A motion to recall the remittitur is not the appropriate procedural vehicle to reopen a final case in order to argue the application of amendments to Penal Code section 12022.53 (Senate Bill No. 620). Harris was convicted of the first degree murder of her husband. A gun use enhancement was found true (Pen. Code, § 12022.53). Her conviction was affirmed on direct appeal and her case became final in early 2017. In October 2017, Senate Bill No. 620 amended Penal Code section 12022.53, subdivision (h) to provide trial courts the discretion to strike gun use enhancements in the interest of justice (Pen. Code, § 1385). It became effective January 1, 2018. Harris filed a motion to recall the remittitur so she would have the opportunity to take advantage of the amendment to section 12022.53. Held: Denied. In People v. Woods (2018) 19 Cal.App.5th 1080, the Third District Court of Appeal held that Senate Bill No. 620 and the associated amendment to 12022.53 apply retroactively to nonfinal cases. Harris’ case has long been final. A remittitur may only be recalled for good cause, i.e., when a judgment was secured by fraud, mistake, or inadvertence. Under the excess of jurisdiction exception, recall is also appropriate “when the error is of such dimensions as to entitle the defendant to a writ of habeas corpus” (People v. Mutch (1971) 4 Cal.3d 389, 396), but this exception does not apply here. If the Legislature wanted to provide a procedure to petition for relief or reopen a final case for resentencing, it could have done so. It did not.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C079470.PDF