Filed 6/30/21 P. v. Craft 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----
THE PEOPLE, C091752
Plaintiff and Respondent, (Super. Ct. No.
STKCRFE20030008619)
v.
JOHN HENRY CRAFT,
Defendant and Appellant.
This appeal arises from the trial court’s denial of defendant John Henry Craft’s
request to recall his sentence and resentence him pursuant to Penal Code1 section 1170,
subdivision (d). Appointed counsel for defendant filed an opening brief setting forth the
facts of the case and asking this court to review the record to determine whether there are
any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant
1 Undesignated statutory references are to the Penal Code.
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subsequently filed a supplemental brief contending the court erred in failing to conduct
an evidentiary hearing and make certain findings before denying the petition. After
reviewing the entire record, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On July 31, 2003, defendant assaulted a 74-year-old man in a bathroom, hit him
twice, grabbed him by the mouth to prevent him from screaming, took his gold watch off
of his wrist, and also took over $250 out of his wallet.
On October 24, 2003, defendant was charged with second degree robbery, a felony
and elder abuse, a felony. It was alleged as to the robbery that defendant inflicted great
bodily injury upon a person who was 60 years of age or older. It was further alleged that
defendant had previously been convicted of six prior serious or violent felonies (strikes),
that he had been convicted of two prior serious felonies and that he had served two prior
prison terms.
On December 19, 2003, following a jury trial in this matter, the jury returned
guilty verdicts for both counts. The court denied defendant’s motion for new trial. The
court also denied defendant’s request to dismiss his prior strike allegations. Defendant
was then sentenced to 25 years to life as to both counts with the sentence for elder abuse
stayed pursuant to section 654. The trial court also sentenced defendant to an additional
10 years for his two prior serious felony enhancements.
On January 24, 2020, the Department of Corrections and Rehabilitation
(Department) sent a letter to the trial court recommending that it exercise its authority
pursuant to section 1170, subdivision (d), resentence defendant, and strike one or both of
the five-year enhancements pursuant to section 667, subdivision (a). In support of that
letter, defense counsel filed a bench memorandum on the Department’s request for
potential resentencing. At a hearing held March 16, 2020, defense counsel submitted on
the points and authorities of the bench memorandum. The trial court declined to exercise
its discretion to recall defendant’s sentence.
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Defendant filed a timely notice of appeal.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts and procedural history of the case and requests this court to
review the record and determine whether there are any arguable issues on appeal.
(People v. Wende, supra, 25 Cal.3d at p. 436.) Defendant was advised by counsel of his
right to file a supplemental brief within 30 days from the date the opening brief was filed.
Defendant filed a supplemental brief arguing the trial court erred in denying the request
to recall his sentence without first holding an evidentiary hearing and making requisite
findings about whether defendant posed a threat to public safety.
Whether the protections afforded by Wende and the United States Supreme
Court’s decision in Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493] apply to
an appeal from an order denying a petition brought pursuant to section 1170,
subdivision (d) remains an open question. Our Supreme Court has not spoken. The
Anders/Wende procedures address appointed counsel’s representation of an indigent
criminal defendant in the first appeal as a matter of right and courts have been loath to
expand their application to other proceedings or appeals. (See Pennsylvania v. Finley
(1987) 481 U.S. 551 [95 L.Ed.2d 539]; Conservatorship of Ben C. (2007) 40 Cal.4th 529;
In re Sade C. (1996) 13 Cal.4th 952; People v. Dobson (2008) 161 Cal.App.4th 1422;
People v. Taylor (2008) 160 Cal.App.4th 304; People v. Thurman (2007)
157 Cal.App.4th 36; Glen C. v. Superior Court (2000) 78 Cal.App.4th 570.)
Nonetheless, in the absence of our Supreme Court’s authority to the contrary, we believe
it prudent to adhere to Wende in the present case, where counsel has already undertaken
to comply with Wende requirements, and defendant has filed a supplemental brief.
Having examined the record pursuant to Wende, we find no arguable error that
would result in a disposition more favorable to defendant. Section 1170,
subdivision (d)(1) provides in relevant part: “When a defendant . . . has been sentenced
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to be imprisoned in the state prison . . . and has been committed to the custody of the
secretary [of the Department] . . . , 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 Department] or the Board of Parole Hearings in the case of state prison
inmates, . . . or 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 he or she had not previously been sentenced, provided the new
sentence, if any, is no greater than the initial sentence.”
“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.’ [Citation.] Further, section 1170, subdivision (d)(1), expressly authorizes
the court in resentencing a defendant to 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.’ ” (People v.
McCallum (2020) 55 Cal.App.5th 202, 210.)
Here, defendant is mistaken in his assertion that the court was required to conduct
an evidentiary hearing or make particular findings prior to denying the request to recall
his sentence. Section 1170, subdivision (d)(1) does not by its terms provide that the trial
court must hold a hearing on receiving a recommendation to recall an inmate’s sentence
or in considering whether to recall a sentence. Moreover, any action to be taken upon
receiving a recommendation is clearly permissive -- the statute uses the verb “may,” not
“shall.” (§ 1170, subd. (d)(1); People v. Delson (1984) 161 Cal.App.3d 56, 62 [no abuse
of discretion in refusing to set a hearing on the Department’s recommendation for
alternative sentencing].)
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McCallum dealt with the same issue of “whether the trial court must hold a
hearing prior to ruling on the Secretary’s recommendation for recall and resentencing.”
(People v. McCallum, supra, 55 Cal.App.5th at p. 212.) Observing that the statutory
provision itself is silent on the issue, the court reviewed other subdivisions of
section 1170 in which the Legislature has required a hearing. (McCallum, at p. 212.) “A
review of section 1170 shows the Legislature was well aware of what language to use to
require the trial court to hold a hearing before acting on a recommendation or petition to
recall a sentence.” (Id. at p. 212.) We agree with McCallum’s reasoning that because the
Legislature did not include a “hearing” requirement in section 1170, subdivision (d)(1), a
trial court may rule on a request for recall and resentencing without conducting a hearing,
evidentiary or otherwise. (McCallum, at p. 213.) We further note that while it was not an
evidentiary hearing, the trial court here did in fact conduct a brief hearing on the request
to recall defendant’s sentence and defense counsel submitted on the points and authorities
of the bench memorandum.
Defendant is further mistaken in his claim that the trial court was required to make
particular findings about whether defendant would “pose a threat to public safety.” This
language is not found anywhere in section 1170, subdivision (d)(1). Defendant appears
to be citing language from another statute containing mandatory language, in contrast to
the language of section 1170, subdivision (d)(1): “Unlike the permissive language in
section 1170, subdivision (d)(1) (the court ‘may’ recall the sentence), section 1170.126,
subdivision (f), provides, upon the defendant’s filing of a petition, the court ‘shall’
determine whether the defendant meets the criteria for recall and resentencing, and if the
criteria are satisfied, the defendant ‘shall be resentenced’ unless the court in its discretion
determines the petitioner would pose an unreasonable risk of danger to public safety after
considering the factors set forth in section 1170.126, subdivision (g).” (People v.
McCallum, supra, 55 Cal.App.5th at pp. 213-214.)
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We therefore affirm the trial court’s order denying the request to recall his
sentence and resentence him.
DISPOSITION
The order is affirmed.
/s/
Robie, J.
We concur:
/s/
Raye, P. J.
/s/
Duarte, J.
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