Filed 9/27/23 P. v. Smith CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
A166421
v.
TROY DEVIN SMITH, (San Francisco City &
County Super. Ct. No.
Defendant and
SCN198701)
Appellant.
Defendant is serving a 26-year prison sentence. In 2022,
San Francisco’s then-District Attorney, Chesa Boudin, moved to
resentence defendant under former Penal Code1 section 1170.03,
now section 1172.12. That statute authorizes a trial court to
recall and resentence a defendant convicted of a felony “at any
time upon the recommendation of . . . the district attorney of the
1 All further statutory references are to the Penal Code
unless otherwise noted.
2 This statute was originally enacted as former section
1170, subdivision (d). Effective January 1, 2022, Assembly Bill
No. 1540 (2021–2022 Reg. Sess.) moved the recall and
resentencing provisions of former section 1170, subdivision (d) to
new section 1170.03. (Stats. 2021, ch. 719, § 3.) Section 1170.03
was later recodified without substantive change as section
1172.1. (Stats. 2022, ch. 58, § 9.)
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county in which the defendant was sentenced.” (§ 1172.1,
subd. (a)(1).)
In July 2022, the newly-appointed San Francisco District
Attorney, Brooke Jenkins, moved to withdraw the resentencing
request, citing the change of administration. After additional
briefing, the trial court granted the motion solely because the
matter had not been submitted to the court for final decision
before the district attorney moved for withdrawal. Defendant
contends that the court should have denied the motion to
withdraw and decided whether to recall and resentence him on
the merits.
In People v. Vaesau (2023) 94 Cal.App.5th 132, 139
(Vaesau), Division One of this court recently held “that a trial
court has discretion, but is not required, to terminate a section
1172.1 proceeding when a district attorney identifies a legitimate
basis for withdrawing a resentencing recommendation and moves
to withdraw such recommendation before the court rules on the
merits.” We agree with Vaesau. Because the trial court ruled on
the motion to withdraw without the benefit of guidance from
Vaesau or this opinion, it did not appreciate the scope of its
discretion. We accordingly vacate the order and remand for
reconsideration.
BACKGROUND
In 2006, a jury convicted defendant of four counts of second
degree robbery (§ 212.5, subd. (c)), four counts of false
imprisonment (§ 236), two counts of second degree burglary
(§ 459), and one count of conspiracy to commit robbery (§ 182,
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subd. (a)(1)). (People v. Smith (2009) 177 Cal.App.4th 1478,
1487.) The jury found true allegations that the robberies
involved losses exceeding $2,500,000 (former § 12022.6,
subd. (a)(4)), and that a principal to the crimes (other than
conspiracy) was armed with a firearm (§ 12022.1, subd. (a)(1)).
(People v. Smith, at p. 1487.) The court found true allegations
that defendant suffered prior serious felony convictions, including
three prior “strike” convictions (§ 667, subds. (a), (d), (e);
§ 1170.12, subds. (b) & (c)), and served a prior prison term
(§ 667.5, subd. (b)). (People v. Smith, at p. 1487.) Defendant was
sentenced to an aggregate term of 26 years in state prison.
(Ibid.)
In April 2022, then-District Attorney for the City and
County of San Francisco, Chesa Boudin, filed a two-page motion
to recall defendant’s sentence and resentence him. The court
appointed counsel for defendant and set a hearing for June 13,
2022.
On June 13, 2022, the People filed another motion for
resentencing, arguing that defendant should be resentenced
because he had demonstrated positive post-conviction conduct, he
had a low risk of recidivism with the lowest possible California
Status Risk Assessment Score of 1, and he was no longer a public
safety risk. The People requested that the court modify
defendant’s sentence to time served with parole supervision. The
court heard argument and continued the matter to August 1,
2022, so that the parties could provide further information
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regarding defendant’s prior criminal record and possible victim
restitution.
On July 27, 2022, defendant filed a brief requesting
resentencing to time served without parole supervision. On July
29, 2022, the People, now represented by District Attorney
Brooke Jenkins, moved to withdraw the resentencing motion.
The People argued that, because a resentencing motion is a
unilateral exercise of personal discretion by a county’s chief
prosecutor, the district attorney should be able to withdraw the
motion at her discretion.
At the August 1, 2022, hearing, defendant opposed the
motion to withdraw, and the trial court continued the hearing so
that it could research matters related to defendant’s argument in
opposition and so that the parties could provide further
clarification on defendant’s criminal record and possible
restitution.
On August 24, 2022, the district attorney filed a
supplemental motion to withdraw the recommendation for
resentencing. The district attorney briefly argued that
defendant’s 26-year sentence continued to serve the interests of
justice. The district attorney relied on defendant’s commission of
two violent crimes at the ages of 26 and 40, and the fact that
defendant had spent most of his life in prison. Defendant filed a
written opposition, arguing that, once the People filed a motion
for recall and resentencing, jurisdiction was vested with the trial
court, and defendant acquired due process rights as to the recall
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and resentencing. He also asserted that the People were
estopped from seeking withdrawal of their resentencing request.
At the hearing on August 26, 2022, the district attorney
explained that “the 26-year sentence serves the interest of justice
for this defendant.” The district attorney stated that defendant’s
age at the time of his crime was part of the consideration, and
that there appeared to have been an “incomplete vetting of the
case.” The district attorney argued that “the court has not ruled
on this case, and so we are asking that the Court[ ] allow the
People to withdraw the petition.” Defense counsel opposed,
arguing that the court had jurisdiction to resentence him, the
district attorney had not cited a single case that would allow it to
withdraw a request for resentencing, and a change in
administration was not a sufficient basis for withdrawal.
The court ruled that, because the case had never been
submitted to it for final determination, the People could
withdraw their request for resentencing. “What matters to the
Court is, was this matter submitted to the Court for final
determination, unequivocally submitted, no further argument, no
further evidence to be produced by either side for the Court[ ] to
make its determination as to whether to grant relief. [¶] . . . [¶] If
I found the case was submitted for the final determination, I
would not allow the People to withdraw their petition, because
would I argue that I think it could be argued that there’s then no
reliance at that point, and it would be a detrimental reliance for
the petitioner to have to then kind of reargue or refight the case,
when it already had been submitted to the court. [¶] So this case
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was not submitted to the Court, so I am going to allow the People
to withdraw their motion for resentencing, which was made
pursuant to 1170.03, which now of course is 1172.1.”
DISCUSSION
I. Section 1172.1
“When a defendant, upon conviction for a felony offense,
has been committed to the custody of the Secretary of the
Department of Corrections and Rehabilitation or to the custody of
the county correctional administrator pursuant to subdivision (h)
of Section 1170, the [trial] court may . . . at any time upon the
recommendation of . . . the district attorney of the county in
which the defendant was sentenced . . . recall the sentence and
commitment previously ordered and resentence the defendant in
the same manner as if they had not previously been sentenced,
whether or not the defendant is still in custody, and provided the
new sentence, if any, is no greater than the initial sentence.”
(§ 1172.1, subd. (a)(1).) This statute provides “ ‘an exception to
the common law rule that the [trial] court loses resentencing
jurisdiction once execution of sentence has begun.’ ” (People v.
E.M. (2022) 85 Cal.App.5th 1075, 1082; Vaesau, supra,
94 Cal.App.5th at p. 142.)
Under section 1172.1, the trial court must “state on the
record the reasons for its decision to grant or deny recall and
resentencing[,]” and the statute provides that “[r]esentencing
shall not be denied . . . without a hearing where the parties have
an opportunity to address the basis for the intended denial or
rejection.” (§ 1172.1, subd. (a)(6), (8).) However, “Resentencing
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may be granted without a hearing upon stipulation by the
parties.” (Id. at subd. (a)(7).) In addition, where the
resentencing request comes from the district attorney, the
following provisions apply: “(1) The court shall provide notice to
the defendant and set a status conference within 30 days after
the date that the court received the request. The court’s order
setting the conference shall also appoint counsel to represent the
defendant. [¶] (2) There shall be 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, as defined in subdivision (c) of Section 1170.18.”
(§ 1172.1, subd. (b)(1), (2).)
II. Vaesau
In Vaesau, our colleagues addressed whether a district
attorney could withdraw a resentencing recommendation under
section 1172.1 in very similar circumstances. In Vaesau, newly-
appointed San Francisco District Attorney Brooke Jenkins moved
to withdraw a request for resentencing made while Chesa Boudin
was the San Francisco District Attorney, without explaining the
basis for the request. (Vaesau, supra, 94 Cal.App.5th at pp. 139–
40.) The trial court ruled that the district attorney had discretion
to withdraw the recommendation. (Id. at pp. 140–141.) The
defendant argued on appeal that the district attorney lacked
authority to rescind the resentencing request and the trial court
violated section 1172.1 and his due process rights by failing to
reach the merits. (Id. at p. 145.) The Attorney General
countered that the district attorney had the inherent power to
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rescind the request, at which point the trial court was required to
terminate the section 1172.1 proceeding. (Ibid.) Vaesau found
that “[t]he correct answer lies between these two extremes.”
(Ibid.)
The court first determined that a district attorney does not
possess inherent power to unilaterally terminate section 1172.1
proceedings by withdrawing a resentencing request before a
ruling on the merits. (Vaesau, supra, 94 Cal.App.5th at pp. 145–
146.) Relying on In re Fain (1976) 65 Cal.App.3d 376, 389, which
held that the Adult Authority had the power to rescind a grant of
parole before a prisoner’s release, the Attorney General in Vaesau
argued that “[t]he power to take an action includes the inherent
power to reconsider that action,” meaning the district attorney’s
power to request resentencing includes the absolute power to
rescind the request. (Vaesau, at p. 147.) The court found that
Fain was inapposite, in part because Fain addressed “ ‘ “purely
administrative” ’ ”actions, which sentencing is not. (Vaesau, at
p. 147.) Further, the court observed that a resentencing
recommendation under section 1172.1, once made, “functions to
renew the trial court’s sentencing jurisdiction, and permitting the
executive branch to unilaterally terminate section 1172.1
proceedings would ‘intrude’ into that jurisdiction, raising
separation-of-powers concerns.” (Ibid.)
The court nonetheless found that trial courts are not
required to determine the merits of all sentencing
recommendations. (Vaesau, supra, 94 Cal.App.5th at p. 148.)
Instead, trial courts retain discretion to grant a request to
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withdraw a resentencing recommendation made for a legitimate
reason. (Id. at pp. 151–153.) The court observed that section
1172.1 does not spell out procedures for valid termination of a
proceeding thereunder without prejudice, but courts have
inherent power to fill gaps in statutory procedure if such power is
not used unconstitutionally or in a manner that contravenes
legislative intent. (Vaesau, at pp. 150–151.) The court reasoned
that section 1172.1’s presumption in favor of resentencing upon
recommendation (§ 1172.1, subd. (b)(2)) reflects legislative intent
that courts respect the scrutiny given to referrals, and allowing
courts to entertain requests for withdrawal comports with the
legislative intent to give weight to an agency’s most up-to-date
assessment. (Vaesau, at p. 149.) Furthermore, the court
reasoned that prohibiting consideration of requests to withdraw
recommendations could discourage the making of the
recommendations in the first place, which would thwart section
1172.1’s overall purpose of reducing incarceration levels.
(Vaesau, at pp. 149–150.)
Finally, Vaesau determined that a trial court’s
discretionary decision on a request to withdraw a resentencing
recommendation had to be “guided by section 1172.1’s objectives
and the defendant’s due process rights.” (Vaesau, supra,
94 Cal.App.5th at p. 151.) The court recognized that there “could
be a range of valid reasons to withdraw a request, such as
‘administrative mistake or improvidence,’ a change in the law, or
a ‘change in the prisoner’s circumstances’ making the prisoner
‘less deserving of resentencing.’ ” (Id. at p. 152.) But the intent
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behind the presumption in favor of resentencing (§ 1172.1,
subd. (b)(2)) would be thwarted if a trial court did not consider
the basis for a withdrawal request and allowed withdrawal
without justification. (Ibid.) Considering the liberty interest at
stake, “[d[ue process concerns also support requiring a district
attorney to offer a valid reason for deciding to withdraw a
resentencing request.” (Ibid.) “Allowing a district attorney to
withdraw a resentencing request without explanation, especially
under the political circumstances here, raises the specter of
arbitrary action and does not carry the appearance of fairness.”
(Ibid.) Because the district attorney did not offer a reason for the
withdrawal request, Vaesau remanded the matter for the trial
court to reconsider whether to allow the district attorney to
withdraw the resentencing request. (Id. at pp. 151–153.)
Analysis
In his initial briefing, defendant argued that (1) section
1172.1, subdivision (a)(7) required the court to resentence him
because the parties agreed that resentencing was proper, and (2)
jurisdiction vested in the trial court upon the filing of the request
for resentencing, giving defendant due process rights to recall
and resentencing and prohibiting the court from permitting the
withdrawal of the resentencing request. In supplemental
briefing3, defendant argues that this court should follow Vaesau
and remand the matter because the trial court did not appreciate
the scope of its discretion in deciding the motion to withdraw.
3 This court allowed the parties to file supplemental
briefing after Vaesau was published.
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Respondent points out that there was no stipulation under
section 1172.1, subdivision (a)(7) and the court was not required
to resentence defendant, but respondent agrees that the matter
should be remanded under Vaesau’s rationale. For the reasons
set forth below, we vacate the court’s order and remand for
reconsideration.
As an initial matter, we reject defendant’s contention that
the court was required to recall his sentence and resentence him
under section 1172.1, subdivision (a)(7). There was no stipulation
for resentencing here, and even if there were, section 1172.1 does
not mandate that a trial court recall and resentence a defendant
where the parties stipulate to resentencing. (§ 1172.1,
subd. (a)(7) [resentencing may be granted without a hearing upon
stipulation].)
We believe, however, that Vaesau accurately determined
that a trial court has discretion to grant a motion to withdraw a
resentencing recommendation under section 1172.1. Per the
statute’s plain language, upon receiving a resentencing
recommendation, a trial court has jurisdiction to resentence a
defendant. (Vaesau, supra, 94 Cal.App.5th at pp. 144–145;
§ 1171.2, subd. (a).) Section 1172.1 does not expressly address
whether a resentencing recommendation may be withdrawn, but
we agree with Vaesau that a withdrawal request does not
terminate the court’s jurisdiction over the proceeding. (Vaesau,
at pp. 145–147.) On the other hand, neither the statutory
language nor intent supports construing section 1172.1 to
prohibit a court from considering a motion to withdraw a
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resentencing request brought for a legitimate reason. (Vaesau, at
pp. 149–150.) And we share Vaesau’s concerns that section
1172.1’s objectives would be impaired and due process concerns
would be raised by allowing a district attorney “ ‘to withdraw its
recommendation on a whim, or due to a change in the political
winds.’ ” (Vaesau, at p. 152.) Thus, we join Vaesau in holding
that “a trial court has discretion, but is not required, to terminate
a section 1172.1 proceeding when a district attorney identifies a
legitimate basis for withdrawing the resentencing request and
moves to withdraw before the court rules on the merits.”
(Vaesau, at p. 139.)
We agree with the parties that remand for reconsideration
is the proper remedy here. The district attorney’s initial
justification for its motion to withdraw—a change in political
winds—standing alone is insufficient. (Vaesau, supra,
94 Cal.App.5th at p. 152.) Although the district attorney filed a
supplemental motion, that motion provides scant explanation of
the district attorney’s change of position. In any event, it is clear
that the trial court did not consider why the district attorney
sought to withdraw its resentencing request, instead allowing
withdrawal solely because the matter had not been submitted for
final determination. Without the benefit of Vaesau or this
opinion, the trial court was understandably unaware of the
bounds of its discretion. Remand is therefore appropriate so that
the court can exercise its discretion to decide whether the district
attorney seeks to withdraw its resentencing request for a
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legitimate reason and whether the district attorney should be
able to withdraw the request in this case.4
DISPOSITION
The order granting the district attorney’s motion to
withdraw its resentencing request is vacated. The matter is
remanded for the trial court to reconsider whether to permit the
district attorney to withdraw the motion to resentence defendant.
BROWN, P. J.
WE CONCUR:
GOLDMAN, J.
HIRAMOTO, J.
People v. Smith (A166421)
4 Defendant’s “motion to provide exhibits to this court,”
filed on August 1, 2023, is denied as unnecessary to our
disposition.
Judge of the Superior Court of California, County of
Contra Costa, assigned by the Chief Justice pursuant to article
VI, section 6 of the California Constitution.
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