People v. Sawyer CA2/8 ( 2022 )

Filed 12/30/22 P. v. Sawyer CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B314534
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA411285-01, 02)
v.
TIMOTHY SAWYER et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Renee R. Korn, Judge Reversed with directions.
Richard Lennon and Tanya Dellaca, by appointment of the
Court of Appeal for Defendant and Appellant Timothy Sawyer.
Edward H. Schulman, by appointment of the Court of
Appeal for Defendant and Appellant Thamicha Sawyer.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
Appellants Timothy Sawyer and Thamicha Sawyer (the
Sawyers) are husband and wife. In 2014, each was convicted of
one count of first degree burglary, with true findings on gang and
firearm enhancements. The convictions arose from a plea
agreement. The trial court sentenced each to 15 years in state
prison.
Seven years later in 2021, the Los Angeles District
Attorney’s Office filed petitions for recall and resentencing under
former Penal Code1 section 1170, subdivision (d)(1). The
petitions sought resentencing that would have resulted in the
Sawyers’ immediate release from prison.
The petitions raised numerous grounds, including the
Sawyers’ positive rehabilitation in prison, mitigating
circumstances surrounding their cases, and changed practices for
charging gang enhancements. Perhaps the most unusual aspect
of the proceedings was that three federal prosecutors testified on
the Sawyers’ behalf. These attorneys detailed the Sawyers’
significant assistance to the FBI, after their plea agreements,
with several federal racketeering investigations—absent any
promise of leniency.
The resentencing court held multiple hearings on the
matter. The court ultimately resentenced the Sawyers to
13 years in prison, a two-year reduction for each.
Both the Sawyers appealed, contending the matter should
be remanded for reconsideration in light of recent legislation that
“drastically” altered the landscape of discretionary resentencing.
Specifically, a few months after the trial court ruled, the
Legislature renumbered the recall and resentencing provision of
former section 1170 and revised it. The new statute originally
1 Further statutory citations are to the Penal Code.
2
was codified as section 1170.03. (See People v. McMurray (2022)
76 Cal.App.5th 1035, 1038 (McMurray) [describing these
changes].) Effective June 30, 2022, section 1170.03 was
renumbered section 1172.1 without additional substantive
change. (Stats. 2022, ch. 58, § 9.)
The Sawyers claim the court should decide their
resentencing under the new statute that embraces party
agreements and includes a new presumption favoring
resentencing. They contend the new statute applies
retroactively.
The People agree the new statute “substantially alters the
framework for recall and resentencing” for felony cases. For
example, where, as here, the district attorney seeks resentencing,
the statute affords a presumption favoring resentencing, unless
the defendant is an unreasonable risk to public safety. (§ 1172.1,
subd. (b)(2).) And where the parties agree, the court may vacate
a conviction to impose judgment on a lesser included or related
offense. (§ 1172.1, subd. (a)(3)(B).) Here the parties agreed to a
time-served sentence.
The People further concede the relevant legislative history
suggests the Legislature sought to clarify the intent behind the
preexisting statute (former section 1170, subdivision (d)(1)),
which “raises substantial questions about how best to interpret”
that provision. (See McMurray, supra, 76 Cal.App.5th at
pp. 1040–1041.) The People agree a remand for reconsideration
is appropriate, but do not agree that the changes made by the
statute apply retroactively.
In part, the People are correct. “The legislative history of
these changes indicate that [Assembly Bill No. 1540] was, in part,
intended to clarify the Legislature’s intent regarding former
3
section 1170(d)(1), which it had amended in 2018.” (McMurray,
supra, 76 Cal.App.5th at p. 1040.) “The legislative history
further indicates that Assembly Bill 1540 was intended to clarify
certain aspects of former section1170(d)(1) that the appellate
courts had incorrectly interpreted, including that, ‘ “when a
sentence is recalled or reopened for any reason, in resentencing
the defendant trial courts must apply ‘any changes in law that
reduce sentences or provide for judicial discretion.’ (Sen. Com. on
Public Safety, Rep. on Assem. Bill No. 1540 (2021–2022 Reg.
Sess.) as amended June 22, 2021, p. 3 [noting that People v.
Federico (2020) 50 Cal.App.5th 318 [264 Cal.Rptr.3d 61], review
granted August 26, 2020, S263082, held to the contrary].)” ’ ”
(McMurray, at p. 1041.)
Some of the changes made by Assembly Bill No. 1540 might
be viewed as changing existing law. As relevant here, the bill
adds a presumption in favor of “recall and resentencing” when
the resentencing is requested by the district attorney, and also
specifically permits the resentencing court to “[v]acate the
defendant’s conviction and impose judgment on any necessarily
included lesser offense or lesser related offense . . . with the
concurrence of both the defendant and the district attorney[.]”
(§ 1172.1, subds. (a)(3)(B) & (b)(2).) These changes do apply
retroactively.
Thus, to the extent Assembly Bill No. 1540 only clarified
and confirmed the law, it does not change the law and so does not
operate retroactively. However, as set out below, it governs this
case. (See Western Security Bank v. Superior Court (1997)
15 Cal.4th 232, 252.)
A criminal defendant is entitled to the benefit of a change
in the law during the pendency of his appeal. (People v. Babylon
4
(1985) 39 Cal.3d 719, 722; In re Estrada (1965) 63 Cal.2d 740,
744, 748.) Under Estrada, a new law that reduces punishment
may apply to a pending case. But retroactive application is not
limited to that type of new punishment statute. “Estrada’s
inference of retroactivity” also applies to a new criminal law that
“reduces the possible punishment for a class of persons” even
though it does not directly or expressly reduce a sentence.
(People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303, italics
added.) Here, Assembly Bill No. 1540 reduces the possible
punishment of certain defendants who are not a risk to public
safety when the district attorney recommends resentencing,
including by permitting the defendant’s conviction to be vacated.
Although Estrada is often characterized as being
inapplicable to cases which are final, the California Supreme
Court has explained that Estrada should not be interpreted so
rigidly. In People v. Esquivel (2021) 11 Cal.5th 671 (Esquivel),
the defendant’s conviction, including the sentence imposed, was
already final when the court later revoked his probation and
ordered him to serve the prison term that was initially stayed.
(Id. at p. 673.) It was during the defendant's appeal from the
probation revocation order that the Legislature changed the law
that governed the effect of the defendant’s prior strikes on his
sentence. (Ibid.) The Supreme Court found that the change in
the law did apply retroactively. As the Supreme Court explained,
“Estrada presumed that our Legislature intends for ameliorative
enactments to apply as broadly as is constitutionally permissible.”
(Esquivel, at p. 677, italics added.) And “[t]he significance of
finality was that legislation ‘constitutionally could apply’ to
nonfinal judgments.” (Ibid.) The court reasoned that
“[p]resumably, Estrada understood finality to trigger at least a
5
potential constitutional restraint (i) on the Legislature’s power to
intervene in judicial decisionmaking or (ii) on the judiciary’s
power to affect matters that were no longer pending. But any
constraint on the Legislature’s power to affect ‘final’ criminal
judgments would appear to arise from the conclusion of a
criminal proceeding as a whole.” (Id. at p. 678.) Consequently
“the role of finality in Estrada’s reasoning counsels against
importing a rigid understanding of the term ‘final’ into this
context.” (Id. at p. 677.)
Here, as in Esquivel, the Sawyers’ sentences were final, but
subsequent events—in Esquivel it was the defendant’s apparent
violation of probation, and in this case, the district attorney’s
recommendation that the Sawyers’ sentences be recalled—
effectively reopened the issue for the court's further
consideration. When that happened, it presented a new
opportunity for the Legislature’s ameliorative enactment to be
applied. And under Estrada and Esquivel, it must be. We
therefore remand the matter for reconsideration.
Timothy Sawyer also seeks an amended abstract of
judgment correctly reflecting all the time he has served.
Thamicha Sawyer maintains her amended abstract of judgment
dated January 24, 2022 properly calculates custody credits. The
prosecution does not address this issue.
On remand, the resentencing court should ensure that the
amended abstracts of judgment for both defendants account for
time served. (See § 1172.1, subd. (a)(5) [“Credit shall be given for
time served.”]; see also People v. Cepeda (2021) 70 Cal.App.5th
456, 464.)
6
DISPOSITION
We vacate the resentencing orders and remand the matter
for reconsideration of the resentencing petitions under the new
statute. Any new sentence shall be no greater than the revised
sentences ordered on July 26, 2021. On remand, the
resentencing court shall ensure the accuracy of the credits
reflected in the current amended abstracts of judgment and shall
forward a certified copy of any further amended abstract of
judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
7