P v. Cortez (4th Dist, Div.3) Granting a PC 1170.18 Petition Allows a Trial Court to Increase Sentences on Other Misdemeanor Counts (aka California's Next Senator Continues Her War Against Criminal Justice Reform)

Back in 2012, Mr. Cortez was charged with, and pleaded guilty to, three related crimes.  Count one was felony possession of methamphetamine (HS 11377(a)), count two was possession of drug paraphernalia (HS 11364.1(a)), a misdemeanor, and count three was being under the influence of methamphetamine (HS 11550), also a misdemeanor.   

Following an unsuccessful stint on probation, Cortez was sentenced as follows: sixteen months in prison for count one, six months in the county jail, concurrent, on count two, and another six months concurrent on count three.  The upshot was that Cortez's total effective sentence was sixteen months.

Comes 2015 and Cortez, now out of prison, petitions the trial court to reduce his felony methamphetamine possession conviction to a misdemeanor via PC 1170.18.  The trial court grants the petition and resentences Cortez to 364 days on the HS 11377.  But, not wanting this man once down to rise, delivers a malefic kick by resentencing Cortez on the two other misdemeanors.  It recalls the concurrent sentences on counts two and three and resentences Cortez on the HS 11364.1 to 129 days consecutive.  In an unimpressive show of restraint, it resentences Cortez to 129 days concurrent on the HS 11550.  None of this really matters as Cortez has custody credits in excess of the revised sentence, but Cortez (as he should) appeals anyway.

The Fourth District affirms.

This opinion would be irritating if it was artful or persuasive.  Instead it is just a unlettered reminder of the ineptitude and Sadism that sometimes results from endowing government job-holders with mastery over other people and the insecure reaction of aforementioned job-holders when the degree of unearned mastery is reduced.  

The legal issue is one of statutory interpretation, specifically PC 1170.18.  Normally when a defendant is committed to serve his sentence, the trial court loses jurisdiction over the case absent some exception.  Here the exception is found in PC 1170.18.  It is the reach of the exception that is at issue.  Does the exception confer to the trial court jurisdiction to resentence as to the reduced felony only, or does it include the jurisdiction to also resentence as to other misdemeanor counts within the same pleading?   

The panel, admirably, at least states how the issue should be analyzed.  Unfortunately it never applies the rule (as doing so would preclude its chosen result) .  Said rule is that you look at the text of the statute and at the outset determine whether the language is ambiguous or not.  If unambiguous, you're done; just apply the language.  

Here is the pertinent language.

A person currently serving a sentence for a conviction . . . of a felony . . . who would have been guilty of a misdemeanor . . . had this act been in effect at the time of the offense may petition for a recall of sentence . . . .  If the petitioner satisfies the criteria . . . the petitioner’s felony sentence shall be recalled and the petitioner resentenced to a misdemeanor.  (emphasis added)

Is this language ambiguous as to whether "felony" modifies "conviction" and "sentence"?  No.  As my second grade teacher, Mrs. Mulheron, would tell us, it is the felony sentence that shall be recalled.  There is nothing indicating attendant misdemeanor sentences shall (or may) be recalled.  

Looking for some angle to impose its authority upon Cortez, the panel uses the unimpressive analogy of P v. Roach.  In Roach, the defendant was sentenced for multiple felonies with the felony conviction at issue in the PC 1170.18 petition being the principal term for the aggregate felony sentence.  After the petition was granted, PC 1170.1 required the trial court to choose another count to be the principal felony term.  As the case dealt with a sentence comprised of multiple felony convictions, the opinion was reasonable.  In Cortez's case however, PC 1170.1 is excrescent as no felonies remain.  

So the panel resorts to arranging a plebeian word salad.  To explain away the grammatically clear directive that "felony" modifies "conviction" and "sentence" in PC 1170.18, the panel states that such a plain meaning analysis is "myopic" because it ignores the "context of the statute".  As the former critique relies upon the latter, what does the latter mean?  The "context" of the statute is the damn penal code!  What other part of the penal code supports the panel's interpretation?  None.  

Keen on placing its impotence out front for the reader to examine, the panel couches its result in the conclusion that the language "had been in affect" requires resentencing become an anachronistic event in which the parties imagine past events have occured in the present.  Although meant to be clever, this trope actually cuts against the panel's viewpoint.  The present, per the electorate's mandate, requires the punishment for the 11377(a) be reduced.  The effect of the trial court's resentencing was to elevate the punishment as it chose the minimum punishment upon sentencing Cortez as a felon and, upon resentencing, capriciously changed its mind and imposed the maximum.  Did any fact of Cortez's crime change in the interim to justify this switch?  Without a TARDIS the answer can only be "no". 

Hopefully this legal offal will eventually be rendered.