Error and/or relief
Though we dismiss the appeal as from an nonappealable order, we remand to the trial court for correction of the abstract of judgment, which contains several significant errors in recording the sentence that was imposed. The abstract incorrectly identified the stayed 10-year enhancements as imposed pursuant to section 12022.53(d), rather than section 12022.53(b). The abstract also failed to reflect that the 25 years to life firearm enhancement attached to the attempted robbery.
First Holding:
The court has the authority to remand the matter to the lower court for correction of an abstract of judgment even if it dismisses the appeal itself.
Authority:
People v. Hibbard (1991) 231 Cal.App.3d 145, 150 [dismissing appeal but remanding to correct abstract of judgment]
People v. Navarro (2008) 161 Cal.App.4th 1100, 1105-1106 [same]
Second Holding:
Section 1172.1 permits a court to resentence the defendant after conviction. But the request must come from the Secretary of the Department of Corrections and Rehabilitation, 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.
The court may recall the sentence on its own motion within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law. Though a defendant may invite the court to recall the sentence under section 1172.1, the defendant does not have a right to file a petition seeking the relief. If the defendant requests consideration for relief under the section, the court is not required to respond.
Authority:
PEN 1172.1
Third Holding:
If the request for resentencing is initiated by invitation or request of the defendant, the defendant has no right to appeal the denial or inaction by the trial court. An order declining to act on a defendant’s unauthorized section 1172.1 petition is nonappealable.
Authority:
People v. Roy (2025) 110 Cal.App.5th 991, 998
People v. Hodge (2024) 107 Cal.App.5th 985, 996
People v. Faustinos (2025) 109 Cal.App.5th 687, 693
Fourth Holding:
Although the defendant attached a letter from a CDCR correctional case records analyst, that letter merely pointed out a potential error with the abstract of judgment and in no way used the words “recall” or “resentence” or otherwise invoke section 1172.1; such a letter does not constitute a recommendation by the Secretary.
Authority:
People v. Codinha (2023) 92 Cal.App.5th 976, 987 [a CDCR letter was not a qualifying recommendation where it was from a case records manager, not the secretary]
People v. Magana (2021) 63 Cal.App.5th 1120, 1125
People v. Humphrey (2020) 44 Cal.App.5th 371, 373 [letter from CDCR stating abstract of judgment may be in error did not invoke the court’s authority under section 1170–the predecessor to what is now section 1172.1]