Metropolitan News-Enterprise


Monday, August 7, 2023


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Court of Appeal:

D.A. Can’t Withdraw Resentencing Request at Will

Judge May Terminate Proceedings Only If a Good Reason Is Presented, Opinion Says  


By a MetNews Staff Writer


A judge may not grant a motion by the district attorney withdrawing a request made by the office-holder’s predecessor that an inmate be resentenced unless a solid reason is presented for the changed stance, Div. One of the First District Court of Appeal held Friday.

Then-San Francisco District Attorney Chesa Boudin on April 29, 2022, filed a request that John Vaesau, who was sentenced in 1992 to two terms of life with the possibility of parole plus 14 years for three attempted murders and other crimes. Boudin was recalled by voters on June 7 of that year; Brooke Jenkins was appointed by the mayor as Boudin’s successor, taking office on July 8; at a resentencing hearing on July 15, a deputy district attorney withdrew the resentencing request.

The request was made pursuant to then-Penal Code 1170.03, now §1172.1.

Wording of Statute

 It provides that a trial court may “at any time upon the recommendation…the district attorney of the county in which the defendant was sentenced…recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced…provided the new sentence, if any, is no greater than the initial sentence.”

A district attorney is among four officials who may instigate such proceedings.

San Francisco Superior Court Judge Bruce E. Chan said at the July 15 hearing that he believed, instinctively, that the new district attorney could withdraw a resentencing request but invited briefing by Vaesau’s appointed counsel. At a further hearing on Aug. 11, a prosecutor said that, having “reviewed just the papers,” she perceived the resentencing request to be “very thin on the record.”

Chan granted the prosecution’s motion to terminate the proceeding.

Humes’s Opinion

Presiding Justice James M. Humes said in Friday’s opinion:

“We hold that a trial court has discretion, but is not required, to terminate a section 1172.1 proceeding when a district attorney identifies a legitimate basis for withdrawing the resentencing request and moves to withdraw before the court rules on the merits. Because the district attorney here did not offer any such reason, we vacate the order at issue and remand for reconsideration.”

He pointed to the Sixth District Court of Appeal’s decision last Dec. 6 in People v. E.M. The court held, in an opinion by Presiding Justice Mary J. Greenwood, that once the secretary of the Department of Corrections and Rehabilitation had made a resentencing request, the trial court nonetheless “retains jurisdiction to recall and resentence” the defendant.

No ‘Unfettered Authority’

Humes wrote:

“[A] district attorney’s ability to request resentencing does not imply an unfettered authority to withdraw the request. Accordingly, and consistent with E.M., we conclude that termination of a section 1172.1 proceeding is not mandatory if the district attorney no longer supports resentencing. In other words, the mere fact that the district attorney withdraws a request does not preclude a trial court from concluding that recall and resentencing is nonetheless appropriate. Rather, once a request is made, the court has jurisdiction to resentence the defendant if it chooses to do so.”

He declared: “[A] trial court may, but is not required to, allow a district attorney to withdraw a resentencing request before the court reaches the merits, thereby terminating a section 1172.1 proceeding without prejudice.  Although this is a discretionary choice, it must be guided by section 1172.1’s objectives and the defendant’s due process rights.  In particular, the motion to withdraw the request must be based on a legitimate reason.  Here, a remand for reconsideration is warranted, because it is unclear whether the trial court appreciated the full scope of its discretion to deny the district attorney’s motion to withdraw—particularly given the district attorney’s failure to explain the change in course.”

Critical of Jenkins

Humes commented:

“Jenkins, the new District Attorney, was entitled to reconsider the recommendation, but there is no evidence that any substantive reevaluation occurred.  Indeed, she moved to withdraw the recommendation only a week after taking office.”

He went on to say: “Allowing a district attorney to withdraw a resentencing request without explanation, especially under the political circumstances here, raises the specter of arbitrary action and does not carry the appearance of fairness.”

Nature of Reason

 Humes referred to the need for a “substantive reason,”  a “legitimate reason,” and a “valid reason.” As to what might constitute such a reason, he said:

“As E.M. suggests, there could be a range of valid reasons to withdraw a request, such as ‘administrative mistake or improvidence,’ a change in the law, or a ‘change in the prisoner’s circumstances’ making the prisoner ‘less deserving of resentencing.’…But the legitimacy of the proffered reason must be considered on a case-by-case basis, and standing alone, it is insufficient that the district attorney no longer backs resentencing.”

The case is People v. Vaesau, 2023 S.O.S. 2844.


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