Failure to file brief in mitigation at resentencing hearing is ineffective assistance of counsel

THE PEOPLE, Plaintiff and Respondent, v. JUAN PEDRO GUEVARA, Defendant and Appellant. (Cal. Ct. App., Oct. 31, 2025, No. A170530) 2025 WL 3043419, at *1

Summary: In 2011, Guevara was found guilty of assault and other offenses after he attacked and threatened a witness in a murder investigation, and he received a prison sentence of 32 years to life that included various sentencing enhancements. Eleven years later, the trial court recalled defendant’s sentence pursuant to Penal Code section 1172.75,1 held a resentencing hearing and struck four invalid one-year enhancements.

On appeal, Guevara contends his counsel at resentencing was ineffective, in that counsel failed to file a sentencing brief presenting evidence or argument in mitigation. The Court of Appeal reversed and remand for resentencing.

At sentencing in 2011, the trial court considered defendant’s request to dismiss the strike prior convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

In 2022, the California Department of Corrections and Rehabilitation (CDCR) identified Guevara as eligible for resentencing due to his prison priors, and the trial court ordered his resentencing. (See § 1172.75, subds. (b).) The court appointed counsel to represent defendant and tentatively ruled it would “delete 4 prison priors.”

The resentencing hearing was originally set for October 7, 2022, but it did not occur until April 26, 2024, due in large part to continuances repeatedly requested by defense counsel to prepare a resentencing brief.

Although the defense never filed a resentencing brief or statement in mitigation, the resentencing hearing ultimately occurred on April 26, 2024.

The court observed that some of the prior continuances had been granted to allow briefing for a Romero motion, but “[n]othing [had] been filed”; other continuances were allowed so that defendant “could be present,” and “[h]e [was] now present.” “Mr. Guevara might have other remedies,” the court observed, “but I am not going to continue this matter further.”

The trial court observed that even though the strike priors were “old,” they involved kidnapping and robbery convictions, which are “particularly serious.” Moreover, defendant had “repeatedly pick[ed] up new felonies and, in this case, new strikes.” The court recognized it could no longer impose the prison priors, but apparently considered the convictions for those priors as demonstrating recidivism—i.e., “as returns to prison”—in ascertaining whether defendant fell within the spirit of the Three Strikes Law. In the court’s view, the original sentence “reflect[ed] someone who is still within the gamut of the Three Strikes Law” and “was a fair consideration” of defendant and his actions in the underlying offenses, which involved “a joint beating of someone suspected to be a snitch to the point of unconsciousness.”

The court then struck the four one-year prison prior enhancements and pronounced sentence as follows: a Three Strikes sentence of 25 years to life in prison, plus three years for the great bodily injury enhancement, on count 1; 25 years to life on each of counts 2, 4, and 5, stayed pursuant to section 654; and 180 day sentences on the two misdemeanors—count 3 stayed pursuant to section 654, and count 6 to run concurrently. The court also awarded credits for “458 actual days, 68 conduct credits.” Guevara appealed.

Prior prison enhancements and full resentencing

When a defendant’s current judgment includes a prison prior enhancement rendered invalid under section 1172.75, subdivision (a),3 “the court shall recall the sentence and resentence the defendant.” (§ 1172.75, subd. (c).) Section 1172.75 requires a full resentencing,” not merely the striking of “newly ‘invalid’ enhancements.” (People v. Monroe (2022) 85 Cal.App.5th 393, 402.) The resentencing court “shall apply the sentencing rules of the 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.” (§ 1172.75, subd. (d)(2).)

At sentencing, defense counsel may present evidence and argument, orally or in writing. (People v. Scott (1994) 9 Cal.4th 331, 351.) “[A] defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client may be found incompetent.” (Ibid.)

To prevail on a claim of ineffective assistance of counsel, “the defendant must first show counsel’s performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.” (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).)

Effective representation entails “ ‘diligent conscientious’ ” advocacy. (People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) In California, an attorney has a duty to “not … repeatedly, recklessly or with gross negligence fail to act with reasonable diligence,” where “ ‘reasonable diligence’ ” means “act[ing] with commitment and dedication to the interests of the client and … not neglect[ing] or disregard[ing], or unduly delay[ing] a legal matter entrusted to the lawyer.” (Rules Prof. Conduct, rule 1.3; see also American Bar Association Model Rules of Prof. Conduct, rule 1.3 [“A lawyer shall act with reasonable diligence and promptness in representing a client”].) Moreover, a criminal defendant is entitled to a reasonably competent attorney who makes “rational and informed decision[s] on strategy and tactics founded on adequate investigation and preparation.” (Ledesma, at p. 215.) “If counsel fails to make such a decision, his action—no matter how unobjectionable in the abstract—is professionally deficient.” (Ibid.; see also Strickland v. Washington (1984) 466 U.S. 668, 690 (Strickland) [implying that counsel must make “all significant decisions in the exercise of reasonable professional judgment” (italics added)].)

Here, defense counsel’s conduct did not meet professional standards of diligence. For over a year and a half, defense counsel requested continuances for the purpose of researching issues and filing a sentencing brief. A month before the hearing, the trial court admonished defense counsel that counsel “really need[ed] to file something” if he sought additional relief beyond the tentative ruling, and counsel affirmed his intent to file a “Romero-type of sentencing brief.” But in the end, defense counsel filed nothing, despite his representation that he had “more material that [he] had intended to submit to the Court.” His explanation for his latest instance of nonperformance—i.e., that he was “in an ongoing trial”—“affirmatively discloses counsel had no rational tactical purpose for the challenged … omission.” (Mai, supra, 57 Cal.4th at p. 1009.)

We cannot know whether defendant would have obtained a more favorable result if not for counsel’s inadequacy, but, importantly, defendant is not required to show he was entitled to a lower sentence in order to establish prejudice. (See, e.g., In re Smith (1970) 3 Cal.3d 192, 202. The law allowed the court to choose a lesser sentence than the one it imposed, and that the court stated expressly that if defendant wanted to request that relief, his counsel needed to file a sentencing brief.

The court could have dismissed at least one of defendant’s strike priors and imposed a determinate sentence. (See Romero, supra, 13 Cal.4th 497.) Because the sentencing triad for the crime alleged in count 1 is two, three, or four years (§ 245, subd. (a)), defendant would have been released with credit for time served if he had been given a two-strike sentence. The court explained on the record why, in light of the evidence before it, the court would not take that course of action. But a more robust presentation by defense counsel could have produced a different result on the question of dismissing a strike prior.

On this record that it would have been reasonable for the court to have dismissed the enhancement, and that it is reasonably probable the court would have done so if defense counsel had diligently represented his client on resentencing. We know, because the sentencing judge said so on the record, that he was prepared to consider a lesser sentence than the one he ultimately imposed, but that to be persuaded he thought he needed the argument to be laid out in a sentencing brief. Defense counsel repeatedly failed to file that brief.

The judgment following resentencing is reversed and the matter is remanded for resentencing. The Clerk of this Court is directed to send a copy of this decision to the State Bar of California and to defendant’s counsel of record at the resentencing hearing.

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