Opinion
G061247
07-25-2023
THE PEOPLE, Plaintiff and Respondent, v. JOHN EARL KING, Defendant and Appellant.
Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 21NF2922 Kazuharu Makino, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GOETHALS, J.
John Earl King appeals from the trial court's postsentencing decision denying his "Motion and Request for Reconsideration of Sentencing" pursuant to former section 1170, subdivision (d)(1) of the Penal Code. The trial court asked King to give "the reasons for" his request "and then the D.A. can respond"; King never included any reasons in his written request, nor did counsel offer any at the ensuing hearing. Nor did King take up the trial court's suggestion at that hearing to "calendar . . . two months from now a request to recall the sentence" and, in the interim, "also talk to the D.A. [to] see if there's an agreed sentence you can reach. Because if the two of you agree on a sentence, I'll just do that." On this record, we find no abuse of discretion in the trial court's ruling. We therefore affirm the trial court's order.
All further statutory references are to the Penal Code. We note that former section 1170, subdivision (d)(1), had been renumbered as section 1170.03 by the date of King's recall request and is now found in section 1172.1, subdivision (a)(1).
FACTUAL AND PROCEDURAL BACKGROUND
On November 5, 2021, King pleaded guilty to misdemeanor second degree burglary, felony grand theft, and misdemeanor receiving stolen property. At the same time he admitted two or more serious and violent prior felony convictions. He also pleaded guilty to auto theft and evading a peace officer in an unrelated matter. The trial court gave King an indicated sentence of 16 months in prison to resolve the charges in both cases and postponed the sentencing hearing until November 30 at King's request to seek medical treatment.
The trial court expressly warned King in authorizing his release before sentencing: "[T]he condition of this release is that you're ordered back that date for sentencing.... If you're not here, you are waiving your right to be present and the indicated sentence is revoked, so you could be sentenced up to the maximum sentence that I indicated, which is . . . 11 years and two months in prison." King affirmed he understood and agreed to the condition.
King did not appear at the November 30 hearing. When counsel advised the trial court that King "had a medical emergency appointment this afternoon," the court continued the sentencing hearing to December 7, 2021.
King did not show up at the continued hearing. Defense counsel was present but offered no explanation for King's absence. The court noted, "Sentencing is going to be done today. That's what-he agreed to it, and we're going to hold him to that agreement." The court imposed a sentence of just over half the maximum, "[s]o the total is six years eight months as the sentence on both cases."
On December 16, 2021, defendant and a deputy public defender appeared before a commissioner in a different department; the commissioner reappointed the public defender as King's counsel, and counsel told the commissioner that King "advised me he had been hit by a car on a bicycle and was in the hospital. That's why he failed to appear. So I'd like to send this back to West Court so . . . we can undo that sentence ...." The commissioner "reached out to Department W11" and arranged for King to appear in that courtroom, setting an appearance date on December 20.
King and counsel appeared before the sentencing court on that date. The court advised counsel to "file a request to recall the sentence" because, by statute, "you can't make a motion to recall the sentence." Counsel did not proffer a reason for the request; the court directed her to file the request "with the reasons for [it]." The court added, "and then the D.A. can respond, and then it will be set on a date [based on] the request because you can't make a motion to recall the sentence."
King filed a "Motion and Request for Reconsideration of Sentencing" on January 19, 2022. The request stated King was "eligible for resentencing under Penal Code [section] 1170(d)(1)" and requested "this Court resentence him to the original recommended sentence in this matter." The request did not provide or include any basis for recall and resentencing.
At the hearing on the "motion and request" approximately a week later, the court denied it "to the extent that there's a motion filed by the defense" because "that motion cannot be brought by the defense," but rather only by "the court, department of corrections, or by the prosecution." King was not present, and counsel did not proffer any reasons for the request. At the conclusion of the hearing, the court advised "the only thing I would suggest for the defense is [to] put on your calendar [about] two months from now a request to recall the sentence, and then we'll consider whether to recall it and put it on the calendar." The court also offered this suggestion: "[T]alk to the D.A. and see if there's an agreed sentence you can reach. Because if the two of you agree on a sentence, I'll . . . do that." Counsel apparently failed to follow the court's advice.
King now appeals.
DISCUSSION
Recall of a defendant's sentence for resentencing after his or her commitment is "an exception to the common law rule that the court loses resentencing jurisdiction once execution of sentence has begun." (Dix v. Superior Court (1991) 53 Cal.3d 442, 455.) Former section 1170, subdivision (d)(1), authorized a trial court "on its own motion" and within 120 days of the date of the defendant's commitment, and at any time upon the recommendation of the district attorney or the Department of Corrections and Rehabilitation (CDCR), to "recall the sentence and commitment previously ordered and resentence the defendant . . ., provided the new sentence, if any, is no greater than the initial sentence." This language was retained in renumbered former section 1170.03 at the time of King's recall request below (Stats. 2021, ch. 719, § 3.1, eff. Jan. 1, 2022; People v. McMurray (2022) 76 Cal.App.5th 1035, 1040), and continues in section 1172.1, subdivision (a)(1), presently (Stats. 2022, ch. 58, § 9, eff. June 30, 2022).
A defendant lacks standing "to initiate a motion to recall a sentence" because former section 1170, subdivision (d)(1), and its later incarnations "permit[] a court to recall a sentence 'on its own motion.'" (People v. Pritchett (1993) 20 Cal.App.4th 190, 193.) Under Pritchett, a trial court's denial of a resentencing request furnishes no basis for appeal because "the defendant has no right to request such an order in the first instance; consequently, his 'substantial rights' cannot be affected by an order denying that which he had no right to request." (Id. at p. 194.)
In other contexts, as where the secretary of the CDCR (Secretary) recommends recall and resentencing, a defendant has the right to challenge the trial court's denial of a recommendation-such as for compassionate release-"if it affects his substantial rights, even if someone else brought the original motion." (People v. Loper (2015) 60 Cal.4th 1155, 1165 (Loper).) Thus, a defendant has the right to notice of the Secretary's recommendation for recall and resentencing and a corresponding opportunity to be heard, including to present evidence to bolster the recommendation and to counteract misimpressions or otherwise prevent an erroneous decision. (People v. Pillsbury (2021) 69 Cal.App.5th 776, 795-796 (Pillsbury); see id. at p. 783 [Secretary's recommendation urged recall and resentencing to strike formerly mandatory firearm enhancements in the interests of justice, including based on inmate's exemplary conduct]; see also id. at p. 791 [if clarifying evidence were needed, "defendant could have pointed [it] out"].)
A trial court's decision "simply to ignore [a defendant]'s request to provide input on the Secretary's recommendation [i]s an abuse of discretion." (People v. McCallum (2020) 55 Cal.App.5th 202, 216 (McCallum).) McCallum analogized the circumstances to those before a trial court in deciding whether to exercise its discretion to dismiss "Three Strikes" law strike convictions under section 1385, as discussed in People v. Carmony (2004) 33 Cal.4th 367 (Carmony): "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, at p. 375.)
The Supreme Court therefore held that "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, 33 Cal.4th at p. 376.) The McCallum court reached a similar conclusion: "Thus, as in Carmony, upon a request by McCallum, the trial court was required to consider evidence [as proposed by McCallum] in support of the Secretary's recommendation." (McCallum, supra, 55 Cal.App.5th at p. 217, italics added.) That did not mean the Legislature intended to require that trial courts hold a hearing before ruling on a Secretary's recommendation (id. at pp. 206, 211-216), just that the defendant is entitled to support the recommendation with documentary or other evidence (id. at p. 217).
These authorities support King's right to "invite" the trial court to consider evidence he may have offered in support of the court's decision-ultimately on its own motion-to recall and resentence him, and his right to challenge the trial court's refusal to do so. (Loper, supra, 60 Cal.4th at p. 1167; Pillsbury, supra, 69 Cal.5th at p. 796; McCallum, supra, 55 Cal.App.5th at p. 217.) Thus, in People v. Espinosa (2014) 229 Cal.App.4th 1487 (Espinosa), the reviewing court treated a trial court's recall of a sentence as being made pursuant to the trial court's authority in section 1170, subdivision (d), given that "[t]he court's comments make clear the recall and resentencing was on its own motion, despite the fact [defendant] filed a motion, upon the court's invitation, to reduce the degree of the crime and sentence." (Id. at p. 1497.)
That is what happened here; the trial court expressly invited King to request recall and resentencing even though the court also stated he was not statutorily authorized to make a motion to do so. That the court placed conditions on the request before it would consider adopting the request as its own motion demonstrates the court understood its statutory authority and a defendant's implicit right to make such a request. We presume both that the trial court was aware of the scope of its discretion and properly exercised it (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527), and the record supports this conclusion.
Specifically, the court required King to give written "reasons for" his request so "the D.A. can respond" and subsequently that he calendar a new request again involving the D.A. "to see if there's an agreed sentence you can reach," in which case the court would recall defendant's sentence and adopt the agreed upon term. Had King provided reasons in his written recall request, including evidence to support his claim he had been hospitalized, or if he provided that information to the D.A.-with the opportunity for the D.A. to rebut it, contest it, or agree with it-the trial court may well have adopted King's recall request as its own. In any event, in light of the conditions the trial court required before it would agree to recall King's sentence on its own motion, we see no merit in King's contentions that the court "fail[ed] to realize appellant had invited the trial court to recall the sentence on its own," or likewise erred by not "recognizing it had been invited by appellant to recall the sentence based on its own motion." King simply failed to meet the court's conditions.
When, as here, nothing suggests the trial court misunderstood its legal authority and discretion, we review the trial court's decision not to recall a sentence for abuse of discretion. (McCallum, supra, 55 Cal.App.5th at p. 211.) We find no abuse of discretion here where King never told the sentencing court why he wanted his sentence recalled, let alone provided evidence to support his unstated contention that he had been in the hospital at the time of sentencing because of a bicycle accident. We are at a loss to understand this omission, particularly where the court expressly requested a statement of "the reasons" for the recall request. In Carmony, the defendant's "right to 'invite'" the court to exercise its strike authority and the right to have that request secure '"a dismissal in the interests of justice,"' turned on the defendant "offer[ing]" evidence '"in support of his assertion that the dismissal would be in furtherance of justice."' (Carmony, supra, 33 Cal.4th at p. 375.) On the record here, we cannot say the trial court erred in denying King's bare, unsupported request for recall of his sentence without giving the court any reason to adopt this course of action.
DISPOSITION
The trial court's postsentencing order is affirmed.
WE CONCUR: O'LEARY, P. J., MOORE, J.