Trial court must give  notice and opportunity to be heard before recalling a sentence under 1170(d)

People v. Williams (Cal. Ct. App., June 17, 2021, No. E074162) 2021 WL 2472953, at *1–4

 Summary: A trial court exercising its discretion pursuant to section 1170 of the Penal Code to recall a sentence and enter a reduced term must: (i) give the parties notice and an opportunity to be heard ; and (ii) set forth the reasons for its choice of sentence.

Discretion to strike prior serious felony conviction in 2019

In 2013, a jury found Williams guilty of child abuse and that he had personally inflicted great bodily injury on the child, who was under the age of five. (§§ 273a, subd. (a), 12022.7, subd. (d).) The trial court found defendant had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), a prior serious felony conviction (§ 667, subd. (a)(1)), and two prior prison terms (§ 667.5, subd. (b)). It imposed an aggregate term of 22 years in state prison, including a five-year enhancement for the prior serious felony conviction. At the time Williams was sentenced, section 1385 generally authorized judges and magistrates to order an action dismissed in the interests of justice on their own motion or upon the application of the prosecuting attorney but specifically barred them from striking any prior serious felony conviction in connection with imposition of a five-year enhancement. (Former § 1385.) Four years after Williams was sentenced, Senate Bill No. 1393 (Reg. Sess. 2017-2018) amended the statute to eliminate the prohibition. (§ 1385; Stats. 2018, ch. 1013, § 2, eff. Jan. 1, 2019.)

Recommendation for resentencing by CDCR

On September 12, 2019, the Secretary of the Department of Corrections and Rehabilitation (CDCR) sent a letter to the judge who had sentenced defendant recommending resentencing based on the “court’s newfound authority to not impose a consecutive enhancement pursuant to section 667, subdivision (a)(1) (authority which did not exist at the time of [defendant’s] sentencing) ….”

A copy of the letter and its enclosures were sent to the San Bernardino County District Attorney and the Public Defender and  in an unreported minute order dated September 30, 2019, and without the parties present, the sentencing judge recalled defendant’s sentence and struck the five-year punishment for the section 667 serious felony enhancement. The People appealed arguing that the sentencing court abused its discretion  when it resentenced defendant: by failing to give them notice or an opportunity to present evidence or to notify the victim of the resentencing; the hearing did not occur on the record; and the statement in the minute order of the reasons for the sentence reduction is inadequate. The Court of Appeal agreed.

The need for notice and the opportunity for a hearing under 1170(d)

 Subdivision (d)(1) of section 1170 authorizes  the trial court to recall and resentence defendants at any time after their commitment upon receipt of a recommendation  by CDCR. If the court exercises its direction to recall a sentence, it may “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.” (§ 1170, subd. (d)(1).) The subdivision states its purpose is to “ ‘eliminate disparity of sentences and to promote uniformity of sentencing,’ ” but our courts have long held the provision permits recall and resentencing for “any otherwise lawful reason.” (Dix, supra, 53 Cal.3d at pp. 454, 459, 279 Cal.Rptr. 834, 807 P.2d 1063.)

It is axiomatic that due process requires the sentencing court to give the parties formal notice of CDCR’s recommendation and the opportunity to be heard if the court is considering resentencing defendant. (People v. McCallum (2020) 55 Cal.App.5th 202, 215-216, 269 Cal.Rptr.3d 336 (McCallum), citing Dix, supra, 53 Cal.3d at p. 463, 279 Cal.Rptr. 834, 807 P.2d 1063.)

Reliance on CDCR to provide copies to the parties falls short of ensuring the parties’ rights to notice and the opportunity to be heard are protected. Guidance for procedures to be employed upon receipt of a CDCR recommendation made pursuant to section 1170, subdivision (d)(1), is provided in section 28:8 of the Rutter Group’s Sentencing California Crimes. (Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2020) § 28:8 (Couzens).)  Couzens points out that CDCR uses subdivision (d)(1) recommendations not only to bring to the trial court’s attention sentences in need of correction (e.g., unauthorized sentences) but also to invite the court to recall sentences based upon equitable considerations (e.g., extending the benefit of an ameliorative change in the law to a defendant whose judgment is final).). (Couzens, supra, at pp. 28-16 to 28-19.) if the court is inclined to recall a defendant’s sentence for equitable reasons, it should prepare and serve on counsel for the parties its tentative response to the recommendation along with copies of all correspondence with CDCR. (Couzens, supra, at pp. 28-20 to 28-21.) The tentative ruling should state with particularity the reasons for its sentence choice and provide counsel a window of time within which to object and request a hearing. (§ 1170, subd. (c); Couzens, at pp. 28-20 to 28-21.) If defendant is not represented by counsel, the court should appoint (or reappoint) the public defender. (McCallum, at pp. 215-216, 269 Cal.Rptr.3d 336; see Couzens, at pp. 28-21 to 28-22.)

If no objection is received, the court should enter a minute order in accordance with its tentative ruling. (Couzens, at p. 28-21.) If a party requests a hearing, an initial appearance to attempt an informal resolution is recommended. (Couzens, et al., Sentencing Cal. Crimes, supra, at pp. 28-21 to 28-22.) If an agreement is not reached, then the court must conduct a formal sentencing hearing.

The court was required to prepare a tentative order for service on the parties indicating its intent to recall the sentence and its proposed disposition and to provide a reasonable deadline for receipt of any objection.

The statement of reasons requirement

 Whenever the court exercises its discretion to make a sentencing choice, it must state on the record the reasons for its decision. (§§ 1170, subd. (c), 1385, subd. (a); Cal. Rules of Court, rule 4.406(a); People v. Bonnetta (2009) 46 Cal.4th 143, 152-153, 92 Cal.Rptr.3d 370, 205 P.3d 279; People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1552, 258 Cal.Rptr. 75.) Subdivision (d)(1) of section 1170 suggests consideration of postconviction factors such as the defendant’s record of discipline and rehabilitation while incarcerated, whether the defendant’s risk for future violence has been reduced due to age, time served, or diminished physical condition, or any evidence that circumstances have changed since the original sentencing such that defendant’s continued incarceration is no longer in the interest of justice.

If the court is striking the additional punishment imposed for an enhancement pursuant to subdivision (b)(1) of section 1385, the court is to state its reasons for the dismissal orally on the record unless the proceedings are not being recorded electronically or reported by a court reporter. (§ 1385, subd. (a).) In that event, the reasons must be entered in the minutes. The purpose of the section 1385 statement requirement is (i) to promote judicial accountability to protect the public interest in not allowing improper or corrupt dismissals (People v. Orin (1975) 13 Cal.3d 937, 944, 120 Cal.Rptr. 65, 533 P.2d 193) and (ii) to facilitate appellate review (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531, 53 Cal.Rptr.2d 789, 917 P.2d 628). Compliance with the requirement is mandatory, and an order made pursuant to section 1385 without a statement of reasons for exercise of the court’s discretion is ineffective. (Romero, at pp. 531-532, 53 Cal.Rptr.2d 789, 917 P.2d 628.)