SB 1393 Not Retroactive - Judge Errs by Denying Recall

In 1984, a jury in Santa Clara County Superior Court found E.M. guilty on 15 counts, including three counts of first degree robbery (Penal Code § 211, former § 213.5), attempted first degree robbery (Penal Code §§ 211, 664), three counts of forcible oral copulation (former § 288a(d)), forcible false imprisonment (Penal Code § 236, former § 237), forcible penetration by a foreign object (Penal Code § 289a); forcible rape (former Penal Code § 261(2) and second degree robbery (Penal Code § 211).

The jury also found that E.M. personally used a deadly and dangerous weapon(Penal Code § 12022(b) and that E.M. had suffered two prior serious felonies convictions and had served a prior prison term for forcible oral copulation (Penal Code § 667(a), 667.6(a).

The judge imposed an aggregate sentence of 79 year and four months in prison.  The sentence included two five-year terms for the prior serious felony convictions.

In December 2019, the Secretary of the California Department of Corrections and Rehabilitation (the Secretary) issued a letter to the trial court judge recommending that he or she recall E.M.’s sentence and resentence him based on recent ameliorative legislative changes in the sentencing law.

The trial court judge denied the recall on the ground that the legislative changes did not apply to E.M.’s case because his sentence was final.  The trial court acknowledged that Senate Bill 1393, giving the trial court discretion to strike the five year enhancement for a prior serious felony conviction would apply retroactively if E.M.’s sentence was not final, but it was final, making E.M. ineligible for relief.

E.M. appealed this order to the Sixth Appellate District, arguing that the trial court judge erred by finding that when the Secretary recommended recall and resentencing, that the judge could still find that laws were not retroactive. 

The prosecution conceded that E.M. was correct and that the Sixth Appellate District must remand the matter for resentencing and that the trial court erred.

The Sixth Appellate District agreed that the trial court judge erred. 

The Sixth Appellate District explained that under Penal Code § 1172.1 (renumbered from Penal Code § 1170(d) under Assembly Bill 1540), “When a defendant, upon conviction for a felony offense, has been committed to the custody of the Secretary of the Department of Corrections and Rehabilitation . . . the court may, within 120 days of the date of commitment on its own motion, at any time upon the recommendation of the secretary . . . recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced . . .”

Section 1172.1 further provides that “The court, in recalling and resentencing under this subdivision, shall . . . apply any changes in the law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” 

Former § 1170(d) provided “an exception to the common law rule that the court loses resentencing jurisdiction once execution of the sentence has begun.” Dix v. Superior Court (1991) 53 Cal. 3d 442, 455.

“A trial court, upon receiving a section 1170, subdivision (d)(1) letter from the CDCR, has broad discretion whether to recall the existing sentence and resentence the incarcerated individual.  The Secretary’s letter is but an invitation to the court to exercise its equitable jurisdiction, which furnishes the court with the jurisdiction it would not otherwise possess to recall and resentence.”  People v. Cepeda (2021) 70 Cal. App. 4th 456, 469.

The Sixth Appellate District then set forth a list of factors that the trial court could consider in recalling and resentencing.  The court may consider “postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.”  Penal Code § 1172.1(a)(4).

The court, furthermore, shall consider “if the defendant has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence, if the defendant was a victim of intimate partner violence or human trafficking prior to or at the time of the commission of the offense, or if the defendant is a youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense, and whether those circumstances were a contributing factor in the commission of the offense.”  Penal Code § 1172.1(a)(4).

For more information about SB 1393, please click on the following articles: