Five-Year Enhancements for prior serious felony convictions may now be struck at resentencing 

People v. Cepeda (Cal. Ct. App., Oct. 18, 2021, No. B307000) 2021 WL 4843561, at *1

Summary: In 2018, Cepeda pled guilty to carjacking as a second strike, and admitted he sustained a prior serious felony conviction. The trial court sentenced him to 15 years in state prison, which included a five-year enhancement for the prior serious felony conviction. At the time of Cepeda’s plea and sentence, courts were prohibited from striking serious felony enhancements under Penal Code section 667, subdivision (a)(1).

CDCR Recommendation for Resentencing

In 2020, the secretary of the California Department of Corrections and Rehabilitation (“CDCR”) sent a letter to the trial court invoking the sentence recall provision of section 1170, subdivision (d)(1). The letter noted Cepeda’s sentence included a five-year enhancement imposed under section 667, subdivision (a)(1), and that Senate Bill No. 1393 (“SB 1393”) had given courts the discretion to strike such enhancements. The trial court held a resentencing hearing under section 1170, subdivision (d)(1), and declined to strike Cepeda’s enhancement based on: (1) deference to what it thought the original sentencing judge might have done if given the option to resentence Cepeda under SB 1393; and (2) its  assessment of the trial court file. The court declined Cepeda’s request that it consider additional evidence concerning his behavior in prison after being sentenced.

On appeal, Cepeda argues the trial court abused its discretion in declining to strike the enhancement by relying on what the original sentencing judge might have done and by declining to consider the additional evidence. Although SB 1393 does not apply retroactively to final cases in which the defendant directly petitions the court for relief, section 1170, subdivision (d)(1) provides the trial court the authority to recall a sentence “at any time upon the recommendation of the secretary” of the CDCR and “resentence the defendant in the same manner as if they had not previously been sentenced ….” Under this broad language, the CDCR’s letter allowed the trial court to recall Cepeda’s sentence and resentence him in light of SB 1393.

The Court of Appeal concluded that  section 1170, subdivision (d)(1) authorized the trial court to resentence Cepeda, and that the trial court abused its discretion when it declined to strike Cepeda’s prior serious felony enhancement for the reasons stated. The case is therefore remanded for a new section 1170, subdivision (d)(1) resentencing hearing. At the new hearing, the court is directed to make its own independent ruling and to consider any additional evidence Cepeda may present concerning his behavior in prison after being sentenced.

Prohibition on striking prior serious felony enhancements at sentencing and change under SB 1393

At the time of Cepeda’s plea and sentence, courts were prohibited from striking serious felony enhancements under section 667, subdivision (a)(1). (People v. Jones (2019) 32 Cal.App.5th 267, 272, 243 Cal.Rptr.3d 722.) Effective January 1, 2019, Senate Bill No. 1393 (2017-2018 Reg. Sess.) removed that prohibition, permitting trial courts to dismiss serious felony enhancements in furtherance of justice. (People v. Stamps (2020) 9 Cal.5th 685, 693, 264 Cal.Rptr.3d 769, 467 P.3d 168 (Stamps); see Stats. 2018, ch. 1013, §§ 1 & 2.)

CDCR letter’s letter to the trial court noted Cepeda’s sentence included a five-year enhancement under section 667, subdivision (a)(1), and that SB 1393 had subsequently given courts the discretion to strike such enhancements. The letter included several documents showing that duringCepeda’s incarceration, he had not been reported for any rule violations, had received 16.25 hours of credit for participating in rehabilitative or self-help programs, and had been assigned to four educational, employment, or rehabilitative programs. The letter recommended “that inmate Cepeda’s sentence be recalled and that he be resentenced in accordance with section 1170, subdivision (d).”

Defense counsel asked if the court would consider additional evidence concerning Cepeda’s behavior in prison after being sentenced. The court declined the request, stating it would rely on the record already before it. Cepeda appealed.

Issue: Whether section 1170, subdivision (d)(1) allows the trial court, upon recommendation by the CDCR, to apply SB 1393 to cases that are already final. The Court of Appeal concluded that it does based on the plain language of subdivision (d)(1) as construed by our Supreme Court in Dix v. Superior Court (1991) 53 Cal.3d 442, 455, 279 Cal.Rptr. 834, 807 P.2d 1063 (Dix).

Section 1170, subdivision (d)(1) provides that a trial court “may, … at any time upon the recommendation of the secretary” of the CDCR, “recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence ….” .This provision explicitly includes plea agreements and permits reduction of the defendant’s term of imprisonment if it is in the interest of justice.

As our Supreme Court has observed, “[s]ection 1170(d) is an exception to the common law rule that the court loses resentencing jurisdiction once execution of sentence has begun. [Citations.]” (Dix, supra, 53 Cal.3d at p. 455, 279 Cal.Rptr. 834, 807 P.2d 1063.) “[T]he resentencing authority conferred by section 1170(d) is as broad as that possessed by the court when the original sentence was pronounced,” with the following two limitations: “First, the resentence may not exceed the original sentence. Second, the court must award credit for time served on the original sentence.” (Dix, supra, at p. 456, 279 Cal.Rptr. 834, 807 P.2d 1063.) Dix does not state subdivision (d)(1) bars the application of current law, nor does the statute itself contemplate any such limitation. Under the broad authority conferred in section 1170, subdivision (d)(1), the CDCR’s letter gave the trial court jurisdiction to apply to Cepeda the law in effect at the time of resentencing. (See People v. Arias (2020) 52 Cal.App.5th 213, 219, 265 Cal.Rptr.3d 817 [“Postconviction changes in law or clarifications of the law are permissible grounds by which a trial court may recall a sentence and resentence to a lower term ‘in the interest of justice.’ (§ 1170, subd. (d)(1) [Citation.]”]; Dix, supra, 53 Cal.3d at p. 463, 279 Cal.Rptr. 834, 807 P.2d 1063 [“[S]ection 1170(d) permits the sentencing court to recall a sentence for any reason which could influence sentencing generally, even if the reason arose after the original commitment.”].) For these reasons, the trial court was correct in concluding it had jurisdiction to recall Cepeda’s sentence and resentence him.7

CDCR’s administrative regulations allow for resentencing based on a change in the law

The California Code of Regulations provides the CDCR may recommend recall and resentencing “[w]hen there is a change in sentencing law as described in subsection (d)(1)[.]” (Cal. Code Regs., tit. 15, § 3076.1, subd. (a)(3).) Subdivision (d)(1) of the regulation provides: “An inmate may be considered for referral pursuant to subsection (a)(3) if the applicable sentencing laws at the time of their sentencing hearing are subsequently changed due to new statutory or case law authority with statewide application.” (Cal. Code Regs., tit. 15, § 3076.1, subd. (d)(1).) The CDCR’s regulations are entitled to deference. (See Dix, supra, 53 Cal.3d at p. 460, 279 Cal.Rptr. 834, 807 P.2d 1063 [“Unless unreasonable or clearly contrary to the statutory language or purpose, the consistent construction of a statute by an agency charged with responsibility for its implementation is entitled to great deference. [Citation.]”]; Nipper v. California Auto. Assigned Risk Plan (1977) 19 Cal.3d 35, 45, 136 Cal.Rptr. 854, 560 P.2d 743 [“We have generally accorded respect to administrative interpretations of a law and, unless clearly erroneous, have deemed them significant factors in ascertaining statutory meaning and purpose. [Citations.]”].)

Trial court erred in deferring to terms of the plea

Because subdivision (d)(1) explicitly provides that resentencing is not constrained by the terms of a plea bargain, the trial court erred by focusing on whether the original sentencing court would have disapproved striking the enhancement instead of determining whether the interest of justice now warrants departing from the bargain. The court’s conclusion that it was bound by the original plea and sentence was therefore an abuse of discretion. (See, e.g., People v. Gutierrez (2014) 58 Cal.4th 1354, 1391, 171 Cal.Rptr.3d 421, 324 P.3d 245 [“ ‘Defendants are entitled to sentencing decisions made in the exercise of the “informed discretion” of the sentencing court. [Citations.]’ ”].)

The trial court improperly refused to consider evidence of rehabilitation

Section 1170, subdivision (d)(1) provides: “The court may 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.” The  trial court abuses its discretion when it declines to allow an inmate to present additional relevant evidence bearing on a section 1170, subdivision (d)(1) recall decision. (McCallum, supra, 55 Cal.App.5th at pp. 216-219, 269 Cal.Rptr.3d 336.) Although McCallum arose from a trial court’s decision not to recall a sentence under section 1170, subdivision (d)(1), its holding should apply with equal force where, as here, a trial court declines an inmate’s request to present additional relevant evidence at the resentencing phase of section 1170, subdivision (d)(1) proceedings. On remand, the court is directed to consider any evidence Cepeda may offer concerning postconviction factors relevant to resentencing.

Disposition

The sentence was vacated and remanded, directing the trial court to hold a resentencing hearing and decide whether it would serve the interest of justice to strike Cepeda’s enhancement or otherwise reduce his sentence. (See § 1170, subd. (d)(1).) The court was  directed to consider any evidence Cepeda may offer concerning postconviction factors relevant to resentencing.