Opinion
Rehearing Granted Aug. 24, 1989.
Previously published at 212 Cal.App.3d 625
Bernard C. DePaoli, Eureka, for petitioner.
John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Aileen Bunney, Super. Deputy Atty. Gen., Enid A. Goldman, Deputy Atty. Gen., San Francisco, for real party in interest.
No appearance for Respondent.
ANDERSON, Presiding Justice.
In this petition for writ of mandate, the victim of a crime challenges the action of respondent court in recalling a sentence and releasing the prisoner pending an indefinite continuance for resentencing. We conclude that respondent court did not have jurisdiction to recall the sentence. We also conclude that under the unusual circumstances of this case, the victim has standing to petition this court for the relief requested.
Alan Dale Bradley, known to petitioner as Joe Rizzo, was charged in Humboldt County Municipal Court with the attempted murder of petitioner. A preliminary hearing was held on January 19, 1988. At the preliminary hearing, petitioner testified that in the early morning hours of February 1, 1987, Bradley came into a house in Arcata where petitioner was visiting. Bradley told him he was there to collect money for Dave. An argument ensued which ended when Bradley took petitioner outside the house and shot him in the head. According to petitioner's testimony, the altercation arose from the fact that petitioner and his girlfriend, Beverly, had made a deal with the man named Dave by which Dave let Beverly have a pound of shake marijuana for $60 to be paid when the drug was resold. Bradley was present when the deal was made. Petitioner and Beverly sold the marijuana for $85 but Beverly used the money for rent. Dave himself never made an attempt to collect the money.
On February 2, 1988, an information was filed charging Bradley with a violation of PENAL CODE SECTION 245 , subdivision (a)(2) (assault with a firearm). It was further alleged that Bradley, with the specific intent On March 4, 1988, Bradley pled guilty to the charge and admitted the great bodily injury allegation. At the time the plea was taken, respondent court asked the district attorney if Bradley was ineligible for probation and was told that Bradley had "several prior felony convictions that would make him statutorily ineligible" and that the parties had stipulated to a seven-year term. Bradley asked to be sentenced immediately. The court agreed remarking that, in light of the fact that Bradley would be sentenced to the maximum, sentence would be imposed despite the fact that the victim had not been notified.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Unless otherwise indicated, all statutory references are to the Penal Code.
On June 24, 1988, 118 days after sentencing, respondent court recalled the sentence pursuant to section 1170, subdivision (d), and Bradley was returned to Humboldt County from Soledad. He was transferred to Shasta County and released on his own recognizance by order of the Humboldt Superior Court filed November 18, 1988.
The reasons prompting the recall and later release of Bradley are not disputed. The District Attorney of Shasta County agreed with Bradley to attempt to secure a recall of his sentence if he would testify at the murder trial of a man named Kellotat. The District Attorney later agreed to request Bradley's release on his own recognizance in return for evidence on the question of whether Kellotat's attorney offered Bradley money to change his testimony.
Both petitioner and real party have filed in this court declarations to explain the circumstances giving rise to their conduct and respondent court's action. There is no record to show these facts were before the trial court and no means of verifying the accuracy of much of the material. In such circumstances, these facts would ordinarily be disregarded by this court. (See Mahoney v. Superior court (1983) 142 Cal.App.3d 937, 940, fn. 2, 191 Cal.Rptr. 425.) They are mentioned here only to put into context what would otherwise be the unfathomable actions of respondent court. In our opinion they are irrelevant to the question before this court which is one of statutory interpretation. Nor do they warrant the credence accorded to them by the dissent. If imagination is to be given free rein, however, one might ponder the range of possibilities inherent in a decision that a trial court has the power to free without bail for an indefinite period a man sentenced to prison upon his own confession of shooting an unarmed man in the head to collect a debt of $60. One might also ponder the credibility of such a person as the sole witness in an unrelated case when his testimony is the bargained price of freedom.
As I read section 1170, subdivision (d), only the recall not the resentencing need occur within 120 days of the original commitment. (But see People v. Roe, supra, 148 Cal.App.3d 112, 116-118, 195 Cal.Rptr. 802 .)
In letters dated January 23, 1989, and February 7, 1989, petitioner wrote to Judge Lund of the Shasta Superior Court and Judge Brown of the Humboldt Superior Court, protesting Bradley's release and stating that he feared for his safety and the safety of his family. On February 22, 1989, Attorney DePaoli wrote to Judge Brown to inform him that petitioner was opposed to any further continuances of Bradley's resentencing and to request that petitioner be permitted to present his views at the time of sentencing. On February 24, 1989, respondent court again continued resentencing at the mutual request of the district attorney and Bradley and over the objection of petitioner.
I
"At common law a trial court could revise any sentence during the term at which it was imposed as long as the sentenced remained unexecuted. [Citations.]" (People v. Calhoun (1977) 72 Cal.App.3d 494, 496-497, 140 Cal.Rptr. 225.) However, the general rule in California, as in many other states, is that the court loses jurisdiction to reconsider its sentence when the court has relinquished control of the defendant and the execution of his sentence has begun. (Holder v. Superior Court (1970) 1 Cal.3d 779, 783, 83 Cal.Rptr. 353, 463 P.2d 705; People v. Roe (1983) 148 Cal.App.3d 112, 116, 195 Cal.Rptr. 802; People v. Calhoun, supra, 72 Cal.App.3d at p. 497, 140 Cal.Rptr. 225.) Section 1170, subdivision (d), creates an exception to that rule. Subdivision (d) provides that after a defendant has been committed to state prison, "[t]he court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the Director of Corrections or the Board of Petitioner contends that it is implicit in the language of section 1170, subdivision (d), that a sentence can be modified under this provision only to achieve uniformity of sentencing. The People, on the other hand, contend that section 1170, subdivision (d) is sufficiently broad to authorize the recall of a sentence because of the conduct of a prisoner following his commitment to state prison. We turn to a history of the recall authority for guidance in the interpretation of this provision.
The authority to recall a sentence was added to section 1168 in 1963, when the indeterminate sentence law was in effect. At that time the court was authorized to recall a sentence if warranted by a scientific study of the prisoner aimed at the possibility of rehabilitation. In 1976, with the enactment of the determinate sentencing law, this provision was removed from section 1168 and the authority to recall was included in section 1170. (Stats. 1976, ch. 1139, § 273, at p. 5141.) The recall provision no longer was premised on a scientific study of the prisoner but, in line with the new emphasis upon punishment as the purpose of imprisonment, contained the present reference to the goal of eliminating disparity of sentences and promoting uniformity of sentencing.
As amended in 1969, the provision in section 1168 read: "When a defendant has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Director of Corrections, if it is deemed warranted by the diagnostic study and recommendations approved pursuant to Section 5079, the court may, within 120 days of the date of commitment on its own motion, or thereafter upon recommendation of the Director of Corrections, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he had not previously been sentenced." (Stats.1969, ch. 990, § 1, at pp. 1959-1960.) Section 5079 provided at that time, as it does now, that the Director of Corrections maintain "a psychiatric and diagnostic clinic ... at one or more of the state prisons.... The work of the clinic shall include a scientific study of each prisoner, his career and life history, the cause of his criminal acts and recommendations for his care, training, and employment with a view to his reformation and to the protection of society."
As amended in 1969, the provision in former section 1168 reads: "When a defendant has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Director of Corrections, if it is deemed warranted by the diagnostic study and recommendations approved pursuant to section 5079, the court may, within 120 days of the date of commitment on its own motion, or thereafter upon recommendation of the Director of Corrections, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he had not previously been sentenced." (Stats. 1969, ch. 990, § 1, 1959-1960.)
In Holder v. Superior Court, supra, 1 Cal.3d 779, 83 Cal.Rptr. 353, 463 P.2d 705, a defendant argued that former section 1168 empowered the court to recall a sentence to state prison and grant probation upon an adequate showing of rehabilitation of a defendant following his incarceration. The Supreme Court did not agree: "Although the language of the provision is broad, we are satisfied that the Legislature intended thereby to empower the court to take such action only where it appears from the specified matters that the prison sentence should never have been imposed." (Id., at p. 782, 83 Cal.Rptr. 353, 463 P.2d 705, fn. omitted.) The Legislature in its enactment of section 1170 subdivision (d), has made this intention even clearer by eliminating reliance on a scientific study of the prisoner and adding the provision that the resentence shall eliminate disparity of sentences and promote uniformity of sentencing.
The court in Holder also reasoned that the Legislature had placed in the Adult Authority power to determine the duration of imprisonment and the matter of parole. "If ... the court were empowered by section 1168 to recall the sentence and grant probation if the court found that the defendant had become rehabilitated after his incarceration, there manifestly would be two bodies (one judicial and one administrative) determining the matter of rehabilitation, and it is unreasonable to believe that the Legislature intended such a result." (Holder v. Superior Court, supra, 1 Cal.3d at p. 782, 83 Cal.Rptr. 353, 463 P.2d 705.) The same situation would exist if recall of the sentence were permitted solely on the ground that a prisoner had agreed to testify for the prosecution since the Department of Corrections is presently authorized
The authority relied upon by the People is inapposite. The People direct our attention to cases which have held that, when a case is remanded for resentencing after an appeal, the trial court is entitled to consider updated information regarding the defendant's behavior while incarcerated. (See People v. Flores (1988) 198 Cal.App.3d 1156, 1160, 244 Cal.Rptr. 322; People v. Foley (1985) 170 Cal.App.3d 1039, 1047, 216 Cal.Rptr. 865.) In the cited cases, the jurisdiction of the trial court to resentence was not in question. Jurisdiction was derived from the remand by the appellate court. The question in the instant case is jurisdiction to resentence, not what facts can be considered in determining the new sentence.
Section 1170 permits recall solely to correct a disparate sentence whether the recall is pursuant to subdivision (d) or subdivision (f). The recall may be initiated by the court within 120 days or by the Director of Corrections or the Board of Prison Terms at any time, but in either case the court has jurisdiction to recall the sentence only to further the legislative purpose: "to eliminate disparity of sentences and to promote uniformity of sentencing."
Subdivision (f) provides a specific mandatory procedure for review of the sentence, initially by the Board of Prison Terms (Board) and then the court, to determine whether the sentence is disparate. Subdivision (d) authorizes the recall by the court without review by the Board but does not broaden the scope of the recall power beyond elimination of disparity.
The term "beneficially interested" has been interpreted to mean that the writ will issue only if the person has some special interest to be served or some particular right to be preserved or protected over and above the interest held with the public at large. (Carsten v. Psychology Examining Com., supra, 27 Cal.3d at p. 796, 166 Cal.Rptr. 844, 614 P.2d 276.)
The People direct our attention to sections of the Classifications Manual of the Department of Corrections which suggest to the People that in proceeding under subdivision (d) of section 1170, the Department considers changes in a prisoner's circumstances which occur after commitment. (CDC Manual, art. 2, §§ 651(f), 602(b)(c).) We note that to the extent these sections contemplate a recall recommendation for post-sentence behavior, they are inconsistent with section 1170 and cannot confer jurisdiction on the court contrary to the statute.
See the last two sentences of footnote 2 of the majority opinion for specific details. (See majority opn., ante, p. 749 fn. 2.) By contrast I understand our function on appeal not to entail second guessing matters that are solely outside our jurisdiction--lack of jurisdiction, after all, is the reason given for reversing the trial court. Such matters outside our domain include commenting on the credibility of a witness who appears to both the resident prosecutor and to judges of the superior courts in two counties to be: (a) an indispensable witness in a murder for hire prosecution and (b) the sole witness in a bribery of a witness prosecution. I prefer to leave the decision whether to prosecute with the prosecutor, the decision whether to recall the witness to the superior court and the decision whether to believe him to the respective juries in the prosecutions which now presumably will not occur.
II
The People contend that petitioner does not have standing to petition this court for an extraordinary writ. Ordinarily a person who is not a party to a criminal action does not have standing to appear in the action. However, with the addition of "The Victims' Bill of Rights" to the California Constitution (art. I, § 28) and the enactment by initiative of section 1191.1, the victim has been given a limited right to appear at sentencing proceedings and thus limited standing in criminal cases. In arguing that petitioner's standing here cannot be premised on "The Victims' Bill of Rights," the People call our attention to People v. Superior Court (Thompson) (1984) 154 Cal.App.3d 319, 321-322, 202 Cal.Rptr. 585, in which the court concluded that the requirements of section 1191.1 are "directory, as distinguished from mandatory, in their effect." Without finding it necessary to disagree with Thompson, the court in Melissa J. v. Superior Court (1987) 190 Cal.App.3d 476, 237 Cal.Rptr. 5, entertained a petition for writ of mandate by a victim who had been denied her right to be notified and appear at a proceeding in which the court had ordered the termination of a restitution requirement.
"The Victims' Bill of Rights," (Cal.Const., art. I, § 28), provides in part as follows: "SEC. 28. (a) The People of the State of California find and declare that the enactment of comprehensive provisions and laws ensuring a bill of rights for victims of crime, including safeguards in the criminal justice system to fully protect those rights, is a matter of grave statewide concern. [p] The rights of victims pervade the criminal justice system, encompassing not only the right to restitution from the wrongdoers for financial losses suffered as a result of criminal acts, but also the more basic expectation that persons who commit felonious acts causing injury to innocent victims will be appropriately detained in custody, tried by the courts, and sufficiently punished so that the public safety is protected and encouraged as a goal of highest importance...."
It is also unnecessary for this court to take issue with Thompson or to analyze petitioner's right to appear at a proceeding to recall the sentence. In Thompson the question was not whether the victim had standing to bring the petition or whether the court would entertain the petition. The question was whether the failure to notify the crime victim of the sentencing hearing, and the resultant absence of the victim at such a hearing, deprived the trial court of its jurisdiction to proceed. That is not the question here. Here the trial court was without jurisdiction to act, not because the victim was not notified but because the court did not have subject matter jurisdiction to recall the sentence. In the unusual circumstances present here, unless the victim has standing, there remains no party to protest the act which exceeded the jurisdiction of the court.
The Attorney General in opposition to the petition contends that a victim does not have a right to protest a recall of sentence pursuant to section 1170 subdivision (d), but would have a right to appear at resentencing. There is validity in this contention due to the fact that section 1191.1 gives the victim the right to attend all sentencing proceedings "under this chapter." Section 1170 does not appear under Title 8, Chapter 1, but under Title 7, Chapter 4.5.
"Generally speaking, the writ of mandate is issued upon the verified petition of the party beneficially interested to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, duty, or station where there is no plain, speedy, and adequate remedy in the ordinary course of law. [Citations.]" (People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 497, 72 Cal.Rptr. 330, 446 P.2d 138.) "The conditions of petitioner's right and respondent's duty [citation] may be greatly relaxed, if not virtually abandoned, where the question is one of public interest." (8 Witkin, Cal.Procedure (3d ed. 1985) Extraordinary Writs, § 74, p. 713.)
The Attorney General contends that public policy does not support the issuance of an extraordinary writ in this case because petitioner's fear of Bradley is not genuine, because petitioner was involved in a drug transaction and because his attorney (as attorney for Kellotat and himself accused of attempting to bribe Bradley) has an interest in returning Bradley to prison. Petitioner disputes the factual basis of each of these statements and charges. We need not resolve these factual disputes as they are irrelevant to the questions of whether the court had jurisdiction to recall the sentence and of whether petitioner has standing to petition. Where a court without jurisdiction has released a prisoner and the People have consented to the release, the public interest expressed in California Constitution, article I, section 28(a) is served by entertaining a petition for writ of mandate filed by the prisoner's victim.
III
The People also contend that the instant petition is moot because the State will stipulate to the issuance of a peremptory writ of mandate directing Bradley's immediate Let a peremptory writ of mandate issue directing Humboldt County Superior Court to vacate its order recalling the sentence in Action No. 10990, People v. Alan Dale Bradley, and to return Mr. Bradley to state prison.
PERLEY, J., concurs.
POCHE, Associate Justice.
I respectfully dissent.
As I see it the importance of the decision in this case transcends its rather dry legal description: that the superior court has no power to recall a sentence except to correct its disparateness. What this finding of judicial impotence means when translated from legalese to real world effects requires only recitation of the circumstances surrounding the superior court's decision--facts that receive at best only glancing recognition in the majority opinion. For starters and only by way of introductory summary: the superior court agreed to recall the sentence of Alan Dale Bradford in exchange for his crucial testimony against one Phil Kellotat who so far has escaped prosecution for allegedly hiring others to murder Vince Capitan. Before the recall the actual murderers had pleaded guilty but--mysteriously--had then refused to testify against Kellotat. After the recall Kellotat's attorney allegedly attempted to bribe Bradford not to testify against Kellotat. Criminal charges have been filed against that attorney who is now also representing petitioner William Edward Dix in this successful challenge to the recall proceedings.
Also of importance is that Dix has been deprived of no statutory or constitutional right he has as a victim of Bradford's assault. Nevertheless this court has determined that the superior court had no power to recall Bradford. He goes back to prison. What happens to the special circumstance murder prosecution of Kellotat or the bribery prosecution of his attorney is left for later installments.
I begin with the facts.
A. The Recall Proceedings.
On February 1, 1987, Bradley shot Dix in the side of the head when Dix refused to pay money owed for a drug purchase. After the preliminary hearing in Humboldt County, Bradley entered a plea of guilty to assault with a firearm (Pen.Code, § 245, subd. (a)(2)) 1 with the infliction of great bodily injury ( §§ 12022.7, 1203, subd. (e)(3)). Bradley was sentenced to state prison for the term of seven years.
Five days after the Dix shooting, Vince Capitan was shot and killed outside his home in Shasta County. Three men were involved: Jody Seelye, Jeff McKinney and Clarence Griffin. McKinney, hired by Seelye, was arrested first and agreed to testify for the prosecution. According to McKinney, Seelye said that he had been hired by Kellotat to kill Capitan for $5,000. Seelye was then arrested and confessed to his role and that of his employer, Kellotat. Seelye was offered and accepted a first degree murder charge in exchange for his testimony against Kellotat. Kellotat was arrested, but shortly before the preliminary examination, Seelye backed out of the arrangement and Kellotat was released.
In April of 1988 Bradley's girlfriend, Dawn Walker, contacted law enforcement in Shasta County and told them that during the summer of 1986 Kellotat had hired The Shasta County District Attorney then met with the Humboldt County prosecutor and trial court judge in the Dix case. After explaining the situation, both reluctantly agreed to recall and resentence Bradley if Bradley testified truthfully in the Kellotat case. The trial judge's agreement was based on the fact that the arrangement would not materially change the length of Bradley's custody. Bradley was ordered recalled on June 24, 1988, and ordered housed in Shasta County so that Humboldt County would not incur his incarceration costs.
While Bradley was in jail awaiting the Kellotat preliminary hearing he informed the district attorney that Kellotat's attorney had offered him a bribe not to testify. According to the district attorney, Bradley "indicated he was willing to make a taped telephone call" to the attorney "to see if he would indeed attempt to bribe him. Mr. Bradley indicated that he would agree to make the call only if we agreed to attempt to have Judge Brown release him on his own recognizance after the preliminary hearing or before the preliminary hearing if it was continued. We reluctantly agreed. We did not want Alan Bradley out of custody, but felt the potential evidence too important. Mr. Bradley subsequently made several telephone calls ... all of which were taped," in which the attorney "offered Mr. Bradley money in return for him changing his testimony."
Bribery of a witness ( § 137, subd. (a)) charges have been filed against the attorney who represents Dix and Kellotat. The preliminary examination of Kellotat has commenced.
B. The Power of the Superior Court to Recall the Sentence.
The guiding authority is subdivision (d) of section 1170 which provides in full: "When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Director of Corrections, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the Director of Corrections or the Board of Prison Terms, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The resentence under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served."
As I understand subdivision (d) it allows the court to recall in three situations: (1) at any time upon the recommendation of the Director of Corrections; (2) at any time upon the recommendation of the Board of Prison Terms; and (3) within 120 days of commitment on the court's own motion If a resentencing does occur the subdivision makes the "resentence", as distinguished from the "recall", subject to the following: (1) resentencing must proceed in the same manner as if the prisoner had not been previously sentenced; (2) the new sentence may not be greater than the original sentence; (3) the resentence must apply the sentencing rules of the Judicial Council that govern all sentencing under the Determinate Sentencing scheme so as to eliminate disparity and promote uniformity; and (4) credit must be given for time served. 2
Much to my surprise the majority opinion reads this subdivision as permitting recall by a superior court "solely to correct a disparate sentence." (See majority opn., ante, p. 751.) Its study of the history of sentencing procedures in this state and particularly the genealogy of section 1170, subdivision (d), leads my colleagues to view a recall for any other purpose as a jurisdictional defect. My copy of the history book of section 1170, subdivision (d), reads and ends differently.
As the majority opinion points out, under the older rules of indeterminate sentencing as set forth in former section 1168 (repealed by Stats.1976, ch. 1139, § 271, p. 5139), a trial court's power to recall a sentence was explicitly conditioned upon the existence of a diagnostic study and recommendations approved by the Director of Corrections calling for just such action. (See Holder v. Superior Court (1970) 1 Cal.3d 779, 782, 83 Cal.Rptr. 353, 463 P.2d 705 [trial court lacked jurisdiction under former section 1168 to recall and resentence in the absence of such].) What the majority opinion does not mention is that the wording of former section 1168 is close to being a mirror image of the wording of the initial version of Senate Bill 42, the creator of the Determinate Sentencing Law, including section 1170, subdivision (d). 3 (See Sen.Bill No. 42 (1975-1976 Reg.Sess.) as amended in Senate March 4, 1975 (pp. 127-128); id., as amended in Senate April 28, 1975 (pp. 108-109).)
Employing the maxim of statutory interpretation that when the Legislature says the same thing it means the same thing (cf. Steketee v. Lintz, Williams & Rothberg (1985) 38 Cal.3d 46, 52, 210 Cal.Rptr. 781, 694 P.2d 1153, citing Stillwell v. State Bar (1946) 29 Cal.2d 119, 123, 173 P.2d 313) there can be no doubt that had the Legislature The majority's interpretation of section 1170, subdivision (d) also renders unnecessary a large part of the statute, most obviously subdivision (f)(1) which provides: "Within one year after the commencement of the term of imprisonment, the Board of Prison Terms shall review the sentence to determine whether the sentence is disparate in comparison with the sentences imposed in similar cases. If the Board of Prison Terms determines that the sentence is disparate, the board shall notify the judge, the district attorney, the defense attorney, the defendant, and the Judicial Council. The notification shall include a statement of the reasons for finding the sentence disparate. [p] Within 120 days of receipt of this information, the sentencing court shall schedule a hearing and may recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if the defendant had not been sentenced previously, provided the new sentence is no greater than the initial sentence. In resentencing under this subdivision the court shall apply the sentencing rules of the Judicial Council and shall consider the information provided by the Board of Prison Terms."
Since, as has been noted, subdivision (d) also allows recall "at any time " upon the recommendation of the Director of Corrections or the Board of Prison Terms, it is a little difficult to fathom why subdivision (f)(1) exists if the majority's interpretation of subdivision (d) is correct. Why would the Legislature provide in subdivision (d) that a disparate sentence review and recall may take place at any time on the recommendation of the Board of Prison Terms and then in the next breath set specific times (subd. (f)(1)) by requiring that same board to conduct its disparity review within a year of sentencing and requiring the court to hold a hearing within 120 days of notification of disparity by the Board of Prison Terms? The reason, I suggest, is that the Legislature meant no such thing. Instead, it provided a scheme for recall and resentencing in subdivision (d), unlike that provided for in subdivision (f)(1), which is neither designed for nor limited to the correction of disparate sentences and therefore encompasses any reason which furthers the interests of justice.
Not surprisingly, this view of the meaning of subdivision (d) is shared by the people who exercise such authority: the Department of Corrections. In its Classification Manual in the chapter entitled "Recall of Commitment", the Department reads the statute the same way I do. In particular the Department recognizes that the superior court has "absolute discretion to recall a sentence within the first 120 days of the date of sentence." (See Classification Manual, Cal.Dept. of Corrections (1985), ch. 600, § 602, p. 600-1.1; see also id., § 603, subd. (a), p. 600-1.1.) 4 The Department also recognizes both its power and responsibility to recommend recall and resentencing in cases in which there is no disparity of sentencing. For example, it urges such action in cases where "It is apparent that the inmate may be more appropriately managed under a different jurisdiction such as the Youth Authority and/or Civil Addict Program." (Classification Manual, op. cit. supra, § 604, subd. (a)(1), p. 600-1.2.) Additionally, even after disparate sentence review by the Board of Prison Terms has occurred "departmental staff may recommend that the Director contact the sentencing court if conditions have changed to the extent that the inmate's continued incarceration in the Department is not in the interest of justice...." (Id., § 604, subd. (b).)
These regulations constitute concrete recognition by the Department of Corrections that the court's power to recall is not limited--as the majority sees it--to the correction of disparate sentences. They also amount to a highlighting of exactly what the trial court was attempting to do here: deal intelligently with the "interests of justice."
In sum, there is no question either historically or semantically that section 1170, subdivision (d), vested the trial court for 120 days from the date of commitment with the power to recall Bradford's sentence in order to achieve what the interests of justice require here: that Kellotat be brought to trial for his alleged contribution to the murder for hire of Capitan. I therefore would deny the petition for writ of mandate.
C. Dix's Lack of Standing.
Also unconvincing to me is the majority's attempt to find "standing" in Dix to bring the instant petition for a writ of mandate.
Clearly, Dix would have no standing to appeal were there an appealable order before this court for he is not a party to the instant proceeding. ( § 1235.) Nor has Dix been deprived of his statutory ( § 1191.1) or constitutional right (Cal. Const., art. I, § 28, subd. (a)) right as Bradford's victim to appear and be heard at Bradford's resentencing because Bradford has not yet been resentenced. For that reason, Dix cannot satisfy one of the fundamental statutory requirements for relief in mandamus: that he be a "party beneficially interested." (Code Civ.Proc., § 1086; Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796-797, 166 Cal.Rptr. 844, 614 P.2d 276; Parker v. Bowron (1953) 40 Cal.2d 344, 351, 254 P.2d 6.) 5 Witkin puts it best: "The petition may show a substantial duty in the respondent, and perhaps a substantial right to enforce it in someone, but may still fail to show that the petitioner has a sufficient beneficial interest" to support issuance of the writ. (8 Witkin, Cal.Procedure (3d. ed. 1985), Extraordinary Writs, § 67, p. 705.)
The majority attempts to circumvent the requirement of beneficial interest by finding this case to present a question of great public interest: "unless the victim has standing, there remains no party to protest the act which exceeded the [subject matter] jurisdiction of the court." (See majority opn., ante, p. 752.) My answer is that the Legislature has placed the task of representing and protecting the public's interest in criminal proceedings in the prosecuting attorney, who not only has no objection but in fact is the moving force behind the recall proceedings here. If the parties do not object to the jurisdiction of the court to recall and resentence, standing to do so
6D. Conclusion.
For the foregoing reasons, I would discharge the alternative writ and deny the petition for writ of mandate.
Section 1191.1 provides in pertinent part as follows: "The victim of any crime ... has the right to attend all sentencing proceedings under this chapter and shall be given adequate notice by the probation officer of all sentencing proceedings concerning the person who committed the crime. [p] The victim ... has the right to appear, personally or by counsel, at the sentencing proceeding and to reasonably express his or her views concerning the crime, the person responsible, and the need for restitution. The court in imposing sentence shall consider the statements of victims ... and shall state on the record its conclusion concerning whether the person would pose a threat to public safety if granted probation."
In its earliest forms Senate Bill 42, would have created section 1170, subdivision (b) to read as follows: "When a defendant subject to this section has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Director of Corrections, the sentencing court may, at any time upon the recommendation of the Director of Corrections, or, if it is deemed warranted by the diagnostic study and recommendations approved pursuant to Section 5079, the court may, within 120 days of the date of commitment on its own motion recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he had not previously been sentenced. The resentence under this subdivision shall take into consideration sentences of other persons convicted of similar crimes so as to eliminate disparity of sentences and to promote uniformity of sentencing." (See Sen.Bill No. 42 (1975-1976 Reg.Sess.) as amended in Senate March 4, 1975 (pp. 127-128); id., as amended in Senate April 28, 1975 (pp. 108-109).)
Subdivision (a) of section 603, reads in full: "The court may recall a sentence within the first 120 days, pursuant to P.C. § 1170(d) with or without obtaining a Diagnostic Study and Recommendation from the Department. The study shall assess the inmate's potential for completing probation or other alternate sentencing, and the threat posed to the community if he/she fails to realize that potential."