The sentencing court retains jurisdiction under Penal Code § 1170(d) to re-sentence a defendant at any time prior to the time the execution of the sentence has actually commenced.[129]  Also, the sentencing court may recall its sentence on its own motion under Penal Code § 1170(d) at any time within 120 days from the date the client was initially committed to the custody of the Department of Corrections. [130]  The 120-day period begins on the date on which the defendant was remanded forthwith into state custody, even if the client is later released pending appeal.[131]  This time limit is jurisdictional, and the court may not recall the sentence after that period has expired.[132]  While the defendant has no right to make the motion itself, ex parte communication between defendant and the sentencing court is proper for the purpose of suggesting that the court sua sponte exercise its unilateral power to recall the sentence.[133] 

 

            The court may recall a sentence under this statute at any time on recommendation of the Board of Prison Terms or Director of Corrections, even if a notice of appeal has been filed.[134]  This power may be exercised for any reason rationally related to lawful sentencing, not merely to correct errors or to eliminate disparity of sentences and promote uniformity of sentencing.[135]  It may not, however, be exercised solely for the purpose of re-sentencing to allow filing of a notice of appeal that would otherwise be untimely.[136] 

 

            As long as the court issues its order recalling the original sentence within 120 calendar days of the commitment, it need not re-sentence the defendant within that period, but must do so within 20 judicial days of the recall.[137]  The matter should be heard by the original sentencing judge, if s/he is available.[138]  An order denying the recall of sentence is not an appealable order. [139]

 

            After recalling sentence, the sentencing court must then re-sentence the client as if the client had not previously been sentenced.[140]  In doing so, the court may consider any facts relating to the defendant up to the date of re-sentencing.[141]  The court, however, may not impose a sentence greater than the original sentence, and the client is entitled to full credit for time served for all time served on the original sentence.[142]

 

            Thus, if post-conviction counsel determines that some action at sentencing should have been taken to protect the client’s immigration status, but was not, this provision makes it possible ‑‑ as long as the error is discovered within four months of the original commitment ‑‑ to obtain a new sentencing proceeding at which the omission can be cured.

[129] C.E.B., § 38.5; California Criminal Defense Practice § 91.13[1], pp. 91-60 to 91-63, supra; People v. Karaman (1992) 4 Cal.4th 335, 14 Cal.Rptr.2d 801.

[130] See C.E.B., California Criminal Law Procedure and Practice § 38.5 (2008).

[131] People v. Superior Court (Cornelius) (1995) 31 Cal.App.4th 343.

[132] People v. Roe (1983) 148 Cal.App.3d 112, 116‑119, 195 Cal.Rptr. 802.

[133] People v. Laue (1982) 130 Cal.App.3d 1055, 1059-61, 182 Cal.Rptr. 99.

[134] Dix v. Superior Court (1991) 53 Cal.3d 442, 279 Cal.Rptr. 834; Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 13 Cal.Rptr.2d 709. 

[135] Dix v. Superior Court (1991) 53 Cal.3d 442, 279 Cal.Rptr. 834; Penal Code § 1170(d). 

[136] People v. Pritchett (1993) 20 Cal.App.4th 190, 194-195, 24 Cal.Rptr. 391 (dismissing appeal from sentence).

[137] See Penal Code § 1191; People v. Chlad (1992) 6 Cal.App.4th 1719, 8 Cal.Rptr.2d 610; Dix v. Superior Court (1991) 53 Cal.3d 442, 465, 279 Cal.Rptr. 834 (concurring opinion of Mosk, J.). 

[138] Penal Code § 1170(e))(6); People v. Jasso (1994) 25 Cal.App.4th 591, 30 Cal.Rptr.2d 572.

[139] People v. Chlad (1992) 6 Cal.App.4th 1719, 8 Cal.Rptr.2d 610.

[140] Cal. Rules of Court 401‑453.

[141] Van Velzer v. Superior Court (1984) 152 Cal.App.3d 742, 744, 199 Cal.Rptr. 695. 

[142]  See Penal Code § 2900.5.

BIA

POST CON RELIEF " SENTENCE " COMMUTATION OF SENTENCE " COMMUTATION OF SENTENCE REPLACES THE ORIGINAL SENTENCE, BUT DOES NOT ELIMINATE THE CONVICTION
Matter of J, 6 I&N Dec. 562, 569 (BIA 1955) (commutation by the President of the United States or the Governors of States ha[s] exactly the same legal effect as though the commuted sentence had been imposed by the court in the first instance and . . . after commutation, the commuted sentence is the only one in existence.).