People v. Hernandez CA4/3

FACTS

In 2013, defendant was sentenced to 28 years in state prison. The sentence included firearm enhancements. On August 5, 2020, the Secretary of the CDCR sent a letter to the court recommending it recall and resentence defendant under provisions of former section 1170, subdivision (d)(i). The recommendation was based on an amendment to section 12022.53, subdivision (h), which became effective January 1, 2018 and gave the court discretion to strike or dismiss a personal use firearm enhancement in the interest of justice. On August 28, 2020, the court denied the recommendation for recall and resentencing with no prior notice to the parties. According to the minute order, the court held a hearing with no appearance by the parties. The court found that “[w]hile there

3 may be mitigating factors in support of the CDCR’s request, the court cannot overlook the seriousness of the crime and defendant’s institutional conduct.” The court thereafter mailed copies of the minute order to defendant, the CDCR, the Orange County District Attorney’s Office, and the Orange County Alternate Public Defender’s Office. On October 19, 2020, defendant filed a motion to vacate the court’s ex parte…