Filed 6/17/21 P. v. Xiong CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C089915
Plaintiff and Respondent, (Super. Ct. No. 12F02578)
v.
JOHN XIONG,
Defendant and Appellant.
Defendant John Xiong appeals the trial court’s denial of the California Department
of Corrections and Rehabilitation’s (CDCR) recommendation under Penal Code section
1170, subdivision (d)(1) (hereafter, section 1170(d)(1)), that the trial court consider
recalling defendant’s sentence and resentencing him.1 Defendant contends the trial
court’s denial of resentencing without an opportunity to be heard or to have counsel
appointed for him violated both his federal and state constitutional rights and was
structural error reversible per se. We agree in part and reverse and remand for the trial
1 Undesignated statutory references are to the Penal Code.
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court to provide defendant the opportunity to present additional information relevant to
the recommendation, and for the trial court to reconsider whether to exercise its
discretion to recall defendant’s sentence after receiving this information, if any.
I. BACKGROUND2
Following defendant’s conviction on multiple counts and enhancement
allegations, the trial court sentenced him to a term of 36 years four months, which
included doubling the sentence as a result of a prior strike, a 20-year firearm
enhancement, and a five-year prior conviction enhancement. We affirmed the conviction
under Wende review, and the judgment became final in 2017. (People v. Xiong, supra,
C081131.)
In April 2019, CDCR sent the trial court a letter under section 1170(d)(1),
recommending the trial court consider recalling defendant’s sentence and resentencing
him based on amendments to section 667, subdivision (a), effective January 2019,
allowing the trial court to strike that enhancement.3 The letter included a number of
attachments, including defendant’s programming history, detailing his behavior and
program participation while incarcerated. After reviewing the recommendation, the trial
court declined to act on it, noting that although defendant had committed a robbery and
personally discharged the gun in 2012, he was not sentenced until 2016, so had only been
in prison for three years for “this very serious and violent felony.” In addition, defendant
2 The substantive facts underlying this conviction are not necessary to our resolution of
this case on appeal and are therefore not recounted here. They can be found in our earlier
nonpublished opinion, People v. Xiong (Feb. 24, 2017, C081131) [nonpub. opn.].
3 The term also included a 20-year firearm enhancement under section 12022.53,
subdivision (b). Under Senate Bill No. 620, also enacted subsequent to the sentencing in
this case, trial court’s now have discretion to strike this firearm enhancement. Contrary
to defendant’s assertion, the CDCR did not raise this as a basis for recalling and
resentencing defendant.
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was convicted of being a felon in possession of a firearm. At the time of sentencing, the
trial court could have dismissed the strike prior, rather than doubling the sentence, but did
not. The trial court found the sentence imposed “reflects the proper measure of justice
for the crimes [defendant] committed.” Accordingly, the trial court summarily denied the
CDCR request.
II. DISCUSSION
Defendant contends the trial court’s denial of the CDCR’s recommendation to
recall his sentence without a hearing denied him due process under both the federal and
California Constitutions. Defendant claims section 1170(d)(1) “expands” his liberty
interest in resentencing protected under the federal guarantee of due process of law (U.S.
Const., 5th & 14th Amends.) and the comparable, but broader, state guarantee of due
process of law (Cal. Const., art. I, §§ 7, subd. (a), 15). He contends under both the
federal and California Constitution, he was entitled to notice, an opportunity to be heard,
a statement of reasons, and had a Sixth Amendment right to counsel. The People argue
defendant is not entitled to postconviction relief under section 667, subdivision (a), as his
judgment was final before the amendments to that section became operative and,
therefore, he is not eligible for retroactive relief; and that section 1170(d)(1) does not
require the trial court to provide notice, an opportunity to be heard, or a statement of
reasons for rejecting the CDCR recommendation.
A. Statutory Language
In pertinent part, section 1170(d)(1) provides: “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 [of the CDCR] 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. The court resentencing under
this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate
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disparity of sentences and to promote uniformity of sentencing. The court resentencing
under this paragraph may reduce a defendant’s term of imprisonment and modify the
judgment, including a judgment entered after a plea agreement, if it is in the interest of
justice. The court may consider postconviction factors, including, but not limited to, the
inmate’s disciplinary record and record of rehabilitation while incarcerated, evidence that
reflects whether age, time served, and diminished physical condition, if any, have
reduced the inmate’s risk for future violence, and evidence that reflects that
circumstances have changed since the inmate’s original sentencing so that the inmate’s
continued incarceration is no longer in the interest of justice.”
Section 1170(d)(1) authorizes the secretary of the CDCR to recommend to the
superior court that the court recall a previously imposed sentence and resentence the
defendant. (People v. Loper (2015) 60 Cal.4th 1155, 1165 (Loper), citing Dix v. Superior
Court (1991) 53 Cal.3d 442, 460 (Dix).) The CDCR recommendation furnishes the court
with jurisdiction it would not otherwise have to recall and resentence. (People v. Frazier
(2020) 55 Cal.App.5th 858, 866 (Frazier).) The recommendation is “an invitation to the
court to exercise its equitable jurisdiction.” (Ibid.)
“In deciding whether to recall a sentence under section 1170, subdivision (d)(1),
the trial court may exercise its authority ‘for any reason rationally related to lawful
sentencing.’ ” (People v. McCallum (2020) 55 Cal.App.5th 202, 210 (McCallum).)
“Once the sentence and commitment have validly been recalled, section 1170(d)
authorizes the court to ‘resentence . . . in the same manner as if [the defendant] had not
previously been sentenced.’ ” (Dix, supra, 53 Cal.3d at p. 456, italics omitted.) In
resentencing, the trial court may consider a variety of post-conviction factors “ ‘and
evidence that reflects that circumstances have changed since the inmate’s original
sentencing so that the inmate’s continued incarceration is no longer in the interest of
justice.’ ” (McCallum, supra, at p. 210.) Thus, section 1170(d)(1) contains a two-step
process. At the first step, the trial court decides whether to recall the sentence. If the
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court decides not to recall the sentence, this ends the inquiry. If the court decides to
recall the sentence, however, the inquiry moves onto the second step, and the court holds
a resentencing hearing. (See § 1170(d)(1); see also Dix, supra, at p. 463.) In this case,
we are only called on to address the due process requirements at the first step, the
decision whether to recall the sentence.
B. Application to Final Judgment
As a general statement, the People are correct that the defendant could not,
himself, seek postconviction relief under section 667, subdivision (a), as it applies
retroactively only to cases not yet final when it was enacted, and his conviction was final
long before the amendments were enacted. (In re Estrada (1965) 63 Cal.2d 740, 742;
People v. Garcia (2018) 28 Cal.App.5th 961, 972.) But, the People’s argument ignores
the procedural posture of this case. Defendant did not seek relief under section 667,
subdivision (a). Rather, under section 1170(d)(1), the CDCR initiated these proceedings,
recommending the trial court consider recall and resentencing based on the statutory
amendments. There is nothing in section 1170(d)(1) limiting its application to cases not
yet final on appeal. To the contrary, the statute specifically states the CDCR may
recommend the trial court recall and resentence “at any time” and that, if it chose to, the
trial court “shall apply the sentencing rules of the Judicial Council so as to eliminate
disparity of sentences and to promote uniformity of sentencing.” Accordingly, although
this case has been long since final, the CDCR was not precluded from recommending the
trial court recall and resentence defendant.
C. Due Process4
4 The People argue that defendant’s due process claim is without merit, because the
statute does not contemplate a requirement of notice, hearing, statement of decision, or
right to counsel. The claim on appeal here is not what the statute provides, but what due
process requires. That statutory provisions may fail to meet the mandatory minimum
requirements of due process does not excuse us from the obligation to ensure those
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“[D]ue process is flexible and calls for such procedural protections as the
particular situation demands.” (Morrissey, supra, 408 U.S. at p. 481.) “[I]dentification
of the dictates of due process generally requires consideration of (1) the private interest
that will be affected by the official action, (2) the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards, (3) the dignitary interest in informing individuals of the
nature, grounds and consequences of the action and in enabling them to present their side
of the story before a responsible governmental official, and (4) the governmental interest,
including the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.” (People v. Ramirez (1979)
25 Cal.3d 260, 269; see also Mathews v. Eldridge (1976) 424 U.S. 319, 335.) Balancing
the relevant interests supports our conclusion that due process requires more procedural
safeguards than were given here.
In Loper, supra, 60 Cal.4th at pp. 1163-1165, our Supreme Court held that a
denial of compassionate release under section 1170, subdivision (e) affected the
defendant’s substantial rights and supported an appeal by the defendant. In reaching this
conclusion, the court discussed the individual right at stake: “ ‘The “right” which [the
defendant] is asserting is his “right” to receive a sentence which is not disparate when
compared to sentences received by other similarly situated convicts. Underlying this is
[the defendant’s] right to liberty—and to suffer only that deprivation of liberty which his
crimes warrant.’ ” (Loper, supra, at p. 1163.) This same right arises after a section
1170(d)(1) recommendation for recall and resentencing is made. Under section
minimal procedural safeguards are in place. (See People v. Vickers (1972) 8 Cal.3d 451,
456-460; see also Morrissey v. Brewer (1972) 408 U.S. 471, 481 (Morrisey).) In this
case, we are required to determine “whether the minimum requirements for due process
[were] satisfied—not whether they were statutorily required.” (People v. Amor (1974) 12
Cal.3d 20, 30.)
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1170(d)(1), if the trial court accepts a recommendation for recall, it is required to apply
the sentencing rules “to eliminate disparity of sentences and to promote uniformity of
sentencing,” so as not to deprive the defendant his right to liberty. Because section
1170(d)(1) implicates the same right that was at issue in Loper, we conclude the
operation of this statute that allows for recall and resentencing for any reason “in the
interest of justice” affects defendant’s substantial rights. We use that substantial right to
analyze the procedural due process requirements.
D. Balancing Interests
The private interest is defendant’s liberty, in the way of a potentially significant
reduction of his sentence. If defendant’s sentence were recalled, he would have the
opportunity to a full resentencing at which the trial court could exercise its discretion and
strike the 20-year firearm enhancement and the five-year prior conviction enhancement,
striking 25 years from defendant’s 36 year sentence. Defendant was sentenced in early
2016 and received over four years of presentence custody credits. Thus, if the trial court
struck both enhancements and reduced defendant’s sentence by 25 years, defendant could
be eligible for release shortly. (People v. Xiong, supra, C081131.)
There is a legitimate governmental interest in reducing administrative and fiscal
burdens and preserving judicial resources. Requiring no more than a summary procedure
for deciding whether to recall a sentence may advance that legitimate governmental
interest. However, the fiscal and administrative burden of providing notice to defendant
is neither extensive nor undue. Here, the district attorney and public defender’s office
were given notice. It is not a significant additional burden to add defendant to the list of
those already receiving notice of the CDCR’s recommendation. At the same time
defendant is given notice, defendant could also be informed of the opportunity to provide
evidence to the court.
We reject the People’s assertion that defendant is not entitled to notice or any
opportunity to be heard. In McCallum, supra, 55 Cal.App.5th 202, after CDCR
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submitted its recommendation, the defendant’s attorney requested the court hold a case
management conference and, if necessary, set a briefing and hearing schedule. (Id. at pp.
208-209.) Without holding a hearing, the trial court issued an order explaining its
reasons for not exercising its discretion to recall the sentence. (Id. at p. 209; see also
Frazier, supra, 55 Cal.App.5th at p. 866.) The appellate court held that the defendant
had no due process right to a hearing before the trial court determined whether to recall
the sentence. (McCallum, supra, at p. 215.) However, the trial court’s rejection of
CDCR’s recommendation without allowing the defendant an opportunity to present
additional information was an abuse of discretion. (Id. at pp. 218-219.) We follow
McCallum. Further, we conclude that a defendant who has no opportunity to present
additional information in part because of a lack of notice is no less entitled to remand.5
E. Right to Counsel
As for the right to counsel, the United States Supreme Court has declined to
extend the Sixth Amendment right to counsel to postconviction proceedings. (See, e.g.,
Pennsylvania v. Finley (1987) 481 U.S. 551, 555.) And, while not specifically
addressing the right to counsel, the Supreme Court has also held that the Sixth
Amendment was not implicated by an incarcerated defendant’s statutory motion for a
sentence modification based on intervening amendments to the federal sentencing
guidelines. (Dillon v. United States (2010) 560 U.S. 817, 828 [the statutory remedy
merely represented “a congressional act of lenity intended to give prisoners the benefit of
later enacted adjustments” to the sentencing guidelines].) Several California courts have
adopted the reasoning of Dillon when called upon to address the right to counsel as to
eligibility for resentencing in petitions under Proposition 36 and Proposition 47. Those
5 In this case the trial court provided a written explanation for its decision. For this
reason, we need not address whether due process required the preparation of a statement
of reasons.
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courts have concluded that the right to counsel attaches only after the determination that
defendant is eligible for relief. Accordingly, here, it is only after the matter proceeds to
resentencing that the right to counsel attaches. (People v. Rouse (2016) 245 Cal.App.4th
292, 298-301, and cases cited therein.)
We agree with the conclusion in Frazier, “[t]here simply is no constitutional right
to counsel or a hearing in connection with every postjudgment request with the potential
to affect a substantial right.” (Frazier, supra, 55 Cal.App.5th at p. 867.) The CDCR’s
“recommendation letter inviting the court to exercise its jurisdiction pursuant to section
1170, subdivision (d)(1), to recall a sentence, without more, does not trigger a due
process right to counsel.” (Id. at p. 869.)
F. Reversible Error
Not every due process violation is reversible per se. (Arizona v. Fulminante
(1991) 499 U.S. 279, 307-308; People v. Carreon (1984) 151 Cal.App.3d 559, 574.)
There are circumstances in which a finding of prejudice may be required. (People v.
Bostick (1965) 62 Cal.2d 820, 824.) The context and type of due process violation
dictates whether the error is reversible per se or subject to harmless error analysis. “The
importance of the constitutional right, standing alone, is not dispositive of the question
whether the error is susceptible to harmlessness review.” (People v. Aranda (2012) 55
Cal.4th 342, 366.)
Trial errors may be evaluated to see if the error was harmless beyond a reasonable
doubt. Trial errors are those which occur during presentation of the case to the trier of
fact. (Arizona v. Fulminante, supra, 499 U.S. at pp. 307-308.) By contrast, structural
errors demand automatic reversal. Structural errors are “defects in the constitution of the
trial mechanism, which defy analysis by ‘harmless-error’ standards.” (Id. at p. 309.)
Structural defects are those that affect “the framework within which the trial proceeds,
rather than simply an error in the trial process itself.” (Id. at p. 310.)
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To determine if an error is susceptible to harmless error review, we examine
“whether the error rendered the trial ‘fundamentally unfair or an unreliable vehicle for
determining guilt or innocence’ [citation] or whether the effect of the error is ‘necessarily
unquantifiable and indeterminate.’ ” (People v. Aranda, supra, 55 Cal.4th at p. 366.) In
the circumstances of this case, we conclude the effect of the error is necessarily
unquantifiable and indeterminate. The due process violations here prevented defendant
from having a meaningful opportunity to be heard and to present evidence in his favor.
“Determining prejudice in this context would require ‘a speculative inquiry into what
might have occurred in an alternate universe.’ ” (Severson & Werson, P.C. v. Sepehry-
Fard (2019) 37 Cal.App.5th 938, 951.) We simply cannot know what impact this failure
had on the proceedings. (See ibid.; In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1115-
1116 [failure to provide notice and an opportunity to be heard can be reversible per se].)
Accordingly, we conclude the due process violations in this case are reversible per se.
III. DISPOSITION
The order declining to recall defendant’s sentence is reversed. The matter is
remanded to the trial court for further proceedings consistent with this opinion.
/S/
RENNER, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
KRAUSE, J.
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