People v. Magana

Filed 5/5/21
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H048353
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. CC324083)

v.

FRANCISCO MAGANA,

Defendant and Appellant.

In 2019, the California Department of Corrections and Rehabilitation (CDCR)
notified the trial court of potential errors in the 2007 abstracts of judgment for defendant
Francisco Magana. When the matter was calendared, defendant asked the trial court to
conduct a full resentencing hearing. The trial court corrected the clerical errors in the
abstract, but it denied defendant’s motion for a full resentencing hearing.
Defendant appeals, contending that the trial court effectively recalled his sentence
pursuant to Penal Code section 1170, subdivision (d)(1),1 and that he was therefore
entitled to a full resentencing hearing. As we shall explain, the record does not support
defendant’s assertion that the CDCR requested his sentence be recalled, and the trial
court specifically indicated it was not recalling defendant’s sentence. Further, because
the trial court had no jurisdiction to recall defendant’s sentence, the order denying
defendant’s motion for a full resentencing hearing was not an appealable order. We will
therefore dismiss the appeal.

1
Unspecified section references are to the Penal Code.
 I. BACKGROUND
In 2005, defendant was convicted of first degree murder (§ 187, subd. (a)) and
possession of a firearm by a felon (former § 12021, subd. (a)(1)). The jury found that in
the commission of the murder, defendant had personally and intentionally discharged a
firearm, causing death (§ 12022.53, subd. (d)), and that defendant had served four prior
prison terms (former § 667.5, subd. (b)). Defendant was sentenced to an indeterminate
prison term of 50 years to life, consecutive to a determinate six-year term.
In 2007, this court found insufficient evidence to sustain the jury’s findings on two
of the four prior prison term enhancements. (People v. Magana (Feb. 7, 2007, H029059)
[nonpub. opn.], p. 21.) This court ordered that the trial court strike the enhancements and
either “retry those enhancements” or “modify the abstract of judgment to reflect their
elimination.” (Id. at p. 22.)
On remand, the trial court issued two new abstracts of judgment: one for the
indeterminate term and one for the determinate term. (See Judicial Council Form
CR-292 [Abstract of Judgment – Prison Commitment – Indeterminate] and Judicial
Council Form CR-290.1 [Abstract of Judgment – Prison Commitment – Determinate].)
The determinate abstract reflected a four-year term, consisting of a two-year term for
defendant’s conviction of being a felon in possession of a firearm and consecutive
one-year terms for the remaining two prior prison term enhancements. The indeterminate
abstract reflected a term of 25 years to life for the firearm use enhancement and a term of
50 years to life for the murder. The indeterminate abstract also listed two prior prison
term enhancements. The indeterminate abstract specified that the “total term” was 50
years to life consecutive to four years, and that two “prison priors” were being dismissed.
In a letter dated August 16, 2019, the CDCR notified the trial court that the
abstract of judgment “may be in error, or incomplete.” The CDCR’s letter first noted that
the indeterminate abstract reflected a term of 50 years to life for the murder, instead of a
term of 25 years to life. The letter also noted that two prior prison term enhancements
2
were listed on each abstract, for “a total of four” prior prison term enhancements, which
conflicted with this court’s prior opinion. The letter asked the trial court to determine
whether “a correction is required.”
After the trial court set the matter on calendar, defendant filed a brief in which he
indicated that the 2007 abstracts stated the “correct total term” for both the determinate
and indeterminate components of his sentence, but that the abstracts contained “error[s].”
Defendant then filed a motion for a “sentencing rehearing.” Defendant
described the upcoming hearing as a recall and resentencing pursuant to section 1170,
subdivision (d).2 Defendant requested that instead of simply correcting the abstract, the
trial court (1) exercise its previously unavailable discretion to dismiss the firearm use
enhancement pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.); and (2) dismiss the
two remaining prior prison term allegations pursuant to Senate Bill No. 136 (2019-2020
Reg. Sess.), which limited prior prison term enhancements to prison terms served for
sexually violent offenses.
The People filed opposition to defendant’s motion for resentencing. The People
asserted that section 1170, subdivision (d)(1) was not applicable because the letter from
the CDCR was not an invitation to recall and resentence defendant but “merely an
invitation to correct a technical error on the abstract.” The People further asserted that
defendant was not entitled to retroactive application of changes in the sentencing laws
because his judgment was final.
In a written order filed on May 26, 2020, the trial court declined to resentence
defendant. The trial court found that the CDCR’s letter concerned a “technical issue in
2
In pertinent part, section 1170, subdivision (d)(1) provides: “When a
defendant . . . has been sentenced to be imprisoned in the state prison . . . , the court may,
within 120 days of the date of commitment on its own motion, or at any time upon the
recommendation of the secretary or the Board of Parole Hearings in the case of state
prison inmates, . . . recall the sentence and commitment previously ordered and
resentence the defendant in the same manner as if they had not previously been
sentenced, provided the new sentence, if any, is no greater than the initial sentence.”
3
the abstract,” and that no legal authority permitted a resentencing. The trial court noted
that defendant could potentially seek relief by way of a “petition properly filed with the
court.”
On June 29, 2020, the parties filed a written stipulation in which they agreed that
the trial court should issue an amended indeterminate abstract. The parties agreed that
the 2007 abstracts correctly stated the total term imposed (a determinate term of 50 years
to life consecutive to a determinate four-year term) and that the total term would not
change. The parties stipulated that the indeterminate abstract should be modified to strike
the references to the prior prison term enhancements, and to reflect that the term of 50
years to life was comprised of consecutive terms of 25 years to life for the murder and the
firearm use enhancement. The trial court then issued a new indeterminate abstract
consistent with the stipulation.
II. DISCUSSION
Defendant contends the trial court effectively recalled his sentence in response to
the CDCR’s letter, and that he was therefore entitled to a full resentencing hearing. The
People disagree, asserting that the trial court did not recall defendant’s sentence when it
corrected clerical errors in the abstracts of judgment.
As noted above, under section 1170, subdivision (d)(1), a trial court may recall a
sentence at any time upon the recommendation of the secretary of the CDCR and
“resentence the defendant in the same manner as if they had not previously been
sentenced, provided the new sentence, if any, is no greater than the initial sentence.”
Under this provision, when the CDCR “notifies the trial court of an illegality in the
sentence,” the trial court is “entitled to rethink the entire sentence.” (People v. Hill
(1986) 185 Cal.App.3d 831, 834.) Thus, in Hill, after the CDCR notified the trial court
that its original sentence was illegal because it included a fully consecutive term for a
subordinate count, the trial court properly resentenced the defendant by recalculating the
terms for all of the subordinate counts. (Id. at p. 833.)
4
 Defendant contends that, as in Hill, his prior sentence was illegal, such that the
trial court effectively was required to resentence him. Defendant asserts that at his prior
resentencing in 2007, the trial court had erroneously “left in place” the punishment for all
four prior prison term enhancements instead of striking two of the enhancements. Thus,
defendant argues, the trial court resentenced him again in 2020 by striking those two
enhancements.
Defendant’s claim is not supported by the record. As noted above, the 2007
abstracts reflect that the original six-year determinate term was reduced to four years
based on the dismissal of two of the four prior prison term enhancements. The 2007
determinate abstract reflected a four-year term, which included a two-year term for
defendant’s conviction of being a felon in possession of a firearm and two one-year terms
for the remaining two prior prison term allegations. The problem with the prior prison
term enhancements was a clerical error: the two prior prison term enhancements were
listed on both the determinate abstract and the indeterminate abstract. The double listing
of those enhancements by the clerk was not an illegal sentence, and thus the trial court
did not need to—and indeed did not—strike the enhancements in 2020.
Defendant appears to assume that the letter from the CDCR contained a
“recommendation” that defendant’s sentence be recalled. (See § 1170, subd. (d)(1).) But
nothing in the CDCR’s letter referenced section 1170, subdivision (d)(1), and the letter
did not use any form of the terms “recall” or “resentencing.” Rather, the CDCR’s letter
specifically asked the trial court to determine whether “a correction is required.”
The instant case may be contrasted with cases in which the CDCR specifically
recommended a trial court resentence a defendant. For instance, in People v. McCallum
(2020) 55 Cal.App.5th 202, the CDCR recommended the defendant’s sentence be
recalled and that he be resentenced “based on his violation-free conduct while in prison
and his completion of nine college classes, a substance abuse program, and other
counseling and self-awareness programs.” (Id. at p. 206.) And in People v. Arias (2020)
5
52 Cal.App.5th 213, the CDCR “recommended recall” based on the trial court’s apparent
error in imposing both a criminal street gang enhancement and a great bodily injury
enhancement, which was prohibited by statute. (Id. at p. 217 & fn. 4; see also People v.
Loper (2015) 60 Cal.4th 1155, 1158 [CDCR “recommended that defendant’s sentence be
recalled”].)
Here, because the CDCR did not recommend a recall, the trial court lacked
authority to recall defendant’s sentence. Section 1170, subdivision (d)(1) permits the trial
court to recall a state prisoner’s sentence “at any time” only upon the recommendation of
the CDCR secretary, the Board of Parole Hearings, or the district attorney. The trial
court may recall a sentence on its own motion only “within 120 days of the date of
commitment” (§ 1170, subd. (d)(1)), which had long passed by the time the trial court
received the CDCR’s letter. And a defendant “is not empowered to make a motion to
recall” under section 1170, subdivision (d)(1). (People v. Laue (1982) 130 Cal.App.3d
1055, 1060.)
Our conclusion is consistent with People v. Humphrey (2020) 44 Cal.App.5th 371
(Humphrey). In that case, the defendant was sentenced to an aggregate prison term of
19 years. (Id. at p. 373.) Five years later, the CDCR sent a letter to the trial court,
“stating that the abstract of judgment ‘may be in error, or incomplete.’ ” (Ibid.) The
abstract properly reflected the 19-year sentence, but “the component parts of the sentence
related to each count and enhancement did not track what the court stated at the
sentencing hearing.” (Id. at pp. 374-375.) In response to the CDCR’s letter, the trial
court held a hearing at which it “clarified” the calculation of the sentence components,
then issued an amended abstract that correctly reflected the original sentence. (Id. at
p. 373.) A month later, the defendant filed a motion for resentencing, asking the trial
court to strike a firearm enhancement under the authority of Senate Bill No. 620. (Id. at
p. 376.) The trial court denied the motion.

6
 The Humphrey court rejected the defendant’s claim that the trial court had recalled
and resentenced the defendant pursuant to section 1170, subdivision (d)(1), finding that
the trial court had merely been “correcting a clerical error in the abstract of judgment.”
(Humphrey, supra, 44 Cal.App.5th at p. 379.) The CDCR’s letter had “made no
reference to the court’s authority to recall the defendant’s sentence under section 1170,
subdivision (d)(1)” and the trial court had not mentioned section 1170, subdivision (d)(1)
at the hearing. (Humphrey, supra, at p. 378.) Rather, the trial court had “specifically
stated” it was correcting clerical errors in the abstract. (Id. at p. 379.) As the defendant’s
sentence had not been recalled, the trial court had properly denied the defendant’s motion
for resentencing. (Id. at p. 380.)
Here, too, the CDCR’s letter “made no reference to the court’s authority to recall
the defendant’s sentence under section 1170, subdivision (d)(1)” (Humphrey, supra, 44
Cal.App.5th at p. 378) and the trial court “specifically stated” it was correcting clerical
errors in the abstract rather than recalling defendant’s sentence (id. at p. 379). Thus, as in
Humphrey, the trial court properly denied defendant’s motion for a full resentencing
hearing because defendant’s sentence was not recalled pursuant to section 1170,
subdivision (d)(1).
Because the trial court did not recall defendant’s sentence, the court’s order
correcting the abstract did not affect the finality of the judgment. And because the
judgment was final, the trial court could not retroactively apply Senate Bill No. 620 or
Senate Bill No. 136. (See Humphrey, supra, 44 Cal.App.5th at p. 380 [because
Humphrey’s case had been “final for years,” he was “not entitled to retroactive
application” of Sen. Bill No. 620]; People v. France (2020) 58 Cal.App.5th 714, 719
[Sen. Bill No. 136 applies “retroactively to defendants whose cases were not yet final
when the statute took effect”]; People v. Chavez (2018) 22 Cal.App.5th 663, 712 [Sen.
Bill No. 620 applies retroactively only to “all nonfinal judgments”].)

7
 We requested supplemental briefing on whether, if the trial court did not recall
defendant’s sentence under section 1170, subdivision (d)(1), the trial court’s order
denying defendant’s motion for a resentencing hearing was an appealable order. The
Attorney General argues that the order was not an appealable order, and defendant
maintains his position that his sentence was recalled pursuant to section 1170,
subdivision (d)(1).
We find instructive People v. Chlad (1992) 6 Cal.App.4th 1719 (Chlad). In
Chlad, the defendant was sentenced to a 14-year prison term. (Id. at p. 1722.) More than
120 days later, the defendant filed a motion for recall and resentencing. (Id. at p. 1723.)
The trial court initially granted the motion but later determined it had no jurisdiction to
resentence the defendant under former section 1170, subdivision (d)3 and therefore
denied the motion. The defendant appealed, and the Attorney General filed a motion to
dismiss the appeal, contending the order was not appealable as an “order made after
judgment, affecting the substantial rights of the party” as provided in section 1237,
subdivision (b).
The Chlad court found that the trial court “was without jurisdiction to resentence”
and thus that the order denying the defendant’s motion for resentencing was not an
appealable order. (Chlad, supra, 6 Cal.App.4th at p. 1725.) Because the defendant had
“ ‘no standing to make a motion for recall of sentence pursuant to [former] Penal Code
section 1170, subdivision (d)’ ” (Chlad, supra, at p. 1725), and because the trial court “no
longer had jurisdiction to recall Chlad’s sentence when it issued the order denying his
motion” (id. at p. 1726), the denial of his motion was not one that affected his substantial
rights. Thus, the order was not an appealable order. (Ibid.; see also People v. Dynes

3
Section 1170 was amended in 2012 to designate former section 1170,
subdivision (d) as subdivision (d)(1) and to add subdivision (d)(2), which permits certain
defendants who were under 18 years of age at the time of the commission of their
offenses to submit a petition for recall and resentencing. (Stats. 2012, ch. 828, § 1.)
8
(2018) 20 Cal.App.5th 523, 528 [because trial court lacked jurisdiction to resentence
defendant, order denying defendant’s request for resentencing did not affect his
substantial rights and was not an appealable order]; People v. Turrin (2009) 176
Cal.App.4th 1200, 1208 [because trial court lacked jurisdiction to rule on defendant’s
request to modify restitution fines, order denying that request did not affect the
defendant’s substantial rights and was not an appealable order].)
Here, the trial court had no jurisdiction to grant defendant’s motion for a
resentencing hearing pursuant to section 1170, subdivision (d)(1). Therefore, the order
denying that motion did not affect defendant’s substantial rights and was not an
appealable order.
III. DISPOSITION
The appeal is dismissed.

9
 Cogliati, J.*

WE CONCUR:

Bamattre-Manoukian, Acting P.J.

Grover, J.

People v. Magana
H048353

*
Judge of the Santa Cruz County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
Trial Court: Santa Clara County Superior Court
Superior Court No. CC324083

Trial Judge: Hon. Vanessa A. Zecher

Counsel for Plaintiff/Respondent: Xavier Becerra
The People Attorney General of California

Lance E. Winters
Chief Assistant Attorney General

Michael P. Farrell
Senior Assistant Attorney General

Darren K. Indermill
Supervising Deputy Attorney General

Kari Ricci Mueller
Deputy Attorney General
Counsel for Defendant/Appellant: Under appointment by the Court of
Appeal
Steven A. Torres

People v. Magana
H048353