Recall of sentence recommendation creates a substantial liberty interest with right to notice and to present information to the court

THE PEOPLE, Plaintiff and Respondent, v. JOSE ALEX MENDEZ, Defendant and Appellant. (Cal. Ct. App., Sept. 24, 2021, No. B306301) 2021 WL 4350480

Summary: Jose Alex Mendez appealed  the denial of a recommendation by the secretary of the California Department of Corrections and Rehabilitation (CDCR) to recall his sentence under Penal Code section 1170, subdivision (d)(1). Mendez claimed that the trial court abused its discretion by failing to adequately weigh his postconviction record and by not giving him an opportunity to be heard on  the recommendation by the CDCR to recall his sentence.

The California Code of Regulations requires the secretary to provide a copy of the recommendation letter and Cumulative Case Summary to the prisoner (Cal. Code Regs., tit. 15, § 3076.1, subd. (e)(2)). Here, the secretary also provided copies of the abstract of judgment and minute orders, along with the recommendation letter and Cumulative Case Summary to the Los Angeles County District Attorney’s Office and the Los Angeles County Public Defender’s Office. However, the  trial court did not give  the parties notice or an opportunity to present additional information on the resentencing recommendation. The Court of Appeal reversed because of the substantial liberty interest at stake when the secretary issues a recommendation to recall an inmate’s sentence. The court of appeal  remanded  to the trial court to give notice to the parties, to allow the parties the opportunity to supplement the CDCR’s recommendation with additional relevant information, and to enable the trial court to exercise its discretion based on any briefing the parties might submit.

Procedural Background

Appellant was convicted by a jury in November 2008 of 12 counts of second degree robbery (§ 211) and one count of attempted second degree robbery (§§ 664/211), with personal weapon use enhancement findings as to 12 of the 13 counts (§ 12022.53, subd. (b)). The trial court sentenced appellant to 13 years 8 months on the 13 counts of conviction plus 46 years 8 months on the weapon enhancements, for a total term of 60 years 4 months in prison.

Recommendation for recall of sentence because of discretion to strike weapons enhancements

The secretary of the CDCR recommended, by letter, a recall of appellant’s sentence and resentencing in accordance with section 1170, subdivision (d). The secretary noted that Mendez’s sentence included numerous weapon enhancements under section 12022.53, subdivision (b), which were mandatory at the time of his sentencing. Under  the amendment to section 12022.53, subdivision (h), effective January 1, 2018, “courts are now empowered with discretion to strike or dismiss a personal use firearm enhancement at sentencing or resentencing pursuant to PC Section 1170, subdivision (d), in the interest of justice pursuant to PC Section 1385.” The secretary of CDCR forwarded the abstract of judgment, minute orders, the charging documents, and a cumulative case summary. Based on the secretary’s review of those documents, the secretary “recommend[ed] the inmate’s sentence be recalled and that he be resentenced.”

Trial court rejects resentencing recommendation

The trial court rejected the secretary’s request for recall and resentencing. The court stated it had reviewed the court file, the documents enclosed with the letter, and the reasons for the secretary’s recommendation, including Mendez’s record of good conduct while in prison. The court summarized Mendez’s criminal history and his current offenses. The trial court concluded that “[b]ased on the facts of the commitment offenses plus his prior arrest history the defendant is clearly a danger to the community. The request pursuant to PC 1170(d) therefore is denied.”

Governing Law and the Standard of Review-1170(d)(1)

Section 1170, subdivision (d)(1) was enacted in 1976 as part of California’s Determinate Sentencing Act, which marked the state’s transition from an indeterminate to a determinate sentencing system. (People v. McCallum (2020) 55 Cal.App.5th 202, 210 (McCallum); Dix v. Superior Court (1991) 53 Cal.3d 442, 455 (Dix).) The subdivision operates as “an exception to the common law rule that the court loses resentencing jurisdiction once execution of sentence has begun” (Dix, at p. 455) by authorizing a court to recall the defendant’s sentence “within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary of 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.” (§ 1170, subd. (d)(1); People v. Frazier (2020) 55 Cal.App.5th 858, 863 (Frazier); McCallum, at p. 210.)

“In deciding whether to recall a sentence under section 1170, subdivision (d)(1), the trial court may exercise its authority ‘for any reason rationally related to lawful sentencing.’ (Dix, supra, 53 Cal.3d at p. 456.)” (McCallum, supra, 55 Cal.App.5th at p. 210.) After recalling the sentence, the court may “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).) The court must also “apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing” and grant credit for time served. (§ 1170, subd. (d)(1).)

The 2018 amendment to 1170(d)(1) permit courts to modify judgments and consider postconviction factors, by adding the following language: “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. The court may consider postconviction factors, including, but not limited to, the inmate’s disciplinary record and record of rehabilitation while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the inmate’s risk for future violence, and evidence that reflects that circumstances have changed since the inmate’s original sentencing so that the inmate’s continued incarceration is no longer in the interest of justice.”

The denial of a CDCR recommendation to recall a sentence is appealable. (§ 1237, subd. (b) [appeal lies from “any order made after judgment, affecting the substantial rights of the party”]; see People v. Loper (2015) 60 Cal.4th 1155, 1158, 1163; McCallum, supra, 55 Cal.App.5th at pp. 210, 211, fn. 7.) Review of  the trial court’s decision not to recall an inmate’s sentence is for abuse of discretion and courts will not disturb the ruling absent a showing that “ ‘ “ ‘the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” ’ ” (People v. Miracle (2018) 6 Cal.5th 318, 346–347; McCallum, at p. 211.)

Due process requires notice to the parties and an  opportunity to submit briefing

The regulations enacted to implement section 1170, subdivision (d)(1)’s recall and resentencing authorization require that the recommendation letter and Cumulative Case Summary “be forwarded to the sentencing court and a copy shall be provided to the inmate.” (Cal. Code Regs., tit. 15, § 3076.1, subd. (e)(2).) But section 1170, subdivision (d)(1) does not direct the trial court on providing notice of the CDCR’s recommendation to the parties or on the  parties’ rights to be heard on the merits of the recommendation. (People v. Williams (2021) 65 Cal.App.5th 828, 833 (Williams).)

Due process rights are implicated by the issuance of a CDCR recall and resentencing recommendation.

McCallum, supra, 55 Cal.App.5th 202, concluded that a prisoner has no due process right to a hearing under section 1170, subdivision (d)(1) on the issue of whether the trial court should follow a CDCR recommendation for recall and resentencing. (Id. at pp. 206, 211–216.) However, in light of a prisoner’s “substantial right to liberty implicated by the secretary’s recommendation to recall [the] sentence,” the trial court had abused its discretion by rejecting the secretary’s recommendation without affording the parties an opportunity to present briefing and additional information relevant to the recommendation. (Id. at pp. 206–207, 218–219.)

Here, the trial court gave the parties no notice of the secretary’s recommendation, or of  the court’s intent to rule on it, and the parties had no any opportunity to supplement the recommendation with additional information or briefing. Although the trial court was not required to hold a hearing in considering whether to recall Mendez’s sentence, it was bound to provide notice and consider any relevant information and/or briefing that the parties might submit before ruling on the CDCR recommendation.4 (McCallum, supra, 55 Cal.App.5th at p. 217, citing People v. Loper (2015) 60 Cal.4th 1155, 1167, and People v. Carmony (2004) 33 Cal.4th 367, 375; Williams, supra, 65 Cal.App.5th at pp. 831, 833.)

The court of peel reversed the order denying the California Department of Corrections and Rehabilitation’s recommendation to recall appellant’s sentence is reversed and  remanded to the trial court.  It directed the trial court to allow the parties to submit information relevant to the California Department of Corrections and Rehabilitation’s recommendation and to provide briefing on whether the court should follow the recommendation. The court then shall exercise its discretion whether to recall Mendez’s sentence.

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