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Name: People v. Vaesau (2023) 94 Cal.App.5th 132
Case #: A165925
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 08/04/2023

A trial court has discretion to terminate a Penal Code section 1172.1 recall and resentencing proceeding when a district attorney identifies a legitimate basis for withdrawing its resentencing request before the court rules on the merits. In 1992, a jury convicted defendant of three counts of attempted murder and other crimes committed when he was a minor. Thirty years later, the then-district attorney filed a request to resentence defendant under former section 1170.03, now section 1172.1. That statute authorizes a trial court, “at any time upon the recommendation of . . . the district attorney of the county in which the defendant was sentenced,” to recall and resentence a defendant. (§ 1172.1, subd. (a)(1).) Within weeks, the district attorney was recalled by the voters, and the new district attorney moved to withdraw the request without offering a substantive reason for doing so. The trial court granted the motion, terminating the section 1172.1 proceeding, and noted it was not a decision on the merits. Defendant appealed. Held: Remanded. A request for recall and resentencing under section 1172.1 functions to renew the trial court’s sentencing jurisdiction. The district attorney’s withdrawal of the request does not eliminate the trial court’s jurisdiction, which would raise separation-of-powers concerns. Termination of the proceeding is not mandatory if the district attorney no longer supports resentencing, and the trial court retains jurisdiction to resentence the defendant if it chooses to do so. A trial court is not required to reach the merits every time a resentencing request is made, but may deny or dismiss without prejudice on procedural grounds before reaching the merits. A district attorney must have a legitimate basis for withdrawing its request, such as administrative mistake or improvidence, a change in the law, or a change in the prisoner’s circumstances. Here, given the district attorney’s failure to explain the change in course, it is unclear whether the trial court appreciated the full scope of its discretion to deny the district attorney’s motion to withdraw, so remand is appropriate. [Editor’s Note: The court also concluded that the order granting the motion to withdraw the resentencing request is appealable under Penal Code section 1237(b), as an order made after judgment, affecting the substantial rights of the party.]