Before 2022, section 1170, subdivision (d), allowed a court to recall a sentence
and resentence the defendant at any time upon a request from the Secretary of
California’s Department of Corrections and Rehabilitation or certain other government
officials. (People v. Frazier (2020) 55 Cal.App.5th 858, 863.) The request served as an
invitation to the court to exercise equitable jurisdiction, and section 1170, subdivision (d),
furnished that jurisdiction. (E.M., supra, 85 Cal.App.5th at p. 1082.) The court had
“broad discretion” in deciding whether to resentence. (Ibid.) A trial court, however,
could recall the sentence on its own motion only within 120 days of the defendant’s
commitment. (Id. at p. 1082.)
Effective January 1, 2022, the Legislature amended the resentencing provision and
placed it in section 1172.1.2 The amendments were intended to clarify “procedural
requirements” and created a presumption in favor of resentencing once a request was
2 The Legislature first placed the amended recall and resentencing provisions in a new section 1170.03. (People v. McMurray (2022) 76 Cal.App.5th 1035, 1038 (McMurray).) Then, effective June 30, 2022, “[t]he Legislature . . . renumbered section 1170.03 to section 1172.1, but made no substantive changes.” (People v. Salgado (2022) 82 Cal.App.5th 376, 378, fn. 2.)
4
filed. (McMurray, supra, 76 Cal.App.5th at p. 1038; see § 1172.1, subd. (b)(2).)
Procedural clarifications included requirements that the trial court state on the record the
reasons for granting or denying resentencing, and that the court hold a hearing before any
denial. (§ 1172.1, subds. (a)(7), (a)(8).)
Effective January 1, 2024, the Legislature amended section 1172.1 to expand the
court’s ability to recall and resentence a defendant on its own motion. (See Assembly
Bill No. 600 (2023-2024 Reg. Sess.; Stats. 2023, ch. 446, § 2.) Now, a court still may
recall a sentence on its own motion within 120 days of commitment for any reason
“rationally related to lawful sentencing.” (Dix v. Superior Court (1991) 53 Cal.3d 442,
456.) But it also may recall the sentence on its own motion “at any time if the applicable
sentencing laws at the time of original sentencing are subsequently changed by new
statutory authority or case law.” (§ 1172.1, subd. (a)(1).) This recall-and-resentencing
“may be initiated by the original sentencing judge, a judge designated by the presiding
judge, or any judge with jurisdiction in the case.” (Ibid.)
Section 1172.1 permits a trial court to apply changes in law even where the
Legislature has not made a change retroactive. Yet the law does not allow a court to
recall-and-resentence where the applicable sentencing laws have not “changed” since the
last sentencing. (§ 1172.1, subd. (a)(1).) If the court can and does resentence, though,
the proceeding is not limited to the change in law. Rather, the defendant is resentenced
“in the same manner as if they had not previously been sentenced . . . provided the new
sentence, if any, is no greater than the initial sentence.” (Ibid.) As in most
5
postconviction proceedings, the court “has jurisdiction to modify every aspect of the
defendant’s sentence.” (§ 1171, subd. (c)(2).) As in any sentencing, the prosecution has
a right to oppose relief. (See § 1171, subd. (d).) A victim of the crime has the chance to
be heard. (See § 1172.1, subd. (a)(8).)
Though the court can act on its own motion, defendants may not petition under
section 1172.1. As the law states, a court, the Secretary of the Department of Corrections
and Rehabilitation, the Board of Parole Hearings, a county correctional administrator, a
district attorney, or the Attorney General may recommend or otherwise seek resentencing
under section 1172.1. The statute makes express that the defendant has no right to
petition: “A defendant is not entitled to file a petition seeking relief from the court under
this section.” (§ 1172.1, subd. (c).) Further: “If a defendant requests consideration for
relief under this section, the court is not required to respond.” (§ 1172.1, subd. (c).)
II. Under Longstanding Precedent, an Order on a Defendant’s Section 1172.1
Petition is Non-Appealable
For decades, it has been established in the Court of Appeal that a defendant’s
appeal from a petition denying their motion under former section 1170,
subdivision (d)(1), is “not appealable as an order affecting the substantial rights of the
party . . . because the defendant has no right to request such an order in the first instance.”
(People v. Pritchett (1993) 20 Cal.App.4th 190, 194; e.g., People v. Magana (2021) 63
Cal.App.5th 1120, 1127-1128; People v. Hernandez (2019) 34 Cal.App.5th 323, 326;
People v. Chamizo (2019) 32 Cal.App.5th 696, 701; People v. Chlad (1992) 6
6
Cal.App.4th 1719, 1724-1725.) This same reasoning applies to the similar provisions
now re-numbered as section 1172.1. A defendant is not entitled to file a section 1172.1
petition nor to receive a ruling if he nevertheless files one. It follows that an appeal from
an order acting on his petition (whether couched as a denial, dismissal, or any other
statement that the court is not acting) does not affect the defendant’s substantial rights.
We lack the authority to rule on the merits of appeals from orders filed in response to a
defendant’s attempt to seek resentencing under section 1172.1. (§ 1237, subd. (b).)
III. The 2024 Amendment to Section 1172.1 Does Not Change the Non-
Appealability of Orders Made on a Defendant’s Motion
Faustinos argues that the 2024 amendments to section 1172.1 make appealable the
order following his unauthorized petition, as they grant the trial court discretion to initiate
a resentencing on its own motion. We disagree. When a court declines to act on a
defendant’s petition, it affects no substantial right, as a defendant’s request carries neither
a right to a resentencing nor an obligation for the court to consider initiating one.
Consider four types of actions a court might take in declining to act on a
defendant’s section 1172.1 petition.
First, section 1172.1, subdivision (c), states that the court need not respond if the
defendant petitions. If the court, acting consistently with the statute, never issues an
order on a defendant’s petition, there is no appealable order.
Second, a trial court could respond to an unauthorized petition with a simple order
stating the defendant is not entitled to petition, invoking section 1172.1, subdivision (c).
7
We think a response is advisable, as silence may leave the defendant unsure if the petition
was received. It cannot be, however, that such an order affects the defendant’s
substantial rights. “If the defendant has no right to a decision, the trial court’s choice not
to make one does not deprive the defendant of any right, much less a substantial one.”
(Hodge, supra, 107 Cal.App.5th at p. 996.) It is not an appealable order.
Third, the court could go beyond its obligation and state that it is not going to act
on its own motion, though it need not address that matter. While the court can “initiate[]”
a recall-and-resentencing “on its own motion” (§ 1172.1, subd. (a)(1)), doing so does not
depend on a defendant filing an unauthorized petition. The court may act if the
defendant’s case comes to its attention in any way, such as (for instance) through a
habeas petition challenging the conviction or through receiving an opinion in the
defendant’s direct appeal. Still, nothing stops a defendant from requesting that the court
initiate a section 1172.1 proceeding on its own motion. But the court is never under an
obligation to do so, as “section 1172.1 places no constraints on the trial court’s decision
declining to initiate reconsideration of a sentence on its own motion.” (Hodge, supra,
107 Cal.App.5th at p. 997.) A defendant never has a right to a trial court initiation of a
section 1172.1 resentencing. We lack any “discernable criteria” to review such a
decision. (Hodge, at p. 998.) A trial court’s discretionary decision not to initiate a
proceeding on its own motion cannot be legal error that affects a defendant’s substantial
rights.
8
Fourth, a court sometimes could respond to the defendant’s petition by noting,
correctly, that it lacks jurisdiction to act on its own section 1172.1 motion. Beyond
120 days from the defendant’s commitment, a trial court may act only if “the applicable
sentencing laws at the time of original sentencing are subsequently changed by new
statutory authority or case law.” (§ 1172.1, subd. (a)(1).) If no applicable laws have
changed, the court may not act on its own. The circumstances of such cases do not differ
from the long line of cases holding that a denial of a defendant’s resentencing petition
under the predecessor statute is a non-appealable order. This underscores why an order
on a defendant’s unauthorized petition is non-appealable. It would not make sense if
appealability depended upon our analyzing whether the applicable laws had changed.
In this case, in fact, the trial court may have lacked jurisdiction to act on its own
motion. The defendant was sentenced pursuant to a plea agreement to a term of 16 years
for committing rape by force. His sentence was simply eight years for that offense,
doubled due to a prior “strike” offense. No enhancements were imposed. In his appellate
briefing and oral argument, defendant asserted no way that the sentencing laws applicable
to him have changed since his sentencing. He has asserted no basis for trial court
jurisdiction to initiate a section 1172.1 resentencing on its own.
Here, then, the “nature of the claim and the court’s ruling thereto” are such that
they do not affect a defendant’s substantial rights. .(Teal, supra, 60 Cal.4th at p. 600.)
We conclude that there is no appellate jurisdiction over an order declining to act on a
9
defendant’s unauthorized section 1172.1 petition, even though a court may initiate a
resentencing on its own motion.
IV. Chatman and a Trial Court’s Mistaken View of Its Own Discretion
In Chatman, supra, 108 Cal.App.5th at p. 659, unlike here, the defendant asserted
“several applicable sentencing laws that applied during his original sentencing have
changed . . . [so] the court necessarily had jurisdiction to resentence defendant on its own
motion.” Chatman correctly observed that the trial court could resentence him on its own
motion, though the defendant was not entitled to file the petition. (Id. at p. 659.)
Chatman concluded that, because the court “chose to act” by issuing an order stating that
it “lacked jurisdiction to resentence,” the order was appealable. (Id. at p. 659.)
We do not think that a court’s phrasing of an order can convert a non-appealable
order into an appealable one. Chatman wrongly viewed Loper, supra, 60 Cal.4th 1155,
as supporting its view. Loper held that a defendant could appeal from a post-judgment
proceeding that was “properly initiated” by government authorities rather than by the
defendant. (Id. at p. 1158.) In Chatman, in contrast, no proceeding had started. If the
court had launched a proceeding by recalling the defendant’s sentence, Loper indicates
that the defendant could appeal from a later order. Loper does not render the order in
Chatman appealable, as no entity had begun an authorized post-judgment proceeding.
Chatman’s conclusion that the order was appealable turns on its content; that is,
that the court’s order “could be based upon on the mistaken belief that the court lacked
jurisdiction to resentence.” (Chatman, supra, 108 Cal.App.5th at p. 662.) If an order on
10
a defendant’s section 1172.1 petition did not reflect such a mistaken belief, then Chatman
apparently would find the order non-appealable. Chatman appears to hold that an
otherwise unappealable order becomes appealable when a court alludes to a mistaken
view of its jurisdiction.
Factually, this case differs from Chatman in two ways. Here, the trial court stated
that it lacked jurisdiction to consider the defendant’s motion. That is correct. The trial
court’s statement need not be read as suggesting that it believed it lacked jurisdiction to
act on its own motion. Secondly, unlike in Chatman, the trial court here appears to have
lacked its own motion jurisdiction. A court can act on its own motion under
section 1172.1 only if the applicable laws changed since the sentencing. Faustinos did
not (and does not) assert that the laws applicable to him have changed since his
sentencing. If they did not change, the trial court has no jurisdiction to act on its own
motion.
But even assuming the trial court erroneously stated, in response to Faustinos’s
unauthorized petition, that it lacks authority to act on its own motion, we do not think that
would convert a non-appealable order to an appealable one. People v. Gallardo (2000)
77 Cal.App.4th 971, 983-984 (Gallardo), provides instructive reasoning. There, a
defendant filed an unsuccessful post-judgment motion that he admittedly was
unauthorized to file and could not appeal. But he claimed that, in denying, the trial court
nevertheless “failed to recognize its power to dismiss” charges it had stayed. (Id. at
p. 983.) He argued that “‘the reasons given by the sentencing judge for denying a
11
hearing—essentially, that he did not have the power to grant the relief which would be
requested at the hearing—were not proper reasons for denying a hearing.’” (Id. at
p. 984.) In rejecting the claim, the Court of Appeal assumed that the trial court
misunderstood its own power. (Id. at p. 985, fn. 8.) Even so, the trial court’s statements
did not make a non-appealable order appealable because “appealability depends upon the
nature of the decision made, not the court’s justification for its ruling.” (Id. at p. 985.)
As in Gallardo, we do not think that the court can transform a non-appealable
order (stating that it would not act on an unauthorized motion) into an appealable one by
addressing a matter that it needed not address (its jurisdiction to act on its own), even if it
was wrong about that matter.
Still, a defendant has a remedy if a trial court wrongly declares that it lacks
jurisdiction to act on its own motion under section 1172.1. That remedy is to petition for
a writ of habeas corpus in the trial court. (Picklesimer, supra, 48 Cal.4th at pp. 354-355
[post-judgment issue non-appealable so habeas petition is the “preferred remedy”];
People v. Fuhrman (1997) 16 Cal.4th 930, 946 (Fuhrman); People v. Belmontes (1983)
34 Cal.3d 335, 348, fn. 8; People v. Tenorio (1970) 3 Cal.3d 89, 95, fn. 2.) In such a
petition, the defendant would set forth the circumstances that “would support setting the
matter for a new sentencing hearing,” and if the trial court concludes the petition may
have merit, it can act on it. (Fuhrman, at p. 946.) In the unlikely event that the trial court
wrongly insists it has no authority to act even when told that changes in law create
12
discretionary section 1172.1 jurisdiction, the defendant could petition for a writ of habeas
in our court.3
Finally, Chatman wrongly reads People v. Carmony (2004) 33 Cal.4th 367
(Carmony) as supporting its view that a trial court’s mistake about its own discretion
creates an appealable post-judgment order. Chatman saw “no apparent reason” to refrain
from extending Carmony to a defendant’s section 1172.1 motion. (Chatman, supra, 108
Cal.App.5th at p. 661. ) Carmony, though, did not concern appellate jurisdiction.
Carmony arose in a direct appeal from a conviction and sentence. (Carmony,
supra, 33 Cal.4th at p. 373.) There is always jurisdiction for such an appeal. (§ 1237,
subd. (a).) At the Carmony sentencing, the trial court had jurisdiction over the
defendant’s motion to dismiss two of his strikes under People v. Superior Court
(Romero) (1996) 13 Cal.4th 497 (Romero), so they would not count under the Three
Strikes Act. (Carmony, at p. 373.) The Supreme Court granted review to determine
whether a trial court’s decision not to dismiss the strikes was non-reviewable or
reviewable for abuse of discretion, and it held it was reviewable. (Id. at pp. 374-375.)
An appellate court can reverse a trial court’s decision not to dismiss a strike where “no
reasonable people could disagree that the criminal falls outside the spirit of the three
strikes scheme.” (Id. at p. 376.)
3 “[B]oth trial and appellate courts have jurisdiction over habeas corpus petitions, but a reviewing court has discretion to deny without prejudice a habeas corpus petition that was not filed first in a proper lower court.” (In re Steele (2004) 32 Cal.4th 682, 692.)
13
In contrast, whether the trial court determination here creates jurisdiction for a
post-judgment appeal presents the different question of whether the defendant’s
substantial rights are affected by the category of order that the trial court has issued. (See
§ 1237, subd. (b).) There is no pre-existing jurisdiction for an appeal, so jurisdiction
must be created by the motion. But a defendant has no right to initiate a section 1172.1
resentencing and has no right to have the trial court do so. An appellate court has no
basis to review a trial court’s decision not to initiate one. There is no appellate
jurisdiction here, even though in Carmony there was jurisdiction over the direct appeal.
(See § 1237, subd. (a).)
The singular circumstance where we could correct a trial court error in declining
to act on a defendant’s unauthorized section 1172.1 petition is if a trial court stated that it
lacked discretion to initiate a section 1172.1 resentencing even with an applicable change
in law. This error, though, would not deprive a defendant of a substantial right, as the
defendant has no right to any order from the court on his section 1172.1 request. As to
this error, though, Fuhrman indicates that a post-judgment petition for a writ of habeas is
available, rather than an appeal. Indeed, on the type of motion in Carmony, our Supreme
Court has said the same thing. In Romero, the Supreme Court stated that a defendant
with a strike “imposed by a court that misunderstood the scope of its discretion to strike
prior felony conviction allegations . . . may raise the issue on appeal, or, if relief on
appeal is no longer available, may file a petition for habeas corpus to secure
reconsideration of the sentence.” (Romero, supra, 13 Cal.4th at p. 530, fn. 13.) Later
14
Supreme Court authority is in accord. (See In re Large (2007) 41 Cal.4th 538
[adjudicating habeas claim that the trial court did not exercise discretion to decide
whether to dismiss a strike].) The virtue of this path is that it could create a record of the
trial court’s view (see id. at pp. 545-548), rather than have the appealability of a simple
post-judgment order turn on discerning what may have been in the court’s mind.
For the reasons provided, there is no appealable order, and we dismiss the appeal.