People v. Pillsbury

• Decision Date: 30 September 2021
• Docket Number: C089002
• Citation: 69 Cal.App.5th 776,284 Cal.Rptr.3d 824
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jered PILLSBURY, Defendant and Appellant.
• Court: California Court of Appeals

69 Cal.App.5th 776

284 Cal.Rptr.3d 824

The PEOPLE, Plaintiff and Respondent,

v.Jered PILLSBURY, Defendant and Appellant.

C089002

Court of Appeal, Third District, California.

Filed September 30, 2021

Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Chung Mi Choi, Deputy Attorney General, for Plaintiff and Respondent.

MURRAY, Acting P. J.

In this case, we address issues related to the 2018 amendments to Penal Code section 1170, subdivision (d)¹ and the Department of Corrections and Rehabilitation (CDCR) program related to those amendments. We conclude that, upon the recommendation of the Secretary of CDCR (the Secretary), trial courts have the authority to recall and resentence defendants based on post-judgment changes in the law giving courts discretion to strike or dismiss enhancements, even when the judgment in the case is long since final and even when the original sentence was the product of a plea agreement. We also conclude that, while trial courts have the authority to summarily decline to recall and resentence, defendants have due process rights to notice and an opportunity to be heard before the court rules, and a statement of the court's reasons for the declination. However, in cases such as this one where the prosecution has not weighed in prior to the trial court's summary declination, we conclude defendants do not have a constitutional right to counsel.

We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The Commitment Offenses

According to the preliminary hearing transcript, an employee of a tire store was closing the store when defendant entered. Defendant was wearing a hooded sweatshirt with the hood pulled over his head and his face covered either with a shirt or a mask. Only his eyes were exposed. Defendant approached the employee and started grabbing cash out of the cash drawer. The employee noticed that defendant had a handgun that he believed to be a Glock nine-millimeter. Defendant ordered the employee to the ground. The employee recognized defendant's distinct voice and his eyes and eyebrows; defendant had been a former employee and had worked with the employee at the tire shop for approximately three years. Additionally, the employee knew defendant had a Glock nine-millimeter handgun. After the employee got on the ground, defendant changed his mind and ordered the employee to go to the back of the store. Defendant took the employee to a back room, ordered him to the floor, and took his cell phone. Defendant then went into an adjacent room in which there was a safe. After the employee heard defendant go to the safe, he heard him return to the cash register and then leave. Defendant took $629 in cash from the store.

Defendant was charged with robbery in the second degree ( §§ 211, 212.5 ) and a firearm enhancement under section 12022.53, subdivision (b).

In a separate case, defendant was charged with two counts of second degree commercial burglary of a veterinary hospital. ( § 459.) In each instance, defendant entered by breaking a window and stole property and cash, totaling approximately $8,000.

On November 8, 2013, pursuant to a negotiated agreement, defendant entered a plea of no contest to one count of robbery in the second degree ( §§ 211, 212.5 ) and admitted that, in the course of the robbery, he personally used a firearm ( § 12022.53, subd. (b) ). He also pleaded no contest to one count of commercial burglary ( § 459 ) and the remaining count was dismissed.

Consistent with the negotiated agreement, the trial court sentenced defendant to an aggregate term of 13 years, calculated as follows: the midterm of three years for robbery in the second degree, plus a 10-year term for the section 12022.53, subdivision (b) firearm enhancement. He was sentenced to a two-year concurrent term on the commercial burglary count.

The Secretary's Section 1170(d)(1) Letter

In a letter to the trial court dated November 29, 2018, the Secretary recommended the recall of defendant's sentence and resentencing pursuant to section 1170(d). The Secretary urged the court to consider the amendment to section 12022.53, subdivision (h), which authorized courts to strike or dismiss firearm enhancements in the interest of justice pursuant to section 1385.² The Secretary stated that, while prior to the amendment courts were required to impose firearm enhancements, following its enactment, courts are empowered to exercise their discretion to strike or dismiss such enhancements in the interest of justice at resentencing pursuant to section 1170(d). The Secretary concluded the letter stating: "Having reviewed the enclosed documentation it appears that [defendant's] sentence warrants the attention of the court. Pursuant to ... Section 1170, subdivision (d), as the Secretary, I recommend the inmate's sentence be recalled and that he be resentenced." (Fns. omitted.)

The "enclosed documentation" referenced in the Secretary's letter was a cumulative case summary prepared after a diagnostic study and evaluation of defendant. The summary stated that defendant had not committed any serious rules violations and had no pending disciplinary actions. Urine samples taken were negative for controlled substances. His programming included vocational computer literacy, service dog training, victim impact awareness programs, adult basic education, and voluntary GED. He completed the Substance Abuse Program / Inmate Community Services program. He served as a kitchen cook and recreational monitor. The summary included laudatory reports regarding his participation in this programming. It also noted he had 17 family visits from family who resided out of county.

Without notice to defendant or an opportunity to provide additional information, the trial court declined to recall and resentence him. In its written ruling, it stated it had reviewed the letter and defendant's file and "decline[d] to recall the sentence and resentence defendant pursuant to the newly amended ... [section] 1170(d)(1)." No explanation for the declination was given.

DISCUSSION

I. The Trial Court's Authority to Recall & Resentence Based on a Change in the Law

A. Principles of Statutory Interpretation

" ‘ "Under settled canons of statutory construction, in construing a statute we ascertain the Legislature's intent in order to effectuate the law's purpose. [Citation.] We must look to the statute's words and give them their usual and ordinary meaning. [Citation.] The statute's plain meaning controls the court's interpretation unless its words are ambiguous." [Citations.] If the words in the statute do not, by themselves, provide a reliable indicator of legislative intent, "[s]tatutory ambiguities often may be resolved by examining the context in which the language appears and adopting the construction which best serves to harmonize the statute internally and with related statutes. [Citation.]" [Citation.] " ‘Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute ...; and if a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed [citation].’ [Citations.]" [Citation.] If the statute is ambiguous, we may consider a variety of extrinsic aids, including legislative history, the statute's purpose, and public policy.’ " ( People v. Lucero (2019) 41 Cal.App.5th 370, 394-395, 254 Cal.Rptr.3d 233, quoting People v. Arias (2008) 45 Cal.4th 169, 177, 85 Cal.Rptr.3d 1, 195 P.3d 103.)

B. Jurisdiction, Section 1170(d)(1), and Recall and Resentencing Based on a Change in the Law

"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. Federico (2020) 50 Cal.App.5th 318, 326, 264 Cal.Rptr.3d 61, review granted August 26, 2020, S263082 ( Federico ).) However, section 1170(d)(1) is an exception to this rule. In pertinent part, it authorizes the Secretary to recommend recall and resentencing "at any time" and gives the trial court jurisdiction to do so.

We asked the parties to provide supplemental briefing concerning whether the trial court had the authority to recall and resentence defendant based on a change in the law given that section 1170(d)(1) does not expressly authorize as much and, normally, a defendant is not entitled to an ameliorative benefit of a change in the law after judgment is final. The request asked the parties to address Federico, supra, 50 Cal.App.5th 318, 264 Cal.Rptr.3d 61, which suggested courts have no such authority. ( Id . at p. 327, 264 Cal.Rptr.3d 61.) As we shall explain, we disagree with Federico on this point and conclude the Legislature conferred authority upon trial courts under section 1170(d)(1) to resentence defendants whose cases are final based on an ameliorative change in the law.

Section 1170(d)(1) in effect at the time of the Secretary's letter in the instant case provided: "When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison or a county jail pursuant to subdivision (h) and has been committed to the custody of the secretary or the county correctional administrator, 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 in the case of state prison inmates, the county correctional administrator in the case of county jail inmates, ... 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. The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to...