Filed 7/24/24 P. v. Fleming CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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 rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

RANDY FLEMING,

Defendant and Appellant.

 B324947

 (Los Angeles County

 Super. Ct. No. BA363372)

APPEAL from an order of the Superior Court of Los 

Angeles County, Kevin P. Stennis, Judge. Reversed and 

remanded with directions. 

Jeffrey Manning-Cartwright, under appointment by the 

Court of Appeal, for Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Noah P. Hill, Supervising Deputy 
2

Attorney General, and Steven E. Mercer, Deputy Attorney

General, for Plaintiff and Respondent.
3

This appeal arises from an order denying defendant and 

appellant Randy Fleming’s (defendant’s) petition for resentencing 

under Health and Safety Code section 11361.8, which was 

enacted as part of the Control, Regulate, and Tax Adult Use of 

Marijuana Act (Proposition 64).

1

 The Attorney General correctly 

concedes the trial court erred by relying solely on the argument of 

counsel, and no evidence, when finding that granting the petition 

would pose an unreasonable risk of danger to public safety. The 

parties disagree, however, about what our disposition of the 

appeal should be in light of the error. That is the dispute we 

resolve. 

I. BACKGROUND

In 2010, defendant was charged with a single count of 

possession of marijuana for sale. The information alleged the 

offense was gang related and it also alleged defendant had 

numerous prior convictions. 

A trial jury convicted defendant (but found the gang 

allegation not true). Prior to sentencing, defendant moved the 

trial court to strike all but one of his prior strike offenses—some 

28 of them. At the hearing, defendant admitted all the prior 

strike convictions, the trial court denied defendant’s motion to 

strike any of them, and the court sentenced defendant to 25 years 

to life in prison. This court affirmed his conviction and sentence. 

(People v. Fleming (May 28, 2013, B241293) [nonpub. opn.].) 

1 Undesignated statutory references that follow are to the 

Health and Safety Code. 
4

In May 2021, defendant filed a petition for resentencing 

pursuant to section 11361.8.2 The People opposed the motion and 

argued granting the petition would pose an unreasonable risk of 

danger to public safety given defendant’s criminal history. 

The People’s opposition contended that criminal history 

included two criminal cases in 1985 in which defendant pled 

guilty to 15 counts of robbery, 1 count of attempted murder, 4 

counts of rape, 4 counts of lewd acts with a minor, and 4 counts of 

assault with a firearm. The opposition described what it asserted 

was the factual predicate for the convictions in one of the two 

cases: defendant entered two restaurants with his friends, 

physically assaulted several patrons, robbed patrons of money 

and jewelry at gunpoint, forced multiple female employees and 

patrons to orally copulate him and undress, raped female 

employees at gunpoint, and sexually assaulted many other 

female patrons. The opposition also described the asserted 

factual predicate for the convictions in the other case: defendant 

robbed and assaulted one off-duty police officer and shot and 

paralyzed a second off-duty officer, who later died. The People 

did not submit any evidence in support of the claims in the 

opposition, nor did the People ask the trial court to take judicial 

notice of the court files from either of the prior cases. 

The trial court heard argument on the petition. Neither 

the court nor the parties mentioned the absence of evidence 

2 Section 11361.8 allows a person “serving a sentence for a 

conviction, whether by trial or by open or negotiated plea, who 

would not have been guilty of an offense, or who would have been 

guilty of a lesser offense under [Proposition 64] had that act been 

in effect at the time of the offense . . . [to] petition for a recall or 

dismissal of sentence . . . .”
5

supporting the People’s opposition. The trial court stated it could 

consider defendant’s criminal history, including the type of 

crimes committed, the extent of injury to the victims, the length 

of prior prison commitments, the remoteness of the crimes, and 

defendant’s disciplinary record and record of rehabilitation while 

incarcerated. As to at least the last two of these, the court 

remarked it did not “have any of that” and informed the defense 

that “if that exists and it’s very very positive, that might be 

something you want to resubmit to the People and see if they 

might change their opposition.” Defendant asserted he had “an 

excellent record in prison” but presented no evidence to support

the statement. The defense did ask if the court would “feel better 

making a decision” if it obtained the prison records. The court 

responded, “Well, I’m ready to rule now, but again, I think maybe 

as some time passes . . . it might be something to reconsider.” 

The court then recited the description of defendant’s convictions

from the People’s opposition, found the People met their burden

to show the defendant poses a danger to public safety, and 

declined to resentence defendant. 

Defendant subsequently filed a petition for habeas corpus 

that this court construed as a request for relief from default for 

failure to timely file a notice of appeal. We granted the 

application, and the appeal is now before us for decision. 

II. DISCUSSION

The Attorney General’s concession that the trial court erred 

in denying defendant’s petition because there was no evidence 

before the trial court that it could rely on to find defendant posed 

an unreasonable risk of danger to public safety is well taken. In 

light of the error, defendant asks us to remand the cause with 
6

instructions to grant his petition for resentencing. The Attorney 

General, on the other hand, maintains the appropriate 

disposition is a remand for another hearing on the petition. We 

follow precedent and hold the Attorney General’s proposed 

disposition is the appropriate one. There is no double jeopardy 

problem in these circumstances.

A. The Trial Court Abused Its Discretion 

Section 11361.8 provides that upon receipt of a petition for 

recall or dismissal of a sentence under that section, “the court 

shall presume the petitioner satisfies the criteria . . . unless the 

party opposing the petition proves by clear and convincing 

evidence that the petitioner does not satisfy the criteria. If the 

petitioner satisfies the criteria . . . , the court shall grant the 

petition to recall the sentence or dismiss the sentence because it 

is legally invalid unless the court determines that granting the 

petition would pose an unreasonable risk of danger to public 

safety.” (§ 11361.8, subd. (b).) 

“In exercising its discretion, the court may consider, but 

shall not be limited to evidence provided for in subdivision (b) of 

Section 1170.18 of the Penal Code.” (§ 11361.8, subd. (b)(1).) 

Penal Code section 1170.18 subdivision (b), in turn, provides the 

court may consider: (1) “[t]he petitioner’s criminal conviction 

history, including the type of crimes committed, the extent of 

injury to victims, the length of prior prison commitments, and the 

remoteness of the crimes[;]” (2) “[t]he petitioner’s disciplinary 

record and record of rehabilitation while incarcerated[;]” and (3) 

“[a]ny other evidence the court, within its discretion, determines 

to be relevant in deciding whether a new sentence would result in 
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an unreasonable risk of danger to public safety.” (Pen. Code 

§ 1170.18, subd. (b)(1)-(3).) 

We review for abuse of discretion the trial court’s 

determination that granting a petition would result in an 

unreasonable risk of danger to public safety. (People v. Saelee

(2018) 28 Cal.App.5th 744, 748-749.) A trial court abuses its 

discretion when it “bases its decision on express or implied 

factual findings that are not supported by substantial evidence.”

(People v. Moine (2021) 62 Cal.App.5th 440, 449.) 

That is the circumstance presented here: the trial court had 

no evidence to support the criminal history representations made 

by the People in their opposition. That is error. (Saelee, supra,

28 Cal.App.5th at 748, 754 [the prosecution must admit, and the 

trial court must rely on, “actual evidence” to make a 

dangerousness finding under section 11361.8, subdivision (b)].) 

B. Remand for Rehearing Does Not Violate Double 

Jeopardy Principles

The Attorney General argues we should order the same 

remedy as did the court of appeal in Saelee: a remand for further

proceedings in which “the parties will be allowed to present

evidence to support their respective positions on the question of

whether defendant poses an unreasonable risk of danger to the

public.” (Saelee, supra, 28 Cal.App.5th at 756-757.) Defendant

believes such a remand would be improper because the trial 

court’s dangerousness finding is akin to a finding of innocence or 

guilt on a substantive charge, that a reversal of the ruling for 

insufficient evidence is akin to an acquittal, and that allowing the 

People another opportunity to admit evidence of his

dangerousness would violate double jeopardy principles. In 
8

defendant’s view, the People squandered their one opportunity to 

present evidence and we should remand the matter to the trial 

court with directions to grant defendant’s request for 

resentencing. 

Contrary to defendant’s contention, allowing the trial court 

to conduct a new hearing would not violate the constitutional 

guarantee against double jeopardy. “The constitutional 

prohibition against ‘double jeopardy’ was designed to protect an 

individual from being subjected to the hazards of trial and 

possible conviction more than once for an alleged offense.” (Green 

v. United States (1957) 355 U.S. 184, 187.) Thus, double jeopardy 

principles generally do not apply to sentencing decisions.3 (See 

Monge v. California (1998) 524 U.S. 721, 734; People v. Barragan

(2004) 32 Cal.4th 236, 239, 245 [authorizing retrial of a strike 

crime allegation found on appeal to be unsupported by 

substantial evidence]; People v. Monge (1997) 16 Cal.4th 826, 

843-844.) Here, a remand will not subject defendant to the 

possibility of being convicted more than once for an offense. We 

also see no adequate analogy between the posture of this 

resentencing case (in which defendant’s sentence cannot increase)

3 Defendant nonetheless contends double jeopardy principles 

should apply to the dangerousness finding, relying primarily on a 

concurring opinion in People v. Monge that asserted that 

“application of double jeopardy does not depend on the 

mechanical application of a formula. It depends instead on the 

nature of the determination to be made and its relationship to the 

underlying offense.” (People v. Monge (1997) 16 Cal.4th 826, 847 

[conc. opn. of Brown, J.) The concurrence is, of course, not 

binding law, and regardless, we are not persuaded that a

dangerousness finding is akin to a finding on a substantive 

charge. 
9

and a trial on a criminal charge that would justify stretching 

double jeopardy principles (if they could stretch so far) to bar a 

remand with instructions to hold a new hearing.

Concluding a remand for another hearing is the correct 

disposition, however, does not mean we thereby adopt the 

position that defendant must, as he says, “endure as many 

remands as it may take for a determined prosecutor to muster 

the necessary evidence” to prove dangerousness. Our decision is 

limited to the facts and legal argument here: a situation where 

the People presented no evidence at all (indicating an error of 

inadvertence or a “technical defect[ ] in . . . proof” (People v. 

Morton (1953) 41 Cal.2d 536, 545)), defendant did not object or 

otherwise alert the trial court to the absence of any evidentiary 

support for the criminal history representations made by the 

People,

4

and defendant’s contention is solely that a remand for a 

new hearing would violate double jeopardy principles. The 

disposition we shall adopt, however, works both ways: just as the 

People will have an opportunity to introduce evidence of 

defendant’s prior criminal conduct, defendant will have the 

opportunity to submit any mitigating evidence of the type 

mentioned by the trial court during the hearing from which this 

appeal is taken (e.g., his disciplinary history during the 30-plus 

years he has been in custody).

4 Though forfeiture principles do not foreclose defendant’s 

challenge to the sufficiency of the evidence for the trial court’s 

order (People v. McCullough (2013) 56 Cal.4th 589, 596), we do 

believe forfeiture concepts can inform our view of the appropriate 

disposition of this appeal. 
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DISPOSITION

The order denying the petition for resentencing is reversed, 

and the matter is remanded to hold another hearing on 

defendant’s resentencing petition consistent with the views 

expressed in this opinion. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR, J.

KIM, J.