San Francisco Criminal Lawyer BlogRe-sentencing under 1170(d)-limits to court’s authority
Court discretion under 1170(d)
Penal Code section 1170(d)(1) states: “The court resentencing under this paragraph 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.” (Pen. Code, § 1170(d)(1))
Does the court’s authority to “modify the judgment” include reducing or dismissing charges?
Court’s authority to reduce charges under Penal Code Section 1385:
Penal Code section 1385(a) provides: “The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” (Pen. Code, § 1385(a).) “Moreover, “the discretion of a trial judge to dismiss a criminal action under Penal Code section 1385 in the interests of justice ‘may be exercised at any time during the trial, including after a jury verdict of guilty’ . . .” (People v. Barraza (1994) 30 Cal.App.4th 114, 121, fn. 8.)
The California Supreme Court made clear that “section 1385 does not allow a trial court to act after a judgment has become final. ( People v. Chavez (2018) 4 Cal.5th 771. at p. 781, citing to People v. Espinoza (2014) 232 Cal.App.4th Supp. 1, 7 [“a trial court lacks postjudgment jurisdiction to dismiss a final conviction under section 1385”]; People v. Kim (2012) 212 Cal.App.4th 117, 122 [ruling that the “[u]se of section 1385” to vacate “a long since final judgment of conviction” “would be inconsistent with the Supreme Court’s strict focus on the language of the statute”]; People v. Barraza (1994) 30 Cal.App.4th 114, 121, fn. 8, [stating that section 1385 “has never been held to authorize dismissal of an action after the imposition of sentence and rendition of judgment”]; and People v. Orabuena (2004) 116 Cal.App.4th 84, 97–98 [finding that the court may exercise its dismissal authority under section 1385 because “the court had not rendered judgment or sentenced defendant”]; see also People v. Brown (2014) 230 Cal.App.4th 1502, 1511 [“it is well established that a court may exercise its power to strike under section 1385 “before, during or after trial,” up to the time judgment is pronounced” emphasis added by IPG.)
“Section 1170(d) is an exception to the common law rule that the court loses resentencing jurisdiction once execution of sentence has begun.” (Dix v. Superior Court (1991) 53 Cal.3d 442, 455, 279 Cal.Rptr. 834, 807 P.2d 1063 (Dix); accord, People v. Delson (1984) 161 Cal.App.3d 56, 62, 207 Cal.Rptr. 244 (Delson) [“[S]ection 1170, subdivision (d) represents a limited statutory exception to the general rule that a trial court loses jurisdiction to reconsider a denial of probation or vacate or modify the sentence when a defendant is committed and execution of sentence begins.”].)
In People v. Nelms (2008) 165 Cal.App.4th 1465, the court held that the section 1170(d) as it existed at the time did not allow a resentencing court to dismiss a charge where the defendant has been convicted of the charge and been sentenced on it – even though both parties consented to it. The Nelms court came to that conclusion because “[b]y its express terms, section 1170, subdivision (d), is limited to sentencing and says nothing about modifying the judgment.” (Id. at p. 1472, emphasis added by IPG.) And in People v. Espinosa (2014) 229 Cal.App.4th 1487, the court held section 1170(d) did not allow a resentencing court to “modify” a judgment by reducing the degree of crime and then impose a new sentence “based on the modified judgment”. originally possessed at the initial sentencing”].)
The revised version of section 1170(d), gives the resentencing court authority to “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.” (Pen. Code, § 1170(d)(1).)
“Assuming the validity of a final judgment of conviction, any entitlement to postconviction relief, and the form thereof, is governed by statute.” (People v. Mendez (1991) 234 Cal.App.3d 1773, 1778.) The legislature can choose to provide authority to resentencing courts to dismiss or reduce a charge. (See e.g., Pen. Code, § 1170.18(a) [authorizing courts to reduce an offense from a felony to a misdemeanor and be resentenced where serving sentence for crime that was previously a felony but would be misdemeanor after the passage of Proposition 47].) The new language of section 1170(d)(1) provides its statutory authority allowing dismissal or reduction of a charge, and also provides a basis under section 1385 to dismiss reduce an offense into the context of a section 1170(d)(1) resentencing hearing.
Trial Court’s discretion under 1170(f)-factors considered
In deciding whether to recall a sentence under section 1170, subdivision (d)(1), the trial court may exercise its authority “for any reason rationally related to lawful sentencing.” (Dix, supra, 53 Cal.3d at p. 456, 279 Cal.Rptr. 834, 807 P.2d 1063.) Further, section 1170, subdivision (d)(1), expressly authorizes the court in resentencing a defendant to consider “postconviction factors, including, but not limited to, the inmate’s disciplinary record and record of rehabilitation while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the inmate’s risk for future violence, and evidence that reflects that circumstances have changed since the inmate’s original sentencing so that the inmate’s continued incarceration is no longer in the interest of justice.”
2018 amendments to section 1170 added a list of postconviction factors the trial court “may” consider
The postconviction factors were added in 2018 by Assembly Bill No. 1812 (2017-2018 Reg. Sess.), section 17. Notably, Assembly Bill No. 1812 placed the sentence containing the postconviction factors immediately following the second and third sentences of section 1170, subdivision (d)(1), both of which set limitations on the trial court’s resentencing authority. The legislative history accompanying Assembly Bill No. 1812 describes the amendment of section 1170, subdivision (d)(1), as “authoriz[ing] the courts to consider specific post-conviction factors when resentencing a defendant.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1812 (2017-2018 Reg. Sess.) as amended June 12, 2018, p. 3.)
Section 1170(d) authorizes the court to ‘resentence … in the same manner as if [the defendant] had not previously been sentenced ….’ [T]he resentencing authority conferred by section 1170(d) is as broad as that possessed by the court when the original sentence was pronounced.” The Dix court made clear a defendant has a right to a resentencing hearing, explaining that after recalling the sentence under section 1170, subdivision (d), the victim would also have a “right to attend sentencing proceedings and express his or her views.” (Dix, at p. 463, 279 Cal.Rptr. 834, 807 P.2d 1063.)