Order denying request for resentencing is not appealable

People v. Hodge (Cal. Ct. App., Dec. 27, 2024, No. B337339) 2024 WL 5243001, at *1

Summary: Hodge filed a notice of appeal from a trial court order denying relief for  (1) a motion under the Racial Justice Act (Pen. Code, § 745); and (2) a request for resentencing under section 1172.1. The trial court’s order was not appealable and the Court of Appeal dismissed the appeal.

Hodge pleaded no contest in 2012 to three felony counts and was sentenced to an aggregate term of 21 years.

On January 5, 2024, Hodge filed for relief in the superior court: a “motion for relief due to discrimination” under section 745, subdivision (a); and a “request for recall of sentence and resentencing pursuant to Assembly Bill 600 and Penal Code section 1172.1.” The trial court denied both the motion and the request.

Hodge appealed the order denying his request for resentencing under section 1172.1, and appellate counsel filed a brief under the authority of People v. Delgadillo (2022) 14 Cal.5th 216, raising no arguable issues. This court requested that the parties brief the issue of the appealability of the trial court’s denial of Hodge’s request for resentencing under section 1172.1 in light of our Supreme Court’s opinion in People v. Loper (2015) 60 Cal.4th 1155. (Loper).

Neither component of the trial court’s order was appealable. The trial court’s decision not to recall Hodge’s sentence did not affect Hodge’s substantial rights under section 1237, subdivision (b), because the trial court had no statutory obligation to act at all on Hodge’s request. The trial court did not have jurisdiction to consider Hodge’s motion under the Racial Justice Act because incarcerated defendants whose convictions are final may only raise claims under that act in a petition for a writ of habeas corpus.

The Trial Court’s Decision to Decline Hodge’s Request for Recall of His Sentence Is Not Appealable

Statutory Context

“The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute.” (Loper, supra, 60 Cal.4th at p. 1159, 184 Cal.Rptr.3d 715, 343 P.3d 895.)

Section 1172.1 provides authority for a trial court to recall the sentences of incarcerated defendants and resentence them under certain circumstances and is a statutory exception to the general rule that “ ‘once a judgment is rendered and execution of the sentence has begun, the trial court does not have jurisdiction to vacate or modify the sentence.’ ” (People v. King (2022) 77 Cal.App.5th 629, 634, 637.)

Section 1172.1 expressly denies defendants the right to file a petition for resentencing under that section, and expressly excuses the trial court from acting on any such request that a defendant might nevertheless file. Subdivision (c) makes this clear: “A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.” (§ 1172.1, subd. (c).)

The trial court in this case was not required to take any action in response to Hodge’s request for resentencing.

The Trial Court’s Decision Declining to Recall Hodge’s Sentence on Its Own Motion Did Not Affect Hodge’s Substantial Rights

A defendant’s substantial rights are not affected by a trial court’s denial of a request for resentencing when the trial court is not obligated to rule on such a request.

Hodge’s unauthorized request for the trial court to reconsider his sentence created no statutory obligation to act in this case.

The lack of any statutory constraints on a trial court’s decision to decline action on a defendant’s request for resentencing under section 1172.1 also means that there would be nothing for this court to review on appeal. A trial court’s order declining to exercise its discretion under section 1172.1 to recall a defendant’s sentence on its own motion after receiving the defendant’s unauthorized request for such relief does not affect the defendant’s substantial rights under section 1237, subdivision (b).

The Trial Court’s Denial of Hodge’s Motion for Relief Under the Racial Justice Act is Not Appealable

The Racial Justice Act (§ 745) precludes the state from seeking or obtaining a criminal conviction or sentence on the basis of race, ethnicity, or national origin. It provides remedies upon proof of a violation for defendants in ongoing criminal prosecutions, and also for convicted defendants whose convictions are already final if they are eligible to seek relief under the application provision of the statute. (§ 745, subds. (e) & (j).)

The trial court’s decision denying Hodge’s motion for relief under the Racial Justice Act is not appealable because the trial court lacked jurisdiction to provide the relief that Hodge requested. Under the subdivision of section 745 that describes the scope of the statute’s application, defendants such as Hodge whose judgment is already final are permitted to bring a Racial Justice Act claim only in (1) a petition for writ of habeas corpus pursuant to section 1473 (for incarcerated defendants), or (2) a motion under section 1473.7 (for defendants who are no longer in criminal custody). Hodge may seek review under the Racial Justice Act only in a petition for a writ of habeas corpus. The trial court lacked jurisdiction to act on the motion that he filed, and the court’s order denying that motion is not appealable.

The appeal was dismissed.

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