Metropolitan News-Enterprise


Tuesday, June 27, 2023


Page 3


Judge Had Inherent Power to Resentence Defendant—C.A.


By a MetNews Staff Writer


Div. One of the Fourth District Court of Appeal declared yesterday that where a judge issues a sentence that is impermissibly short, and the Department of Corrections and Rehabilitation points out the error, the judge may resentence the defendant.

But, Justice Joan K. Irion said, this might entail something more than correcting the error in chambers. She wrote:

“We conclude: (1) a trial court’s inherent authority to correct an unauthorized sentence allows it to modify a final judgment in response to a notice from the Department that a sentence does not contain a legally required component; and (2) the proper remedy is a full resentencing hearing where, as here, the sentence includes multiple components and the trial court exercised discretion at the original sentencing hearing to impose a non-maximum aggregate prison term it considered appropriate.”

16-Month Increase

The decision comes in the case of Joseph Codinha who appealed from an order by San Diego Superior Court Joan P. Weber beefing up his eight-year prison sentence by 16 months. This came after the department advised the judge that she had imposed a four-year term for unauthorized possession of a controlled substance to run concurrently with the six-year term for indecent exposure where a statute requires consecutive terms.

Addressing Weber’s power to alter the sentence, Irion said that Weber did not, as she proclaimed, correct a clerical error—she had misperceived the breadth of her discretion and committed “judicial error,” the justice wrote—and did not act pursuant to a suggestion by the department under Penal Code §1172.1 that it resentence Codinha based on equitable considerations because that was not the nature of its communication.

What does apply, she said is the “unauthorized sentence doctrine.” She discerned from the cases this rule:

“A trial court that imposes a sentence unauthorized by law retains jurisdiction (or has inherent power) to correct the sentence at any time the error comes to its attention, even if execution of the sentence has commenced or the judgment imposing the sentence has become final and correction requires imposition of a more severe sentence, provided the error is apparent from the face of the record.”

Resentencing Hearing

Codinha contended that Weber could not simply change his sentence, but was required to conduct a full hearing. Irion said that under the circumstances of the case, that is necessary, explaining”

“The sentence contains another error, not addressed by the parties, which requires remand, namely, the trial court’s failure to pronounce sentence on the two misdemeanor convictions of possession of drug paraphernalia….A trial court has a duty in both felony and misdemeanor cases to pronounce sentence on every conviction…. Although the court could give Codinha credit on those counts for time he had already spent in custody, it first had to pronounce a proper sentence on those counts….

“On remand, the trial court may reconsider all components of Codinha’s sentence.”

The case is People v. Codinha, D080633.


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