Monday, January 2, 2023

12/6/2022 People v. E.M. Court’s jurisdiction to resentence under PC1172.1 was not eliminated by CDCR’s letter rescinding its request to recall the inmate’s sentence

Case Name: People v. E.M. (2022) 85 Cal.App.5th 1075 , District: 6 DCA , Case #: H049467 Opinion

A big thank you to CCAP for the summary of this 12/6/2022 case. Republish here for Education purpose.

Case Holding: 

Trial court’s jurisdiction to resentence an inmate under Penal Code section 1172.1 was not eliminated by CDCR’s letter rescinding its request to recall the inmate’s sentence, which was sent while the inmate’s appeal was pending. In 2019, CDCR recommended resentencing E.M. under what is now section 1172.1 based on Senate Bill No. 1393, which restored the trial court’s discretion to strike enhancements for prior serious felonies imposed under Penal Code section 667. After appointing counsel, the trial court declined to recall the sentence on the basis that E.M.’s judgment was final before the legislation was enacted (he was convicted in 1984). He appealed. 

The Attorney General initially agreed that E.M. case should be remanded for resentencing. However, after briefing, CDCR issued a new letter to the trial court stating it was rescinding its recommendation of recall and resentencing. The Attorney General withdrew its previous concession and argued the appeal was now moot. Held: Reversed and remanded. 

After a defendant has been committed to prison, the trial court may recall the defendant’s sentence and resentence him at any time based on the recommendation of the secretary of CDCR. After analyzing section 1172.1 and the legislative history, the Court of Appeal concluded CDCR’s rescission letter did not eliminate the trial court’s jurisdiction to recall and resentence E.M. and did not moot the appeal. The language of the statute implies the trial court’s power to recall continues indefinitely once it receives a recommendation from CDCR and there is no language that gives CDCR the power to rescind its recommendation. The trial court acted when it issued the order denying recall, and in doing so, the court exercised jurisdiction over the matter long before CDCR issued its rescission letter. Allowing CDCR to moot the appeal under the circumstances of this case would present separation of power concerns and it is it is unlikely the Legislature intended for CDCR to intrude this far into the courts’ jurisdiction over sentencing matters. 

[CCAP Editor’s Note: The Court of Appeal did not decide whether CDCR has the power to rescind a recommendation soon after issuing it and where the trial court has not yet acted on it; where a subsequent change in the prisoner’s circumstances may support rescission; or where the initial recommendation was erroneously issued due to administrative improvidence.] 

 The trial court erred in denying recall on the ground that a new law did not apply retroactively in a case that was final and remand is required for the trial court to consider recall and resentencing under section 1721.1. E.M. argued the trial court misconstrued the law when it denied recall and erred in several other ways based on the procedural requirements of newly enacted section 1172.1. The Court of Appeal agreed the trial court erred. Effective January 1, 2022, Assembly Bill No. 1540 renumbered the recall and resentencing provisions of former Penal Code section 1170, subdivision (d)(1) and amended the language governing the procedural requirements, which are now set forth in section 1172.1. Section 1172.1 provides in part, “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 disparity of sentences and to promote uniformity of sentencing.” (Pen. Code, § 1172.1, subd. (a)(2).) Section 1172.1, subdivision (a)(4) sets forth a list of factors—some permissive and some mandatory—for the court to consider in recalling and resentencing. The statute includes a presumption in favor of recall and resentencing, which may only be overcome if the court finds the defendant is an unreasonable risk of danger to public safety as defined in Penal Code section 1170.18, subdivision (c). (Pen. Code, § 1172.1, subd. (b)(2).) Even before the enactment of AB 1540, Courts of Appeal held that former section 1170, subdivision (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. The court reviewed recent decisions addressing the two statutes and concluded the trial court erred by denying recall on the erroneous premise that SB 1393 did not apply to E.M.’s case. On remand, section 1721.1 will apply. 

 [CCAP Editor’s Note: The court declined to decide whether section 1172.1 controlled in this appeal or whether former section 1170, subdivision (d) applied. (Compare People v. McMurray (2022) 76 Cal.App.5th 1035, with People v. Pillsbury (2021) 69 Cal.App.5th 776, 782 and People v. Cepeda (2021) 70 Cal.App.5th 456.) 


 The full opinion is available on the court’s website: