People v. Griggs

Filed 3/26/25 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C101953

Plaintiff and Appellant, (Super. Ct. No. 96F09994)

v.

KENNETH GRIGGS,

Defendant and Respondent.

APPEAL from an order of the Superior Court of Sacramento County, Bunmi O. Awoniyi, Judge. Appeal dismissed.

Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Respondent.

Thein Ho, District Attorney, David R. Boyd, Deputy District Attorney, for Plaintiff and Appellant.

1

In 1997, a jury found defendant Kenneth Griggs guilty of forcible rape (Pen. Code, § 261, subd. (a)(2)–count one);1 forcible penetration with a foreign object (§ 289, subd. (a)—count two); and false imprisonment (§ 236—count four). Defendant admitted three priors that were both strikes and serious felonies under section 667, subdivision (a). The court imposed an aggregate sentence of 35 years to life. The indeterminate term was 25 years to life: 25 years to life on count one; 25 years to life on count two concurrent to count one; and 25 years to life on count four stayed pursuant to section 654. The determinate term, which is relevant to this proceeding, was a total of 10 years for two of the priors under section 667, subdivision (a). The Sacramento County District Attorney (the District Attorney) appeals from an order of the presiding judge of the Sacramento County Superior Court recalling defendant’s sentence, on her own motion, under section 1172.1 and assigning the matter for a resentencing hearing. We conclude this order is not appealable under section 1238, subdivision (a)(5), because at this stage of the proceedings the substantial rights of the People have yet to be (and still may never be) affected. We therefore dismiss the appeal. I. BACKGROUND Under former section 1170, subdivision (d), a sentencing court could recall a sentence within 120 days of the date of commitment on its own motion or at any time on the recommendation of the Secretary of the California Department of Corrections and Rehabilitation and resentence the defendant as if he had not previously been sentenced. (Dix v. Superior Court (1991) 53 Cal.3d 442, 455.) In the last several years, the Legislature has expanded this resentencing authority, which is now found in section 1172.1. (See People v. McMurray (2022) 76 Cal.App.5th 1035, 1040 [outlining Legislative changes].) In particular, “Assembly Bill [No.] 600 [(2023-2024 Reg. Sess.)