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Recall of Sentence under PC 1170, subd. (e)

(1) Is a trial court's order denying the recall of a sentence under Penal Code section 1170, subdivision (e) appealable? (2) Assuming such an order is appealable, what is the proper standard of review on appeal? (3) Was the trial court's order denying the recall of defendant's sentence correct in this case?

Held: Prisoner may appeal order denying compassionate release under Penal Code section 1170, subdivision (e). Loper was sentenced in 2011 to six years in state prison. In 2012, the Department of Corrections and Rehabilitation (CDCR) recommended that Loper's sentence be recalled pursuant to Penal Code section 1170, subdivision (e) and that he be granted compassionate release due to his medical condition. The superior court denied CDCR's recommendation. Loper, but not CDCR, appealed the trial court's decision. The Court of Appeal dismissed the appeal, finding that the trial court's denial was a nonappealable order. The California Supreme Court reversed the decision of the appellate court. Section 1170, subdivision (e) authorizes only two parties to seek a prisoner's compassionate release: the Secretary of the CDCR or the Board of Parole Hearings. The statutory scheme does not authorize a prisoner to initiate a proceeding in the trial court for compassionate release and contains no express provision permitting a prisoner to appeal an adverse decision. However, Loper's appeal was authorized by Penal Code section 1237, subdivision (b) because the trial court's denial of compassionate release was an order made after judgment that affected his substantial rights. Section 1237 does not limit appealability only to parties who have authority to file the original motion. [Editor's Note: The court disapproved People v. Druschel (1982) 132 Cal.App.3d 667 and People v. Niren (1978) 76 Cal.App.3d 850. In each of these cases, the trial court had denied a motion for recall and resentencing under section 1170, subdivision (d) and the defendant attempted to appeal the denial. The appellate courts had dismissed the appeals on the ground that the defendant lacked statutory authority, or "standing," to make the motion.] (People v. Loper (2015) 60 Cal.4th 1155 (S211840).) This case was decided on 3/5/2015.

Updated: 3/5/2015

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