People v. Ford CA1/3 ( 2022 )

Filed 3/16/22 P. v. Ford CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A160038
v. (Sonoma County
SAMMIE LEE FORD, Super. Ct. No. SCR-32085-1)
Defendant and Appellant.
In 2003, defendant Sammie Lee Ford was sentenced to two 25 years to
life sentences for two Sonoma County burglaries, and a 28-month sentence
for a Los Angeles County burglary, which was to be served consecutively to
the indeterminate terms. In 2019, the California Department of Corrections
and Rehabilitation (CDCR) notified the trial court that the 28-month
sentence was illegal. Ford asserted the CDCR’s letter was a recommendation
for recall and resentencing under former Penal Code section 1170,
subdivision (d),1 and he requested resentencing on all his counts. The court
Undesignated statutory references are to the Penal Code. While this
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appeal was pending, Assembly Bill No. 1540 (2021–2022 Reg. Sess.)
(Assembly Bill No. 1540) was enacted, which moved and amended former
section 1170, subdivision (d)’s recall and resentencing provisions to section
1170.03. (Stats. 2021, ch. 719, § 3, eff. Jan. 1, 2022.) The new statute
preserves the procedure by which the CDCR may request recalling a
sentence. (§ 1170.03, subd. (b)(1).)
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disagreed, noted it was not recalling Ford’s sentence, and denied his requests
for resentencing on the indeterminate terms and the striking of a prior felony
conviction. The court then modified the sentence for the Los Angeles County
burglary to an aggregate seven-year term — six years plus a one-year
enhancement for a prior prison term (§ 667.5, subd. (b)) — to be served
concurrently to the two indeterminate sentences.
On appeal, Ford challenges the trial court’s denial of his request for
resentencing, arguing the CDCR’s letter requested recall and resentencing,
but the court failed to recognize that it had the authority to resentence him
on the remaining aspects of his sentence. He also argues we must strike his
prior prison term enhancement based on Senate Bill No. 483 (2021–2022 Reg.
Sess.) (Senate Bill No. 483) — legislation declaring invalid a prior prison
term enhancement for nonsexually violent offenses. (Stats. 2021, ch. 728, § 3
[adding § 1171.1].) We agree with Ford on both points, reverse, and remand.
BACKGROUND
As part of a 2002 plea agreement, Ford pleaded no contest to second
degree commercial burglary in Los Angeles County Superior Court.2 (§ 459.)
The prosecutor moved to strike one of Ford’s prior felony convictions so that
he would not be subject to the “Three Strikes” law. (§ 1170.12, subds. (a)-(d).)
He was thus sentenced to an aggregate term of seven years — the upper term
of six years for burglary, and a one-year enhancement due to a prior prison
term for a 1992 second degree robbery conviction. (§§ 461, 667.5, subd. (b).)
2 While this case was being briefed, Ford requested judicial notice of
this court’s records and opinions in his prior cases (A101999 and A138848),
and we deferred ruling until the merits of the appeal. We now grant that
request. (Evid. Code, § 452, subd. (d) [courts may take judicial notice of court
records].)
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Ford was thereafter transported to Sonoma County where he had an
outstanding warrant for another commercial burglary case. There, in 2003,
Ford was convicted of two counts of second degree commercial burglary.
(§ 459.) The trial court also found Ford had two prior strike convictions — a
1992 second degree robbery conviction and a 1993 conviction for voluntary
manslaughter. (§§ 192, subd. (a), 211.) The court imposed two 25 years to
life sentences for the two burglary counts, to be served concurrently. Based
on statements by Ford’s counsel and the prosecutor regarding the appropriate
sentence for Ford’s Los Angeles County burglary conviction, the court also
modified that sentence to a subordinate term of 28 months — one-third the
middle term of 16 months, plus one year for the prior prison term — to be
served consecutively to the indeterminate sentences.
After the passage of Proposition 36 — which reduced the punishment
imposed for third-strike offenses that are not serious or violent, and allowing
discretionary resentencing for those offenses — Ford asked the trial court to
resentence him as a two-strike offender. (Prop. 36, as approved by voters,
Gen. Elec. (Nov. 6, 2012), § 6; § 1170.126, subd. (b).) The court denied the
request, noting that although Ford was eligible for resentencing under
Proposition 36, he posed an unreasonable risk of danger to public safety.
This court affirmed that decision. (People v. Ford (June 24, 2015, A138848)
[nonpub. opn.].)
In 2019, the CDCR notified the trial court of an error in Ford’s
sentence. It stated that the sentence for the Los Angeles County burglary
should have been computed without reference to the indeterminate terms.
Rather than one-third the middle term of 16 months, the court should have
imposed the full term for the Los Angeles County burglary, to be served
consecutively with the sentences for the Sonoma County burglaries. The
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CDCR noted the full term was one of the following: the lower term of 32
months, the middle term of four years, or the upper term of six years. The
CDCR then asked the court to “review your file to determine if a correction is
required. When notified by the [CDCR] that an illegal sentence exists, the
trial court is entitled to reconsider all sentencing choices, People v. Hill
[(1986)] 185 Cal.App.3d 831.” (Underscoring omitted.)
Based on this letter, Ford asked the trial court to conduct a new
sentencing hearing as if he had not previously been sentenced, and he
specifically requested relief under Proposition 36 — the striking of one of his
prior convictions. After a hearing, at which Ford was represented by counsel,
the court determined the one-third middle term sentence for the Los Angeles
County burglary was illegal.3 But it stated it was not recalling the sentence
under former section 1170, subdivision (d) — which allowed a court to, upon a
request from the CDCR, resentence a defendant anew — “or any other
authority. The Court is simply correcting a portion of the sentence that is
erroneous.” (Former § 1170, subd. (d)(1).) It acknowledged that although
correcting errors in Ford’s sentence “necessarily involves some discretionary
choices, the Court disagrees with defendant’s argument that the existence of
those discretionary choices gives rise to a second opportunity to petition for
3The parties do not dispute this sentence is illegal. When a person is
convicted of two or more felonies, and a consecutive term is imposed, the
principal term “shall consist of the greatest term of imprisonment” and the
subordinate term for the consecutive offense must consist of “one-third of the
middle term of imprisonment.” (§ 1170.1, subd. (a).) This provision, however,
only applies when all the terms of imprisonment are determinate. (People v.
Mason (2002) 96 Cal.App.4th 1, 15.) It does not apply here, where there are
both determinate and indeterminate sentences. (Ibid.) Rather, when
imposing consecutive indeterminate and determinate sentences, the trial
court must specify the determinate term imposed and calculate it
independently of the indeterminate term. (Cal. Rules of Court, rule 4.451(a).)
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relief under” Proposition 36. It declined to reconsider its prior ruling denying
relief under Proposition 36. Instead, the court vacated Ford’s 28-month
consecutive sentence — one-third the middle term for the Los Angeles County
burglary — and imposed a concurrent term of seven years — the upper term
of six years plus the one-year prison term enhancement.
DISCUSSION
Ford argues the trial court’s rejection of his resentencing request was
improper, and we must reverse and remand for a full resentencing hearing
regarding all aspects of his sentence, including his indeterminate terms. He
also argues we must strike his one-year prior prison term enhancement due
to recently enacted Senate Bill No. 483. We agree with Ford, addressing each
issue in turn.
I.
Ford contends the trial court erroneously concluded the CDCR letter
simply triggered a “sentencing correction proceeding” that did not create any
right to reconsider other aspects of his sentence. He argues, to the contrary,
that the court effectively resentenced him by modifying his determinate
sentence for the Los Angeles County burglary. We agree the court’s
conclusion was erroneous. (People v. McCallum (2020) 55 Cal.App.5th 202,
211 [decision on whether to recall a defendant’s sentence reviewed for abuse
of discretion]; People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737,
746 [decision resting on an error of law is an abuse of discretion].)
Generally, a trial court loses resentencing jurisdiction once execution
of the sentence begins. (Dix v. Superior Court (1991) 53 Cal.3d 442, 455.)
A court, however, has the inherent power to correct clerical errors in a
judgment to reflect the true facts. (In re Candelario (1970) 3 Cal.3d 702,
705.) And, under former section 1170, subdivision (d) — the statute in effect
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during the proceedings below — a court may also “recall the sentence and
commitment previously ordered and resentence the defendant in the same
manner as if he or she had not previously been sentenced” upon a
recommendation from the Secretary of the CDCR. (Former § 1170,
subd. (d)(1); Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1835
[noting the statute authorizes trial courts “to exercise jurisdiction for a
limited time after it normally would have lost jurisdiction”].) Under that
provision, the court here was entitled to reconsider every aspect of the
sentence, not simply the illegal portion. (People v. Hill (1986) 185 Cal.App.3d
831, 834 (Hill) [resentencing for all subordinate counts appropriate after
CDCR notified trial court a sentence contained an illegal term].)
The CDCR letter concerning Ford constituted a recommendation for
recall and resentencing under former section 1170, subdivision (d)(1). The
CDCR identified an illegal sentence — the one-third middle term for Ford’s
Los Angeles County burglary conviction, served consecutively to his other
sentences. The CDCR noted “the determinate term shall be computed
without reference to the indeterminate term. Therefore, pursuant to Penal
Code 1170.1(a), the full term for Los Angeles County Case . . . shall be
imposed consecutive to Sonoma County Case.” (Boldface omitted.) The letter
cited Hill, which relied on former section 1170, subdivision (d) as the basis for
a court’s authority to recall and entirely resentence a defendant upon CDCR
notification of an unauthorized sentence. (Hill, supra, 185 Cal.App.3d at
p. 834.)
This was not notice of a clerical error, such as a miscalculation of Ford’s
sentence or a discrepancy between the abstract of judgment and the
sentencing record that the trial court has the inherent authority to correct.
(Compare with People v. Humphrey (2020) 44 Cal.App.5th 371, 379–380
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[correcting an erroneous calculation of presentence credits in abstract of
judgment, but defendant’s sentence remained intact].) Indeed, there is no
discrepancy between court’s pronouncement of the judgment and the abstract
of judgment — both reflect the same illegal sentence. Under these
circumstances — request for recall and resentencing by the CDCR — the
court had discretion under former section 1170, subdivision (d)(1) to
resentence Ford on the other aspects of his sentence. (Former § 1170,
subd. (d)(1); compare with Humphrey, at pp. 379–380 [concluding defendant
not entitled to resentencing because trial court simply resolved a clerical
error].) Its determination otherwise was erroneous.
Moreover, the trial court exercised its discretion to effectively
resentence Ford, despite its statements otherwise. In response to the CDCR’s
letter, the court was required to determine the proper sentence to impose for
the Los Angeles County burglary and whether the sentence should be
consecutive or concurrent to the sentences for the Sonoma County burglaries.
The court admitted this involved discretionary sentencing choices. The
CDCR further provided the court with several options for imposing a full
term of imprisonment: the lower term of 32 months, the middle term of four
years, or the upper term of six years. The court ultimately chose to impose a
seven-year aggregate term to run concurrently to the Sonoma County
burglary sentences. Rather than simply correcting a clerical error pursuant
to its inherent authority, as the People contend, the court assessed its options
for sentencing and then substantively resentenced Ford under former section
1170, subdivision (d). (Hill, supra, 185 Cal.App.3d at p. 834.)
To the extent the People contend this modification does not affect the
length of Ford’s sentence, this argument ignores the relevant inquiry —
whether the trial court had the discretionary authority to resentence Ford on
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other aspects of his sentence, such as his indeterminate terms. We reject the
People’s suggestion, relying on People v. Massengale (1970) 10 Cal.App.3d
689, that a trial court has the inherent authority to correct an unlawful
sentence. Massengale, a case that predates former section 1170, subdivision
(d)(1), noted a court is required to vacate an illegal sentence and impose a
proper one “whenever the mistake is appropriately brought to the attention of
the court.” (Massengale, at p. 693, italics added.) Thus, Massengale did not
create a rule allowing a court to sua sponte modify an illegal sentence under
its inherent authority. Moreover, the People’s additional argument that Ford
is precluded from full resentencing because he invited the sentencing error is
unconvincing.4 True, in 2002, Ford’s counsel asked the Sonoma County
Superior Court to impose an erroneous term for Ford’s Los Angeles County
burglary conviction — one-third the middle term of 16 months rather than
the full term. But the record does not indicate Ford’s counsel made a
conscious, tactical choice in proposing this incorrect sentencing term, i.e.,
invited error. (People v. Cooper (1991) 53 Cal.3d 771, 831 [no invited error
where counsel may have acted out of ignorance or mistake].) Indeed, the
prosecutor also agreed with Ford’s counsel regarding the sentence, and the
sentencing court mistakenly believed as well that the sentence was lawful.
In any event, the invited error doctrine does not preclude a defendant
4We do not address the People’s argument that Ford is precluded as
a matter of equitable or judicial estoppel from gaining the benefit of
resentencing, an argument raising questions of fact for the first time on
appeal. (People v. Mesaris (1988) 201 Cal.App.3d 1377, 1382 [the People
cannot raise new theory for the first time on appeal]; see also Blaser v. State
Teachers’ Retirement System (2019) 37 Cal.App.5th 349, 378 [doctrine of
estoppel involves questions of fact for the trial court].)
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from challenging an unauthorized sentence. (In re Birdwell (1996)
50 Cal.App.4th 926, 931 [“Even the doctrine of invited error is not a bar to
the granting of habeas corpus relief to correct an unauthorized sentence.”].)
For the above reasons, reversal and remand is necessary here. The
new recall and resentencing standards from Assembly Bill No. 1540 apply on
remand.5 Under that recently enacted legislation, if the CDCR recommends
recalling a sentence — which we have found happened here — there is “a
presumption favoring recall and resentencing of the defendant, which may
only be overcome if a court finds the defendant is an unreasonable risk of
danger to public safety” — meaning there is an unreasonable risk the
defendant will commit a new violent felony. (§ 1170.03, subd. (b) [citing
§ 1170.18, subd. (c)].) If a sentence is recalled, the court should “resentence
the defendant in the same manner as if they had not previously been
sentenced.” (§ 1170.03, subd. (a)(1).) The court may consider “any pertinent
circumstances which may have arisen since the prior sentence was imposed.”
(Dix v. Superior Court, supra, 53 Cal.3d at p. 460; § 1170.03, subd. (a)(4)
[when “recalling and resentencing . . . the court may consider postconviction
factors”].) The court must also “apply any changes in law that reduce
sentences or provide for judicial discretion so as to eliminate disparity of
sentences and to promote uniformity of sentencing.” (§ 1170.03, subd. (a)(2).)
We express no opinion on how the trial court must exercise this discretion.
II.
While this appeal was pending, Senate Bill No. 483 added section
1171.1, subdivision (a), invalidating prior prison term enhancements for
5At our request, both parties submitted supplemental briefing
regarding the relevance, if any, of Assembly Bill No. 1540, to the issues
presented on appeal.
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nonsexually violent offenses imposed any time prior to January 1, 2020.
(Stats. 2021, ch. 728, § 3.) This legislation applies to Ford, who is currently
serving a term of imprisonment for his prior prison term for a 1992 robbery
conviction — a nonsexually violent offense. (Stats. 2021, ch. 728, § 1; see also
§ 1171.1, subds. (b)-(c).) The parties agree, as do we, this enhancement must
be stricken.
DISPOSITION
The order is reversed, and the matter is remanded to the trial court to
hold a new hearing under section 1170.03 and to strike the one-year
enhancement imposed under section 667.5, subdivision (b).
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_________________________
Rodríguez, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Petrou, J.
A160038
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