Liberty interest in recommendation for re-sentencing under PC 1170(d) gives right to present information to court

People v. McCallum (Cal. Ct. App., Sept. 30, 2020, No. B301267) 2020 WL 5810212, at *1

Resentencing under Penal Code 1170(d)(1)

Penal Code section 1170, subdivision (d)(1) authorizes the trial court to modify a defendant’s sentence upon a recommendation from the Secretary of the Department of Corrections and Rehabilitation (Department), the Board of Parole Hearings, or the district attorney to “recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced ….”

Recommendation by the Department of Corrections and request for briefing and hearing

McCallum had Served 12 years of his third strike sentence of 30 years to life for residential burglary when the Secretary of the Department recommended  sentence be recalled and McCallum be resentenced based on his disciplinary free conduct and positive self-help programming while incarcerated. McCallum’s attorney requested the court hold a case management conference to discuss the Secretary’s recommendation, and if necessary, to set a briefing and hearing schedule.

Trial court declined to recall the sentence or provide an opportunity to submit additional information

 In a minute order the court declined to exercise its discretion to recall McCallum’s sentence. While acknowledging McCallum’s substance abuse counseling and academic classes while in prison, the court noted McCallum’s family and community support was “tenuous, with no identifiable base of support.” The court did not hold a case management conference or any hearing in which to submit additional information for the court’s consideration.

On appeal McCallum argues that he had a due process right to a hearing, and that the trial court abused its discretion in failing to allow him to submit additional information on changed circumstances since he was first sentenced.

McCallum asserts he would have submitted documentation showing acceptance into programs providing the community support the court found lacking.

The Court of Appeal concluded that the statutory language of section 1170, subdivision (d)(1) shows the Legislature did not intend to require a trial court to hold a hearing before acting on a recommendation by the Secretary for recall and resentencing.

Liberty interest in recommendation or re-sentencing

A substantial right to liberty is implicated by the Secretary’s recommendation to recall a sentence (People v. Loper (2015) 60 Cal.4th 1155, 1158, 1163, 184 Cal.Rptr.3d 715, 343 P.3d 895 (Loper)). The  trial court abused its discretion in denying McCallum an opportunity to present information supporting the Secretary’s recommendation.

Moreover, the trial court based its rejection of the Secretary’s recommendation in part on a finding that McCallum had no family or community support, relying on information provided by the Secretary showing McCallum did not have visitors during his 12 years in prison. Information about family and community support upon his release is precisely the type of information that would be known to McCallum, not the Department.

The Court of Appeal reversed and remanded  for the trial court to allow McCallum and the People an opportunity to present additional information relevant to the Secretary’s recommendation, and to exercise its discretion whether to recall McCallum’s sentence. If the court recalls McCallum’s sentence, he would have a right to be present at a resentencing hearing.

1170(d)- statutory exception to the general rule that a trial court loses jurisdiction to reconsider modify the sentence when a defendant is committed

“Section 1170(d) is 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); accord, People v. Delson (1984) 161 Cal.App.3d 56, 62, 207 Cal.Rptr. 244 (Delson) [“[S]ection 1170, subdivision (d) represents a limited statutory exception to the general rule that a trial court loses jurisdiction to reconsider a denial of probation or vacate or modify the sentence when a defendant is committed and execution of sentence begins.”].)

Section 1170, subdivision (d), enacted in 1976 as part of the Determinate Sentencing Act (Dix, at p. 455, 279 Cal.Rptr. 834, 807 P.2d 1063), provides “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, or the district attorney of the county in which the defendant was sentenced, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence.” (§ 1170, subd. (d)(1).)6 Section 1170, subdivision (d)(1), provides further as to resentencing that the court “shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. The court resentencing under this paragraph may reduce a defendant’s term of imprisonment and modify the judgment, including a judgment entered after a plea agreement, if it is in the interest of justice.”

We review the trial court’s decision whether to recall a defendant’s sentence for an abuse of discretion. (Delson, supra, 161 Cal.App.3d at p. 62, 207 Cal.Rptr. 244 [trial court did not abuse its discretion in refusing to set a hearing on Department’s recommendation under § 1170, former subd. (d), for recall of defendant’s sentence and resentencing based on postsentence diagnostic report]; see People v. Gibson (2016) 2 Cal.App.5th 315, 324-325, 206 Cal.Rptr.3d 253 [applying abuse of discretion standard to trial court’s decision whether to recall a defendant’s sentence as a youth offender under § 1170, subd. (d)(2), describing the subdivision’s language allowing recall and resentencing as “permissive”].) “ ‘Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ ” [Citation.] The abuse of discretion standard ‘involves abundant deference’ to the court’s ruling.” (People v. Jefferson (2016) 1 Cal.App.5th 235, 242-243, 204 Cal.Rptr.3d 583)

No right to a Hearing Under Section 1170, Subdivision (d)(1)

 Section 1170, subdivision (d)(1), is silent as to whether the trial court must hold a hearing prior to ruling on the Secretary’s recommendation for recall and resentencing. We therefore interpret subdivision (d)(1) in light of the language used in other subdivisions of section 1170. (See Digital Realty Trust, Inc. v. Somers (2018) ––– U.S. ––––, [138 S.Ct. 767, 777], 200 L.Ed.2d 15 [“ ‘[W]hen Congress “ ‘includes particular language in one section of a statute but omits it in another[,] … this Court presumes that Congress intended a difference in meaning.’ ”];

The legislature identified instances when a hearing should be held:

• Subdivision (e)(3) of section 1170 provides that upon receiving a positive recommendation from the Secretary, “the court shall hold a hearing to consider whether the prisoner’s sentence should be recalled.”
• Section 1170, former subdivision (f), likewise provided that within one year after a defendant’s prison term commenced, the Board of Prison Terms was required to review the sentence to determine “comparative disparity” relative to other defendants’ sentences. (Dix, supra, 53 Cal.3d at p. 458, 279 Cal.Rptr. 834, 807 P.2d 1063.) The subdivision provided that within 120 days of the trial court being notified of a determination of disparity, the “court ‘shall schedule a hearing and [after considering the Board’s information] may recall the sentence and commitment … and resentence the defendant in the same manner as if the defendant had not been sentenced previously ….’ ” (Dix, at p. 458, 279 Cal.Rptr. 834, 807 P.2d 1063, quoting § 1170, former subd. (f)(1).)

The absence of any similar language in subdivision (d) indicates the Legislature did not intend to require a hearing under that provision.” Further, “[i]t is evident that had the Legislature intended to depart from tradition and create a new procedural requirement for a hearing in enacting section 1170, subdivision (d), it would have explicitly said so.” (Delson, at p. 61, 207 Cal.Rptr. 244.)

No right to a hearing on whether to recall a sentence

The fact a defendant has a right to a resentencing hearing, however, does not mean the defendant has a right to a hearing on whether to recall his or her sentence. (See People v. Oehmigen (2014) 232 Cal.App.4th 1, 6, 181 Cal.Rptr.3d 569 [Proposition 36 accords “the right to a resentencing hearing only upon a showing that he is eligible,” but it does not provide “a right to a hearing on the issue of eligibility”]; People v. Bradford, supra, 227 Cal.App.4th at p. 1337, 174 Cal.Rptr.3d 499 [§ 1170.126 “does not expressly require the trial court to hold a hearing before considering the eligibility criteria, nor is there a reference to the taking of ‘evidence’ or other proceeding that would compel involvement by the parties”].)

Abused of discretion to reject resentencing recommendation without right to present information

 After McCallum requested an opportunity to respond to the Secretary’s recommendation by requesting a case management conference and possible briefing and presentation of evidence,  the trial court’s decision to ignore McCallum’s request to provide input on the Secretary’s recommendation was an abuse of discretion.

The Supreme Court’s decision in Loper, supra, 60 Cal.4th 1155, 184 Cal.Rptr.3d 715, 343 P.3d 895 is instructive. The Loper court considered whether a defendant could appeal a trial court’s ruling denying the recommendation by the Department to recall the defendant’s sentence pursuant to the compassionate release provisions of section 1170, subdivision (e). The Supreme Court held the defendant had a right to appeal the trial court’s denial of compassionate release pursuant to section 1237, subdivision (b), because the court’s denial “was an order made after judgment that affected [the] defendant’s substantial rights.” (Loper, at pp. 1158, 1168, 184 Cal.Rptr.3d 715, 343 P.3d 895.)

In reaching this conclusion, the Supreme Court disapproved two opinions that held the defendant could not appeal denial of his motion to recall his sentence under section 1170, former subdivision (d) (and the predecessor statute), on the basis the statute did not authorize the defendant to initiate a request to recall a sentence. (Loper, at pp. 1166-1167, 184 Cal.Rptr.3d 715, 343 P.3d 895, disapproving People v. Druschel (1982) 132 Cal.App.3d 667, 183 Cal.Rptr. 348 and People v. Niren (1978) 76 Cal.App.3d 850, 851, 143 Cal.Rptr. 130.) The Loper court analogized a defendant’s right to seek recall of his or her sentence under section 1170, subdivision (d)(1), to a defendant’s right to invite a trial court to exercise its power to strike a count or allegation of an accusatory pleading, explaining, “ ‘ “[T]he court must consider evidence offered by the defendant in support of his assertion that the dismissal would be in furtherance of justice.” ’ ” (Loper, at p. 1167, 184 Cal.Rptr.3d 715, 343 P.3d 895, quoting People v. Carmony (2004) 33 Cal.4th 367, 375, 14 Cal.Rptr.3d 880, 92 P.3d 369 (Carmony).)

Here,  the trial court had jurisdiction to recall McCallum’s sentence because the Secretary made  a recommendation. Thus, as in Carmony, upon a request by McCallum, the trial court was required to consider evidence in support of the Secretary’s recommendation.

Allowing McCallum to submit additional information showing his rehabilitation and reentry plans is also consistent with the Legislature’s express findings and declarations for section 1170, amended in 2016 (effective January 1, 2017) as part of Assembly Bill No. 2590 (2015-2016 Reg. Sess.), explaining “the purpose of sentencing is public safety achieved through punishment, rehabilitation, and restorative justice.” (§ 1170, subd. (a)(1).)

In addition, Assembly Bill No. 2590 amended section 1170, subdivision (a)(2), to declare that the Department should make available for inmates “educational, rehabilitative, and restorative justice programs that are designed to promote behavior change and to prepare all eligible offenders for successful reentry into the community” and develop “policies and programs designed to educate and rehabilitate all eligible offenders.”

The trial court’s rejection of the Secretary’s recommendation without an opportunity for McCallum to present this information was an abuse of discretion.17 (People v. Miracle, supra, 6 Cal.5th at pp. 346-347, 240 Cal.Rptr.3d 381, 430 P.3d 847; People v. Gibson, supra, 2 Cal.App.5th at pp. 324-325, 2 Cal.App.5th 315, 206 Cal.Rptr.3d 253; Delson, supra, 161 Cal.App.3d at p. 62, 207 Cal.Rptr. 244.)

The Court of Appeal remanded to the trial court to allow the parties to submit information relevant to the Secretary’s recommendation and to provide briefing on whether the trial court should follow the Secretary’s recommendation. Upon receipt of this information, the court is to exercise its discretion whether to recall and resentence McCallum.