Opinion
C094988
04-04-2022
THE PEOPLE, Plaintiff and Respondent, v. CARLINE BALBUENA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 05F11542)
DUARTE, J.
Defendant Carline Balbuena appeals from the trial court's denial of the request to recall and resentence her contained in a letter from the Secretary of the California Department of Corrections and Rehabilitations (Secretary). Defendant contends she was denied her constitutional right to be present at the recall hearing, reversal and remand is required under Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Assembly Bill No. 1540), and the trial court abused its discretion in declining to recall and resentence. The Attorney General agrees with the second claim--that the case should be remanded for reconsideration in light of the new legislation--and does not respond to the remaining claims. Defendant concedes that if this court orders reversal and remand under the now-current version of the applicable law, we need not reach her remaining claims.
We reverse the order and remand for rehearing; in light of this conclusion, we need not and do not reach the remaining contentions on appeal.
BACKGROUND
Defendant and her codefendant abused her three-year-old son for months, culminating in his death in 2005. (People v. Balbuena (Nov. 10, 2010, C060127) [nonpub. opn.].) Defendant also exposed her one-year-old daughter to her codefendant's abusive behaviors and smoked methamphetamine in her daughter's presence. (Id.) In 2008, a jury found defendant guilty of first degree murder (Pen. Code § 187, subd. (a)), assault on a child resulting in death (§ 237ab), and child endangerment (§ 273a, subd. (a)). The trial court sentenced defendant to a term of 25 years to life in prison for the murder plus six years for the child endangerment. It also imposed a term of 25 years to life for the assault on a child conviction but stayed execution of that term under section 654. We affirmed the convictions in defendant's previous appeal. (Balbuena, C060127.)
The Attorney General requested we take judicial notice of the record from the previous appeal; defendant did not oppose the request. We treated the request as a motion to incorporate the record by reference and granted the motion. (Cal. Rule of Court, rule 8.147(b).)
Further undesignated statutory references are to the Penal Code.
On August 28, 2020, the Secretary sent a letter to the trial court, recommending the trial court recall defendant's sentence and resentence defendant pursuant to former section 1170, subdivision (d)(1).
The trial court appointed counsel for defendant and accepted briefing and supporting exhibits from the parties, as well as correspondence from interested persons regarding recall.
In its written order entered on August 30, 2021, the trial court noted that "[t]here is little guidance in the caselaw to help courts decide when to exercise their discretion to recall the sentence once a recommendation is received." The factors for resentencing provided in former section 1170, subdivision (d) were, according to the trial court, "not intended to apply to the court's 'initial decision whether to recall the sentence'" under People v. McCallum (2021) 55 Cal.App.5th 202, 214. Thus, it "turn[ed] to the purpose and general objectives of sentencing" under section 1170, subdivision (a)(1) and California Rules of Court, rule 4.410, which include "protecting society, punishing the defendant, deterring others from criminal conduct by demonstrating its consequences, and achieving uniformity in sentencing." The court also referenced section 1170, subdivision (b)'s requirement that the" 'sentencing judge must consider which objectives are of primary importance in the particular case.' "
The trial court recited the abuse in detail, finding it "a frightening display of defendant's indifference to human suffering, and, ultimately, human life." But the court also acknowledged "defendant ha[d] made the best of her time in custody" and her "rehabilitation efforts [were] extensive and indicate[d] significant personal growth in the last fifteen years." The court further observed recalling defendant's sentence and imposing a term less than her minimum sentence would not eliminate disparity or promote uniformity of sentence because the overwhelming majority of inmates convicted of first degree murder will serve their minimum sentence before they are provided with an opportunity for parole. Allowing defendant to serve less than her minimum sentence would make her case an exception to the general rule. The court concluded defendant's sentence was proportional to her offense and served the purpose of sentencing. It thus declined to follow the Secretary's recommendation to recall and resentence.
Defendant timely appealed. The case was fully briefed on January 28, 2022, and assigned to this panel shortly thereafter. The parties waived argument and the case was submitted on March 25, 2022.
DISCUSSION
As we have explained ante, the parties join in asking that we reverse the trial court's order denying to follow the Secretary's recommendation and remand the matter for reconsideration given the new legislation. As we next explain, we agree that remand for application of the new legislation is the best course to follow here.
Former section 1170, subdivision (d)(1), which was in effect at the time of the trial court's written order, authorized trial courts to recall sentences upon recommendation from the Secretary and to resentence defendants in the same manner as if they had not previously been sentenced, provided any new sentence is not greater than the initial sentence. That section required the resentencing court to "apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing." (Former § 1170, subd. (d)(1).) It further provided factors to consider in resentencing including postconviction factors, the defendant's risk of future violence, and whether the inmate's continued incarceration is in the interest of justice. (Ibid.) The trial court may reduce a defendant's term of imprisonment and modify the judgment if it finds the reduction is in the interest of justice. (Ibid.)
On October 8, 2021, the Governor signed Assembly Bill No. 1540, which took effect on January 1, 2022. (Stats. 2021, ch. 719.) Assembly Bill No. 1540 substantially altered the recall and resentencing process and moved the resentencing provisions in former section 1170, subdivision (d)(1) to a new section 1170.03. (Stats. 2021, ch. 719, § 3.1.) As relevant here, section 1170.03 provides that a defendant has a statutory right to be present at the recall hearing (§ 1170.03, subd. (a)(8)); clarifies and expands the factors the trial court may consider in its initial decision to recall a sentence (id., subd. (a)(4)); and, if a resentencing request is from the Secretary, creates a presumption favoring recall and resentencing of the defendant, which may only be overcome if the trial court finds the defendant is an unreasonable risk of danger to public safety (id., subd. (b)(2)).
In passing Assembly Bill No. 1540, the Legislature recognized the lack of guidance under the former law left courts to "sift through a statute that does not provide adequate structure for the resentencing process, leaving many requests languishing in limbo, or worse - denied without reason." (Assem. Com. on Public Safety, analysis of Assem. Bill No. 1540 (2021-2022 Reg. Sess.) as amended Apr. 22, 2021, pp. 3-4.) Assembly Bill No. 1540 was passed to "clarify the intent of the legislature when it amended [§ 1170] in 2018." (Sen. Rules Com., Off. of Sen. Floor Analyses, 3rd reading analysis of Assem. Bill No. 1540 (2021-2022 Reg. Sess.) as amended Sept. 3, 2021, p. 3.)
Because Assembly Bill No. 1540 was passed in part to clarify legislative intent and address the challenges trial courts faced when applying former section 1170 in recall and resentencing proceedings, it may be considered in interpreting former section 1170, subdivision (d). (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922 ["if the courts have not yet finally and conclusively interpreted a statute and are in the process of doing so, a declaration of a later Legislature as to what an earlier Legislature intended is entitled to consideration"]; Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 724 [subsequent legislation interpreting a statute supplies "an indication of the legislative intent which may be considered together with other factors in arriving at the true intent existing at the time the legislation was enacted."].) Although defendant's underlying conviction is final, the order denying her relief is still on appeal before us, and it is undisputed that the law has changed in the window between decision and review.
To the extent the Attorney General argues the new statute does not apply to defendant by stating: "It does not appear that the new procedures specified in AB 1540, which became effective as section 1170.03 on January 1, 2022, apply retroactively to rulings previously made under section 1170, subdivision (d)(1)[, ]" that argument ignores the procedural posture of this case. Under section 1170, subdivision (d)(1), the Secretary initiated these proceedings, recommending the trial court consider recall and resentencing based on the statutory amendments. Now, before the trial court's decision regarding that recommendation is final, the applicable statute has changed. There is nothing in either the former or current statute limiting its application to cases not yet final on appeal. To the contrary, the statute specifically states the Secretary may recommend the trial court recall and resentence "at any time." Accordingly, although this case has been long since final, the Secretary was not precluded from recommending the trial court recall and resentence defendant and we are not precluded from requiring the trial court to apply the current version of the statute rather than the former, as the trial court's decision on the Secretary's recommendation is still on appeal.
Further, the interests of judicial efficiency favor application of the new law. The Secretary has already made a recommendation to recall defendant's sentence; although there is no barrier to the Secretary making another recommendation under the new statute, we are in the position to streamline that process by reversing the order that is no longer based on the controlling statute and remanding for reconsideration under the new statute.
While the trial court has already considered some of the factors delineated in section 1170.03, including postconviction behavior, section 1170.03 requires consideration of additional factors and the weighing of those factors in light of the new presumption favoring recall and resentencing. It is in the interest of all involved to remand for reconsideration under the current law.
DISPOSITION
The trial court's order denying the recommendation for recall and resentencing is reversed and the matter is remanded for reconsideration of the Secretary's recommendation for recall and resentencing under current law.
We concur: Robie, Acting P. J., Renner, J.