Correction of a sentencing error is not “resentencing” a defendant but merely “correcting an abstract of judgment”

(People v. Abdullah (Aug. 1, 2019, No. B290563) ___Cal.App.5th___ [2019 Cal. App. LEXIS 709].)

In 2002, Warith Deen Abdullah was convicted of 13 counts of armed robbery and one count of assault with a deadly weapon, and sentenced to 48 years four months in state prison. The sentence included firearm enhancements under Penal Code former section 12022.531 that were mandatory at the time of the sentencing. In 2017, the Department of Corrections and Rehabilitation (DCR) sent a letter to the trial court calling attention to errors in Abdullah’s abstract of judgment. Before the trial court, Abdullah argued that the court must hold a new hearing to sentence him “in the same manner as if he … had not law that came into effect after his original sentencing.

Abdullah argued that the court must exercise its discretion whether to strike his firearm enhancements pursuant to recently enacted Senate Bill No. 620 The trial court refused to consider striking the enhancements and instead simply corrected the errors in the abstract of judgment without altering the length of Abdullah’s sentence.

The Sentencing Error

In 2017, the DCR sent a letter to the trial court stating that it had discovered possible errors in. The letter stated that with respect to five of Abdullah’s second degree robbery counts, the abstract of judgment and the minute order indicated a sentence of two years, or one-third the middle term for the offense, to be served concurrently with the other terms of his sentence. One-third middle term sentences, however, may be imposed only on counts for which the trial court imposes a consecutive sentence. (See § 1170.1, subd. (a).) The letter noted a similar problem with respect to the firearm enhancements corresponding to the same convictions, which were also listed at one-third of the full term. Finally, the abstract of judgment and minute order reflected three enhancements of five years each under section 667.5, subdivision (a), but, the letter noted, enhancements under that subdivision are three years.

On June 1, 2018, at a hearing before the trial court, Abdullah’s counsel argued that the court was required to hold a new sentencing hearing to correct these errors, and that he should receive the benefit of changes in the law enacted after his initial sentencing giving the trial court discretion under authority recently granted by Senate Bill No. 620 to strike his firearm enhancements.

Correction of a sentencing error is not a “resentencing”

The trial court denied the request on the ground that the proceeding was “not a resentencing,” but that the court instead was “correcting the abstract of judgment.” The court corrected the terms of the concurrent sentences and firearm enhancements to run for their full length, rather than one-third. The court also amended the abstract of judgment to state that a five-year serious felony enhancement was imposed pursuant to section 667, subdivision (a)(1), instead of section 667.5, subdivision (a). None of these corrections altered the aggregate length of Abdullah’s sentence, which remained 43 years.

Trial Court’s Inherent Authority to Correct an Unauthorized Sentence is Not a Recall of Sentence

The Court of Appeal held that the trial court acted properly under its inherent authority to correct an unauthorized sentence, while making clear that it was not recalling defendant’s sentence (Pen. Code, § 1170, subd. (d)(1)).  The court was not required to resentence defendant in the same manner as if defendant had not previously been sentenced. Due process did not require a resentencing hearing or consideration of whether to strike the enhancements because the errors in the abstract of judgment did not fundamentally infect the entire sentencing scheme. The errors pertained only to the length of concurrent terms, and correction of the errors did not affect the other components of defendant’s sentence and did not alter the aggregate length of defendant’s sentence.

Trial Court’s jurisdiction to Change a Sentence

A trial court is without jurisdiction to change a criminal defendant’s sentence once execution of the sentence has commenced with some exceptions. The imposition of a sentence not statutorily authorized is subject to correction whenever it comes to a court’s attention. A sentence is unauthorized when it could not lawfully be imposed under any circumstance in the particular case. When a trial court becomes aware that a defendant’s sentence is unauthorized, that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the court. The court’s authority to correct unauthorized sentences is a strictly judicial function. Another exception is the court’s power to recall a sentence under Pen. Code, § 1170, subd. (d)(1). A trial court may exercise its authority under Pen. Code, § 1170, subd. (d)(1), for any reason rationally related to lawful sentencing, not merely to correct a disparity of sentence

The trial court followed the required procedure to correct these errors.