63 Cal.App.5th 1120
Cal. Ct. App.2021Background:
- Magana was convicted of first-degree murder and felon in possession; sentenced to 50 years-to-life (indeterminate) consecutive to a 6-year determinate term (later reflected as 4 years on the determinate abstract).
- This court in 2007 found two of four prior-prior-term enhancements unsupported and remanded for the trial court to strike or retry them; new abstracts were issued reflecting the adjustments but a clerk double-listed two priors on both abstracts.
- In August 2019 the CDCR sent a letter notifying the trial court that the abstracts "may be in error, or incomplete" and asking whether a correction was required; it did not reference Penal Code §1170(d)(1), "recall," or "resentencing."
- Magana moved for a recall and full resentencing under §1170(d)(1), seeking retroactive application of Senate Bills 620 and 136 to dismiss enhancements; the People opposed.
- The trial court held it was correcting clerical errors in the abstracts and declined to resentence; the parties later stipulated to an amended indeterminate abstract that removed duplicate priors and clarified component terms.
- The Court of Appeal held the CDCR did not recommend recall, the trial court lacked authority to recall on its own, the sentence was not recalled, and the order denying resentencing was not appealable — appeal dismissed.
Issues:
| Issue | People’s Argument | Magana’s Argument | Held |
|---|---|---|---|
| Whether the CDCR letter constituted a §1170(d)(1) recommendation to recall and resentence | The letter merely flagged clerical errors and did not recommend recall or resentencing | The court’s subsequent correction amounted to an effective recall, entitling Magana to full resentencing | Court: CDCR made no §1170(d)(1) recommendation; letter sought correction only; no recall occurred |
| Whether the trial court’s denial of a resentencing hearing was appealable | Denial is not appealable because the court lacked jurisdiction to recall and resentence | Denial was appealable because Magana’s sentence was effectively recalled or his substantial rights were affected | Court: Denial was not appealable; the trial court lacked jurisdiction to recall on its own and the order did not affect substantial rights |
Key Cases Cited
- People v. Hill, 185 Cal.App.3d 831 (court may "rethink the entire sentence" when CDCR recommends recall for illegality)
- People v. Humphrey, 44 Cal.App.5th 371 (correction of abstract clerical errors is not a §1170(d)(1) recall)
- People v. McCallum, 55 Cal.App.5th 202 (CDCR recommendation to recall permits resentencing)
- People v. Arias, 52 Cal.App.5th 213 (CDCR "recommended recall" where statutory error existed)
- People v. Loper, 60 Cal.4th 1155 (discussing CDCR recommendations to recall sentences)
- People v. Chlad, 6 Cal.App.4th 1719 (trial court lacked jurisdiction to resentence more than 120 days after commitment; denial not appealable)