California Court of Appeal: Trial Court Erred by Concluding Senate Bill 1393 Does Not Apply to Cases Already Final on Appeal
by Douglas Ankney
The Court of Appeal of California, Sixth Appellate District, held that the trial court erred by denying recall of a prisoner’s sentence on the erroneous premise that Senate Bill 1393 (“SB 1393”) does not apply to cases already final on appeal, and the Court further held that the Secretary of the California Department of Corrections and Rehabilitation (“Secretary”) lacks the authority to rescind recommendation for recall and resentencing after the merits of the appeal of the trial court’s order had been considered by the Court and it had been prepared to grant relief.
In 1984, Appellant (identified as “E.M.”) was sentenced to an aggregate term of 79 years and four months in prison upon conviction by a jury of 15 felonies. On two of those counts, the jury found prior felony conviction enhancements. In December 2019, the Secretary recommended to the trial court that it recall E.M.’s sentence and resentence him pursuant to the amendments of S.B. 1393 that grant trial courts the discretion to dismiss prior serious felony enhancements in the furtherance of justice. The trial court denied recall on the ground that, although S.B. 1393 applies retroactively to cases not yet final, E.M.’s case was final – making him ineligible for relief. E.M. appealed.
In June of 2022, the Secretary issued a letter to the trial court attempting to rescind the prior recommendation of recall, stating: “I have personally reviewed inmate [E.M.’s] case factors and do not support the prior recommendation for a sentencing recall.” The Attorney General then argued that the Secretary’s letter of rescission rendered the appeal moot because the trial court no longer had jurisdiction on remand to resentence E.M.
The Court stated that there were two issues for it to resolve: (1) whether the Secretary has the authority to rescind a recommendation as it purportedly has done in this case and thus render this appeal moot, and (2) if not rendered moot, whether the trial court erred in its denial of recall.
The Court observed that California Penal Code § 1172.1(a)(1) states: “When a defendant, upon conviction for a felony offense, has been committed to the custody of the Secretary of the [CDCR] ... the court may, within 120 days of the date of commitment on its on motion, or 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.” [Note: All statutory references are to the California Penal Code.] Section 1172.1 is the renumbering of former § 1170(d) and is “an exception to the common law rule that the court loses resentencing jurisdiction once execution of sentence has begun.” Dix v. Superior Court, 807 P.2d 1063 (Cal. 1991). “[T]he resentencing authority conferred by section 1170(d) [now § 1172.1(a)] is as broad as that possessed by the court when the original sentence was pronounced.” Id. “[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, 70 Cal.App.5th 456 (2021).
The Attorney General argued that the Secretary’s rescission letter made the appeal moot on the ground that, without the Secretary’s recommendation, the trial court had no jurisdiction to recall and resentence E.M.; alternatively, the separation of powers doctrine prohibited the Court from granting relief.
The Court reasoned that nothing in the statute’s plain meaning gave the Secretary the power to rescind her recommendation. People v. Sanchez, 66 Cal.App.5th 14 (2021) (if the language of a statute is clear, courts must generally follow its plain meaning). The Court observed that: (1) the Secretary did not submit her rescission letter until after the parties had fully briefed the merits of the issues; (2) wherein the Attorney General had conceded that E.M. was entitled to remand for the trial court to consider recalling his sentence; and (3) wherein the Court had been prepared to grant the remand.
The Court explained: “If the Secretary were allowed to moot the appeal at this stage of the proceedings, E.M. would be denied the relief to which he was concededly entitled, and which we were prepared to grant. We do not agree that the separation of powers doctrine allows the Secretary to ‘undermine the authority and independence’ of this court in such a fashion.” See City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) (court’s interest in preventing litigants from attempting to manipulate the court’s jurisdiction to insulate a favorable decision from review counsels against a finding of mootness). Furthermore, E.M. had timely appealed the trial court’s order, “thereby vesting jurisdiction in [the Court] long before the Secretary issued her letter of rescission.” Thus, the Court held that the Secretary’s letter didn’t eliminate the trial court’s jurisdiction to recall and resentence and that this appeal is not moot.
Turning to the merits of E.M.’s appeal, the Court observed that in January 2022 (while E.M.’s appeal was pending), § 1172.1(a)(2) was amended to read: “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 any disparity of sentences and to promote uniformity of sentencing.”
E.M. argued that the trial court did not adhere to the requirements of the many subsections of § 1172.1. Because the trial court’s decision was entered prior to the effective date of § 1172.1, the Court determined that resolution of the appeal requires answering the question of whether § 1172.1 applies to E.M.’s case. The Court observed “[i]f an amendment ... which in effect construes and clarifies a prior statute was adopted soon after controversies arose about the proper interpretation of the statute, it is logical to regard the amendment as legislative interpretation of the original act – a formal change – rebutting the presumption of substantial change. When a case involving such a clarifying amendment is on appeal, the appropriate resolution is to reverse and remand the matter for further proceedings in compliance with the amended legislation.” People v. McMurray, 76 Cal.App.5th 1035 (2022). The Court concluded that “[u]nder McMurray’s interpretation of § 1172.1, the trial court here wrongly concluded it would be ‘inconsistent with the law’ to recall and resentence E.M. based on the ameliorative effect of SB 1393.”
In People v. Pillsbury, 69 Cal.App.5th 776 (2021), the court held that former § 1170(d) allowed for recall and resentencing based on recent changes in law that would be ameliorative with respect to cases that were final on appeal. “We conclude that, upon recommendation of the Secretary ... trial courts have the authority to recall and resentence defendants based on post-judgment changes in the law giving courts discretion to strike or dismiss enhancements, even when the judgment in the case is long since final and even when the original sentence was the product of a plea agreement.” Id. And the same conclusion was reached in Cepeda.
The Court adopted the holdings of McMurray, Pillsbury, and Cepeda and concluded the trial court erred by denying recall on the erroneous premise that SB 1393 does not apply to E.M.’s case.
Accordingly, the Court reversed the order denying recall and remanded to the trial court to consider whether to recall E.M.’s sentence and resentence him in accordance with § 1172.1. See: People v. E.M., 85 Cal.App.5th 1075 (2022).
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