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Senate Bill 180 Is Not Retroactive to Lower Prior Sentences

With every new law that is passed that decreases punishment, our office receives at least several phone calls from family members and sometimes even folks in prison or jail (through a three-way call function) asking how he or she can get the benefit of the new law.

Senate Bill 180 (SB 180) amended Health & Safety Code § 11370.2, becoming effective January 1, 2018.  The new law narrowed the scope of the three-year sentence enhancement available for someone convicted of a second or greater drug offense.  The bill removed transporting of cocaine in violation of Health & Safety Code § 11352 and possessing cocaine for sale, among other offenses, governed by imposition of the three-year sentence enhancement mandated by § 11370.2.

In 2015, defendant Jarrett Edward Chamizo pleaded no contest to transporting cocaine (Health & Safety Code § 11352(a) and admitted two prior convictions under Health & Safety Code § 11370.2’s enhancement provisions for transporting methamphetamine (Health & Safety Code § 11379) and a prior conviction for possessing cocaine for sale (Health & Safety Code § 11352).
He was then sentenced to four years in state prison (the mid-term sentence under 11352(a)) in Sacramento County Superior Court on the charge of transporting cocaine for sale and then, pursuant to the provisions of then-11370.2 of the Health and Safety Code, he was sentenced to two additional and consecutive three-year terms based on his prior convictions, making his total sentence ten years.

Mr. Chamizo never appealed the conviction or the sentence and it became final in 2015. 

Then in 2017, the state legislature amended 11370.2 via Senate Bill 180, eliminating the three-year enhancements that were imposed on Chamizo.

In December, 2017, Chamizo filed a motion in the trial court in Sacramento County to reduce his sentence to four years by striking the two three-year enhancements.  Chamizo argued that the law applied retroactively to him and his sentence.  The judge in Sacramento County considered the motion and determined that SB 180 had no explicit provisions that allowed it to apply retroactively to defeat application of Penal Code § 3.  Consequently, SB 180 did not have retroactive application to those judgements were final before the effective date of amended statute, January 1, 2018.  Therefore, the judge denied the motion.

Chamizo then appealed to the Third Appellate District Court of Appeal in Sacramento.  In People v. Jarrett Edward Chamizo (2019 DJDAR 1669), the Third Appellate District affirmed the trial court, noting first that it really did not have jurisdiction over his appeal at all because the judgement was final, but entertaining the motion instead as a writ of habeas corpus to at least reach the merits.

The Third Appellate District’s analysis began with reminding the reader that under common law, a trial court generally lacks jurisdiction to resentence a criminal defendant once execution of the sentence has commenced.  People v. Karaman (1992) 4 Cal.4th 335, 344.  Thus, once judgment is rendered, except for limited statutory exceptions that would not apply to Chamizo here (Penal Code § 1170.18 and Penal Code § 1170.126), the sentencing court lacks jurisdiction to vacate or modify the sentence except under 1170(d).

Penal Code § 1170(d) allows a sentencing court on its own motion to recall and resentence, subject to the express limitation that the judge must act to recall the sentence within 120 days after committing the defendant to prison.  See Dix v. Superior Court (1991) 53 Cal.3d 442, 456.

Here, Chamizo was sentenced on March 12, 20155, but did not move to modify his sentence until December 18, 2017.  Thus, the 120-day limitation had long since passed when he filed his motion to modify his sentence.  Consequently, the trial court lacked jurisdiction to consider his motion. 

The appellate court acknowledged that sometimes, the legislature does expressly permit defendants to appeal final judgments to avail themselves of the benefits of newly enacted law (i.e. Teal v. Superior Court (2014) 60 Cal.4th 595, 600 (discussing Penal Code § 1170.126)).  However, nothing in SB 180 states or suggests that it was intended to apply to judgments that had become final before its effective date.

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