Skip to content
Name: People v. Cortez
Case #: G052158
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 09/14/2016

When resentencing a defendant under Proposition 47, the trial court has jurisdiction to alter the sentence on misdemeanor counts that are not the subject of the recall petition. In July 2012, Cortez pleaded guilty to felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and two misdemeanors. He admitted a Three Strikes prior and a prior prison term enhancement (Pen. Code, §§ 667, subds. (b)-(i), 667.5, subd. (b)). Cortez was initially granted probation, but violated probation on several occasions and ultimately probation was revoked. He was sentenced to the lower term of 16 months for the felony and concurrent terms on the misdemeanors. In June 2015, his Proposition 47 petition to reduce his felony to a misdemeanor was granted. In resentencing Cortez, the trial court imposed 129 days on each of the original misdemeanors, ordering one of them to be served consecutively. Cortez claimed on appeal the trial court lacked jurisdiction to resentence on the original two misdemeanors. Held: Affirmed as modified. Generally, a trial court loses jurisdiction to resentence a defendant once execution of the sentence has commenced. However, Penal Code section 1170.18, specifically authorizes a trial court to recall a felony sentence and issue a new sentence, which provides a narrow exception to the general rule regarding loss of jurisdiction. Stated another way, “the court regained jurisdiction over the res of the action through the Proposition 47 petition.” “Aggregate misdemeanor sentencing, although not subject to the principal/subordinate scheme set forth in section 1170.1, subdivision (a), is nonetheless comprised of interdependent components designed to achieve the goals of sentencing based on the individual circumstances of the case.” The trial court had jurisdiction to refashion Cortez’s sentence and the total term was reduced by five days so that it did not exceed the original aggregate sentence.

A trial court is not limited to altering only that portion of the sentence that is attributable to the felony that is the subject of the Proposition 47 petition. Under Penal Code section 1170.18, subdivision (b), a defendant serving time for a qualifying felony may petition to have his sentence recalled and be resentenced to a misdemeanor. But this does not mean the trial court is limited to resentencing only those felonies subject to Proposition 47. Penal Code section 1170,18, subdivision (a) clearly allows for the recall of a sentence, not just the term imposed for a qualifying felony, and provides that resentencing is supposed to occur as if Proposition 47 had already passed when the initial sentence was imposed.

The full opinion is available on the court’s website here: