Defendant received ineffective assistance of counsel at his resentencing hearing where counsel completely failed to act as an advocate as a result of cognitive issues caused by a brain tumor. In 2018, CDCR sent a recall letter to the trial court with a request to correct an error in connection with Ruiz’s sentence. Although the court had the opportunity to reconsider all the sentencing choices, counsel did not file any documents and failed to prepare Ruiz for the resentencing hearing. During the proceeding, counsel spoke less than 50 words. Counsel declined the court’s invitation to speak on Ruiz’s behalf, despite the fact a legal argument could have been made to strike a gang enhancement. Ruiz, however, directly addressed the court by expressing his remorse and indicating that he had graduated high school in prison and enrolled in college classes. Ruiz possessed documentation of his programming in prison, but counsel failed to introduce evidence in support of Ruiz’s efforts towards rehabilitation. The court corrected the error, which resulted in an increased sentenced. Counsel represented he would file a notice of appeal, but failed to do so. Five months after the hearing, counsel was diagnosed with a brain tumor and died later that year. Ruiz filed a habeas petition alleging ineffective assistance of counsel. In support of his petition, Ruiz filed a declaration from counsel’s secretary detailing his mental deterioration at the time of the resentencing hearing. Held: Petition granted, and the matter remanded for a new resentencing hearing. The Court of Appeal concluded counsel had no tactical reason for his “nonexistent advocacy on behalf of the client” and that this “failure went to the entirety of the proceedings.” Counsel’s performance at the resentencing hearing amounted to a complete absence of the assistance of counsel and, as a result, Ruiz did not need to demonstrate prejudice.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/B312062.PDF