
The trial court sentenced Jackson to consecutive terms of 41years to life in prison for the attempted murder and 13 years forpossession of a firearm, plus a stayed term of 7 years to life forshooting at a dwelling. The sentences included:(1) the3-year high term for firearm possession; (2) doubled base terms for a prior strike on the attempted murder and firearm possession counts; (3)a20-year gun use enhancement; (4) 5-year enhancementsfor aserious felony prior on both the attempted murder and firearm possession counts; and (5) two now-invalid 1-year enhancementsforprior prison terms pursuant to section 667.5, subdivision (b)onboth the attempted murder and firearm possession counts.
After an appeal, the superior court modified the sentence by striking the 5-year, prior serious felony enhancement on the weapon possession count, reducing the sentence on that count from 13 to 8 years.
In April 2023, Jackson filed a petition in propria personafor recall and resentencing under section 1172.75. The resentencing court appointed counsel for him, scheduled ahearing, directed Jackson’s counsel “to file any other motions seeking relief on any other statutes,”and in December 2023set a hearing for April 2024.
In January 2024, counsel filed a motion to recall Jackson’ssentence and conduct a full resentencing pursuant tosection1172.75 to eliminate the now-invalid one-year enhancements and consider other current sentencing laws. Counsel asked the trial court to exercise its new discretionary authority to do three things: (1) impose the low term for possession of a firearm because statutory presumptions about sentences of three possible terms hadchanged; (2) stay the imposed term for attempted murder andimpose the stayed term for shooting at a dwelling because therewassubstantial doubt that Jackson’s gun inflicted injury; and(3)dismiss the 20-year firearm enhancement pursuant to section1385 because multiple enhancements were alleged, the application of an enhancement would result in a sentence of over 20 years, and the offenses were connected to mental illness and prior victimization or childhood trauma. Counsel requested thatthe court consider mitigation not previously heard by the sentencing court.
A.April 12, 2024 Hearing
On April 12, 2024, the court held a resentencing hearing.Jackson’s counsel, appearing telephonically, informed the court he had not been advised that resentencing would occur at the hearing and he was in trial in a different matter, did not have Jackson’s file, had not had an opportunity to speak with him, and was “not at all prepared” to proceed. Counsel stated he needed time to consult with Jackson and develop additional material with respect to the various sentencing factors articulated in his motion, including anEvidence Code section 730 evaluation to determine whether Jackson should be considered for mental health diversion rather than incarceration.
Jackson himself stated that he wanted to give his counsel his “chronos,” California Department of Correction and Rehabilitation (CDCR) documents containing information about an inmate’s behavior. (Cal. Code Regs., tit. 15, § 3000.)
The court observed that counsel had had the case for almost ayear, and knew since December 2023 that the hearing would be in April 2024.The court therefore denied a continuance.
The court struck the two 1-year enhancementson the attempted murder count, reducing Jackson’s sentence on that count from 41 to 39 years to life.
It also (1) struck the two 1-year enhancements on the firearm possession count, reducing the sentence from 8 to 6 years, and (2)mitigated the 3-year high term to the 16-month low termon that count (doubled due to Jackson’s strike),which further reduced the sentence to 32 months (2 years, 8 months).
B.April 22, 2024 Motion In Propria Persona
On April 22, 2024, Jackson himself filed a motion for resentencing pursuant to section 1172.1 (recall and resentencing upon the recommendation of specified officials), supported by chronos reflecting that he had completed a gang awareness course, a three-week progressive programming course, a 16-week course onrelapse and recovery, and a summer reading program.
The court stated in a minute order that because an inmate is not entitled to seek relief under section 1172.1,the court would take no action on thepetition.
C.May 10, 2024 Hearing
The court nevertheless sua sponte set a May 10, 2024 hearingon issues it had not addressed at the April 12 hearing, i.e.,Jackson’s requests that the court stay the imposed term forattempted murder, impose the stayed term for shooting at adwelling, anddismiss the 20-year firearm enhancement.
On May 10, counsel, whowas again in trial,appeared remotely. The record is ambiguous as to whether Jackson was present.Counsel asked for a continuance to provide evidence of mitigating circumstances under section 1385, including mental health and childhood trauma. He requested time to retain a mitigation expert and develop a mitigation report.
The court denied the request, stating:“I think the record speaks for itself. The age of this case and the court continuously giving you deadlines to submit what you’re going to request and thecourt has reviewed everything that you’ve submitted and . . . based on the facts of this case and the fact that your client was theshooter and the fact that he shot numerous times into a crowd of individuals he knew, that the court is . . . is declining to use its new discretion under the law and strike the 20-yearenhancement.”“Based on his actions in this case,” the court stated, “it would not be in the interest of justice for this court to” further reduce Jackson’s sentence.
Jackson appealed from the April 12 and May 10, 2024 orders.
DISCUSSION
Resentencing Under Sections 1172.75 and 1385
Jackson contends we must remand for a new resentencing hearing because he was entitled to but denied a full resentencing, including consideration of post-conviction factors in mitigation. (§1172.75, subd. (d).) We agree.Because we reverse the judgment and order a new resentencing hearing, we do not consider defendant’s remaining arguments.
Section 1172.75 provides that when a court resentences a defendant under the statute, it “shall apply the sentencing rules ofthe Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” (Id., subd. (d)(2).)“The court may consider postconviction factors, including, but not limited to, the disciplinary record and record ofrehabilitation of the defendant while incarcerated, evidence thatreflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.” (§1172.75, subd. (d)(3).)
“By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly ‘invalid’ enhancements.”(People v. Monroe (2022) 85Cal.App.5th 393, 402.) Thus, in a case such as this, “the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.”(People v. Buycks (2018) 5 Cal.5th 857, 893, italics omitted.)
Section 1385, subdivision (a) grants the superior courtdiscretion,“in furtherance of justice, [to] order an action to bedismissed.”(§1385, subd. (a).)This includes the authority tostrike a sentence enhancement. (People v. Barboza (2021) 68Cal.App.5th 955, 965.) To apply this discretion, the court “shallconsider and afford great weight to evidence offered by the defendant to prove that any of [several] mitigating circumstances . . . are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.” (§1385, subd. (c)(2).)
We review a trial court’s denial of a continuance for abuse of discretion. (People v. Mungia (2008) 44 Cal.4th 1101, 1118.) One factor to consider is whether a continuance would be useful.(Ibid.)
Here, a continuance was merited because it would have allowed defense counsel to obtain potential evidence relevant toresentencingregarding childhood trauma and mental capacity. This was apparently Jackson’s first request for a continuance, andthe burden on the court of a continuance was minimal because there would have been no need to reschedule witnesses or consider juror inconvenience. (See People v. Grajeda (2025) 111 Cal.App.5th 829, 839–840(Grajeda).)
It appears the trial court lacked information about potentialchildhood trauma and mental health influences identified in section1385. The court stated its reason for denying any further relief was “[b]ased on [Jackson’s] actions in [the] case,” including thathe “was the shooter and . . . shot numerous times into a crowd.” The court declined to consider Jackson’s accomplishments in prisonor to continue the matter to develop information about his possible mental health issues and childhood trauma.Because the court lacked evidence of all relevant mitigating factors identified in section 1385, we must remand for resentencing unless the record clearly indicates that the court would have reached the same conclusion even had it considered the mitigating factors. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; Grajeda, supra, 111 Cal.App.5th at p. 842.)
Here, Jackson’s counsel stated there would be relevant mitigating evidence after he had Jackson evaluated by an expert regarding mental health and childhood trauma and gathered rehabilitation evidence from the CDCR. The record does not clearly indicate either that such evidence could not be developed orthat itwould lead to the same result.
Respondent argues that the court implicitly conveyed that even giving great weight to applicable section 1385 mitigating circumstances, it was not in the interest of justice to dismiss thegun use enhancement or otherwise reduce Jackson’s sentence. (People v. Walker (2024) 16 Cal.5th 1024, 1029, 1034–1036 [mitigating circumstance may be neutralized by countervailing factors].We disagree. Although a “court is presumed to haveconsidered all of the relevant factors in the absence of an affirmative record to the contrary” (People v. Myers (1999) 69 Cal.App.4th 305, 310), when itexpressly states the basis for its decision and declines to consider other factors, we will not infer it weighed the other factors. Becausethe court expressly considered only the circumstances of Jackson’s crime, we cannot infer that it also considered mitigating circumstances.
Respondent argues that Jackson was not denied an opportunity to present mitigating postconviction evidence because he was allowed to address the court personally at the April 12 hearing and subsequently filed his own motion with exhibits demonstrating his rehabilitative effortsin prison. We disagree because the evidence of rehabilitative efforts was not a substitute for evidence of childhood trauma and mental capacity.
Respondent argues that Jackson cannot show prejudice because the court granted him relief by reducing the sentence onfirearm possession to the low rather than high term, which indicates there is no reasonable probability it would have further reduced the sentence in light of new mitigation evidence.Just because the court reduced Jackson’s sentence in some degree does not necessarily mean it would not further reduce the sentence basedon new mitigating circumstances.
Jackson requests that we remand the case to a different judge. According to him, the court“pre-judged the case,” “ignore[d] theintendment of the law[,] and decline[d] to resentence appellant merely because of the underlying felony.” Although we conclude that the trial court erroneously denied Jackson a continuance, the record does not support his view that the court was unwilling to apply the law. We express no opinion on how the trial court should exercise its discretion upon remand.
DISPOSITION
The judgment is reversed and the case remanded for a new resentencing hearing.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
M. KIM, J.