People v. Codinha

• Citation: 92 Cal.App.5th 976,309 Cal.Rptr.3d 842
• Docket Number: D080633
• Decision Date: 26 June 2023
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joseph CODINHA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

92 Cal.App.5th 976
309 Cal.Rptr.3d 842

The PEOPLE, Plaintiff and Respondent,
v.
Joseph CODINHA, Defendant and Appellant.

D080633

Court of Appeal, Fourth District, Division 1, California.

Filed June 26, 2023

Mi Kim, Woodland Hills, 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, Collette C. Cavalier and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

IRION, J.

92 Cal.App.5th 980

Joseph Codinha appeals the order increasing his aggregate prison term by 16 months in response to a letter from the Department of Corrections and Rehabilitation (the Department) informing the trial court it had erroneously imposed a concurrent prison term on a count on which the law required a consecutive term. The appeal presents two significant issues: (1) whether a trial court has jurisdiction to modify a final judgment in response to such a letter; and (2) if so, whether the appropriate remedy is for the court to modify the judgment by simply correcting the error or to conduct a full resentencing hearing. We conclude: (1) a trial court's inherent authority

92 Cal.App.5th 981

to correct an unauthorized sentence allows it to modify a final judgment in response to a notice from the Department that a sentence does not contain a legally required component; and (2) the proper remedy is a full resentencing hearing where, as here, the sentence includes multiple components and the trial court exercised discretion at the original sentencing hearing to impose a non-maximum aggregate prison term it considered appropriate. We therefore vacate the modified sentence and remand the matter for a full resentencing hearing. In doing so, we acknowledge a conflict in published decisions and a lack of clarity in the law that

309 Cal.Rptr.3d 846

would warrant review by our Supreme Court.

I.

BACKGROUND

A. Guilty Plea

On May 7, 2019, Codinha pleaded guilty to two felonies—indecent exposure (count 1; Pen. Code, § 314, subd. 1 ; undesignated section references are to this code) and unauthorized possession of a controlled substance (count 3; Health & Saf. Code, § 11377, subd. (a) )¹ —and two misdemeanors—possession of drug paraphernalia (counts 2 & 4; Health & Saf. Code, § 11364, subd. (a) ). He admitted committing count 3 while released on bail for a prior felony (count 1). (§ 12022.1, subd. (b).) Codinha also admitted he had three prior convictions of committing a lewd and lascivious act on a minor (§ 288, subd. (a)), which qualified as strikes under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12), and served a prior prison term for indecent exposure ( § 314, subd. 1 ), which qualified for a one-year enhancement (former § 667.5, subd. (b), as amended by Stats. 2014, ch. 442, § 10). The trial court accepted the plea and set the matter for sentencing.

B. Sentencing

Codinha filed a sentencing memorandum in which he urged the trial court to strike his prior strike convictions (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 ( Romero )) and to grant probation so that he could obtain necessary treatment for his drug abuse and sexual misconduct. In their memorandum, the People argued Codinha was ineligible for probation; the prior strike convictions should not be

92 Cal.App.5th 982

stricken; and if the court struck some of the prior strike convictions, it should impose a prison term of at least nine years, four months.

At the sentencing hearing on March 13, 2020, the trial court denied probation, granted Codinha's Romero motion in part by striking two of the three prior strike convictions, and sentenced him as a second-strike offender to an aggregate prison term of eight years.² On count 1 (indecent exposure), the court imposed the upper term of three years (§§ 17, subd. (a), 314, subd. 1 & subd. 2, par. 2), doubled to six years based on the prior strike conviction (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)). On count 3 (unauthorized possession of a controlled substance), the court imposed a concurrent middle term of two years ( Health & Saf. Code, § 11377, subd. (a) ; § 1170, subd. (h)(1), (3)), doubled to four years based on the prior strike conviction (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)). In declining to impose a consecutive term on count 3, the trial court stated: "I feel that I'm taking that into account in the rest of the calculation. And I feel that an eight-year sentence is appropriate on balance in this case." The court imposed a consecutive term of two years for the out-on-bail

309 Cal.Rptr.3d 847

enhancement. (§ 12022.1, subd. (b).) The court, "in the interest of justice" (see § 1385), refused to impose the one-year enhancement for Codinha's service of a prior prison term (former § 667.5, subd. (b)) on count 1 and "stay[ed]" the enhancement on count 3. The court did not orally pronounce sentence on either conviction for possession of drug paraphernalia (counts 2 & 4), but the sentencing minutes state Codinha was given "Credit for Time Served."

C. Prior Appeal

Codinha appealed the judgment. Based on legislation that took effect between the guilty plea and sentencing and eliminated the enhancement for service of a prior prison term for a conviction that was not a sexually violent offense, we struck the trial court's oral pronouncement staying the enhancement on count 3 and otherwise affirmed the judgment. ( People v. Codinha (2021) 71 Cal.App.5th 1047, 1054, 1081-1084, 286 Cal.Rptr.3d 822.)

D. Sentence Modification

On February 3, 2022, a case records manager at the Department sent a letter to the trial court stating the abstract of judgment and/or minute order "may be in error" because "Count 3 was sentenced concurrent to Count 1."

92 Cal.App.5th 983

The Department noted the accusatory pleading suggested Codinha was out on bail on count 1 (the primary offense) when he committed count 3 (the secondary offense), and under section 12022.1, subdivision (e), "any state prison sentence for the secondary offense shall be consecutive to the primary offense." The Department asked the court to "review [its] file to determine if a correction is required," and advised the court it could "reconsider all sentencing choices" when notified "an illegal sentence exists."

The trial court held a hearing on April 29, 2022. At the outset, the court stated its intent to amend the abstract of judgment to add eight months to the aggregate prison term by imposing a consecutive term of one-third the middle term of two years on count 3. ( Health & Saf. Code, § 11377, subd. (a) ; §§ 1170, subd. (h)(1), (3), 1170.1, subd. (a).) The prosecutor and Codinha's counsel agreed imposition of a consecutive term was legally required, but Codinha's counsel requested the court "stay that remainder of time" because Codinha had "a parole date" the following day. The court denied the request, stated it had "made a clerical error at the time of sentencing," and modified the sentence to include a consecutive eight-month term on count 3. Three days later, the court held another hearing to correct its error in not doubling the consecutive eight-month term to 16 months as required by the Three Strikes law. (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) The court prepared an amended abstract of judgment with an aggregate prison term of nine years, four months.

Codinha appealed the order modifying the judgment. (§ 1237, subd. (b) [postjudgment order "affecting the substantial rights of the party" is appealable]; People v. Gilbert (1944) 25 Cal.2d 422, 444, 154 P.2d 657 [when effect of order "was to modify substantially the judgment[ ] originally entered," order was "obviously" appealable].)

II.

DISCUSSION

The parties agree the trial court erred at the initial sentencing hearing by imposing a concurrent rather than a consecutive prison term on count 3 and had authority to correct the error, but they disagree on the source of that authority and what the court was required to do to

309 Cal.Rptr.3d 848

correct the error. Codinha argues the court did not merely correct a clerical error and could either recall the sentence under section 1172.1³ or exercise its inherent authority to correct

92 Cal.App.5th 984

a legally unauthorized sentence;⁴ but in either case, he asserts, the court was required to conduct a full resentencing hearing to consider all options in light of recent changes to sentencing laws and an updated probation report. He asks us to vacate the order modifying the judgment and to remand the matter for a full resentencing hearing.

The People urge us to affirm the order. They contend the trial court was not required to conduct a full resentencing hearing, because it merely corrected a clerical error and did not recall the sentence. The People further...