Opinion
C080356
05-01-2017
THE PEOPLE, Plaintiff and Respondent, v. JOLENE MARIE POWELL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13CR20492)
Defendant Jolene Marie Powell challenges the trial court's denial of her request to recall her sentence pursuant to Penal Code section 1170, subdivision (d) as an abuse of discretion. She further contends her trial counsel rendered ineffective assistance by waiving her request to recall her sentence for untimeliness. We affirm the judgment.
Undesignated statutory references are to the Penal Code.
PROCEDURAL BACKGROUND
We dispense with a detailed recitation of the facts of her underlying conviction as they are unnecessary to our resolution of this appeal.
On March 25, 2013, defendant was charged by complaint with transportation of a controlled substance for sale (Health & Saf. Code, § 11379, subd. (a)—count I), possession of a controlled substance for sale (Health & Saf. Code, § 11378—count II), and two counts of possession of a controlled substance for sale (Health & Saf. Code, § 11352, subd. (a)—counts III and IV). The complaint alleged defendant suffered four prior drug-related convictions. (Health & Saf. Code, § 11370.2, subd. (c).)
On April 16, 2015, the prosecution filed an amended complaint charging defendant with transportation of a controlled substance for sale (Health & Saf. Code, § 11379, subd. (a)—count I), possession of a controlled substance for sale (Health & Saf. Code, § 11378—count II), and two counts of misdemeanor possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)—counts III and IV). The amended complaint alleged defendant suffered four prior drug-related convictions. (Health & Saf. Code, § 11370.2, subd. (c).)
On July 1, 2015, defendant entered a negotiated plea agreement whereby she pleaded guilty to count I and admitted one prior drug-related conviction and a violation of probation in exchange for dismissal of the remaining charges and allegations and a split-term sentence of five years, three years of which were to be spent in county prison at the outset, with credit for time served. The parties agreed defendant's split sentence was subject to a stipulation that she turn herself in to the Amador County Sheriff's Department by July 15, 2015, to begin her sentence or be subject to a sentence of five full years in custody. The parties stipulated that the transcript of the preliminary hearing would suffice as the factual basis for the plea. That same day, the court sentenced defendant to five years as a split term pursuant to section 1170, subdivision (h), with three years in county jail and the remaining two years suspended under mandatory supervision.
Defendant filed a timely notice of appeal. The trial court denied her request for a certificate of probable cause.
On October 29, 2015, defendant filed a "Request to Court to Recall Sentence on Own Motion and Modify" (hereafter "request to recall sentence" or simply "request") pursuant to section 1170, subdivision (d)(1) (hereafter, section 1170(d)(1)), which provides in part that, where a defendant has been sentenced to county jail pursuant to section 1170, subdivision (h), "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 or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence." (§ 1170, subd. (d)(1).) Defendant argued she suffered from a serious health condition that required her sentence be modified to "allow her to serve the sentence in an alternative capacity such as home detention" or to "provide her a temporary release of custody for ninety days to allow her to regain her health," after which she would surrender herself to the court to complete the remainder of her sentence.
The People opposed defendant's request to recall sentence, arguing in part that the request had not been made by the trial court on its own motion as required by section 1170(d)(1), which does not confer standing on a defendant to initiate such action, and the court had not taken any such action within the 120-day period prescribed by the statute.
At the November 12, 2015, hearing on defendant's request to recall sentence, defendant's counsel conceded the request "was filed the one hundred and twentieth day, therefore, it's basically moot, improper," and asked that the request be construed as a petition for writ of habeas corpus. Defense counsel informed the court that defendant was not requesting modification of the sentence but "simply release from custody for ninety days to have this medical condition taken care of." The court denied the request as "untimely and moot" and denied defendant's further request to construe the matter as a writ of habeas corpus. The court also ordered that defendant be evaluated and, if necessary treated, for her medical condition.
DISCUSSION
Defendant contends the trial court's denial of her request to recall sentence pursuant to section 1170(d)(1) was an abuse of discretion. She claims that because the court imposed sentence on July 1, 2015, but deferred execution of sentence until July 15, 2015, the court retained constructive custody over her pursuant to People v. Superior Court (Cornelius) (1995) 31 Cal.App.4th 343, 347 (Cornelius) and the 120-day period prescribed by section 1170(d)(1) had not expired as of October 29, 2015, the date the request was filed. She further contends her lack of standing to initiate the request pursuant to section 1170, subdivision (d) (hereafter section 1170(d)) does not preclude her from appealing the denial of the request according to People v. Loper (2015) 60 Cal.4th 1155, 1159-1163 (Loper).
Defendant and the trial court referred to this portion of the plea agreement as a Cruz waiver (People v. Cruz (1988) 44 Cal.3d 1247). However, the trial court imposed sentence on July 1, 2015, and simply agreed to allow defendant to remain free from custody until July 15, 2015, at which time she was ordered to surrender herself to the sheriff's department or be subject to additional time in custody. --------
The People argue that, even assuming the issue is appealable pursuant to Loper, the trial court lacked jurisdiction over the issue because defendant's sentence commenced when it was imposed on July 1, 2015, and the 120-day period set forth in section 1170(d)(1) expired on October 29, 2015. The People further argue that, even assuming the 120-day period had not expired, the trial court lacked the authority to contravene the terms of the parties' plea agreement, which included a stipulated five-year state prison sentence, pursuant to People v. Blount (2009) 175 Cal.App.4th 992, 997-998 (Blount) (invocation of trial court's authority to resentence under section 1170(d)(1) has "no effect on the court's discretion to diverge from the stipulated sentence" and "does not provide the trial court with any additional sentencing authority" or "allow the court to alter the terms of a plea agreement agreed to by the parties and the trial court").
Defendant replies that her plea bargain did not include a stipulated five-year sentence, but rather a maximum possible sentence of five years. Thus, the trial court was not prohibited from resentencing her to a term not in excess of five years.
As we will explain, while defendant's request was timely and the denial of her request appealable, the trial court did not err in denying the request because the relief sought by defendant was not available to her under section 1170(d).
Defendant's Ability to Appeal Denial of Section 1170(d)(1) Request
Our Supreme Court in Loper addressed the question of whether a defendant has standing to appeal the trial court's denial of a motion for resentencing pursuant to section 1170(d). There, the defendant sought review of the Court of Appeal's dismissal of his appeal after finding that the trial court's denial of the Department of Corrections and Rehabilitation's recommendation for compassionate release pursuant to section 1170, subdivision (e)—a statutory provision which does not authorize a defendant to independently seek recall of his sentence in the trial court—was a nonappealable order. (Loper, supra, 60 Cal.4th at pp. 1159-1161.) Acknowledging the rule that "[t]he right to appeal is statutory only, and a party may not appeal a trial court's judgment, order or ruling unless such is expressly made appealable by statute," the defendant contended that his appeal was governed by section 1237, subdivision (b), which provides: " 'An appeal may be taken by the defendant: [¶] . . . [¶] From any order made after judgment, affecting the substantial rights of the party.' (Italics added.)" (Loper, at p. 1159.)
The Supreme Court agreed, finding the plain meaning of the phrase "any order" demonstrated "the Legislature did not intend to limit appealability to parties who had standing to bring the original motion" (Loper, supra, 60 Cal.4th at p. 1162) and concluding a defendant "may appeal an adverse decision on a postjudgment motion or petition" so long as the motion was properly initiated and affected the defendant's substantial rights (id. at pp. 1164-1165). In so concluding, the court disapproved a line of cases addressing appealability of the denial of a section 1170(d) motion like the one at issue in the instant matter. (See People v. Pritchett (1993) 20 Cal.App.4th 190 [defendant missed deadline for filing notice of appeal]; People v. Chlad (1992) 6 Cal.App.4th 1719 [defendant request section 1170(d) resentencing more than 120 days after commitment]; People v. Gainer (1982) 133 Cal.App.3d 636 [same]; People v. Druschel (1982) 132 Cal.App.3d 667 (Druschel) [defendant's appeal of trial court's denial of his request for resentencing dismissed for lack of standing]; People v. Niren (1978) 76 Cal.App.3d 850 (Niren) [same].)
In particular, the court found the reasoning in Druschel and Niren was unpersuasive and could not be squared with that in People v. Carmony (2004) 33 Cal.4th 367, which involved a trial court's authority to dismiss a strike pursuant to section 1385, explaining: " 'A defendant has no [statutory] right to make a motion [to dismiss a strike], and the trial court has no obligation to make a ruling, under section 1385. But he or she does have the right to "invite the court to exercise its power by an application to strike a count or allegation of an accusatory pleading, and the court must consider evidence offered by the defendant in support of his assertion that the dismissal would be in furtherance of justice." [Citation.] And "[w]hen the balance falls clearly in favor of the defendant, a trial court not only may but should exercise the powers granted to [it] by the Legislature and grant a dismissal in the interests of justice." ' (Carmony, supra, at p. 375.) Accordingly, 'the defendant's inability to move to dismiss under section 1385 should not . . . preclude him or her from raising the erroneous failure to do so on appeal.' (Carmony, supra, at p. 376, italics added.)" (Loper, supra, 60 Cal.4th at p. 1167.) The court concluded there was "no apparent reason why this analysis would not apply to motions for resentencing under section 1170(d)," and disapproved Druschel and Niren "to the extent they are inconsistent with Carmony, supra, at page 376." (Loper, at p. 1167.)
We agree with the parties that, based on the holding in Loper, defendant under the circumstances presented here has the right, although not unfettered, to appeal the trial court's denial of her section 1170(d) request.
Trial Court's Jurisdiction to Consider Section 1170(d)(1) Request
While Loper makes clear that defendant may appeal the trial court's denial of her section 1170(d)(1) request, her ability to do so is in part dependent upon the timeliness of the request. As our Supreme Court noted, "section 1170(d) provides that the trial court loses jurisdiction to resentence on its own motion after 120 days has elapsed." (Loper, supra, 60 Cal.4th p. 1165.) Here, the trial court imposed sentence on July 1, 2015. The parties stipulated, and the court agreed, that execution of sentence would be stayed until July 15, 2015, at which time defendant would be subject to imposition of the maximum five-year sentence if she failed to surrender herself to the sheriff's department.
" 'Where the trial court relinquishes custody of a defendant, it also loses jurisdiction over that defendant. [Citation.] If, however, the trial court "retains in itself the actual or constructive custody of the defendant and the execution of . . . sentence has not begun," the court may vacate and modify the sentence. [Citations.]' (People v. Karaman [(1992)] 4 Cal.4th [335,] 344.) [¶] 'In a criminal case, the execution of a judgment of conviction is the process of carrying the judgment into effect. [Citation.] [Fn. omitted.]' (People v. Karaman, supra, 4 Cal.4th at p. 344.)" (Cornelius, supra, 31 Cal.App.4th at p. 347.)
"Karaman, quoting People v. Banks (1959) 53 Cal.2d 370, 384, noted: ' "The critical requirement for control over the defendant and the res of the action is that the court shall not have surrendered its jurisdiction in the premises by committing and delivering the defendant to the prison authority." [Citation.]' (People v. Karaman, supra, 4 Cal.4th at p. 345.)" (Cornelius, supra, 31 Cal.App.4th at p. 347.) "It is the relinquishing of custody of the defendant, not the actual physical delivery, that controls." (Id. at p. 348.)
Here, although defendant's sentence was imposed on July 1, 2015, the stay of execution of sentence and the stipulation that defendant surrender herself to the sheriff's department on July 15, 2015, extended the trial court's jurisdiction to resentence defendant pursuant to section 1170(d)(1). That is to say, the 120-day period commenced on July 15, 2015, and had not expired as of the filing of defendant's section 1170(d)(1) request on October 29, 2015, or the hearing on the request on November 12, 2015. Thus, the trial court retained jurisdiction to receive, hear, and act on the section 1170(d)(1) request at its discretion.
Trial Court's Authority to Modify Sentence
Citing Blount, supra, 175 Cal.App.4th 992, the People argue that, even assuming the timeliness of the request, the trial court nonetheless lacked the authority to contravene the terms of the parties' plea agreement which, according to the People, included a stipulated term of five years. The People misconstrue the terms of the plea agreement.
In Blount, the plea agreement called for a stipulated term of 12 years in state prison. The appellate court stated, "[T]he trial court's discretion to impose a sentence both at the initial sentencing hearing and upon a recall of the sentence under section 1170 was defined by the terms of the plea." (Blount, supra, 175 Cal.App.4th at pp. 996-997.) The court concluded there was no authority for and no merit to the defendant's claim that section 1170(d) gives trial courts the authority to override the terms of a negotiated plea agreement and impose a sentence different from that agreed to by the parties, stating, "[T]he fact that Blount invoked the trial court's authority to resentence her under section 1170 had no effect on the court's discretion to diverge from the stipulated sentence." (Blount, at p. 998, italics added.)
Here, unlike Blount, defendant entered her guilty plea in exchange for, among other things, a maximum split-term sentence of five years, with no more than three years in custody at the outset. Defendant did not agree to a stipulated term of five years in state or county prison, and only became exposed to a five-year custodial term if she failed to turn herself in on July 15, 2015, pursuant to the parties' agreement.
Section 1170(d)(1) gives the trial court authority to resentence a defendant in the same manner as if he or she had not previously been sentenced, so long as the new sentence is no greater than the initial sentence. The People cite no other authority, and we are not aware of any, that divests the trial court of authority to resentence a defendant pursuant to section 1170(d)(1) where, as here, the parties' negotiated plea bargain does not contain a stipulated sentence. In so stating, however, we do not find that the trial court's authority to resentence in such circumstance is unfettered. "If the court does not believe the agreed-upon disposition is fair, the court 'need not approve a bargain reached between the prosecution and the defendant, [but] it cannot change that bargain or agreement without the consent of both parties.' [Citations.] [¶] Although a plea agreement does not divest the court of its inherent sentencing discretion, 'a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain. [Citation.]' " (People v. Segura (2008) 44 Cal.4th 921, 931.)
In any event, notwithstanding that defendant had a right to appeal the denial of her section 1170(d)(1) request, and that the trial court had jurisdiction to consider her request and authority to modify her sentence, the trial court did not err in denying defendant's request because the relief defendant sought was not available to her under section 1170(d).
"[S]ection 1170(d) permits the sentencing court to recall a sentence for any reason which could influence sentencing generally, even if the reason arose after the original commitment. The court may thereafter consider any such reason in deciding upon a new sentence [and] . . . impose any new sentence that would be permissible under the Determinate Sentencing Act if the resentence were the original sentence." (Dix v. Superior Court (1991) 53 Cal.3d 442, 463, fn. omitted.) That is, section 1170(d)(1) empowered the trial court to resentence defendant "in the same manner as if . . . she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence." "[T]he ' "as if language indicates that the resentencing authority conferred by section 1170(d) is as broad as that possessed by the court when the original sentence was pronounced.' " (People v. Johnson (2004) 32 Cal.4th 260, 266, quoting Dix v. Superior Court, supra, 53 Cal.3d at p. 456.)
Defendant was originally sentenced to a split term with three years in county prison and the remaining two years suspended under mandatory supervision. Defendant's section 1170(d) motion requested that the court recall her sentence and modify it to allow her "to serve the sentence in an alternative capacity such as home detention" or to "provide her a temporary release of custody for ninety days to allow her to regain her health," after which she "would then surrender herself to the court to complete any portion of her sentence yet unserved." At the hearing, defendant's counsel explained that defendant was asking "really not for modification in the sentence [but] simply release from custody for ninety days to have this medical condition taken care of." Counsel asked the court to "have her [defendant] simply released from custody for ninety days to take care of this medical condition."
Defendant provided no authority, either in the trial court or here on appeal, to support her request for a temporary release from custody pursuant to section 1170(d). Indeed, because a 90-day release from custody was not part of the parties' plea agreement and could not have been imposed as part of the original sentence, the requested relief was not available to defendant pursuant to section 1170(d).
Here, the trial court denied defendant's request as "untimely and moot." "[T]he trial court's stated reasons for its ruling do not bind us. We review the ruling, not its rationale." (California Aviation, Inc. v. Leeds (1991) 233 Cal.App.3d 724, 731.) Thus, while we disagree with the court's finding that defendant's section 1170(d) request was "untimely" as explained above, if a court's ruling is a reasonable exercise of the court's discretion, we do not reverse merely because some of the supporting reasoning might be questioned. (California Aviation, Inc. v. Leeds, at p. 731.) Because section 1170(d) did not provide for the requested relief, the trial court did not err in denying defendant's request. In light of our conclusion, we need not address defendant's claim that her trial counsel rendered ineffective assistance by waiving her request to recall her sentence for untimeliness.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: NICHOLSON, J. ROBIE, J.