People v. Vaesau

94 Cal.App.5th 132

312 Cal.Rptr.3d 77

The PEOPLE, Plaintiff and Respondent,

v.John VAESAU, Defendant and Appellant.

A165925

Court of Appeal, First District, Division 1, California.

Filed August 4, 2023

Joy A. Maulitz, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. Share and Katie L. Stowe, Deputy Attorneys General, for Plaintiff and Respondent.

Humes, P.J.

In 1992, a jury convicted defendant John Vaesau of three counts of attempted murder and other crimes committed when he was a minor. The trial court sentenced him to two consecutive life terms, plus 14 years. Thirty years later, San Francisco's then-District Attorney, Chesa Boudin, filed a request to resentence Vaesau under former Penal Code ¹ section 1170.03, now section 1172.1. That statute authorizes a trial court, "at any time upon the recommendation of ... the district attorney of the county in which the defendant was sentenced," to recall the sentence and resentence a defendant convicted of a felony. (§ 1172.1, subd. (a)(1).)

Within weeks of filing the resentencing request, Boudin was recalled, and the new District Attorney, Brooke Jenkins, moved to withdraw the request without offering a substantive reason for doing so. After briefing and a hearing, the trial court granted the motion, thereby terminating the section 1172.1 proceeding. The court emphasized it was not ruling on the merits of whether resentencing was appropriate.

On appeal, Vaesau claims 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 of resentencing. We hold 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. Because the district attorney here did not offer any such reason, we vacate the order at issue and remand for reconsideration.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts giving rise to Vaesau's convictions are not relevant to the appeal. Based on events that occurred in March 1991, Vaesau was charged with three counts of attempted premeditated murder and three counts of assault with a firearm, all six of which were accompanied by allegations of personal use of a firearm and personal infliction of great bodily injury.² Based on a May 1991 incident, he was also charged with one count of assault with a deadly weapon, and based on a December 1990 incident, he was charged with a misdemeanor count of escape from a juvenile facility.³

Vaesau, who was 16 years old at the time of the crimes, was tried as an adult. The jury found him guilty of all the charges and enhancements, except for the great-bodily-injury enhancements alleged in connection with two of the attempted-murder counts. In December 1992, the trial court sentenced him to two terms of life with the possibility of parole and a determinate term of 14 years in prison. He appealed, and this division affirmed the judgment, except it remanded for resentencing based on the trial court's failure to state its reasons for one of its sentencing choices. (People v. Vaesau (A060555, July 25, 1994) [nonpub. opn.].) On remand, the trial court imposed the same sentence.

On April 29, 2022, Boudin filed a "motion to resentence" Vaesau under former section 1170.03, "recommend[ing] that [the trial court] recall the sentence of life with possibility of parole." The trial court appointed a public defender to represent Vaesau, and the matter was set for hearing on July 15.

In June 2022, before the hearing took place, Boudin was recalled by San Francisco voters, and on July 8, Jenkins was sworn in as the new District Attorney.⁴ (Smith, Brooke Jenkins Sworn In As New DA After Recall of Chesa Boudin , Bay City News, Inc. (July 8, 2022) available online at < https://www.sfgate.com/news/bayarea/article/Brooke-Jenkins-Sworn-In-As-New-Da-After-Recall-Of-17293648.php> [as of Aug. 4, 2023].) At the July 15 hearing, the appearing prosecutor sought to withdraw the request for resentencing, but she did not explain why.⁵ The trial court said its "natural inclination" was that the district attorney could withdraw the request, since the court had not yet ruled upon it. Nonetheless, the court set another hearing and allowed Vaesau to brief the issue.

Vaesau submitted briefing in which he maintained that once the district attorney recommended resentencing, the trial court had jurisdiction and was required to follow section 1172.1 ’s procedures, including giving him a hearing on the merits of resentencing. He argued that failing to provide the hearing would violate both section 1172.1 and due process.

Vaesau also took the position that the district attorney was not authorized to withdraw the recommendation, particularly without identifying "any rational basis" for doing so. He noted that "[t]he prosecution had ample reason to recommend release," pointing to the same prosecutor's arguments in favor of release at his January 2022 parole hearing. (Boldface omitted.) A transcript of that hearing shows the prosecutor appeared and argued there were several mitigating factors supporting release, including Vaesau's age and intoxication at the time of the crimes and his lack of family support. She also noted his personal evolution, remorse for the crimes, and lack of rule violations since 2016.

At the next hearing on July 21, 2022, it was revealed that the District Attorney's office had fired the prosecutor. The hearing was continued until August 11, at which time a new prosecutor appeared. That prosecutor reiterated the district attorney's desire to withdraw the resentencing request. She provided no substantive reason for the requested withdrawal, saying only that having "reviewed just the papers," she believed the request was "very thin on the record even to provide to the Court."

The trial court stated it was "convinced that [it was] within the ambit of [the district attorney's] discretion to withdraw the petition" for resentencing. Though acknowledging it was "a novel question," the court was not persuaded by Vaesau's position that "once you start the mechanism [under section 1172.1 ], you can't stop it."

The trial court also distinguished another recent case in which it was involved. There, the District Attorney's office sought resentencing, and the court recalled the sentence and transferred the matter to juvenile court to determine whether the defendant was fit for that court's jurisdiction. The day before the recall election, the district attorney sought to withdraw the resentencing request, and the juvenile court refused to allow the district attorney to do so. Vaesau's case, in contrast, was "at a much earlier stage" of the process, and the court decided it was appropriate to allow the district attorney to withdraw the request. The court emphasized that its ruling had "nothing to do with the merits of whether the sentence should or shouldn't be recalled" and stated it had not "made any decision on that."

II. DISCUSSION

A. Recall and Resentencing Under Section 1172.1

Section 1172.1 provides that "[w]hen a defendant, upon conviction of 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, within 120 days of the date of commitment on its own motion, at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of a defendant incarcerated in state prison, the county correctional administrator in the case of a defendant incarcerated in county jail, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case, 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).)

A similar provision originally appeared in section 1170, former subdivision (d) (former section 1170(d) ). "Former section 1170(d) provided ‘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, 301 Cal.Rptr.3d 892 ( E.M. ), quoting Dix v. Superior Court (1991) 53 Cal.3d 442, 455, 279 Cal.Rptr. 834, 807 P.2d 1063 ( Dix ).) A request for resentencing under former section 1170(d) functioned as " ‘ "an invitation to the [trial] court to exercise its equitable jurisdiction," which "furnishe[d] the court with the jurisdiction it would not otherwise possess to recall or resentence." ’ "⁶ ( E.M. , at p. 1082, 301 Cal.Rptr.3d 892.) On receiving such a request, the court " ‘ha[d] broad discretion whether to recall the existing sentence and resentence the incarcerated individual,’ " and if it chose to do so, it could perform a full resentencing, except that it could not impose a greater sentence than the original one. ( Ibid. )

Effective January 1, 2022, Assembly Bill No. 1540 (2021–2022 Reg. Sess.) (Assembly Bill No. 1540) "moved the recall and resentencing provisions of former section 1170(d)(1) to new section 1170.03." ( People v. McMurray (2022) 76 Cal.App.5th 1035, 1038, 292 Cal.Rptr.3d 145 ; Stats. 2021, ch. 719, § 3.) Section 1170.03 was later recodified without substantive change as section 1172.1. (Stats. 2022, ch. 58, § 9 ; People v. Braggs (2022) 85 Cal.App.5th 809, 818, 301 Cal.Rptr.3d 764.) Assembly Bill No. 1540 "also...