People v. Awardo CA4/2

Filed 1/3/22 P. v. Awardo CA4/2
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075299
v. (Super.Ct.No. FSB1200458)
CLIFFORD EDMOND AWARDO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. J. David Mazurek,
Judge. Reversed and remanded with directions.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland and Arlene A. Sevidal, Assistant Attorneys
General, Warren J. Williams and Steve T. Oetting, Deputy Attorneys General, for
Plaintiff and Respondent.
1
In this case, the California Department of Corrections and Rehabilitation
(the department) submitted a letter to the trial court and recommended the court recall
defendant Clifford Edmond Awardo’s sentence and resentence him pursuant to Penal
Code1 former section 1170, subdivision (d)(1) (Stats. 2018, ch. 1001, § 2). Specifically,
the department informed the trial court of an ameliorative amendment to former
section 1385 (Stats. 2018, ch. 1013, §§ 1-2.), which provided that the trial court has
discretion to dismiss, in the interest of justice, serious prior felony strikes. The trial court
summarily denied the recommendation by minute order. The next month, defendant
submitted his own letter to the trial court and asked the court to review his case and
reconsider its ruling on the department’s recommendation. The trial court denied the
request, and defendant timely appealed.
On appeal, defendant argued that the trial court abused its discretion by not
permitting him to submit additional information about his rehabilitation and by not
reconsidering its denial of the department’s recommendation. In our original opinion
filed on October 12, 2021, we held that the trial court had jurisdiction to entertain the
department’s recommendation to recall defendant’s sentence but, once the court denied it,
the court was once more divested of jurisdiction to resentence him. And, because
defendant did not submit his request until one month after the trial court had denied the
department’s recommendation, the court simply lacked the jurisdiction to consider it.
Therefore, we affirmed the order denying the department’s recommendation.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
Unbeknownst to this court, four days before we issued our original decision in this
appeal, the Governor signed into law a series of bills that, among other things, amended
section 1170 (Stats. 2020, ch. 29, § 15, eff. Jan. 1, 2022; Sen. Bill No. 118 (2021-2022
Reg. Sess.)) and enacted section 1170.03 (Stats. 2021, ch. 719, § 3.1, eff. Jan. 1, 2022;
Assem. Bill No. 1540 (2021-2022 Reg. Sess.)). Section 1170.03 provides that the trial
court may not deny a resentencing recommendation from the department without first
(1) providing a defendant with notice of the recommendation, (2) appointing counsel for
a defendant, and (3) conducting a hearing within 30 days of the recommendation where
the parties are given the opportunity to address the basis of the court’s intended denial or
rejection. (§ 1170.03, subds. (a)(8), (b)(1).)
In addition, section 1170.03 establishes a rebuttable presumption in favor of
recalling and resentencing a defendant that may be overcome only if the trial court finds
that he or she poses an unreasonable risk of danger to public safety as defined in
section 1170.18. It also requires the court to state on the record its reasons for granting or
denying the department’s recommendation. (§ 1170.03, subds. (a)(6), (b)(2).) And, in
uncodified statements of legislative purpose, the Legislature expressed its intent that trial
courts “recognize the scrutiny that has already been brought to these [resentencing]
referrals” and “apply ameliorative laws passed by this body that reduce sentences or
provide for judicial discretion, regardless of the date of the offense or conviction.” (Stats.
2021, ch. 719, § 1(h)-(i).)
3
We granted defendant’s petition for rehearing and directed the parties to address
the effect of the statutory amendments to section 1170 and the adoption of
section 1170.03. In their supplemental briefs, the parties agree we should reverse the
order denying the department’s recommendation, and remand for the trial court to
comply with the dictates of section 1170.03 and reconsider the department’s
recommendation. We agree.
I.
PROCEDURAL BACKGROUND
A jury convicted defendant of one count of burglary of an inhabited dwelling
(§ 459) and one count of misdemeanor violation of a protective order (§ 273.6, subd. (a)).
Separately, he admitted to having suffered a prior conviction for assault with a deadly
weapon (§ 245, subd. (a)(1)) and admitted the prior was both a “serious felony” (§ 667,
subd. (a)(1)) and a “serious or violent felony” strike (§§ 1170.12, subds. (a)-(d), 667,
subds. (b)-(f)) for purposes of sentencing. The trial court sentenced him to state prison
for the middle term of four years for the burglary conviction, doubled pursuant to the one
strike law, plus a five-year enhancement for his strike conviction, for a term of 13 years;
to one year in county jail for the misdemeanor conviction, to be served concurrently to
the prison term; and the court dismissed the “serious felony” allegation in the interest of
justice.
On direct appeal, we rejected defendant’s argument that he had only admitted to
having suffered a prior conviction but not that the conviction constituted a “serious or
violent felony” strike and affirmed the judgment. (People v. Awardo (Jan. 8, 2014,
4
E057358) [nonpub. opn.].) Six years later, on January 21, 2020, the department
submitted a letter to the trial court recommending the court recall defendant’s sentence
pursuant to former section 1170, subdivision (d)(1), and exercise its then newly
authorized discretion under former section 1385 to strike his five-year serious felony
sentence enhancement. In support of its recommendation, the department submitted (1)
defendant’s inmate assignment history, (2) a document that details a prisoner’s
assignment to any education, work, or rehabilitative programs, and (3) a report indicating
he had no reported rule violations. The trial court denied the recommendation by minute
order dated January 27, 2020.
On February 28, 2020, defendant mailed a letter to the superior court in which he
stated he had been attending groups and taking courses while in prison, and he had been
“discipline free.” He did not understand why the court had denied the department’s
recommendation, and he asked the court to review his case and reconsider its ruling. The
trial court denied the request.
Defendant timely appealed from the January 27, 2020 order denying the
department’s recommendation.
II.
DISCUSSION
As we stated in our original opinion, a trial court loses jurisdiction over defendant
and loses jurisdiction to resentence him once the court has relinquished custody and
execution of his sentence has commenced. (People v. Karaman (1992) 4 Cal.4th 335,
344.) Former section 1170, subdivision (d)(1), (and new section 1170.03) is an exception
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to that rule. (Dix v. Superior Court (1991) 53 Cal.3d 442, 455.) Within 120 days of a
defendant’s commitment, the trial court may recall the sentence and resentence the
defendant “on its own motion.” (Former § 1170, subd. (d)(1).) That statute “provides a
specific scheme for the trial court to exercise jurisdiction for a limited time after it
normally would have lost jurisdiction.” (Portillo v. Superior Court (1992) 10
Cal.App.4th 1829, 1835.) Although a defendant has no standing to formally request that
the trial court recall a sentence, a defendant may informally invite the court to exercise
jurisdiction on its own motion within 120 days of his commitment. (People v. Loper
(2015) 60 Cal.4th 1155, 1166-1167.) There is no question the trial court, in this case,
lacked the authority to recall defendant’s sentence on its own motion or to act on an
informal invitation from him because more than 120 days had elapsed since his
commitment to state prison.
In addition, “at any time,” the department, the Board of Parole Hearings, or a
county correctional administrator (when a defendant is sentenced to county jail) may
recommend the trial court recall a defendant’s sentence and resentence him or her.
(Former § 1170, subd. (d)(1).) We review the denial of such a recommendation for the
abuse of discretion. (People v. Frazier (2020) 55 Cal.App.5th 858, 863-864.)
In People v. McCallum (2020) 55 Cal.App.5th 202, the department recommended
the trial court recall the defendant’s sentence and resentence him. (Id. at pp. 208-209.)
Before the court ruled on the recommendation, the defendant lodged a notice of
appearance and asked the court to hold a case management conference and schedule a
hearing and briefing schedule, if necessary. (Id. at p. 209.) The trial court denied the
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department’s recommendation without setting a case management conference or
permitting the defendant to submit additional information about his changed
circumstances that might warrant resentencing. (Ibid.)
On appeal, the appellate court rejected the defendant’s argument that the trial court
was required to conduct a hearing on the department’s recommendation. (People v.
McCallum, supra, 55 Cal.App.5th at pp. 211-216.) However, the court agreed with the
defendant that the trial court erred by not permitting him to submit additional information
before it ruled on the department’s recommendation. (Id. at p. 216.) “Once McCallum
requested an opportunity to respond to the [department’s] recommendation by requesting
a case management conference and possible briefing and presentation of evidence, the
trial court’s decision simply to ignore McCallum’s request to provide input on the
[department’s] recommendation was an abuse of discretion.” (Id. at p. 216, fn. omitted.)
Relying heavily on People v. McCallum, supra, 55 Cal.App.5th 202, defendant
argued that the trial court abused its discretion by denying the department’s
recommendation without first giving him the opportunity to submit additional
information about his rehabilitation. We held in our original opinion that McCallum was
distinguishable. There, the defendant submitted his request to present additional
information before the trial court had ruled on the department’s recommendation. (Id. at
p. 209.) “When that occurs, it is an abuse of discretion for the trial court to deny the
[department’s] recommendation without permitting the inmate to do so.” (People v.
Frazier, supra, 55 Cal.App.5th at p. 869, citing McCallum, at p. 218.) Here, defendant
did not request the opportunity to present additional information but asked the court to
7
reconsider its ruling on the department’s recommendation. And, to the extent defendant’s
letter should be construed as a request to submit additional information, he did not submit
it until one month after the trial court had already denied the department’s
recommendation.
In our original opinion, we noted that the courts had properly characterized former
section 1170, subdivision (d)(1), as a “limited” exception to the general rule that a trial
court lacks jurisdiction to resentence a defendant upon commitment and execution of the
sentence. (E.g., People v. Scarbrough (2015) 240 Cal.App.4th 916, 923, 925-926.)
Without question, the trial court had jurisdiction to entertain the department’s
recommendation. But, we held the department’s recommendation did not vest the trial
court with open-ended jurisdiction to recall defendant’s sentence and resentence him. As
soon as the court denied that recommendation, it was once again divested of jurisdiction
to resentence defendant and had no authority to grant his request submitted one month
later. And, we held that nothing in People v. McCallum, supra, 55 Cal.App.5th 202,
mandated a contrary conclusion, and defendant had cited no authority that did.2
As indicated, ante, four days before we issued our original opinion, the Governor
signed into law bills that amended section 1170 and enacted 1170.03. Without question,
the provisions of section 1170.03 highlighted ante significantly alter the trial court’s
authority and duties when considering a recommendation from the department to recall a
2 We also held that the trial court’s inherent authority to reconsider interim,
prejudgment rulings (see In re Alberto (2002) 102 Cal.App.4th 421, 426; People v.
Castello (1998) 65 Cal.App.4th 1242, 1246) did not authorize the court to reconsider its
denial of the department’s recommendation.
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sentence and resentence a defendant. And, had section 1170.03 been in effect when the
department recommended defendant be resentenced, the trial court would have been
required to comply with its dictates and essentially provide him with the opportunity to
present additional evidence of rehabilitation, which he sought in this appeal. Although in
their supplemental briefs the parties disagree whether the clearly ameliorative provisions
of section 1170.03 apply retroactively in this case (see In re Estrada (1965) 63 Cal.2d
740), considering our order granting rehearing and vacating our prior opinion, the People
concede this appeal will not become final before January 1, 2022, when section 1170.03
goes into effect. Therefore, the People contend judicial efficiency dictates that the case
be remanded for the trial court to comply with section 1170.03 and reconsider the
department’s recommendation. We agree and so order.
III.
DISPOSITION
The postjudgment order is reversed. On remand, the trial court shall comply with
section 1170.03 and reconsider the department’s recommendation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
MILLER
J.
FIELDS
J.
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