People v. E.M.
| Decision Date | 06 December 2022 |
| Docket Number | H049467 |
| Citation | 85 Cal.App.5th 1075,301 Cal.Rptr.3d 892 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. E.M., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Attorneys for Defendant and Appellant E.M.: David W. Beaudreau under appointment by the Court of Appeal for Appellant.
Attorneys for Plaintiff and Respondent THE PEOPLE: Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Phillip J. Lindsay, Senior Assistant Attorney General, Sara J. Romano, Supervising Deputy Attorney General, Amit Kurlekar, Deputy Attorney General, Victoria Ratnikova, Deputy Attorney General, Brian C. Kinney, Deputy Attorney General.
Greenwood, P. J. E.M. is serving a sentence of 79 years four months in prison based on his convictions for numerous offenses as found by a jury in 1984. In December 2019, the Secretary of the California Department of Corrections and Rehabilitation (the Secretary) issued a letter to the trial court recommending that it recall E.M.’s sentence and resentence him based on recent ameliorative legislative changes in the sentencing law. The trial court denied recall on the ground that the legislative changes did not apply to E.M.’s case because his sentence was final.
E.M. appeals from the trial court's denial of recall. He argues the trial court erred in several respects, including its ruling that recent changes in the sentencing law do not apply to his case. The Attorney General initially conceded that we must remand for resentencing, but after the parties had briefed the merits of the issue, the Secretary issued a new letter to the trial court rescinding its recommendation of recall and resentencing. The Attorney General now argues this appeal is moot because the Secretary's letter of rescission eliminated the trial court's jurisdiction to recall the sentence on remand.
For the reasons below, we hold the Secretary's letter of rescission does not moot this appeal. We further hold the trial court erred by denying recall, and that it retains jurisdiction to recall and resentence E.M. on remand. We will reverse the judgment and remand for the trial court to reconsider whether to recall E.M.’s sentence under the law as currently enacted.
In 1984, a jury found E.M. guilty on 15 counts: counts 1, 2, and 8—first degree robbery ( Pen. Code, § 211 ; former § 213.5)1 ; count 3—attempted first degree robbery ( §§ 211, 664 ; former § 213.5); counts 4, 9, and 13—forcible oral copulation (former § 288a, subd. (c)); counts 5 through 7, 10, and 11—forcible false imprisonment (§ 236; former § 237); count 12—forcible penetration by a foreign object (§ 289, subd. (a)); count 14—forcible rape (former § 261, subd. (2)); and count 15—second degree robbery ( § 211 ).2 As to counts 1 through 3, 5 through 8, 10, 11, and 15, the jury found E.M. personally used a deadly and dangerous weapon (§ 12022, subd. (b)). As to counts 4, 9, and 12 through 14, the jury found E.M. used a deadly weapon (§ 12022.3, subd. (a)). It was further found that E.M. had suffered two prior serious felony convictions and had served a prior prison term for forcible oral copulation (§§ 667, subd. (a), 667.6, subd. (a)). The trial court imposed an aggregate sentence of 79 years four months in prison. The sentence included two five-year terms for the prior serious felony convictions.
In December 2019, the Secretary recommended to the trial court that it recall E.M.’s sentence and resentence him under former section 1170, subdivision (d).3 The Secretary's letter cited a recent legislative change to section 1385 that granted trial courts the discretion to dismiss a prior serious felony enhancement in furtherance of justice.4
In May 2021, the public defender appeared on behalf of E.M., requested a hearing on the matter, and filed exhibits in support of recall detailing E.M.’s good conduct while in custody. The trial court then filed an order appointing the public defender to represent E.M. and invited him to submit any additional materials in support of recall. The court's order declined to recall the sentence "at this time" and ordered that the "defendant shall not be transferred from state prison to county jail and shall not be produced for any potential future hearings unless expressly ordered by this Court." In June 2021, the prosecution filed an objection to recalling E.M.’s sentence.
In September 2021, the trial court denied recall in a written order. The court ruled that although Senate Bill 1393 applied retroactively to cases that were not yet final, E.M.’s case was final, making him ineligible for relief. The court stated, "While this Court recognizes that a recommendation from the Secretary of the CDCR provides a court with the authority to recall a sentence, the Court declines to use that authority in a manner that is inconsistent with the law." E.M. timely appealed from this order.
In June 2022, after the parties had briefed the matter on appeal, the Secretary issued a letter to the trial court purporting to rescind the Secretary's prior recommendation of recall. The Secretary's letter stated, "I have personally reviewed inmate [E.M.]’s case factors and do not support the prior recommendation for a sentencing recall."
The Attorney General then moved this court to augment the record with the Secretary's June 2022 letter of rescission, or alternatively, to take judicial notice of it. The Attorney General argued that the Secretary's letter of rescission rendered this appeal moot because the trial court no longer had jurisdiction to resentence E.M. on remand.
We granted the motion to take judicial notice of the Secretary's June 2022 letter, and we ordered the parties to brief the following issues: (1) whether the Secretary has the authority to rescind a recommendation for recall and resentencing made in accordance with section 1172.1, and if so, (2) whether the Secretary's June 2022 letter renders this appeal moot.5
In his opening brief, E.M. argued the trial court erred in denying recall, and he requested we remand for the court to consider whether to recall his sentence and resentence him under the procedures set forth in the newly-enacted section 1172.1. Although the parties disagreed on the reasoning for why the law compelled remand, the Attorney General conceded remand was required.
The Secretary then issued a letter to the trial court purporting to rescind her recall recommendation. The Attorney General now contends this appeal is moot because the trial court no longer has jurisdiction to recall E.M.’s sentence under section 1172.1. E.M. argues the Secretary had no legal authority to rescind her recommendation.
For the reasons below, we conclude this appeal is not moot. We further conclude the trial court erred in its denial of recall.
Under subdivision (a)(1) of section 1172.1, "When a defendant, upon conviction for a felony offense, has been committed to the custody of the Secretary of the Department of Corrections and Rehabilitation ..., the court may, within 120 days of the date of commitment on its own motion, at any time upon the recommendation of the secretary ..., recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced...." ( § 1172.1, subd. (a)(1).) In enacting this code section, the Legislature amended and renumbered former section 1170(d), which had included the above-quoted language.
Former section 1170(d) provided "an exception to the common law rule that the court loses resentencing jurisdiction once execution of sentence has begun." ( Dix v. Superior Court (1991) 53 Cal.3d 442, 455, 279 Cal.Rptr. 834, 807 P.2d 1063 ( Dix ).) "[T]he resentencing authority conferred by section 1170(d) is as broad as that possessed by the court when the original sentence was pronounced," except that the resentence may not exceed the original sentence, and the court must award credit for time served on the original sentence. ( Id. at p. 456, 279 Cal.Rptr. 834, 807 P.2d 1063.) ( People v. Cepeda (2021) 70 Cal.App.5th 456, 469, 285 Cal.Rptr.3d 442.)
We apply the abuse of discretion standard of review to a trial court's denial of recall. ( People v. Frazier (2020) 55 Cal.App.5th 858, 863-864, 269 Cal.Rptr.3d 806 ( Frazier ); People v. McCallum (2020) 55 Cal.App.5th 202, 211, 269 Cal.Rptr.3d 336 ( McCallum ).) We review questions of statutory interpretation de novo. ( People v. Prunty (2015) 62 Cal.4th 59, 71, 192 Cal.Rptr.3d 309, 355 P.3d 480.)
As set forth above, after the parties had briefed the merits of E.M.’s claim on appeal, and two years after the Secretary's original recommendation of recall, the Secretary issued a letter to the trial court rescinding the recommendation. The Attorney General now argues the appeal is moot because the Secretary validly exercised her power to rescind the recommendation and the trial court is now barred from resentencing E.M. E.M. contends the Secretary had no authority to rescind her recommendation under section 1172.1 because the sole purpose of the Secretary's recommendation is to revive the trial court's sentencing jurisdiction, and nothing in the plain language of the statute allows for the rescission of a recommendation. The Attorney General argues that the plain language of the statute allows the Secretary to rescind her recommendation at any time prior to the trial court recalling the prisoner's sentence.
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