People v. ScarbroughPeople v. Scarbrough
OPINION
BUTZ, J.—Defendant Christy Ann Scarbrough was granted probation after she pleaded no contest to possession of hydromorphone and possession of heroin and admitted an on-bail enhancement. She subsequently violated her
We publish this decision, however, to address an issue that is likely to recur and to otherwise evade review. On November 4, 2014, California voters approved Proposition 47, whiсh added section 1170.18 to the Penal Code,1 thereby permitting persons convicted of certain offenses to seek recall and resentencing from the trial court. While this appeal was pending, defendant sought and obtained an order from the trial court pursuant to section 1170.18 ostensibly recalling her sentence on two of the felony convictions that we were reviewing in this appeal, designating those convictions as misdemeanors, and resentencing her. In light of defendant‘s no contest plea, our review was limited to reviewing the propriety of defendant‘s sentencing. (
FACTUAL AND PROCEDURAL BACKGROUND
In January 2013, defendant pleаded no contest to possession of hydromorphone (
In July 2013, in case No. CM036294, defendant pleaded no contest to felony child endangerment (
In November 2013, the trial court sеntenced defendant to an aggregate term of nine years four months in state prison: the upper term of six years for the felony child endangerment, a consecutive term of eight months for possession of heroin (and stayed the remaining portion of the three-year upper term it imposed on this count), a consecutive term of eight months for possession of hydromorphone (and stayed the remaining portion of the three-year upper term it imposed on this count), and two years for the admitted sentencing enhancement. The trial court also credited defеndant with 390 days of presentence custody credit: 195 days of actual time and 194 days of conduct credit in case No. CM036294, and an additional one day of actual time in case No. CM037299. The trial court ordered the previously imposed fines and fees to be paid; ordered that the previously stayed probation revocation restitution fines were now due; imposed and stayed parole revocation restitution fines in all three cases; and also imposed statutory fines and fees in the child endangerment case. The trial court also ordered defendant to
Defendant appealed. While her appeal was pending, defendant requested that the trial court recall and reconsider her sentence pursuant to sections 1018 and 1170, subdivision (d). The trial court declined to do so. Thereafter, while her appeal was still pending, defendant petitioned the trial court for recall of her sentence and resentencing pursuant to the recently enacted section 1170.18. The trial court granted defendant‘s petition as to the possession of controlled substance convictions in case Nos. CM037299 and CM037929, ostensibly reducing those convictions to misdemeanors. The trial court proceeded to resentence defendant to a term of six years in state prison for the child endangerment and concurrent terms of one year for the possession convictions, and to alter her credits.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review thе record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant‘s request for additional time to file a supplemental brief and to augment the record was granted. More than 30 days have elapsed since the filing of the augmented record in this court, and we have received no communication from defendant.
DISCUSSION
At our invitation, the parties submitted supplemental briefs addressing whether the trial court had jurisdiction to resentence defendant pursuant to section 1170.18 while this appeal was pending. Defendant contends section 1170.18 vests the trial court with limited concurrent jurisdiction to entertain a petition for recall and resentencing of convictions for enumerated offenses. Neither the language nor intent of section 1170.18 or Proposition 47 cause us to conclude the statute creates an exception to the general rule that a trial court may not issue an order affecting a judgment while an appeal is pending. Thus, we hold the trial court‘s order recalling defendant‘s sentence and resentencing her is void.
I. Basic Principles
“When we interpret an initiative, we apply the same principles governing statutory construction. We first consider the initiative‘s language, giving the words their ordinary meaning and construing this language in the context of the statute and initiative as a whole. If the language is not
II. Existing Law
Subject to limited exceptions, well-established law provides that the trial court is divested of jurisdiction once execution of a sentence has begun. (See People v. Turrin (2009) 176 Cal.App.4th 1200, 1204-1205 [98 Cal.Rptr.3d 471].) And, “[t]he filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal аnd issuance of the remittitur.” (People v. Perez (1979) 23 Cal.3d 545, 554 [153 Cal.Rptr. 40, 591 P.2d 63]; see People v. Cunningham (2001) 25 Cal.4th 926, 1044 [108 Cal.Rptr.2d 291, 25 P.3d 519] [“‘an appeal from an order in a criminal case removes the subject matter of that order from the jurisdiction of the trial court’ . . .“].) This rule protects the appellate court‘s jurisdiction by protecting the status quo so that an appeal is not rendered futile by alteration. (People v. Alanis (2008) 158 Cal.App.4th 1467, 1472 [71 Cal.Rptr.3d 139], quoting Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1089 [86 Cal.Rptr.2d 602, 979 P.2d 963].) As a result of this rule, the trial court lacks jurisdiction to make any order affecting a judgment, and any action taken by the trial court while the appeal is pending is null and void. (Alanis, supra, 158 Cal.App.4th at pp. 1472-1473.)
There are limited exceptions to this jurisdictional divestment. For instance, the triаl court may, while an appeal is pending, vacate a void judgment, correct an unauthorized sentence, or correct clerical errors in the judgment. (People v. Nelms (2008) 165 Cal.App.4th 1465, 1472 [82 Cal.Rptr.3d 32].) Corrections to errors in the calculation of presentence custody credits may also be ordered by the trial court while an appeal is pending. (People v. Acosta (1996) 48 Cal.App.4th 411, 427-428 [55 Cal.Rptr.2d 675] (Acosta); see
Additionally, the trial court has jurisdiction for a period of 120 days to recall a defendant‘s sentence for reasons rationally related to lawful sentencing and to resentence a defendant as if he or she had not been sentenced
III. Analysis
Section 1170.18, subdivision (a) provides in pertinent part: “A person currently serving a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (‘this act‘) had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with [enumerated sections, including Health and Safety Code section 11350], as those sections have been amended or added by this act.” The trial court must then determine if the petitioner is eligible for resentencing; if so, the trial court must recall and resentence the petitioner, unless it determines that doing so “would pose an unreasonable risk of danger to public safety.” (
In 2012, the voters enacted section 1170.126 as part of the Three Strikes Reform Act of 2012. (Prop. 36, § 6, as approved by voters, Gen. Elec. (Nov. 6, 2012).) That section provides in pertinent part: “Any person serving an indeterminate term of life imprisonment . . . upon conviction . . . of a felony or felonies that are not defined as serious and/or violent felonies . . . may file a petition for a recall of sentence, within two years after the effective date of the act that added this section or at a later date upon a showing of good cause, before the trial court that entered the judgment of conviction in his or her case, to request resentencing . . . .” (
We find People v. Yearwood (2013) 213 Cal.App.4th 161, 177 [151 Cal.Rptr.3d 901] instructive. Yearwood interpreted section 1170.126 and held
Though we are persuaded that the reasoning and analysis of section 1170.126 conducted in Yearwood is equally applicable to section 1170.18, we nonetheless address and reject defendant‘s contentions that section 1170.18 is more analogous to (1) section 1170, subdivision (d), (2) section 1237.1, and (3) a writ of habeas corpus. We also reject defendant‘s claims that by finding there is no concurrent jurisdiction, we would (4) thwart the voters’ intent of conserving financial resources, providing immediate relief to eligible persons, and supporting judicial economy. Finally, we consider and reject defendant‘s contention that such a finding would (5) force an eligible person into the “constitutionally untenable” position of seeking resentencing relief pursuant to section 1170.18 or pursuing appellate recourse.
A. Section 1170, Subdivision (d)
As we noted above, section 1170, subdivision (d) is an exception to the general bar on trial court action while an appeal is pending. That section states that “[w]hen a defendant . . . has been sentenced to be imprisoned in the state prison and has been committed to the custody of thе secretary, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings, 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. . . .” (
Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1835 [13 Cal.Rptr.2d 709] held that section 1170, subdivision (d) “provides a specific scheme for the trial court to exercise jurisdiction for a limited time after it normаlly would have lost jurisdiction.” Its reasoning is premised on longstanding rules of statutory interpretation that seek to avoid surplusage and
There is no similar issue in the interpretation of section 1170.18. Relief may be sought pursuant to this section for a period of ”three years after the effective date of the act that added this section or at a later date upon a showing of good cause.” (
B. Section 1237.1
Section 1237.1 states that “[n]o appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.” This is an express grant of concurrent jurisdiction, not only permitting a trial court to exercise jurisdiction to correct a record after sentencing where there has been an error in calculating presentence custody credits, but requiring a defendant to seek that postjudgment relief (if he or she did not object at sentencing) before seeking relief from this court. Additionally, the failure to award earned credits or awarding unearned credits results in the imposition of an unauthorized sentence, which, as noted above is a recognized exception to the bar on concurrent jurisdiction; that jurisdictional error may be corrected at any time. (People v. Shabazz (1985) 175 Cal.App.3d 468, 473-474 [221 Cal.Rptr. 15]; see Acosta, supra, 48 Cal.App.4th at p. 428, fn. 8.) There is no similar basis for recognizing concurrent jurisdiction to recall and resentence a defendant pursuant to section 1170.18 because the sentence is not unauthorized. Rather, section 1170.18
C. Writ of Habeas Corpus
Finally, “Section 10 of article VI of the California Constitution . . . provides in pertinent part: ‘The Supreme Court, courts of appeal, superior courts, and their judges have original jurisdiction in habeas corpus proceedings.’ This provision grants original subject matter jurisdiction over habeas corpus proceedings concurrently to the superior court, the Court of Appeal, and [the Supreme Court].” (In re Carpenter, supra, 9 Cal.4th at p. 645.) This power though is limited, as a superior court may not “‘interfere with the appellate jurisdiction of either [the Supreme Court or the Court of Appeal] in matters pending before said appellate courts . . . .‘” (Id. at p. 646.) “Appellate jurisdiction is limited to the four corners of the record on appeal . . . .” (Ibid., citation omitted.) Thus, where a writ of habeas corpus relies on evidence outside the record, it may be considered by the superior court despite a pending appeal. (Carpenter, at p. 646.)
Defendant claims that like a writ of habeas corpus, concurrent jurisdiction should exist for resentencing pursuant to section 1170.18 because resentencing was not raised on appeal, it involves evidence existing outside the appellate record, and “the trial court‘s reduction of qualified counts of conviction will not impact this Court‘s decision with respect to appellate issues raised.” We are not persuaded. The constitutional grant of original jurisdiction to all courts to hear writs of habeas corpus renders those proceedings sui generis and the judicial interpretations of that jurisdiction inapplicable to statutory proceedings such as this one. Moreover, as noted above, the languagе of section 1170.18 is substantially similar to that of section 1170.126. Yearwood had been decided before Proposition 47 was approved by the voters. Thus, as we stated above, the voters were presumptively aware that the language of section 1170.18 would not create an exception to the trial court‘s jurisdictional divestment that exists once an appeal is filed. (Scott, supra, 58 Cal.4th at p. 1424.) Had voters intended for the trial court to be able to act while an appeal is pending, they could have expressly provided for that jurisdictional concurrence. They did not.
D. Voters’ Intent
Nor are we convinced that the voters’ intent would be frustrated if we were to conclude that section 1170.18 does not create concurrent jurisdiction for the trial court. Defendant asserts that Proposition 47 “emphasiz[es] monetary
Defendant also asserts that Proposition 47 “contemplated immediate relief.” Nothing in section 1170.18 or Proposition 47 indicates immediate relief was contemplated. If voters intended there to be immediate relief, there would be no cause to create such a lengthy period to seek recall and resentencing relief—three years, or longer on a showing of good cause. Section 1170.18 could also require the trial courts to act on petitions within a shortened timespan; it does not so provide. Thus, we do not find any evidence of this asserted intention in the statute or initiative.
Defendant further argues that judicial economy will be thwarted if trial courts cannot act while an appeal is pending. She claims a second appeal could be averted by concurrent jurisdiction. Her claim relies on the fallacious assumption that we would have jurisdiction to review the trial court‘s actions in the recall and resentencing as part of our review of the initial judgment. (See People v. Contreras (2015) 237 Cal.App.4th 868 [188 Cal.Rptr.3d 698].) And concurrent jurisdiction would not support judicial economy. Our efforts to review the initial judgment may be rendered futile; we may be asked to review conflicting judgments, each with different errors to be corrected; and the trial court may be asked to effectuate a remittitur against a judgment that has since been modified. These scenarios would lead to chaos, confusion, and waste—not judicial economy. Additionally, there is nothing that indicates judicial economy was even contemplated by the voters.
We do recognize that several рeople with pending appeals have been resentenced ostensibly pursuant to section 1170.18 while their appeals were pending. This does create a quagmire, especially as regards individuals who
E. Election of Rights
We also reject defendant‘s claim that, by finding there is not concurrent jurisdiction, we are forcing defendant into a “constitutionally untenable dilemma” in which she must decide whether to seek resentenсing or to pursue her appeal. Defendant relies on Simmons v. United States (1968) 390 U.S. 377, 394 [19 L.Ed.2d 1247, 1259, 88 S.Ct. 967], which held that “when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” The court reasoned that if a defendant‘s testimony was later admissible, it would require the defendant to surrender either his Fourth or Fifth Amendment rights in order to assert the other. (Simmons, 390 U.S. at pp. 393-394 [19 L.Ed.2d at p. 1259].)
This authority is inapplicable. There are no constitutional rights involved here: The right to appeal and the right to pursue recall and resеntencing are both statutory. (
Therefore, we conclude the triаl court lacked jurisdiction to recall defendant‘s sentence and to resentence her pursuant to section 1170.18 while this appeal was pending.5 Accordingly, as we previously stated in People v. Noyan (2014) 232 Cal.App.4th 657, 672 [181 Cal.Rptr.3d 601], defendant may “petition[] for recall of sentence in the trial court once [her] judgment is final . . . .”
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
Raye, P. J., and Renner, J., concurred.