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Trial Court Erred in Denying CDCR Recommendation to Recall Sentence

People v. E.M. Docket: H049467 (Sixth Appellate District), Opinion Date: December 6, 2022. In 1984, E.M. was convicted on 15 counts, including first-degree robbery, attempted first-degree robbery, forcible oral copulation, forcible false imprisonment, forcible penetration by a foreign object, forcible rape, and second-degree robbery. As to several counts, the jury found E.M. personally used a deadly and dangerous weapon; as to other counts, it found E.M. used a deadly weapon. E.M. had two prior serious felony convictions and had served a prior prison term for forcible oral copulation. The court imposed an aggregate sentence of 952 months, including two five-year terms for prior serious felony convictions. In 2019, the Secretary of the California Department of Corrections and Rehabilitation recommended that the court recall E.M.’s sentence and resentence him under former Penal Code 1170(d), citing a recent legislative change to section 1385 that granted courts the discretion to dismiss a prior serious felony enhancement in furtherance of justice. The trial court denied recall, finding that the legislative changes did not apply because E.M.’s sentence was final. The Secretary subsequently rescinded its resentencing recommendation. The court of appeal reversed. The Secretary’s letter of rescission did not moot the matter. The trial court erred by denying recall, and it retains jurisdiction to recall and resentence E.M. The statute includes a presumption in favor of recall and resentencing, which may only be overcome if the court finds the defendant presents an unreasonable risk to public safety.

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