Prisoner has right to consult with his attorney at resentencing hearing

People v. Grajeda (Cal. Ct. App., June 3, 2025, No. B337664) 2025 WL 1564615, at *1

Summary: In 2012 a jury found Grajeda guilty of first degree murder and possession of a firearm by a felon. The jury also found true gang and firearm allegations. The trial court found true allegations Grajeda had served four prior prison terms. The trial court sentenced Grajeda to a prison term of 59 years to life.

In 2024 the superior court held a resentencing hearing under Penal Code, section 1172.75, at which Grajeda appeared remotely. The court denied Grajeda’s request to postpone the hearing to allow him to speak with his attorney. The court resentenced Grajeda to a prison term of 50 years to life.

Grajeda argues the superior court abused its discretion in denying his request to continue the hearing and declining to hear argument on whether to strike the firearm enhancement. He claimed he received ineffective assistance of counsel. Once the court determined Grajeda’s sentence included legally invalid enhancements, Grajeda was entitled to a full resentencing and had a constitutional right to effective assistance of counsel at the resentencing hearing. The court violated that right by refusing to grant Grajeda a short continuance, or even to take a brief break, to allow him to speak with his attorney before the court resentenced him and imposed judgment. The Court of Appeal reversed

The Superior Court Abused Its Discretion in Denying Grajeda an Opportunity To Speak with His Attorney

A court may grant a continuance in a criminal case “upon a showing of good cause.” (§ 1050, subd. (e).) “A trial court has broad discretion to grant or deny continuances.” An order denying a request for a continuance for abuse of discretion is reviewed for abuse of discretion.  “When a denial of a continuance impairs the fundamental rights of an accused, the trial court abuses its discretion.” (People v. Fontana (1982) 139 Cal.App.3d 326.)

A “criminal defendant has a constitutional right to counsel, guaranteed by the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution, “ ‘at all critical stages of the criminal process’ ”

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 face case for relief or reaches the resentencing stage, the defendant has that right. For example, a defendant has a constitutional right to effective assistance of counsel at an evidentiary hearing under section 1172.6, at a resentencing hearing under section 1172.1, at a resentencing hearing under section 1170.18 (Proposition 47), and at a hearing to vacate a conviction or sentence under section 1473.7 By the same token, a defendant has a constitutional right to the effective assistance of counsel at a resentencing hearing under section 1172.75, whether under the Sixth Amendment, the Due Process Clause, or both.

By the time of the resentencing hearing under section 1172.75, the court has verified the defendant’s judgment includes an invalid enhancement, and the defendant is entitled to a full resentencing. (§ 1172.75, subd. (c). By requiring the superior court in section 1172.75 to “recall the sentence and resentence the defendant” once the court determines the judgment includes a “legally invalid” enhancement, the Legislature effectively directed the superior court to proceed directly to resentencing without issuing an order to show cause, triggering a constitutional right to counsel.

The Superior Court Erred in Denying Grajeda the Right To Communicate with His Attorney

At the beginning of the hearing Grajeda said he wanted to speak with his lawyer, with whom he had not spoken before the hearing. At the end of the hearing Grajeda stated he had wanted to speak with his lawyer about Senate Bill No. 620 and about asking the superior court to strike his firearm enhancements under section 12022.53, as amended by Senate Bill No. 620. Grajeda was entitled to a full resentencing under section 1172.75. His right to effective assistance of counsel included the right to consult with his lawyer about what relief to seek.

Grajeda did not have to show the outcome would have been different absent the error. Although a defendant claiming his attorney’s inadequate performance deprived him of effective assistance of counsel must show “ ‘the deficient performance prejudiced the defense’, … direct governmental interference with the right to counsel is a different matter.” Prejudice is presumed “where a defense attorney is prevented from, or impeded in, rendering assistance of counsel to his client because of an unconstitutional statute or court order.”

The superior court’s order violated Grajeda’s right to communicate with his attorney and  was presumptively prejudicial.

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