Case: People v. Rosemond - 5DCA rejects applying Wende-type procedures to defendant’s appeal from denial of unauthorized Penal Code § 1172.1 petition
Decided: 2/5/2025
Docket
Case Overview:
Procedural posture: Appeal from the superior court’s denial of a defendant-filed petition for resentencing under Penal Code § 1172.1
Plaintiff-respondent: The People of the State of California
Defendant-appellant: Malcolm Rosemond
Fifth District Court of Appeal case no.: F087787
Appeal from: Fresno Superior Court (Alvarez, J.)
Advocates: Larenda Delaini for Rosemond
Question:
(1) Whether the procedure provided for in Wende/Anders—requiring an appellate court to conduct a review of the entire record whenever appointed counsel submits a brief on direct appeal that raises no specific issues—applies to a defendant’s appeal from the denial of an unauthorized defendant-filed petition for resentencing under Penal Code § 1172.1?
Answer:
(1) No. Wende-type procedures do not apply. The procedures set forth in People v. Delgadillo, 14 Cal. 5th 216 (2022) are sufficient. As in Delgadillo, the defendant does not have a constitutional right to counsel because this is a state postconviction proceeding. Due process principles do not require application of a Wende-type procedure in this context, as the defendant has no statutory right to file a petition for relief under Penal Code § 1172.1.
Under Delgadillo, defense counsel files a brief that includes a concise recitation of the facts and counsel’s finding that there were no arguable issues. The court sends, with a copy of counsel’s brief, notice to the defendant, informing the defendant of the right to file a supplemental letter or brief. The court advises the defendant that if no letter or brief is filed within 30 days, the court may dismiss the matter.
The Delgadillo procedures were complied with in this case, and the defendant failed to submit a letter brief within 30 days. The proper resolution is to dismiss the appeal as abandoned.
Facts:
In 2011, a jury convicted defendant Rosemond of count 1, shooting at an occupied motor vehicle in violation of Penal Code § 246, and six counts of assault with a firearm. The jury found true several firearm-related allegations. The court sentenced Rosemond to an upper term of 7 years for count 1 plus a consecutive term of 25 years to life for the § 12022.53(d) enhancement for discharging a firearm which proximately caused great bodily injury or death to two victims.
In January 2024, Rosemond filed a “Request for Recall of Sentence and Resentencing Pursuant to Assembly Bill 600 and Penal Code Section 1172.1.” Rosemond checked a box that stated, “I hereby request appointment of counsel.”
In February 2024, the superior court issued a written order denying Rosemond’s request for recall and resentencing under § 1172.1. The superior court denied Rosemond’s request on the ground that a defendant is not entitled to file a petition seeking relief from the court under § 1172.1.
Rosemond appealed. Rosemond’s appointed counsel filed a no-issues brief. The court of appeal notified Rosemond that, under Delgadillo, the appeal could be dismissed as abandoned if Rosemond failed to submit a letter brief within 30 days. Rosemond did not file a letter brief within 30 days.
Outcome:
The Fifth District Court of Appeal dismissed the appeal as abandoned.
Justice Peña authored the opinion, joined by Justices Hill and Detjen.
Case: People v. Chatman - 5DCA holds that a defendant’s unauthorized petition for resentencing does not deprive the superior court of jurisdiction to resentence the defendant
Decided: 2/4/2025
Docket
Case Overview:
Procedural posture: Appeal from the superior court’s order denying a defendant-filed petition for resentencing under Penal Code § 1172.1
Plaintiff-respondent: The People of the State of California
Defendant-appellant: Demidrick Chatman
Fifth District Court of Appeal case no.: F087868
Appeal from: Tulare Superior Court (Leedy, J.)
Advocates: Amanda D. Cary for the People; Richard Fitzer for Chatman
Questions:
(1) Whether a criminal defendant’s filing of an unauthorized petition for relief under Penal Code § 1172.1 deprives the superior court of jurisdiction to resentence the defendant otherwise afforded to the court by § 1172.1.
(2) Whether an order denying a defendant’s unauthorized request to recall his sentence under § 1172.1 is appealable.
Answers:
(1) No. A defendant’s filing of an unauthorized petition under § 1172.1 does not deprive the superior court of jurisdiction to resentence the defendant. Section 1172.1 provides the superior court with jurisdiction and discretion to recall and resentence the defendant on its motion.
(2) Yes. Though the superior court is not required to rule on a defendant’s request for relief under § 1172.1, when a trial court affirmatively denies a petition, it has effectively ruled on the petition. In doing so, the court’s ruling qualifies as an appealable order when it affects a person’s substantial rights. An order denying a defendant’s request for relief under § 1172.1 affects the defendant’s substantial rights.
Facts:
In 2017, the defendant pleaded no contest to multiple charges, including attempted second-degree robbery, assault with a firearm, and misdemeanor offenses. He also admitted to firearm enhancements and a prior serious felony strike. As a result, he was sentenced to 27 years and 8 months in prison. The court imposed restitution and other fines.
In 2023, the defendant petitioned for resentencing under Penal Code § 1172.6. The court denied the petition on the ground that the defendant failed to state a prima facie case for eligibility because the defendant did not allege, nor did the record show, that the defendant was convicted of or charged with murder, attempted murder, or manslaughter.
In 2024, the defendant filed a “request for recall of sentence and resentencing under Assembly Bill 600 and Penal Code section 1172.1” using a prepared form. The defendant argued that changes in sentencing laws made him eligible for reconsideration. The court denied the defendant’s request and stated that it lacked jurisdiction to resentence the defendant. When the defendant submitted an identical request on March 21, 2024, the court denied the request without further explanation.
Outcome:
The Fifth District Court of Appeal reversed the superior court’s order denying defendant’s § 1172.1 petition for resentencing, and remanded for further proceedings.
Justice Peña authored the opinion, joined by Justices Hill and Smith.
District Split:
5DCA: An order denying a defendant’s unauthorized request to recall his sentence under § 1172.1 is appealable.
2DCA: An order denying a defendant’s unauthorized request to recall his sentence under § 1172.1 is not appealable.
In People v. Hodge, 107 Cal. App. 5th 985, 328 Cal. Rptr. 3d 623 (2024), the Second District Court of Appeal, Division 2, held that a superior court’s decision denying a defendant’s postjudgment request for resentencing was an “order” under Penal Code § 1237. In this respect, Hodge and Chatman are in agreement.
However, the Hodge Court also held that “a trial court’s order declining to exercise its discretion under section 1172.1 to recall a defendant’s sentence on its own motion after receiving the defendant’s unauthorized request for such relief does not affect the defendant’s substantial rights under section 1237, subdivision (b).” Hodge, 328 Cal. Rptr. 3d at 631.
Links:
Westlaw: 2025 WL 384047