Decision by CDCR Secretary to rescind recommendation of recall of sentence does not moot appeal

People v. E.M. (Cal. Ct. App., Dec. 6, 2022, No. H049467) 2022 WL 17423592, at *1

Summary: In December 2019, the Secretary of the California Department of Corrections and Rehabilitation (the Secretary) issued a letter to the trial court recommending that it recall E.M.’s sentence of over 79 years and resentence him based on recent ameliorative legislative changes in the sentencing law. The trial court denied recall on the ground that the legislative changes did not apply to E.M.’s case because his sentence was final.

E.M. appealed the trial court’s denial of recall,  arguing that recent changes in the sentencing law do not apply to his case. After briefing on the case, the Secretary issued a new letter to the trial court rescinding its recommendation of recall and resentencing. The Attorney General then argued that this appeal is moot because the Secretary’s letter of rescission eliminated the trial court’s jurisdiction to recall the sentence on remand.

Holding: The Secretary’s letter of rescission does not moot he appeal;  the trial court erred by denying recall; it retains jurisdiction to recall and resentence E.M. on remand. The Court of Appeal reversed the judgment and remanded  for the trial court to reconsider whether to recall E.M.’s sentence under the law as currently enacted.

CDCR Secretary’s recommendation to recall the sentence

Background:  E.M.’s sentence of 79 years four months included two five-year terms for the prior serious felony convictions.

In December 2019, the Secretary recommended to the trial court that it recall E.M.’s sentence and resentence him under former section 1170, subdivision (d), citing  a recent legislative change to section 1385 that granted trial courts the discretion to dismiss a prior serious felony enhancement in furtherance of justice.

The trial court appointed the public defender to represent E.M. and invited him to submit any additional materials in support of recall. The court’s order declined to recall the sentence “at this time.” In June 2021, the prosecution filed an objection to recalling E.M.’s sentence.

In September 2021, the trial court denied recall in a written order. The court ruled that although Senate Bill 1393 applied retroactively to cases that were not yet final, E.M.’s case was final, making him ineligible for relief. The court stated, “While this Court recognizes that a recommendation from the Secretary of the CDCR provides a court with the authority to recall a sentence, the Court declines to use that authority in a manner that is inconsistent with the law.” E.M. timely appealed from this order.

In June 2022, after the parties had briefed the matter on appeal, the Secretary issued a letter to the trial court purporting to rescind the Secretary’s prior recommendation of recall. The Secretary’s letter stated, “I have personally reviewed inmate [E.M.]’s case factors and do not support the prior recommendation for a sentencing recall.”

Legal Background on resentencing under 1172.1

Under subdivision (a)(1) of section 1172.1, “When a defendant, upon conviction for a felony offense, has been committed to the custody of the Secretary of the Department of Corrections and Rehabilitation …, the court may, within 120 days of the date of commitment on its own motion, at any time upon the recommendation of the secretary …, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced….” (§ 1172.1, subd. (a)(1).) In enacting this code section, the Legislature amended and renumbered former section 1170(d), which had included the above-quoted language.

Former section 1170(d) provided “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 (Dix).) “[T]he resentencing authority conferred by section 1170(d) is as broad as that possessed by the court when the original sentence was pronounced,” except that the resentence may not exceed the original sentence, and the court must award credit for time served on the original sentence. (Id. at p. 456.) “A trial court, upon receiving a section 1170, subdivision (d)(1) letter from the CDCR, has broad discretion whether to recall the existing sentence and resentence the incarcerated individual. ‘[T]he Secretary’s recommendation letter is but an invitation to the court to exercise its equitable jurisdiction[,]’ which ‘furnishes the court with the jurisdiction it would not otherwise possess to recall and resentence[.]’” (People v. Cepeda (2021) 70 Cal.App.5th 456, 469.)

An abuse of discretion standard is applied to a trial court’s denial of recall.

The Appeal Is Not Mooted

 Here, section 1172.1 gives courts the power to recall and resentence upon the Secretary’s recommendation. Sentencing is not “purely administrative” in nature; it is primarily a judicial function, and our Supreme Court has construed former section 1170(d) accordingly. “[B]y enacting section 1170(d), the Legislature intended to retain, within the limits of determinate sentencing, the preexisting judicial power to recall and reconsider a sentence on individual grounds.” (Dix, supra, 53 Cal.3d at p. 458.)

The trial court’s denial of recall is an appealable order, and E.M. timely appealed from it. The matter is therefore squarely within the scope of this court’s authority and jurisdiction.

The Court of Appeal held that the Secretary’s rescission letter does not eliminate the trial court’s jurisdiction to recall and resentence E.M. under section 1172.1 at this stage in the proceedings. On remand, the trial court shall retain jurisdiction to grant or deny recall of the sentence, and with this relief, the appeal is not moot. “An appeal becomes moot when an event occurs which, through no fault of the respondent, renders any appellate decision ineffective in providing the parties relief.” (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1451.)

Penal Code Section 1172.1

Effective January 1, 2022, Assembly Bill No. 1540 renumbered the recall and resentencing provisions of former section 1170(d)(1) and amended the language governing the procedural requirements, now set forth in section 1172.1. Section 1172.1 provides in part, “The court, in recalling and resentencing under this subdivision, shall apply the sentencing rules of the Judicial Council and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” (§ 1172.1, subd. (a)(2).)

Section 1172.1, subdivision (a)(4) sets forth a list of factors—some permissive and some mandatory—for the court to consider in recalling and resentencing. The court may consider “postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.” (§ 1172.1, subd. (a)(4).) And the court shall consider “if the defendant has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence, if the defendant was a victim of intimate partner violence or human trafficking prior to or at the time of the commission of the offense, or if the defendant is a youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense, and whether those circumstances were a contributing factor in the commission of the offense.” (§ 1172.1, subd. (a)(4).)

Furthermore, “Resentencing shall not be denied, nor a stipulation rejected, without a hearing where the parties have an opportunity to address the basis for the intended denial or rejection.” (§ 1172.1, subd. (a)(8).) The trial court must provide notice to the defendant, set a status hearing within 30 days of receiving the Secretary’s recommendation, and appoint counsel to represent the defendant. (§ 1172.1, subd. (b)(1).) The statute includes a presumption in favor of recall and resentencing, which may only be overcome if the court finds the defendant is an unreasonable risk of danger to public safety as defined in subdivision (c) of Section 1170.18. (§ 1172.1, subd. (b)(2).)

Remand is Required for the Trial Court to Consider Recall and Resentencing Under Penal Code Section 1172.1

The trial court denied recall prior to the effective date of section 1172.1, E.M.’s claims raise the question whether section 1172.1 applied to his case. E.M. contends section 1172.1 applied because the Legislature intended it as a clarification of the law in place at the time the trial court ruled. Alternately, he contends it would apply retroactively under the doctrine of In re Estrada (1965) 63 Cal.2d 740.(Estrada). Even assuming section 1172.1 does not apply retroactively, E.M. contends the trial court abused its discretion under former section 1170(d).

The Court of Appeal concluded that the trial court erred by denying recall on the erroneous premise that Senate Bill 1393 did not apply to E.M.’s case. The Court of Appeal reversed the order denying recall and remand for the trial court to consider the matter under section 1172.1.

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