"Ifiifi?tlTUi-LBI COURT GREGORY D. TOTTEN Mesa? 2 6 2919 District Attorney Execm??h?m? PLANET W. TAYLOR WATERS, SBN 245590 3v.- and Clerk Senior Deputy District Attorney Kr D?pmy 800 South Victoria Avenue Ventura, CA 93009 Telephone (805) 654-2500 Attorney for Plaintiff SUPERIOR COURT OF CALIFORNIA, COUNTY OF VENTURA THE PEOPLE OF THE STATE OF CALIFORNIA, COURT NOS. 2011036340 2011032647 Plaintiff, NOTICE OF PENAL CODE SECTION 1170(d) MOTION v. TO RECALL STATE PRISON SENTENCE JOSE MANUEL PEREZ, Date: October 18, 2019 Defendant. Time: 9:00 am. I Courtroom: 12 TO THE CLERK OF THE SUPERIOR THE DEFENDANT, JOSE MANUEL AND HIS LAST COUNSEL OF RECORD, THE VENTURA COUNTY PUBLIC DEFENDER: PLEASE TAKE NOTICE that in the above-entitled cases, on the date, time and location listed above, or as soon thereafter as the matter may be heard, the People of the State of California, Plaintiff, by and through their attorneys, GREGORY D. TOTTEN, District Attorney, and W. TAYLOR WATERS, Senior Deputy District Attorney, will move this court to grant the People?s motion brought pursuant to Penal Code section 1170, subdivision to recall the state prison sentence of convicted defendant Jose Manuel Perez. Once the defendant?s sentence is recalled in Ventura County Superior Court case numbers 2011036340 and 2011032647, the People will move to dismiss Ventura County Superior Court case number 2011036340 pursuant to Penal Code section 1385 and thereafter move to resentence the defendant in Ventura County Superior Court case number 2011032647. -1- NOTICE OF PENAL CODE 1170(d) MOTION TO RECALL SENTENCE PROCEDURAL SUMMARY On June 5, 2012, defendant Jose Manuel Perez pled guilty to all counts and every special allegation in Ventura County Superior Court case numbers 2011036340 and 2011032647. In case number 2011036340, the defendant pled guilty to one count of Penal Code section 186.22, subdivision and admitted the section 12022, subdivision allegation, and also pled guilty to one count of Penal Code section 211, and admitted the section 186.22, subdivision and section 12022, subdivision allegations. In case number 2011032647, the defendant pled guilty to one count of Penal Code section 186.22, subdivision pled guilty to two counts of Penal Code section 245, subdivision and admitted the section 186.22, subdivision allegations alleged under both section 245(a)(1) violations. The defendant was released from custody after entering into a Cruz waiver, and was later placed on 60 months formal probation on July 11, 2012. On March 26, 2019, the defendant admitted his third violation of probation in case numbers 2011036340 and 2011032647 based on a driving under the in?uence violation he committed on November 4, 2018. As a result of his admission to the probation violation, the defendant?s probation was terminated and he was sentenced to a total ?xed term of 13 years state prison. The defendant is currently serving the 13-year state prison sentence at Calipatria State Prison. During the pendency of the third violation of probation, at the request of the defendant?s family, the Ventura County District Attorney?s Of?ce began a post?conviction investigation regarding the integrity of the defendant?s robbery conviction in case number 2011036340. That post-conviction investigation is now complete. PENAL CODE SECTION 1170021) MOTION TO RECALL SENTENCE Penal Code section 1170, subdivision permits the court, at any time, to recall a state prison sentence upon the recommendation of the District Attorney. Once the sentence is recalled, the inmate may be resentenced ?in the same manner as if he or she had not previously been sentenced, provided the new sentence is no greater than the original sentence.? (Pen. -2- NOTICE OF PENAL CODE 1170(d) MOTION TO RECALL SENTENCE Code, 1170, subd. The court ?may reduce a defendant?s term of imprisonment and modify the judgment, including a judgment entered after a plea agreement, if it is in the interest of justice.? (Ibid.) The post-conviction investigation undertaken by the Ventura County District Attorney?s Of?ce revealed material, potentially exculpatory evidence related to the defendant?s robbery conviction in Ventura County Superior Court case number 2011036340. The evidence consists of circumstantial evidence suggesting the defendant may not have committed the robbery, a newly identi?ed suspect, the defendant?s brother, who more closely matches the description of the robber, and an admission by the defendant?s brother, albeit after the statute of limitations expired, that the defendant?s brother committed the robbery. Based on that evidence, the People hereby move this court to recall the state prison sentence of defendant Jose Manuel Perez pursuant to Penal Code section 1170, subdivision Once the defendant?s sentence is recalled, the People will thereafter move this court to dismiss Ventura County Superior Court case number 2011036340 pursuant to Penal Code section 1385 because the charges and allegations can no longer be proven beyond a reasonable doubt in light of the evidence revealed during the post-conviction investigation. As a result of the changed circumstances, the People will then move this court to resentence the defendant in his remaining case, Ventura County Superior Court case number 2011032647, to a sentence commensurate with the severity of the defendant?s criminal conduct. The robbery victim in case number 2011036340 has been noti?ed of the results of the post-conviction investigation, has been informed of the motions that will be made by the Ventura County District Attorney?s Of?ce, and has been invited to attend and be heard at all future court proceedings. At this time, the People respectfully request that counsel be appointed to represent the defendant for purposes of litigating the Penal Code section 1170, subdivision motion. On March 26, 2019, when the defendant admitted his third violation of probation and was sentenced to state prison, he was represented by the Ventura County Public Defender. The defendant did not appeal the sentence and is not represented by counsel at this time. Near the -3- NOTICE OF PENAL CODE 1170(d) MOTION TO RECALL SENTENCE our post-conviction investigation, our of?ce was contacted by the California Innocence Project, to whom criminal discovery has been provided pursuant to their formal request and with the defendant?s consent. However, the California Innocence Project does not formally represent the defendant in either criminal case and played no role in the conviction integrity investigation. Criminal discovery has also been provided to the defendant?s last counsel of record, the Ventura County Public Defender. The District Attorney?s Of?ce has been informed that it will likely take three to four weeks to effectuate the defendant?s transfer from Calipatria State Prison t0 the Ventura County Superior Court. Based on that information, the People request this motion be heard on October 18, 2019. In the event that the separately ?led order of production can be expedited, the People respectfully request this motion be advanced to the earliest possible date that the defendant can be brought before the jurisdiction of this court. Respectfully submitted, GREGORY D. TOTTEN, District Attorney County of Ventura, State of California DATED: September 26, 2019 By: T- View (?nigrpnepn; r' ttorney NOTICE OF PENAL CODE 1170(d) MOTION TO RECALL SENTENCE AMENDED PROOF OF SERVICE THE PEOPLE OF THE STATE OF CALIFORNIA, COUNTY OF VENTURA V. JOSE MANUEL PEREZ I, JESSICA MULLEN, say that: I am a citizen of the United States, over the age of eighteen (18) years, a resident of the County of Ventura, and am not a party to the above-entitled action; my business address is 800 South Victoria Avenue, Ventura, California; on September 26, 2019, I served the within NOTICE OF PENAL CODE SECTION 1170((1) MOTION TO RECALL STATE PRISON SENTENCE enclosed in a sealed envelope with postage thereon fully prepaid in the United States mail, transmission, and/or Electronic Mail, at Ventura, California, addressed as follows: Jose Manuel Perez Claudia Bautista DCR BJ1889 Public Defender Calipatria State Prison c/o Receptionist PO. Box 5004 800 S. Victoria Ave. A.1 #247 Ventura, CA 93009 Calipatria, CA 92233 I declare under penalty of perjury that the foregoing is true and correct. Executed on September 26, 2019, at Ventura California. 31 .A (805) 654-2527