1172.1 Presumption For Recalling And Resentencing Is Not A Presumption As To A Particular Sentence
People v. Braggs (Cal. Ct. App., Nov. 30, 2022, No. H049710) 2022 WL 17335172, at *1
Summary: In 2014, Braggs pleaded no contest to second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c))1 and second degree burglary (§§ 459, 460, subd. (b)). Braggs admitted that he had suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), that he had suffered one prior serious felony conviction (§ 667, former subd. (a)), and that he had served two prior prison terms (§ 667.5, former subd. (b)). Brags was sentenced to 13 years in prison.
In 2020, the Secretary of the Department of Corrections and Rehabilitation (CDCR) recommended that Braggs’ sentence be recalled and that he be resentenced pursuant to then section 1170, subdivision (d). The recommendation by the Secretary of the CDCR (Secretary) was based on a change in the law that gives a trial court the discretion to strike a prior serious felony enhancement (see §§ 667, subd. (a)(1), 1385). The court in defendant’s case ultimately granted the request to recall his sentence and to resentence him. The resentencing hearing was held on January 10, 2022. Due to another change in the law, the prior prison term enhancements were no longer applicable to defendant. The court did not impose those enhancements, but it imposed the same sentence as the original sentence, including the five-year prior serious felony enhancement, which resulted in a total term of 11 years. The court awarded custody credits, ordered a stayed restitution fine and a suspended parole revocation restitution fine, and advised defendant of a three-year parole period.
- On appeal, Braggs contends that the case must be remanded for resentencing pursuant to the Secretary’s recommendation because the trial court failed to apply a new statutory “presumption favoring recall and resentencing,” which went into effect a few days prior to the January 10, 2022 resentencing hearing. (Former § 1170.03, subd. (b)(2), renumbered as § 1172.1, subd. (b)(2).) Braggs contends that even if the court was aware of the statutory presumption, there is nothing in the record to support a finding that he is “an unreasonable risk of danger to public safety,” which is required in order to overcome the presumption. (Former § 1170.03, subd. (b)(2), renumbered as § 1172.1, subd. (b)(2).) Second, he contends that his excess custody credits should be applied to his restitution fines and parole period.
- The Court of Appeal reversed the judgment and remand the matter for resentencing on the limited issues of whether Braggs has excess custody time and whether and to what extent he is entitled to credit against his restitution fines and parole period.
The CDCR Recommendation for Recall of Sentence and Resentencing
In a letter to the trial court dated February 20, 2020, the Secretary recommended that Braggs’ sentence be recalled and that he be resentenced pursuant to section 1170, subdivision (d). The basis for the recommendation was a change in the law that gave trial courts the discretion to strike a prior serious felony enhancement (see §§ 667, subd. (a)(1), 1385). Braggs contended that based on changes in the law, (1) his five-year prior serious felony enhancement could be stricken at the trial court’s discretion (§§ 667, subd. (a), 1385) and (2) the one-year prior prison term enhancements no longer applied to him (§ 667.5, subd. (b)). Braggs also argued that he was entitled to a full resentencing, including the trial court considering the dismissal of his prior strikes. He argued that pursuant to recent caselaw, the trial court had the authority under section 1170, subdivision (d)(1) to recall and resentence him based on changes in the law even though the judgment in his case was already final. He asserted that effective January 1, 2022, an amendment to section 667.5, subdivision (b), would render his prior prison term enhancements legally invalid.
The trial court held a hearing under Penal Code Section 1170(d)(1) and recalled Braggs’ striking one of his prior strike convictions. The Court sentenced Braggs to 11 years in prison. The sentence consists of six years (the middle term, doubled) on count 1 and a consecutive five-year term for the prior serious felony enhancement (§ 667, subd. (a)). The court explained that the two, one-year prior prison term enhancements (§ 667.5, former subd. (b)) would not be imposed because they were “no longer legally valid.” The court stayed the term for count 2 pursuant to section 654.
Recall and Resentencing
Braggs contends that the trial court failed to apply a new statutory “presumption favoring recall and resentencing,” which went into effect a few days prior to the January 10, 2022 resentencing hearing. (Former § 1170.03, subd. (b)(2), renumbered as § 1172.1, subd. (b)(2).) Braggs argued that there is nothing in the record to support a finding that the presumption had been overcome, that is, by evidence that he is “an unreasonable risk of danger to public safety.” (Former § 1170.03, subd. (b)(2), renumbered as § 1172.1, subd. (b)(2).)
Prior to January 1, 2022: Section 1170, Former Subdivision (d)(1)
Prior to January 1, 2022, section 1170, former subdivision (d)(1) (former section 1170(d)(1)) “authorize[d] the Secretary of the CDCR to recommend to the superior court that the court recall a previously imposed sentence and resentence the defendant.
On and After January 1, 2022: Former Section 1170.03 Renumbered as Current Section 1172.1
“Assembly Bill No. 1540, effective on January 1, 2022, moved the recall and resentencing provisions of former section 1170(d)(1) to new section 1170.03.
Effective June 30, 2022, the Legislature … renumbered section 1170.03 to section 1172.1. Section 1172.1 provides that if the “resentencing request … is from the Secretary of the Department of Corrections and Rehabilitation,” then “[t]here shall be a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18.” Subdivision (c) of section 1170.18 defines an unreasonable risk of danger to public safety as an unreasonable risk that the [defendant] will commit a new violent felony within the meaning of section 667, subdivision (e)(2)(C)(iv)].
The trial court recalled the sentence and resentenced Braggs. On resentencing, the court did not strike the prior serious felony enhancement as discussed in the Secretary’s letter, nothing in former section 1170.03 or current section 1172.1 provides for a presumption in favor of the Secretary’s particular recommended sentence. The statute provides for a presumption regarding recalling and resentencing a defendant, but not a presumption as to a particular sentence recommended by the Secretary.
The legislative history indicates that the presumption is intended to apply to the initial determination of whether to grant a request to recall and resentence, but that the sentence ultimately imposed by the court is left to its discretion without any further application of the presumption.
The Court of Appeal conclude that Braggs failed to demonstrate prejudicial error by the trial court’s failure to properly apply the presumption in favor of recall and resentencing under former section 1170.03 (renumbered as § 1172.1, subd. (b)(2)).
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