People v. Cortez

Citation207 Cal.Rptr.3d 510,3 Cal.App.5th 308
Decision Date14 September 2016
Docket NumberG052158
CourtCalifornia Court of Appeals
Parties The PEOPLE, Plaintiff and Respondent, v. Richard Reyes CORTEZ, Defendant and Appellant.

Suzanne G. Wrubel, Pacific Palisades, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Scott C. Taylor and Daniel Hilton, Deputy Attorneys General, for Plaintiff and Respondent.



, J.

When a court recalls a felony sentence and imposes a misdemeanor sentence pursuant to Penal Code section 1170.18, subdivision (a)

(Proposition 47), may the court revisit the sentence imposed on other misdemeanor counts, not subject to Proposition 47, and impose a harsher punishment?1 Yes, provided that the new aggregate sentence does not exceed the prior sentence.


In July 2012, defendant pleaded guilty to one felony count of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)

, count 1), one misdemeanor count of possessing drug paraphernalia (Health & Saf. Code, former § 11364.1, subd. (a), count 2), and one misdemeanor count of being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a), count 3). Defendant admitted a prior strike (§§ 667, subd. (d), 1170.12, subds. (b), (c)(1)) and a prison prior (§ 667.5, subd. (b)). Defendant's maximum sentencing exposure was seven years in prison and one-year and one-half in county jail. The court sentenced defendant to three years' probation on condition he serve 270 days in county jail. Approximately two years later, defendant violated the terms of probation for the second time and was sentenced to 16 months in prison on count 1, which was the low term, and a concurrent term of six months in jail on each of the two misdemeanor counts. As a basis for choosing the low term on count 1, the court stated, Defendant pled at an early stage of proceedings, Small amount of contraband, and no violence.”

In June 2015, defendant filed the petition at issue requesting the court to resentence his felony conviction as a misdemeanor pursuant to section 1170.18, subdivisions (a)

and (f). Because defendant was still under supervision, the court found he was still serving his sentence and denied the petition under subdivision (f), but granted the petition under subdivision (a). The court resentenced defendant to 364 days in county jail on count 1, 129 days consecutive in county jail on count 2, and 129 days concurrent on count 3, for a total jail term of 493 days. The court found defendant had 494 days of custody credit. It imposed one year of parole pursuant to section 1170.18, subdivision (d), and credited the extra day to defendant's parole period.2


The court had jurisdiction to resentence on the original two misdemeanor counts

Defendant contends the court lacked jurisdiction to resentence defendant on the original two misdemeanor counts. Whereas the court had previously sentenced defendant to six months concurrent on the misdemeanor counts, by resentencing defendant to 129 days each on counts 2 and 3, with count 2 running consecutively , defendant's aggregate sentence was 129 days longer than it would have been if the sentence on the original two misdemeanor counts had been unchanged.

We have found no cases directly addressing defendant's argument. But the recently published decision in People v. Roach (2016) 247 Cal.App.4th 178, 202 Cal.Rptr.3d 1

(Roach ) provides a useful starting point. There, defendant was sentenced on four charges. (Id. at p. 181, 202 Cal.Rptr.3d 1.) The court chose a drug possession charge as the principal term and imposed the upper term of three years. On a reckless driving charge, the court imposed a three-year concurrent sentence. Felony charges of felon in possession of a firearm and receiving stolen property were deemed subordinate, and the court imposed consecutive eight month sentences for each, for a total sentence of four years four months. (Id. at p. 182, 202 Cal.Rptr.3d 1

.) The defendant successfully petitioned to redesignate his drug possession conviction, formerly the principal term, and receiving stolen property conviction, to misdemeanors. In refashioning the sentence, the court selected the reckless driving felony as the principal term and imposed a term of three years, imposed one consecutive eight-month subordinate term for possession of a firearm, and imposed a consecutive sentence of 240 days on the two new misdemeanors, for an aggregate term that was, once again, four years four months. (Id. at p. 182, 202 Cal.Rptr.3d 1.) On appeal, the defendant argued the court erred by refashioning the sentence to constitute the same aggregate sentence as before the Proposition 47 petition. (Roach , at p. 183, 202 Cal.Rptr.3d 1.)

Rejecting that argument, the Roach

court stated, “A successful petition under section 1170.18 vests the trial court with jurisdiction to resentence the applicant, and in doing so the court is required to follow the generally applicable sentencing procedures in section 1170 et seq. (Roach, supra, 247 Cal.App.4th at p. 184, 202 Cal.Rptr.3d 1.) Expounding upon the scope of the court's resentencing jurisdiction, the court analogized the situation to cases where a principal term has been reversed on appeal. “In that situation, the trial court on remand must ‘select the next most serious conviction to compute a new principal term’ and may also modify the sentences imposed on other counts as appropriate. [Citations.] In doing so, “the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.] This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components.” [Citations.] Similarly, where a petition under section 1170.18 results in reduction of the conviction underlying the principal term from a felony to a misdemeanor, the trial court must select a new principal term and calculate a new aggregate term of imprisonment, and in doing so it may reconsider its sentencing choices.” (Id. at p. 185, 202 Cal.Rptr.3d 1.)

Defendant has two responses. First, the court here lacked jurisdiction to revisit his prior misdemeanor sentences because, unlike Roach

, defendant was not sentenced pursuant to the determinate sentencing scheme in section 1170.1, which requires the court to choose a principal and subordinate terms. For that proposition, defendant cites People v. Sellner (2015) 240 Cal.App.4th 699, 192 Cal.Rptr.3d 836 (Sellner ). Sellner arose in a procedural posture similar to Roach. The defendant had been sentenced to an aggregate term on two felonies, a Proposition 47 petition resulted in reducing the principal term to a misdemeanor, and the court increased the previously subordinate felony term from eight months to two years. (Sellner , at pp. 700–701, 192 Cal.Rptr.3d 836.) The defendant argued the court lacked jurisdiction to increase the sentence on the formerly subordinate term. (Ibid. ) The Sellner court disagreed, which does not help defendant here, but the court's rationale arguably does. The court reasoned, Section 1170.1, subdivision (a) creates an exception to the general rule that jurisdiction ceases when execution of sentence begins.” (Id. at p. 701, 192 Cal.Rptr.3d 836

.) Defendant seizes on this language to argue that no such exception exists here since he did not commit multiple felonies, and thus the principal/subordinate sentencing scheme of section 1170.1 was not employed. And since execution of his misdemeanor sentences had commenced long before, the court had no jurisdiction to alter them.

To understand why this jurisdictional argument fails, we examine the underlying rule itself. “Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced.” (People v. Karaman (1992) 4 Cal.4th 335, 344, 14 Cal.Rptr.2d 801, 842 P.2d 100

.) “This rule was established in order to provide litigants with some finality to legal proceedings.” (Id. at p. 348, 14 Cal.Rptr.2d 801, 842 P.2d 100.)

The nature of the rule was analyzed in In re Black (1967) 66 Cal.2d 881, 59 Cal.Rptr. 429, 428 P.2d 293

(Black ). There, defendant was serving a sentence for a federal crime when he pleaded guilty to grand theft. The court denied probation and ordered that his prison term be served consecutively to his federal prison term.

(Id. at pp. 883–884, 59 Cal.Rptr. 429, 428 P.2d 293

.) Three years later, after completing his federal sentence, defendant filed a motion to reconsider the denial of probation on the state sentence, contending he had been rehabilitated. (Id. at p. 885–886, 59 Cal.Rptr. 429, 428 P.2d 293.) The court denied the motion on the ground that it lacked jurisdiction. (Id. at p. 886, 59 Cal.Rptr. 429, 428 P.2d 293.)

Our high court agreed. It explained the rule as follows, “As long as the trial court retains in itself the actual or constructive custody of the defendant and the execution of his sentence has not begun, it retains jurisdiction over the defendant and the res of the action and possesses the power to entertain and act upon an application for probation even after the affirmance of a judgment of conviction on appeal and the going down of the remittitur. [Citations.] ‘The critical requirement for control over the defendant and the res of the action is that the court shall not have surrendered its jurisdiction in the premises by committing and delivering the defendant to the prison authority.’ (Black, supra, 66 Cal.2d at p. 888, 59 Cal.Rptr. 429, 428 P.2d 293

.) Given that defendant had long before been remanded to the federal authorities, the court found it had not retained jurisdiction. (Id. at p. 889, 59...

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