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Recommendation for resentencing by Secretary of CDCR gives prisoner due process right to notice, to be heard as reasons for court’s decision

People v. Pillsbury (Cal. Ct. App., Sept. 30, 2021, No. C089002) 2021 WL

Summary: Pillsbury was convicted of one count of robbery in the second degree with firearm enhancement and one count of commercial burglary. The Secretary of Department of Corrections and Rehabilitation (CDCR) submitted a letter to trial court recommending that defendant’s aggregate sentence of 13 years be recalled and that defendant be resentenced under statutory amendment authorizing courts to strike or dismiss firearm enhancements in interest of justice. The Superior Court, Sacramento County, summarily declined to recall and resentence Pillsbury without providing him notice or opportunity to provide additional information. Pillsbury appealed.

The Court of Appeal held that:
1 trial court was statutorily authorized to resentence Pillsbury based on change in law despite finality of judgment;
2 trial court had statutory authority to depart from terms of plea agreement when resentencing; 3 due process entitled Pillsbury to notice and opportunity to be heard before summary declination of recommendation;
4 due process required trial court to provide statement of reasons for summary declination; but 5 Pillsbury did not have right to counsel before trial court summarily declined
This case addressed issues related to the 2018 amendments to Penal Code section 1170, subdivision (d) and the Department of Corrections and Rehabilitation (CDCR) program related to those amendments. The court concluded that when the the Secretary of CDCR (the Secretary) makes a recommendation for resentencing, 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 result of a plea agreement. Trial courts have the authority to summarily decline to recall and resentence but 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. When the prosecution has not weighed in prior to the trial court’s summary declination, defendants do not have a constitutional right to counsel.

The Secretary’s Section 1170(d)(1) Letter
In a letter to the trial court the Secretary recommended the recall of defendant’s sentence and resentencing pursuant to section 1170(d). The Secretary asked 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 have 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.”
The “enclosed documentation” was a cumulative case summary prepared after a diagnostic study and evaluation of Pillsbury. The summary stated that Pillsbury had not committed any serious rules violations and had no pending disciplinary actions. He had completed numerous programs including 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 was given.
The Trial Court’s Authority to Recall & Resentence 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.

Section 1170(d)(1) does not expressly authorize resentencing based on a change in the law and normally, a defendant is not entitled to an ameliorative benefit of a change in the law after judgment is final. Federico, supra, 50 Cal.App.5th 318, suggested courts have no such authority. The court disagreed with Federico on this point and concluded 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.
The court concluded it was within the authority of the trial court to recall defendant’s sentence and then resentence him by exercising its discretion to dismiss or strike the firearm enhancement under section 12022.53 subdivision (h) and 1385, subdivision (a), providing him the benefit of the change in the law. Section 1170(d)(1) authorizes the Secretary to make the recommendation “at any time.” It then authorizes the court to “modify the judgment” and places no limitations on when this can be done. A plain reading of the statutory language leads to the conclusion that the court can modify the judgement “at any time,” even after the judgment has become final.
The plain language of the ameliorative change to the firearm enhancement statute provides that the authority to strike or dismiss a firearm enhancement “applies to any resentencing that may occur pursuant to any other law.” (§ 12022.53, subd. (h).) A resentencing after a recall under section 1170(d)(1) is a resentencing pursuant to law.
The law concerning resentencing generally
In People v. Buycks (2018) 5 Cal.5th 857, 236 Cal.Rptr.3d 84, 422 P.3d 531 (Buycks), the court noted that, under the recall provisions of section 1170(d), trial courts have jurisdiction to modify “every aspect of the defendant’s sentence.” (Buycks, at p. 893, 236 Cal.Rptr.3d 84, 422 P.3d 531.) The Buycks court added: “In this situation, we have recognized that the resentencing court may consider ‘any pertinent circumstances which have arisen since the prior sentence was imposed.’ ” (Ibid.) A change in the law is a “pertinent circumstance[ ].”

Liberty Interest
In People v. Loper (2015) 60 Cal.4th 1155, 184 Cal.Rptr.3d 715, 343 P.3d 895 (Loper), our high court recognized that a different subdivision of section 1170 — subdivision (e) providing criteria for the “compassionate release” of fatally ill prisoners — created a sufficient “substantial interest in personal liberty” to establish a right to appeal a denial for purposes of section 1237.4 even though a defendant does not have a right to initiate such a proceeding. The court concluded the defendant’s personal liberty was a substantial interest. (Loper, at p. 1161, fn. 3, 184 Cal.Rptr.3d 715, 343 P.3d 895.) The court stated: “By providing a mechanism for releasing eligible prisoners from custody, section 1170(e) implicates a prisoner’s substantial interest in personal liberty.” (Ibid.)
Section 1170(d)(1) involves a similar liberty interest to that recognized by our high court in section 1170, subdivision (e) (section 1170(e)). The provisions of section 1170(d)(1), like the provisions of section 1170(e) addressed by our high court in Loper, “implicates a prisoner’s substantial interest in personal liberty” (Loper, supra, 60 Cal.4th at p. 1161, fn. 3, 184 Cal.Rptr.3d 715, 343 P.3d 895), and thus gives rise to a liberty interest entitled to due process protection.
Notice and Opportunity to be Heard-four factors weighed
The Private Interest
Pillsbury’s private interest at stake is his liberty. If the trial court were to recall his sentence, resentence him, and strike the firearm enhancement pursuant to sections 12022.53, subdivision (h) and 1385, subdivision (a), and decline to resentence him on the concurrent sentence for the commercial burglary, he would be subject to release as he would have served the entirety of his three-year term imposed on count one, robbery in the second degree.
This factor weighs in favor of a conclusion that he is entitled to notice and an opportunity to be heard.The Risk of an Erroneous Deprivation of the Private Interest
The risk of an erroneous deprivation of defendant’s freedom through a procedure that denies a defendant the opportunity to be heard lies in the possibility that the court will not be apprised of additional information from defendant it should consider in exercising its discretion under section 1170(d)(1). Pillsbury may have had more programming or support letters to submit.Also, if materials submitted by the Secretary were inaccurate, defendant could have pointed this out. If defendant were afforded the opportunity to be heard, it is far more likely that all relevant facts, circumstances, and arguments could be considered by the trial court before it considered whether to grant a hearing or summarily decline to recall and resentence.This factor weighs in favor of notice and an opportunity to be heard.
Government’s Interest
There is a governmental interest in affording courts the opportunity to summarily reject frivolous applications to the court. But a recommendation from the Secretary made pursuant to regulations promulgated by CDCR poses less risk that any one application would be completely frivolous. The state has a legitimate financial interest in preserving its scarce justice system resources. However, the enactment of the 2018 amendments to section 1170(d) signals that a legislative determination has been made that the use of judicial resources to provide second chances to some individuals is warranted.*9 Thus, on balance, the governmental interest factor weighs in favor requiring notice and an opportunity to be heard.

Dignitary Interest
The dignitary interest in informing individuals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a responsible government official is a factor related to the due process provision of our state Constitution. Prisoners are entitled to respect and to participate in proceedings affecting their liberty interests.
The dignity interest factor also weighs in favor of affording defendants notice and an opportunity to be heard.
Holding: A defendant for whom the Secretary has written a section 1170(d) recommendation based on a change in the law is constitutionally entitled to notice and an opportunity to be heard as a matter of due process. Due process requires that: (1) the court to give defendants notice it is considering summary declination; (2) the notice should inform defendants they may provide additional documentation or evidence to the court before the court rules; (3) the notice should give a reasonable and specific time to respond; and (4) the notice should provide defendants information stating the precise place to send their response.
Statement of Reasons
Due process requires a statement of reasons.

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