85 Cal.App.5th 1075
Cal. Ct. App.2022Background
- In 1984 E.M. was convicted on multiple counts (including robbery, forcible sexual offenses) and received an aggregate term of 79 years 4 months, including two five‑year prior serious felony enhancements.
- In December 2019 the CDCR Secretary sent a letter recommending the trial court recall E.M.’s sentence under former §1170(d) (now §1172.1), citing Senate Bill 1393 (which permits courts discretion to strike prior serious‑felony enhancements).
- The trial court denied recall in September 2021, concluding SB 1393 did not apply because E.M.’s judgment was final; E.M. timely appealed.
- After briefing, the Secretary (in June 2022) issued a second letter rescinding the recall recommendation; the Attorney General moved to augment the record and argued the rescission mooted the appeal.
- The Court of Appeal held the Secretary’s rescission did not moot the appeal, concluded the trial court erred in denying recall, and reversed and remanded for the trial court to reconsider recall/resentencing under Penal Code §1172.1, with jurisdiction preserved on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Can the Secretary rescind a recall recommendation and thereby moot the appeal? | Secretary may rescind at any time before the court recalls sentence, so rescission divests jurisdiction and moots appeal. | Secretary had no authority to nullify an issued recommendation after the court acted and appeal vested; rescission cannot moot the appeal. | Rescission did not moot the appeal; Secretary’s late rescission (after the court acted and appeal vested) did not divest jurisdiction. |
| 2) Did the trial court err by ruling SB 1393 does not apply because the case was final? | SB 1393 is not retroactive to final judgments. | SB 1393 is ameliorative and §1170(d)/§1172.1 permit courts to apply post‑judgment ameliorative changes upon the Secretary’s recommendation. | Court erred: post‑judgment application of SB 1393 was proper under the governing recall/resentencing authority; remand is required. |
| 3) Does Penal Code §1172.1 (procedures and presumption) apply on remand and require a hearing, counsel, presumption in favor of recall, and consideration of specified factors? | §1172.1’s retroactivity may be limited, but judicial efficiency supports applying its clarified procedures on remand. | §1172.1 applies and requires notice, a status hearing within 30 days, appointed counsel, a presumption favoring recall, and consideration of listed postconviction factors. | The court agreed remand is required and the trial court must consider the matter consistent with §1172.1’s procedures and factors. |
| 4) Was the trial court’s order denying recall appealable and are separation‑of‑powers concerns implicated by allowing review despite the Secretary’s rescission? | If court lacked jurisdiction then order was not appealable; separation of powers supports Secretary’s authority. | Trial court exercised jurisdiction when it denied recall and the appeal vested; separation‑of‑powers does not allow the executive to erase the court’s act. | The denial was an appealable order; separation‑of‑powers arguments do not permit the Secretary to nullify the appellate process here. |
Key Cases Cited
- Dix v. Superior Court, 53 Cal.3d 442 (1991) (explains breadth of trial court authority to recall and resentence under former §1170(d))
- In re Estrada, 63 Cal.2d 740 (1965) (retroactivity presumption for ameliorative criminal statutes)
- People v. McMurray, 76 Cal.App.5th 1035 (2022) (construes Assembly Bill 1540/§1172.1 as clarifying prior law and supports remand to apply ameliorative changes)
- People v. Pillsbury, 69 Cal.App.5th 776 (2021) (former §1170(d) authorizes recall/resentencing based on post‑judgment changes that allow striking enhancements)
- People v. Cepeda, 70 Cal.App.5th 456 (2021) (same: trial courts may resentence final cases upon CDCR recommendation to apply SB 1393)
- In re Fain, 65 Cal.App.3d 376 (1976) (administrative bodies may rescind administrative acts; held inapposite for judicial sentencing function)
- People v. Loper, 60 Cal.4th 1155 (2015) (appealability of sentencing orders and limits on sentencing validity when court lacks jurisdiction)
- Carmel Valley Fire Protection Dist. v. State of California, 25 Cal.4th 287 (2001) (separation‑of‑powers overview and limits on branch overreach)
- City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) (courts guard against litigant maneuvers that manipulate jurisdiction or mootness)