section 1170(d) recall of sentence in California

2022Abuse of Discretion “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.’ ” (People v. McCallum, supra, 55 Cal.App.5th 202 , 210.) We review the courts “order declining to follow the Secretary’s recommendation for abuse of discretion.” (People v. Frazier, supra, 55 Cal.App.5th 858 , 863.) Its decision “ ‘will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest

2022Abuse of Discretion “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.’ ” (People v. McCallum, supra, 55 Cal.App.5th 202 , 210.) We review the courts “order declining to follow the Secretary’s recommendation for abuse of discretion.” (People v. Frazier, supra, 55 Cal.App.5th 858 , 863.) Its decision “ ‘will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest

2022If the court elects to follow the CDCR’s recommendation, it must “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.” (Ibid.) “[U]nder the recall provisions of section 1170, subdivision (d), the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.” (People v. Buycks (2018) 5 Cal.5th 857, 893 .) It “may . . . impose any otherwise lawful resentence suggested by the facts available at the time of resentencing.”

2022The statute allowed the court to “resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence.” (Fmr. § 1170, subd. (d)(1).) As the Supreme Court explained, “under the recall provisions of section 1170, subdivision (d), the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.” (People v. Buycks (2018) 5 Cal.5th 857, 893 .) It “may . . . impose any otherwise lawful resentence suggested by the facts available at the

2016Consistent with Graham, Miller repeatedly made clear that the sentencing authority must address this risk of error by considering how children are different and how those differences counsel against a sentence of life without parole ' before imposing a particular penalty.' ( Miller, supra, 567 U.S. ---- 132 S.Ct. at p. 2471 , italics added; see id. at pp. ----, 132 S.Ct. at pp. 2469, 2475.)" ( Gutierrez, supra, at pp. 1386-1387 , 171 Cal.Rptr.3d 421 , 324 P.3d 245 .) *721 In short, our Supreme Court has recognized a statutory promise of future correction of a presently unconstitutional sentenc

2016Consistent with Graham, Miller repeatedly made clear that the sentencing authority must address this risk of error by considering how children are different and how those differences counsel against a sentence of life without parole ' before imposing a particular penalty.' ( Miller, supra, 567 U.S. ---- 132 S.Ct. at p. 2471 , italics added; see id. at pp. ----, 132 S.Ct. at pp. 2469, 2475.)" ( Gutierrez, supra, at pp. 1386-1387 , 171 Cal.Rptr.3d 421 , 324 P.3d 245 .) *721 In short, our Supreme Court has recognized a statutory promise of future correction of a presently unconstitutional sentenc

2022(People v. Federico, supra, 50 Cal.App.5th at p. 322.) In September 2018, the Secretary of the Department of Corrections and Rehabilitation sent a letter to the trial court providing it with the authority to recall the sentence pursuant to section 1170, subdivision (d)(1) based on authority subsequent to his conviction that rendered the sentence unauthorized.

2021(See Hwang, supra, 60 Cal.App.5th at pp. 366-367, review granted [transfer to juvenile court for juvenile adjudication and disposition required by Senate Bill 1391 upon recall of sentence under section 1170, subdivision (d)(1), where defendant was 15 years old at the time of his offense]; People v. Lopez (2020) 56 Cal.App.5th 835 , 839, review granted Jan. 27, 2021, S265936 (Lopez) [transfer hearing required upon recall of sentence under section 1170, subdivision (d)(1), to correct sentence in light of intervening California Supreme Court decision]; Padilla, supra, 50 Cal.App.5th at pp. 253-25

2024Under the “full resentencing rule,” the resentencing court, “when it resentences on the eligible felony conviction, must also resentence the defendant generally and must therefore reevaluate the continued applicability of any enhancement based on a prior felony conviction.” (People v. Buycks (2018) 5 Cal.5th 857, 894 ; see also People v. Hubbard (2018) 27 Cal.App.5th 9, 13 [“Even though defendant’s eligibility for resentencing was based solely on the reckless evasion conviction, . . . , once the trial court ‘recalled’ his sentence under Proposition 36, the trial court was ‘entitled to consider

2023(See People v. Cepeda (2021) 70 Cal.App.5th 456 , 471 [remanding for resentencing after sentence was recalled based on CDCR’s recommendation and explaining, “on remand, the trial court may exercise its discretion to strike the enhancement, otherwise reduce [the defendant’s sentence], or reinstate the sentence previously imposed”]; see generally People v. Garner (2016) 244 Cal.App.4th 1113, 1118 [“When a sentence is subject to ‘recall’ under section 1170, subdivision (d), the entire sentence may be reconsidered.”].) On this basis, we conclude remand is required.

2020(Hill, supra, 185 Cal.App.3d at p. 834 .) Defendant further contends that recall of a sentence under section 1170, subdivision (d), permits the trial court to consider any relevant circumstances that have occurred since a defendant was originally sentenced, under the “full resentencing rule,” as named in People v. Buycks (2018) 5 Cal.5th 857, 893-894 (Buycks).

2019The court had the authority to correct the unauthorized 6 In the letter, the DCR cited Hill for the unobjectionable proposition that when resentencing a defendant, “the trial court may reconsider all sentencing choices” and is “[n]ot limited to merely striking illegal portions.” (Hill, supra, 185 Cal.App.3d at p. 834 .) Although Hill involved the application of section 1170, subdivision (d)(1), we do not consider the DCR’s citation as a recommendation to resentence Abdullah pursuant to that subdivision. 8 sentence independently of section 1170, subdivision (d)(1), and it did so.7 Because the t

2014(See People v. Pritchett (1993) 20 Cal.App.4th 190, 193 [ 24 Cal.Rptr.2d 391 ] [defendant does not have standing to initiate a motion to recall a sentence under § 1170, subd. (d)]; People v. Turrin (2009) 176 Cal.App.4th 1200, 1204-1205 [ 98 Cal.Rptr.3d 471 ] [same].) Thus, if the court had merely resentenced Espinosa to a term authorized when the original sentence was pronounced, it would have acted within its jurisdiction.

2014(See People v. Pritchett (1993) 20 Cal.App.4th 190, 193 [ 24 Cal.Rptr.2d 391 ] [defendant does not have standing to initiate a motion to recall a sentence under § 1170, subd. (d)]; People v. Turrin (2009) 176 Cal.App.4th 1200, 1204-1205 [ 98 Cal.Rptr.3d 471 ] [same].) Thus, if the court had merely resentenced Espinosa to a term authorized when the original sentence was pronounced, it would have acted within its jurisdiction.

2025(See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117 [“Where different words or phrases are used in the same connection in different parts of a statute, it is presumed the Legislature intended a different meaning.”]; People v. Buycks (2018) 5 Cal.5th 857, 880 , quoting Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 576 [“‘When the Legislature “has employed a term or phrase in one place and excluded it in another, it should not be implied where excluded.”’”].) We conclude the 15-year statutory period of incarceration in section 1170(d)(1)(A)

2024Under the “full resentencing rule,” the resentencing court, “when it resentences on the eligible felony conviction, must also resentence the defendant generally and must therefore reevaluate the continued applicability of any enhancement based on a prior felony conviction.” (People v. Buycks (2018) 5 Cal.5th 857, 894 ; see also People v. Hubbard (2018) 27 Cal.App.5th 9, 13 [“Even though defendant’s eligibility for resentencing was based solely on the reckless evasion conviction, . . . , once the trial court ‘recalled’ his sentence under Proposition 36, the trial court was ‘entitled to consider

2024Where a sentencing court was not aware of the full scope of its discretionary powers under section 1170, subdivision (b)(6)(A) at the time it sentenced the defendant, “ ‘the appropriate remedy is to remand for resentencing unless the record “clearly indicate[s]” that the trial court would have reached the same conclusion “even if it had been aware that it had such discretion.” ’ ” (Salazar, supra, 15 Cal.5th at p. 419, quoting People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 .) In other words, we must remand for resentencing unless the record “clearly indicates” that the trial court would have

2017If anything, a decision to recall the sentence pursuant to section 1170(d)(2) is a recognition that the initial judgment of incorrigibility underlying the imposition of life without parole turned out to be erroneous." ( Gutierrez , at pp. 1386-1387, 171 Cal.Rptr.3d 421 , 324 P.3d 245 .) The Court of Appeal below acknowledged Gutierrez 's determination that the prospect of resentencing under section 1170(d)(2) represents an inadequate response to the concerns implicated by a court's failure to properly *1052 integrate the Miller factors into its initial sentencing decision.

2014(Cf. People v. Druschel (1982) 132 Cal.App.3d 667, 668-669 ["By its own terms, defendant has no standing to make a motion for recall of sentence pursuant to Penal Code section 1170, subdivision (d), and the denial of such a motion is not one which affects the 13 The May 30, 2008 restitution order was apparently entered at sentencing, which is an appealable final judgment.

2013An appellate decision explained the reasoning as follows: “By its own terms, defendant has no standing to make a motion for recall of sentence pursuant to Penal Code section 1170, subdivision (d), and the denial of such a motion is not one which affects the substantial rights of the defendant within the 6 Section 1170 has been amended to add subdivision (d)(2), a separate provision that permits defendants serving sentences of life without the possibility of parole for crimes committed when they were under 18 to “submit to the sentencing court a petition for recall and resentencing.” As explain

2025Yet, no explanation was offered for a month-long delay until the day of sentencing to raise the issue of childhood trauma triggering potential application of the statutory presumption for a lower term sentence under section 1170, subdivision (b)(6). (§ 1170, subd. (b)(6)(A); People v. Tilley (2023) 92 Cal.App.5th 772 [“section 1170(b)(6), created a presumption in favor of the lower term if a defendant’s psychological, physical, or childhood trauma contributed to the commission of the offense”]; see also People v. Salazar (2023) 15 Cal.5th 416 , 419.) Nor does defendant’s claim that there was s

2024Where a sentencing court was not aware of the full scope of its discretionary powers under section 1170, subdivision (b)(6)(A) at the time it sentenced the defendant, “ ‘the appropriate remedy is to remand for resentencing unless the record “clearly indicate[s]” that the trial court would have reached the same conclusion “even if it had been aware that it had such discretion.” ’ ” (Salazar, supra, 15 Cal.5th at p. 419, quoting People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 .) In other words, we must remand for resentencing unless the record “clearly indicates” that the trial court would have

2021The 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.’ ” (Ibid., fn. omitted.) “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.’ [Citation.] Further, section 1170, subdivision (d)(1), expressly authorizes the court in resentencing a defendant to consider ‘postconviction factors, including, but not limited to, the i

2021(People v. Delson (1984) 161 Cal.App.3d 56, 60 , 62–63 [no abuse of discretion in declining to modify sentence under § 1170, subd. (d)]; People v. Pearson, 6 supra, 38 Cal.App.5th at pp. 117–118 [no abuse of discretion in declining to strike firearm enhancement].) Neither Bailey’s dissatisfaction with the court’s weighing of the postconviction factors in section 1170, subdivision (d)(1), nor his desire for a different result, demonstrates an abuse of discretion.

2026(Stats. 2017, ch. 684, § 1.5; see People v. Hardin (2024) 15 Cal.5th 834 , 845.) In so doing, the Legislature did not indicate that it intended to end resentencing for juvenile offenders with LWOP sentences under Section 1170(d), and, as the Supreme Court has long recognized, “[a]bsent an express declaration of legislative intent, we will find an implied repeal ‘only when there is no rational basis for harmonizing the two potentially conflicting statutes.’ ” (Garris v. McCutchen (1997) 16 Cal.4th 469, 477 .) Accordingly, in determining whether an individual was sentenced to “imprisonment for l

2025The Supreme Court in Contreras did not address whether a sentence of 50 years to life for a juvenile offender who committed homicide is the functional equivalent of life without parole for purposes of eligibility under section 1170, subdivision (d)(1).” (Munoz, supra, 110 Cal.App.5th at pp. 510-511.) Munoz’s interpretation of Contreras is supported by language in People v. Hardin (2024) 15 Cal.5th 834 .

2026(Heard, supra, 83 Cal.App.5th at p. 622.) The court of appeal agreed as to defendant’s equal protection claim, holding that “denying juvenile offenders sentenced to the functional equivalent of [LWOP] the opportunity to petition for resentencing under this provision violates the constitutional guarantee of equal protection of the laws.” (Ibid.) In concluding that defendant had a right to petition for recall under section 1170, subdivision (d)(1), under the Equal Protection Clause, the court rejected the argument that “Heard’s eligibility for a youth offender parole hearing under section 3051”

2026On October 29, 2024, defendant filed a petition for a recall of sentence pursuant to section 1170, subdivision (d) and People v. Heard (2022) 83 Cal.App.5th 608 (Heard).

2022Abuse of Discretion “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.’ ” (People v. McCallum, supra, 55 Cal.App.5th 202 , 210.) We review the courts “order declining to follow the Secretary’s recommendation for abuse of discretion.” (People v. Frazier, supra, 55 Cal.App.5th 858 , 863.) Its decision “ ‘will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest

2022Abuse of Discretion “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.’ ” (People v. McCallum, supra, 55 Cal.App.5th 202 , 210.) We review the courts “order declining to follow the Secretary’s recommendation for abuse of discretion.” (People v. Frazier, supra, 55 Cal.App.5th 858 , 863.) Its decision “ ‘will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest

2022(People v. Sandoval, supra, 41 Cal.4th a p. 840.) Further, and importantly, there was evidence that would have supported a presumptive lower term sentence under section 1170, subdivision (b)(6).

2020(People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval); Gibson, at p. 325.) “‘The abuse of discretion standard “involves abundant deference” to the court’s ruling.’” [Citations.] We review questions of statutory construction de novo. [Citations.]” (McCallum, at p. 211.) “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 .) Further, section 1170, subdivision (d)(1), expressly authorizes the court in resentencing a defendant to co

2021(Id. at p. 1125, citing McCallum, supra, 55 Cal.App.5th at p. 206 [Secretary recommended sentence be recalled based on defendant’s exemplary conduct in prison]; People v. Arias (2020) 52 Cal.App.5th 213 , 217 & fn. 4 [Secretary recommended recall based on legal error in imposition of enhancements]; People v. Loper (2015) 60 Cal.4th 1155, 1158 (Loper) [recommendation of recall under § 1170, subd. (e) based on defendant’s terminal illness].) Humphrey and Magana are persuasive, and we follow them here.

2020(See People v. Loper (2015) 60 Cal.4th 1155, 1167 [recognizing a defendant’s right to invite the trial court to exercise its power to resentence under § 1170, subd. (d)].) 5.

2026(See People v. Nasalga (1996) 12 Cal.4th 784, 792, fn. 7 [noting Legislature had taken no action to abrogate longstanding case law, although “it easily could have done” so]; Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1156 [“ ‘ “[w]here a statute has been construed by judicial decision, and that construction is not altered by subsequent legislation, it must be presumed that the Legislature is aware of the judicial construction” ’ ”; “Legislature’s failure to amend [statute] while not conclusive, ‘may be presumed to signify legislative acquiescence’ ” in court’s prior o

2023For example, courts have held a probation report is not a certified record of conviction for purposes of section 1170, subdivision (b)(3) (e.g., People v. Dunn, supra, 81 Cal.App.5th at p. 403, rev. granted; Falcon, supra, 92 Cal.App.5th at p. 942, rev. granted), while the constitutional prior conviction exception is not so limited ( Towne, supra, 44 Cal.4th at pp. 76, 82 [probation report established defendant’s prior convictions and that several of them occurred while he was on probation]; Black, supra, 41 Cal.4th at p. 818 [probation report showed defendant’s convictions were numerous and o

2025Over the break, defense counsel had reviewed legal authority, including a decision sent by the prosecutor, People v. Dunn (2022) 81 Cal.App.5th 394 [ 296 Cal.Rptr.3d 512 ] 2 We summarize only those facts necessary to resolve the sentencing issues raised on appeal. 3 Further references to rules are to the California Rules of Court. 2 (Dunn), opinion ordered depublished December 11, 2024.4 Defense counsel stated that pursuant to section 1170, subdivision (b)(2) and (b)(3), she did not believe Taylor was entitled to a jury trial on aggravating factors “that the court can determine through certifi

2025Over the break, defense counsel had reviewed legal authority, including a decision sent by the prosecutor, People v. Dunn (2022) 81 Cal.App.5th 394 [ 296 Cal.Rptr.3d 512 ] 2 We summarize only those facts necessary to resolve the sentencing issues raised on appeal. 3 Further references to rules are to the California Rules of Court. 2 (Dunn), opinion ordered depublished December 11, 2024.4 Defense counsel stated that pursuant to section 1170, subdivision (b)(2) and (b)(3), she did not believe Taylor was entitled to a jury trial on aggravating factors “that the court can determine through certifi

2023(In re Estrada (1965) 63 Cal.2d 740, 742 [when the Legislature lessens the penalty for a crime, an inference arises that it intended the lighter penalty to apply provided the judgment is not final]; People v. Flores (2022) 73 Cal.App.5th 1032 , 1039 [Senate Bill 567 applies retroactively to nonfinal 13 cases on direct appeal].) The parties disagree, however, as to whether remand is required in Duran’s case.5 The Attorney General contends remand is not required because the evidence established, beyond a reasonable doubt, that Duran sustained a prior criminal conviction.6 Because the trial court

2020The court 5 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.’ (§ 1170, subd. (d)(1).)” (People v. Federico (2020) 50 Cal.App.5th 318 , 326, rev. granted Aug. 26, 2020, S263082 (Federico).)2 Because defendant’s judgment was final when Senate Bill 136 went into effect, he was not entitled to the retroactive benefit of Senate Bill 136 at any time. “[E]ven if a trial court has authority to recall a sentence under section 1170, subdivision (d), it does no

2023(People v. Brooks (2020) 58 Cal.App.5th 1099 ; People v. King (2020) 52 Cal.App.5th 783 ; People v. Pixley (2022) 75 Cal.App.5th 1002 .) These cases denied relief because, as here, when a court accepts a plea stipulating to a term of years and imposes sentence accordingly, the court exercises no discretion to choose between the upper, middle or lower term and cannot consider factors in mitigation or aggravation.

2022(See Brooks, supra, 58 Cal.App.5th at p. 1107.) The trial court exercised no such discretion when it approved defendant’s stipulated sentence.

2013An appellate decision explained the reasoning as follows: “By its own terms, defendant has no standing to make a motion for recall of sentence pursuant to Penal Code section 1170, subdivision (d), and the denial of such a motion is not one which affects the substantial rights of the defendant within the 6 Section 1170 has been amended to add subdivision (d)(2), a separate provision that permits defendants serving sentences of life without the possibility of parole for crimes committed when they were under 18 to “submit to the sentencing court a petition for recall and resentencing.” As explain

1982(See People v. Niren (1978) 76 Cal.App.3d 850 , 851 [ 143 Cal.Rptr. 130 ].) Nothing in In re Cortez (1971) 6 Cal.3d 78, 89 [ 98 Cal.Rptr. 307 , 490 P.2d 819 ] concerning the defendant’s presence at a postjudgment proceeding to determine the validity of a prior requires that we declare that a defendant has the right to be present when he unsuccessfully requests a recall pursuant to Penal Code section 1170, subdivision (d).

2004Indeed, unlike sections 2931 arid 2933, section 2935 by its own terms is not expressly limited to determinate sentences. (§§ 2931, subd. (a) [provision applicable to sentences under § 1170], 2933, subd. (a) [same]; People v. Buckhalter, supra, 26 Cal.4th at p. 31; but see § 190, subd. (e) [“Article 2.5 .. . shall not apply to reduce any minimum term of a sentence imposed pursuant to this section”].) These differences further demonstrate that the Legislature considered a sentence reduction under section 2935 qualitatively and functionally distinct from postsentence conduct credits (§§ 2931, 293

2004Second, in Buckhalter, supra, 26 Cal.4th at page 28 , we rejected a similar argument regarding an appellate remand for resentencing.