Metropolitan News-Enterprise


Monday, September 29, 2014


Page 1


Judge Connolly Made Void Sentencing Order, C.A. Rules

Justice Aldrich Says Trial Court Lacks Power to Reduce Offense After Notice of Appeal Is Filed


By a MetNews Staff Writer


The Court of Appeal for this district on Friday vacated an order by Los Angeles Superior Court Judge Pat Connolly reducing a first degree murder to second degree, after an appeal had been filed.

“Because the trial court lacked jurisdiction to reduce the offense to second degree murder, its order is null and void and of no effect,” Justice Richard Aldrich of Div. Three said in an opinion that was not certified for publication.

Aldrich notes that before sentencing the defendant, Estevan Haro Espinosa, to 25 years to life, Connolly remarked that he had presided over at least a dozen murder and had been the prosecutor in nearly 50 of them, and that, “this has been a very difficult case for this court.” He expressed a suspicion that “there is more to this story” than came out at the trial.

Sentencing took place on Jan. 15, 2013, and on that same day, a notice of appeal was filed.

Considering Modification

At a restitution hearing on Feb. 7, Connolly announced that he was considering lowering the conviction to one for second degree murder and continued the hearing.

On March 15, the defense filed a motion for a reduction to voluntary manslaughter, and on April 9, 2013, a hearing took place at which Connolly reduced the conviction to murder in the second degree.

He said that under Penal Code §1170(d), “I do believe that I have the authority to recall this and resentence the defendant within the 120 days on the court’s own motion.” Pursuant to §1181, he declared, “I may modify this verdict.”

Citing People v. Dillon (1983) 34 Cal.3d 441, Connolly said, in resentencing Espinosa, that a sentence of 25 years to life would be, under the facts of the crime, cruel and unusual punishment.

Connolly resentenced Espinosa to 16 years to life and commented that “clearly this is the right thing to do.”

Impermissible Sentence

Aldrich disagreed.

He said that Connolly did act within the 120 days provided by §1170(d) and had the power to resentence Espinosa —the court’s power being “as broad as that it possessed when the original sentence was pronounced.” However, Aldrich pointed out, the lowest sentence Connolly could have ordered at that time was 25 years to life, the minimum for first degree murder.

“After a defendant has filed a notice of appeal, under section 1170, subdivision (d),” Aldrich said, “a trial court has jurisdiction to modify a defendant’s sentence, but not the jury’s verdict.”

Connolly also invoked §1181 which permits a trial court to lower the offense for which the defendant was convicted. Aldrich wrote:

“Unlike section 1170, subdivision (d), section 1181 does not appear to comprise an exception to the general rule that the filing of a notice of appeal divests the trial court of jurisdiction.  Espinosa a does not direct us to any authority so holding, and we are aware of none.  Therefore, the trial court lacked jurisdiction to modify the jury’s verdict when it did.”

Dillon Is Inapposite

Aldrich was not persuaded that Dillon authorizes Connolly’s action. He wrote:

“[W] e do not disagree that a trial court can, in an exceptional case, reduce the degree of a crime to avoid imposing an unconstitutionally cruel or unusual sentence….Further, if only resentencing rather than modification of the verdict was involved, resentencing to avoid an unconstitutional sentence would clearly be a ‘reason rationally related to lawful sentencing.’…However, it does not flow from these principles that a trial court can resentence where it must also reduce the degree of the offense in order to do so, when a notice of appeal has been filed.  Nothing in Dillon suggests an exception to the general rule that the filing of a notice of appeal divests the trial court of jurisdiction.”

The opinion proclaims:

“The trial court’s order reducing the offense to second degree murder and imposing a sentence of 16 years to life is vacated for lack of subject matter jurisdiction. The jury’s first degree murder verdict and the original sentence of 25 years to life in prison is reinstated. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections.”

The case is People v. Espinosa, B249493.

Deputy District Attorneys Roberta T. Schwartz and Carolyn Nakaki acted for the People and J. Kahn represented Espinosa.


Copyright 2014, Metropolitan News Company