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California Court of Appeal: Trial Court Required to Provide Notice and Consider Information Provided by Parties Before Ruling on CDCR Recommendation to Recall Sentence Pursuant to § 1170(d)(1)

by Douglas Ankney

The California Court of Appeal, Second District, held that a trial court is bound to provide notice and consider information provided by the parties before ruling on a California Department of Correction and Rehabilitation (“CDCR”) recommendation to recall a prisoner’s sentence pursuant to California Penal Code § 1170(d)(1). (All undesignated statutory references are to the Penal Code.)

Jose Alex Mendez was convicted by jury in November 2008 of numerous felonies, including 12 counts of robbery in violation of § 211 and a finding of personal weapon use enhancement, § 12022.53(b), on each of those 12 counts. His aggregate term of 60 years and 4 months in prison included 46 years and 4 months attributable to the personal weapon use enhancements.

In October 2019, the Los Angeles County Superior Court filed a letter received from the Secretary of the CDCR (“Secretary’s Letter”). The Secretary’s Letter observed that at the time of Mendez’s sentencing, the § 12022.53(b) enhancements were mandatory. But by amendment effective January 1, 2018, trial courts are empowered with discretion to strike or dismiss a personal use of firearm enhancement at sentencing or resentence pursuant to § 1170(d). The Secretary’s Letter recommended Mendez’s “sentence be recalled and that he be resentenced.”

The superior court denied the CDCR’s request based on Mendez’s criminal history and current offenses. Mendez appealed, arguing the superior court denied the request without weighing his postconviction record and affording him an opportunity to be heard.

The Court observed that the regulations enacted to implement § 1170(d)(1)’s recall and resentencing authorization require that the recommendation letter and Cumulative Case Summary “be forwarded to the sentencing court and a copy shall be provided to the inmate.” Cal. Code Regs. Title 15, § 3076.1. But § 1170(d)(1) contains no guidance to the trial court on providing notice of the CDCR’s recommendation to the parties, and the statute is silent with respect to the parties’ rights to be heard on the merits of the recommendation. People v. Williams, 65 Cal.App.5th 828 (2021).

Division Seven of the Court of Appeal concluded a prisoner has no due process right to a hearing under § 1170(d)(1) on the issue of whether the trial court should follow a CDCR recommendation for recall and resentencing. People v. McCallum, 55 Cal.App.5th 202 (2020). However, in light of a prisoner’s “substantial right to liberty implicated by the secretary’s recommendation to recall [the] sentence,” the McCallum Court concluded that the trial court abused its discretion by rejecting the secretary’s recommendation without affording the parties an opportunity to present briefing and additional information relevant to the recommendation. Id.

Division Seven also determined a CDCR recommendation does not trigger any right to counsel; does not trigger any right to a hearing; and does not trigger any right to the recommended relief. People v. Frazier, 55 Cal.App.5th 858 (2020).

But in Williams, the People appealed after the trial court resentenced the defendant pursuant to § 1170(d)(1) without holding a resentencing hearing. The Williams Court held that “before a trial court exercises its discretion pursuant to section 1170 of the Penal Code to recall a sentence and enter a reduced term, it must: (i) give the parties notice and an opportunity to be heard in accordance with the guidelines [the Court] suggest[s]; and (ii) set forth the reasons for its choice of sentence.” The Williams Court declared “[i]t’s 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.” Relying on the CDCR to provide notice to the parties “falls short of ensuring the parties’ rights to notice and the opportunity to be heard are protected.” Williams.

Turning to the present case, the Court stated that the superior court didn’t give the parties notice of the secretary’s recommendation, or the court’s intent to rule on it, and there’s no indication the parties were afforded an opportunity to supplement the recommendation with additional information or briefing. Thus, the Court held that the superior court “was bound to provide notice and consider any relevant information and/or briefing that the parties might submit before ruling on the CDCR recommendation.”

Accordingly, the Court reversed the order denying the CDCR’s recommendation to recall Mendez’s sentence and remanded with instructions to allow the parties to submit additional information and briefing. See: People v. Mendez, 2021 Cal. App. LEXIS 790 (2021). 

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People v. Mendez



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