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Resentencing Under PC 1170(d)(1) by CDCR Request

In Sacramento County in 2013, Jered Pillsbury entered a tire store just as it was closing.  He was wearing a hooded sweatshirt with the hood pulled over his head.  He had his face covered by a shirt or a mask.  He pulled out a gun once he came up to the clerk and, pointing it at her, demanded she open the cash register.  The clerk later stated the gun was a Glock nine millimeter handgun.
About This Article Briefly: If the CDCR recommends recall and resentencing of a prisoner under Penal Code 1170(d)(1), for example under SB 620, on a sentence including a ten-year gun enhancement, a judge must give notice to the defendant and the DA and hold a hearing.  It is otherwise a due process violation to summarily deny the request, as the following summary exemplifies.
The female clerk followed his instructions and Pillsbury grabbed cash out of the cash register drawer.  The clerk recognized Pillsbury despite his attempt to conceal his identity because he had a distinct voice and eyebrows.  He had worked with the clerk for three years previously at this store.

Pillsbury then took the clerk’s cell phone and left.  He had stolen $629.

Pillsbury was quickly arrested, as the clerk gave the police the full name of defendant, and he was charged with robbery in the second degree (Penal Code §§ 211, 212.5) with a firearm enhancements under Penal Code § 12022.53(b).

In a separate case, Pillsbury was charged with two counts of second degree robbery of a veterinary hospital.  In each case, he entered by breaking a window and stole $8,000 in cash.

The three cases were consolidated and Pillsbury entered a no contest plea to one count of second degree robbery and admitted that in the course of the robbery, he personally used a firearm (Penal Code § 12022.53(b)).  He also pleaded no contest to a count of commercial burglary (Penal Code § 459).  The other counts were dismissed.

Pursuant to his plea bargain, the trial court sentenced him to state prison for 13 years; comprised of the mid-term of three years for robbery in the second degree, plus ten years for the § 12022.53(b) firearm enhancement.  He was sentenced to a two-year concurrent term on the commercial burglary.

Five years later, in 2018, the Secretary of the Department of Corrections and Rehabilitation (CDCR) wrote a letter to the trial court recommending the recall of Pillsbury's sentence and resentencing him pursuant to Penal Code § 1170(d).  The letter urged the judge to consider the amendment to Penal Code § 12022.53, stated in subsection (h) (Senate Bill 620), which authorized courts to strike or dismiss firearm enhancements in the interest of justice under Penal Code § 1385.

As the reader may be aware, prior to the amendment to 12022.53, judges were required to impose the sentence enhancement, but following SB 620’s enactment, judges were empowered with discretion to strike or dismiss such an enhancement.

The letter from the CDCR Secretary further stated that Pillsbury had not committed any serious rules violations and had no pending disciplinary actions.  Urine samples were negative for controlled substances.  He had taken classes on computer literacy, service dog training, victim impact awareness programs, adult basic education and voluntary GED.  He served as a kitchen cook and recreational monitor.  It also noted Pillsbury had 17 family visits from family who resided out of county.

Without notice to defendant or an opportunity to provide additional information, Judge Geoffrey A. Goodman declined to recall and resentence Pillsbury.  In a written ruling, Judge Goodman stated he had reviewed the CDCR letter and Pillsbury’s file and “declined to recall the sentence and resentence defendant pursuant to the newly amended section 1170(d)(1).”  No explanation for the declination was given.  It seemed that the judge regarded the CDCR letter as a frivolous request, much like the hand-written letters judges often receive from prisoners themselves requesting release “because I have served enough time already.”

Pillsbury appealed this ruling to the Third Appellate District Court, which reversed Judge Goodman with specific directions.  Pillsbury argued that by the judge summarily declining to adopt the Secretary’s recommendation without affording him notice and the opportunity to be heard, as well as a statement of reasons for its declination, Judge Goodman denied him due process under the state and federal constitution.  The Third Appellate District agreed, especially since if the judge were to strike the firearm enhancement, Pillsbury would have served the entire three year term and would be subject to release.

The Third District’s ruling and analysis is something we eagerly reviewed because we receive many phone calls from family members about having a firearm enhancement stricken from a sentence due to Senate Bill 620.

The Third District began its ruling by explaining that “[U]nder 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; After all, normally, a defendant is not entitled to an ameliorative benefit of a change in the law after a judgement is final.

However, Penal Code § 1170(d)(1) is an exception to this rule, as it authorizes the Secretary of the CDCR to recommend recall and resentencing “at any time” and gives the trial court jurisdiction to then do so.  A trial court, on its own motion, also may recall and resentence defendant on its own motion within 120 days of the date of commitment of defendant to the CDCR. See also People v. Buycks (2018) 5 Cal. 5th 857, 893 (under “the full resentencing rule” of 1170(d), a trial court has jurisdiction to modify “every aspect of defendant’s sentence.” and may consider “any pertinent circumstances which have arisen since the prior sentence was imposed”). 

The Third Appellate Court explained that Pillsbury had a due process “dignitary interest” in being given notice of the Secretary’s recommendation and being afforded an opportunity to be heard, rather than being “relegated . . . to the role of a mere spectator, with no power to attempt to affect the outcome.” People v. Allen (2008) 44 Cal. 4th 843, 869.

Accordingly, the Third Appellate District reversed Judge Goodman and remanded the case back to him with instructions that it provide: 1) notice that it is considering summary declination; 2) direction that it may provide additional documentation or evidence before the court rules; 3) the notice should provide defendant a reasonable and specific time to respond; and 4) the notice should provide information the precise place to send such a response.

Lastly, it merits mention that Pillsbury also argued that he was entitled under the Sixth Amendment to the right to counsel “during resentencing decisions” because sentencing is a “critical stage” in proceedings.  The Third Appellate District declined to find such a right exists, citing to People v. Frazier (2020) 55 Cal. App. 5th 858, wherein the Second Appellate District found that the filing of the Secretary’s letter did not trigger a due process right to counsel, as this act is considered a post-judgment collateral challenge only, as the judge could summarily decline to recall the sentence.  However, if the judge were to agree to resentence defendant, then such a right to counsel indeed may apply.

The citation for the Third Appellate District Court ruling discussed above is People v. Jered Pillsbury (3rd App. Dist., 2021) 69 Cal. App. 5th 776, 284 Cal. Rptr. 3d 824.

For more information about resentencing issues, please click on the following articles:
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