DIX v. PEOPLE

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Court of Appeal, First District, Division 4, California.

William Edward DIX, Petitioner, v. The SUPERIOR COURT of Humboldt County, Respondent. The PEOPLE, et al., Real Parties in Interest.

No. A045185.

Decided: February 28, 1990

Bernard C. DePaoli, Eureka, for petitioner. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Aileen Bunney, Super. Deputy Atty. Gen., Enid A. Goldman, Deputy Atty. Gen., Fern M. Laethem, State Public Defender, Philip M. Brooks, Deputy State Public Defender, San Francisco, for real parties in interest. No appearance for respondent.

In this petition for writ of mandate, the victim of a crime challenges the action of respondent court in recalling a sentence and releasing the prisoner pending an indefinite continuance for resentencing.   We conclude that a superior court does not have jurisdiction under Penal Code,1 section 1170, subdivision (d), to recall a sentence because of action of a defendant which occurs after the original sentencing.   We also conclude that under the unusual circumstances of this case, the victim has standing to petition this court for the relief requested.

Alan Dale Bradley, known to petitioner as Joe Rizzo, was charged in Humboldt County Municipal Court with the attempted murder of petitioner.   A preliminary hearing was held on January 19, 1988.   At the preliminary hearing, petitioner testified that in the early morning hours of February 1, 1987, Bradley came into a house in Arcata where petitioner was visiting.   Bradley told him he was there to collect money for “Dave.”   An argument ensued which ended when Bradley took petitioner outside the house and shot him in the head.   According to petitioner's testimony, the altercation arose from the fact that petitioner and his girlfriend, Beverly, had made a deal with the man named Dave by which Dave let Beverly have a pound of shake marijuana for $60 to be paid when the drug was resold. Bradley was present when the deal was made.   Petitioner and Beverly sold the marijuana for $85 but Beverly used the money for rent.   Dave himself never made an attempt to collect the money.

On February 2, 1988, an information was filed charging Bradley with a violation of section 245, subdivision (a)(2) (assault with a firearm).   It was further alleged that Bradley, with the specific intent to inflict such injury, personally inflicted great bodily injury within the meaning of sections 12022.7 and 1203, subdivision (e)(3).

On March 4, 1988, Bradley pled guilty to the charge and admitted the great bodily injury allegation.   At the time the plea was taken, respondent court asked the district attorney if Bradley was ineligible for probation and was told that Bradley had “several prior felony convictions that would make him statutorily ineligible” and that the parties had stipulated to a seven-year term.   Bradley asked to be sentenced immediately.   The court agreed remarking that, in light of the fact that Bradley would be sentenced to the maximum, sentence would be imposed despite the fact that the victim had not been notified.

On June 24, 1988, 118 days after sentencing, respondent court recalled the sentence pursuant to section 1170, subdivision (d), and Bradley was returned to Humboldt County from Soledad.   He was then transferred to Shasta County and released on his own recognizance by order of the Humboldt Superior Court filed November 18, 1988.

The reasons prompting the recall and later release of Bradley are not disputed.   The District Attorney of Shasta County agreed with Bradley to attempt to secure a recall of his sentence if he would testify at the murder trial of a man named Kellotat.   The District Attorney later agreed to request Bradley's release on his own recognizance in return for evidence on the question of whether Kellotat's attorney offered Bradley money to change his testimony.2

In letters dated January 23, 1989, and February 7, 1989, petitioner wrote to Judge Lund of the Shasta Superior Court and Judge Brown of the Humboldt Superior Court, protesting Bradley's release and stating that he feared for his safety and the safety of his family.   On February 22, 1989, Attorney DePaoli wrote to Judge Brown to inform him that petitioner was opposed to any further continuances of Bradley's resentencing and to request that petitioner be permitted to present his views at the time of sentencing.   On February 24, 1989, respondent court again continued resentencing at the mutual request of the district attorney and Bradley and over the objection of petitioner.

I. The Court Lacks Jurisdiction to Recall

 “At common law a trial court could revise any sentence during the term at which it was imposed as long as the sentence remained unexecuted.  [Citations.]”  (People v. Calhoun (1977) 72 Cal.App.3d 494, 496–497, 140 Cal.Rptr. 225.)   However, the general rule in California, as in many other states, is that the court loses jurisdiction to reconsider its sentence when the court has relinquished control of the defendant and the execution of his sentence has begun.  (Holder v. Superior Court (1970) 1 Cal.3d 779, 783, 83 Cal.Rptr. 353, 463 P.2d 705; People v. Roe (1983) 148 Cal.App.3d 112, 116, 195 Cal.Rptr. 802;  People v. Calhoun, supra, 72 Cal.App.3d at p. 497, 140 Cal.Rptr. 225.)  Section 1170, subdivision (d), creates an exception to that rule.   Subdivision (d) provides that after a defendant has been committed to state prison, “the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the Director of Corrections or the Board of Prison Terms, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence.   The resentence under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing.”

The People contend that section 1170, subdivision (d), is sufficiently broad to authorize the recall of a sentence to resentence in light of the conduct of a prisoner following his commitment to state prison.   We turn to a history of the recall authority for guidance in the interpretation of this provision.

The authority to recall a sentence was added to section 1168 in 1963, when the indeterminate sentence law was in effect.   At that time the court was authorized to recall a sentence if warranted by a diagnostic study of the prisoner aimed at the possibility of rehabilitation.3  In 1976, with the enactment of the determinate sentencing law, this provision was removed from section 1168 and the authority to recall was included in section 1170.  (Stats.1976, ch. 1139, § 273, at p. 5141.)   The recall provision no longer was premised on a diagnostic study of the prisoner but, in line with the new emphasis upon punishment as the purpose of imprisonment, contained the present reference to the goal of eliminating disparity of sentences and promoting uniformity of sentencing.

In Holder v. Superior Court, supra, 1 Cal.3d 779, 83 Cal.Rptr. 353, 463 P.2d 705, a defendant argued that former section 1168 empowered the court to recall a sentence to state prison and grant probation upon an adequate showing of rehabilitation of a defendant following his incarceration.   The Supreme Court did not agree:  “Although the language of the provision is broad, we are satisfied that the Legislature intended thereby to empower the court to take such action only where it appears from the specified matters that the prison sentence should never have been imposed.”  (Id., at p. 782, 83 Cal.Rptr. 353, 463 P.2d 705, fn. omitted.)   Subsequent to Holder the Legislature in its enactment of section 1170, subdivision (d), made this intention even clearer by eliminating reliance on a diagnostic study of the prisoner and adding the provision that the resentence shall eliminate disparity of sentences and promote uniformity of sentencing.

The court in Holder also reasoned that the Legislature had placed in the Adult Authority power to determine the duration of imprisonment and the matter of parole.  “If ․ the court were empowered by section 1168 to recall the sentence and grant probation if the court found that the defendant had become rehabilitated after his incarceration, there manifestly would be two bodies (one judicial and one administrative) determining the matter of rehabilitation, and it is unreasonable to believe that the Legislature intended such a result.”  (Holder v. Superior Court, supra, 1 Cal.3d at p. 782, 83 Cal.Rptr. 353, 463 P.2d 705.)   The same situation would exist if recall of the sentence were permitted solely on the ground that a prisoner had agreed to testify for the prosecution, since the Department of Corrections is presently authorized within statutory limits to determine when a prisoner is entitled to be released from custody.4  Given the holding of our Supreme Court in Holder and the present wording of the recall provision of section 1170, subdivision (d), we conclude that the Legislature did not intend to authorize recall of a sentence on the ground that subsequent to commitment a prisoner agreed to testify in a criminal trial.

 The authority relied upon by the People is inapposite.   The People direct our attention to cases which have held that, when a case is remanded for resentencing after an appeal, the trial court is entitled to consider updated information regarding the defendant's behavior while incarcerated.  (See People v. Flores (1988) 198 Cal.App.3d 1156, 1160, 244 Cal.Rptr. 322;  People v. Foley (1985) 170 Cal.App.3d 1039, 1047, 216 Cal.Rptr. 865.)   In the cited cases, the jurisdiction of the trial court to resentence was not in question.   Jurisdiction was derived from the remand by the appellate court.

The authority cited by Mr. Bradley is also inapposite.5  Bradley argues that support for his position can be found in People v. Martin (1986) 42 Cal.3d 437, 229 Cal.Rptr. 131, 722 P.2d 905.   In Martin, the court discussed the standards and procedures to be followed by the trial court when, pursuant to section 1170, subdivision (f), the Board of Prison Terms (BPT) notifies the court that it has imposed a disparate sentence.   The Martin court described the means by which the BPT concludes that a sentence is disparate.   The BPT considers data on each case including “the prisoner's criminal history, his social background, the circumstances of each offense, and the actual sentence.”  (Martin, supra, at p. 443, 229 Cal.Rptr. 131, 722 P.2d 905.)   The trial court then must determine whether a disparate sentence is justified.  “If there are unique elements in the case which render it unsuitable for comparison with other cases, or subjective factors which distinguish it from other cases, such matters can be considered in the second part of the analysis when the court considers whether a disparate sentence is justified.”  (Id. at p. 447, 229 Cal.Rptr. 131, 722 P.2d 905.) Although the Martin court allows flexibility in resentencing after recall and permits a disparate sentence upon resentencing, nowhere does Martin suggest that a prisoner's post-sentence behavior may be taken into account in either deciding whether a sentence is disparate or in resentencing upon recall.

Despite Bradley's contention that both appellate and superior courts have exercised the power of unrestricted recall for years without challenge, no appellate case is cited which considers the question we address or which reveals that a sentence was recalled pursuant to section 1170, subdivision (d), due either to events or a defendant's conduct occurring subsequent to the initial sentencing.   Bradley has filed an affidavit informing this court of cases in which a recall has been granted by superior courts for prisoners who were terminally ill and likely to die within six months.   We recognize that such a result may well be desirable.   However, the Legislature has provided a means by which a prisoner may be set at liberty because of events or conduct occurring during imprisonment.  (§§ 4800 et seq.) 6  We find no evidence of legislative intent that section 1170, subdivision (d), be used for this purpose.

Both Bradley and the People direct our attention to sections of the Classification Manual of the Department of Corrections, promulgated in 1985, which suggest that in proceeding under subdivision (d) of section 1170, the Department considers changes in a prisoner's circumstances which occur after commitment.  (CDC Manual, art. 2, §§ 651(f), 602(b)–(c).)   Bradley and the People contend that the fact that the Legislature has twice amended section 1170 since 1985 without changing the broad language upon which they rely is evidence that the Legislature intends its statute to be implemented consistently with the Department of Corrections' interpretation.   We cannot assume that the provisions of the Classification Manual have ever been brought to the attention of the Legislature.   The Classification Manual of the Department of Corrections is only a manual for internal use.   Unlike rules and regulations promulgated by the Department to implement statutes enacted by the Legislature, its provisions are not subject to notice and review requirements which would call the attention of the public and the Legislature to the Department's interpretation.  (See Gov.Code, §§ 11340–11356;  Cal.Code Regs., tit. 1, § 10.)

We find that the intent of the Legislature in enacting section 1170, subdivision (d), is expressly stated in that section:  upon recall a person is to be resentenced “so as to eliminate disparity of sentences and to promote uniformity of sentencing.”   Recall because of prison conduct cannot achieve that purpose.   The People and Bradley consider that this language is a guide to resentencing rather than to the recall itself.   A recall, however, has no purpose apart from that of resentencing.   We do not understand how a superior court is empowered to recall a sentence because of a bargain to testify for the prosecution and then be forbidden from considering that fact in resentencing because that bargain is irrelevant to the purpose of the subdivision, i.e. to eliminate disparity.

We are satisfied that the Legislature intended in section 1170, subdivision (d), to provide a means by which the trial court for a limited period could reconsider, on its own motion, its original sentence in light of factors existing at the time of the original sentence;  we hold that the Legislature did not intend the section to be a vehicle to reward a prisoner for behavior after his original sentence commences.

II. The Victim Has Standing to Complain

 The People contend that petitioner does not have standing to petition this court for an extraordinary writ.   Ordinarily a person who is not a party to a criminal action does not have standing to appear in the action.   However, with the addition of “The Victims' Bill of Rights” to the California Constitution (art. I, § 28) and the enactment by initiative of section 1191.1, the victim has been given a limited right to appear at sentencing proceedings and thus limited standing in criminal cases.7

In arguing that petitioner's standing here cannot be premised on “The Victims' Bill of Rights,” the People call our attention to People v. Superior Court (Thompson) (1984) 154 Cal.App.3d 319, 321–322, 202 Cal.Rptr. 585, in which the court concluded that the requirements of section 1191.1 are “directory, as distinguished from mandatory, in their effect.”   Without finding it necessary to disagree with Thompson, the court in Melissa J. v. Superior Court (1987) 190 Cal.App.3d 476, 237 Cal.Rptr. 5, entertained a petition for writ of mandate by a victim who had been denied her right to be notified and appear at a proceeding in which the court had ordered the termination of a restitution requirement.

It is likewise unnecessary for us to take issue with Thompson or to analyze petitioner's right to appear at a proceeding to recall the sentence.8  In Thompson the question was not whether the victim had standing to bring the petition or whether the court would entertain the petition.   The question was whether the failure to notify the crime victim of the sentencing hearing, and the resultant absence of the victim from such hearing, deprived the trial court of its jurisdiction to proceed.   That is not the question before us.   Here the trial court was without jurisdiction to act, not because the victim was not notified but because the court did not have subject matter jurisdiction to recall the sentence.   In the unusual circumstances present here, unless the victim has standing, there remains no party to protest the act which exceeded the jurisdiction of the court.

“Generally speaking, the writ of mandate is issued upon the verified petition of the party beneficially interested to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, duty, or station where there is no plain, speedy, and adequate remedy in the ordinary course of law.  [Citations.]”  (People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 497, 72 Cal.Rptr. 330, 446 P.2d 138.)  “ ‘The granting of a writ of mandate is discretionary and it will be granted only where necessary to protect a substantial right and only when it is shown that some substantial damage will be suffered by the petitioner if said writ is denied.’  [Citations.]”   (Parker v. Bowron (1953) 40 Cal.2d 344, 351, 254 P.2d 6.)   Apparently in an attempt to show a “beneficial interest,” petitioner has furnished evidence in the form of his affidavit that a physical danger to him exists in the release of Bradley.   We do not consider it necessary to determine if such a fear on the part of a victim constitutes the “beneficial interest” required for standing to pursue the remedy of mandate.  “The conditions of petitioner's right and respondent's duty [citation] may be greatly relaxed, if not virtually abandoned, where the question is one of public interest.”  (8 Witkin, Cal. Procedure (3d ed. 1985) Extraordinary Writs, § 74, p. 713.)   As explained above, determination of the limits of judicial power to recall is in the public interest and will evade resolution if we do not act by mandate.   We, therefore, exercise our discretion to consider the issue upon the petition of the victim of Bradley's crime.

The Attorney General contends that public policy does not support the issuance of an extraordinary writ in this case because petitioner's fear of Bradley is not genuine, because petitioner was involved in a drug transaction and because his attorney (as attorney for Kellotat and himself accused of attempting to bribe Bradley) has an interest in returning Bradley to prison.   Petitioner disputes the factual basis of each of these statements and charges.   We need not resolve these factual disputes as they are irrelevant to the questions of whether the court had jurisdiction to recall the sentence and of whether petitioner has standing to petition.   Where a court without jurisdiction has released a prisoner and the People have consented to the release, the public interest expressed in California Constitution, article I, section 28(a) is served by entertaining a petition for writ of mandate filed by the prisoner's victim.

III. The Petition is Not Moot

 The People also contend that the instant petition is moot because the State will stipulate to the issuance of a peremptory writ of mandate directing Bradley's immediate resentencing.   At resentencing, the People state that petitioner will have an opportunity to present his views on the appropriate sentence.   Thus, according to the People's view, petitioner will receive the fundamental component of his requested relief.   This reasoning applies only to petitioner's request for a petition directing an immediate resentencing of Bradley.   This request, however, was in addition to or as an alternative to the request that respondent court be directed to return Bradley to state prison to serve the sentence originally imposed.   Since we conclude that respondent court lacked jurisdiction to recall the sentence, the People's stipulation to an immediate resentencing does not moot the petition.

Conclusion

Let a peremptory writ of mandate issue directing Humboldt County Superior Court to vacate its order recalling the sentence in Action No. 10990, People v. Alan Dale Bradley, and to return Mr. Bradley to state prison.

It takes little in the way of imagination to recognize that the importance of this case transcends its rather dry legal description:  that the superior court has no power to recall a sentence except to correct its disparateness or to reconsider the original sentence in light of factors existing at the time it was announced.   What this declaration of judicial impotence means when translated from legalese to real world effects is that the superior court must be blind to what develops after sentencing, be it the onset of a contagious terminal illness in the prisoner or as in the case at hand his willingness to testify—when no one else will—against a person charged with contracting for and obtaining the death of several persons.   I view that conclusion as unsupportable by any fair reading of the statute involved, any analysis of the history of the legislation or any study of case law.   I therefore dissent.

The governing statute, Penal Code section 1170, subdivision (d) ( “section 1170(d)”),1 reads as follows:  “When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Director of Corrections, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the Director of Corrections or the Board of Prison Terms, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence.   The resentence under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing.   Credit shall be given for time served.”

As I understand section 1170(d) it allows the court to recall in three situations:  (1) at any time upon the recommendation of the Director of Corrections;  (2) at any time upon the recommendation of the Board of Prison Terms;  and (3) within 120 days of commitment on the court's own motion (i.e. without the requirement of a recommendation from anybody).

If a resentencing does take place section 1170(d) makes the “resentence”, as distinguished from the “recall”, subject only to the following conditions:  (1) the resentencing must proceed as if the prisoner had not been previously sentenced;  (2) the new sentence may not be greater than the original sentence;  (3) the resentence (like the original sentence) must follow the sentencing rules of the Judicial Council that govern all sentencing under the Determinate Sentencing scheme so as to eliminate disparity and promote uniformity;  and, (4) credit for time served must be given.2  No conditions other than those just mentioned inhibit or otherwise limit the power or the discretion of the sentencing court to “proceed in the same manner as if the prisoner had not been previously sentenced.”  (§ 1170(d).)

This is exactly the way section 1170(d), is interpreted by the Department of Corrections.   In its Classification Manual in the chapter entitled “Recall of Commitment”, the Department notes that the superior court retains “absolute discretion to recall a sentence within the first 120 days of the date of sentencing.”  (See Classification Manual, Cal. Dept. of Corrections (1985), ch. 600, § 602, p. 600–1.1;  see also id., § 603, subd. (a), p. 600–1.1.) 3  The Department also recognizes both its power and responsibility to recommend recall and resentencing in cases where matters have changed since the original sentencing.   For example, even after disparate sentence review by the Board of Prison Terms has occurred “departmental staff may recommend that the Director contact the sentencing court if conditions have changed to the extent that the inmate's continued incarceration in the Department is not in the interest of justice․”  (Classification Manual, op. cit. supra, § 604, subd. (b), p. 600–1.2.)  (Emphasis added.)

These regulations constitute concrete recognition by the Department of Corrections that the superior court's power to recall and resentence is not limited—as the majority sees it—to reconsideration of the original sentence “in light of factors existing at the time of the original sentence.” 4

The majority opinion reads into 1170(d) language that does not appear to the naked eye.   If I understand the majority opinion correctly the statute will now be amended to read that the court has jurisdiction to recall and to resentence only for the limited purpose of correcting a disparate sentence, and the court has no jurisdiction to recall a sentence because of action of a defendant which occurs after the original sentencing (majority opn., ante, p. 93).   Neither the statute nor the sole case relied upon, Holder v. Superior Court (1970) 1 Cal.3d 779, 83 Cal.Rptr. 353, 463 P.2d 705, supports the radical amendments made today.

In Holder, the defendant pleaded guilty to burglary in 1961 and was sentenced to prison for the term prescribed by law under the Indeterminate Sentencing Law.   The governing statute, former section 1168, read:  “ ‘Every person convicted of a public offense, for which imprisonment in any reformatory or State prison is now prescribed by law shall, unless such convicted person be placed on probation, a new trial granted, or the imposing of sentence suspended, be sentenced to be imprisoned in a State prison, but the court in imposing the sentence shall not fix the term or duration of the period of imprisonment.”  (Emphasis added.)   At that time the Adult Authority alone had the power both to determine the duration of imprisonment within statutory limits and to decide whether and when parole would be granted.  (See Holder v. Superior Court (1969) 269 Cal.App.2d 314, 316–317, 74 Cal.Rptr. 853.)

After Holder was sentenced former section 1168 was amended to add a second paragraph:  “When a defendant has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Director of Corrections, if it is deemed warranted by the diagnostic study and recommendations approved pursuant to Section 5079, the court may recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he had not previously been sentenced.”  (See Holder v. Superior Court, supra, 269 Cal.App.2d at p. 316, 74 Cal.Rptr. 853.)

In reliance upon that language Holder applied to the superior court for probation.   The Department of Corrections transmitted a diagnostic study to the court but suggested that the trial court was without jurisdiction to consider Holder's application because the amendment to the statute was not retroactive.   The trial court agreed.   Holder sought relief by mandamus and the Court of Appeal held that the superior court could and should hear Holder's petition on its merits.  (Holder v. Superior Court, supra, 269 Cal.App.2d at pp. 318–319, 74 Cal.Rptr. 853.)

On remand the superior court interpreted former section 1168 as giving it “power to review and control retrospectively its own actions in sentencing a defendant to prison.”  (See Holder v. Superior Court, supra, 1 Cal.3d 779, 781, 83 Cal.Rptr. 353, 463 P.2d 705.)   But the superior court “did not believe that the matters presented to it showed that its actions” were improper, and accordingly, declined to grant probation.   On review, the California Supreme Court read section 1168 narrowly:  it “empowers the court to recall a prison sentence and commitment and to resentence the defendant [only] where it appears from the diagnostic study and approved recommendations that the prison sentence should never have been imposed.”  (At pp. 781, 782, 83 Cal.Rptr. 353, 463 P.2d 705.)   In other words, former section 1168 did not authorize the trial court to reconsider its sentence on the basis of post conviction matters.

The kernel of the Supreme Court's rationale was quite simply that under the Indeterminate Sentencing Law it was the exclusive province of the Adult Authority to determine the duration of imprisonment and to determine parole.   To read former section 1168 as allowing the superior court to retrospectively grant probation upon finding the defendant had become rehabilitated after incarceration would contradict the Adult Authority's power to set prison terms and in effect establish “two bodies (one judicial and one administrative) [to determine] the matter of rehabilitation․”   The high court found no reason to believe that the Legislature intended such a result.  (See Holder v. Superior Court, supra, 1 Cal.3d at p. 782, 83 Cal.Rptr. 353, 463 P.2d 705.)

Thus, what must be kept in mind when reading Holder is that there the California Supreme Court was interpreting former section 1168 in the context of the Indeterminate Sentence Law, a sentencing scheme different in kind from the Determinate Sentencing Law which exists today.   The roles of the trial court and the administrative body have been interchanged:  what under the Indeterminate Sentencing Law was the exclusive function of the administrative body (the Adult Authority) is now under the Determinate Sentencing Law the exclusive function of the sentencing court—fixing the length of prison terms.   For this reason the Holder analysis of contradiction of power between the two entities no longer fits.

Of course if, as part of the enactment of the Determinate Sentencing Law, the language of the statute had remained unchanged, an argument could be made that the Holder court's interpretation of that language should govern today even though the sentencing landscape has changed dramatically.   When the Legislature says the same thing it means the same thing.  (Cf. Steketee v. Lintz, Williams & Rothberg (1985) 38 Cal.3d 46, 52, 210 Cal.Rptr. 781, 694 P.2d 1153, citing Stillwell v. State Bar (1946) 29 Cal.2d 119, 123, 173 P.2d 313.)   But the undeniable fact is that the language in former section 1168 conditioning the recall and the resentence, as interpreted in Holder,5 is gone in its entirety from section 1170(d).

When the Determinate Sentencing Law was first proposed in Senator Nejedly's Senate Bill No. 42 no change was proposed in this provision.   In fact former section 1168 as analyzed in Holder is close to being a mirror image of the wording of the initial version of the bill.6  (See Sen.Bill No. 42 (1975–1976 Reg.Sess.) as amended in Senate March 4, 1975 (pp. 127–128);  id., as amended in Senate April 28, 1975 (pp. 108–109).)   But when the final version of the bill was passed by the Legislature and signed by the Governor, the language conditioning a superior court's power to recall a sentence upon a diagnostic study or anything else was gone from section 1170(d).   To recap, in its present form, section 1170(d) reads:  “The court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the Director of Corrections or the Board of Prison Terms, recall the sentence and commitment previously ordered and resentence the defendant․”   During the first 120 days no limitations on either the recall or the resentence exist.   Thus the change in statutory language renders Holder obsolete as well.

What the majority finds controlling as the sole indicator of a legislative intent to keep Holder alive is this language in section 1170(d):  “The resentence under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing.”   The majority reads that sentence as limiting the power of the superior court to correct disparate sentences.  (See majority opn., ante, at p. 93.)

Among the flaws of that analysis is that it renders absolutely meaningless a large part of section 1170, most obviously subdivision (f)(1), which provides:  “Within one year after the commencement of the term of imprisonment, the Board of Prison Terms shall review the sentence to determine whether the sentence is disparate in comparison with the sentences imposed in similar cases.   If the Board of Prison Terms determines that the sentence is disparate, the board shall notify the judge, the district attorney, the defense attorney, the defendant, and the Judicial Council.   The notification shall include a statement of the reasons for finding the sentence disparate.  [¶] Within 120 days of receipt of this information, the sentencing court shall schedule a hearing and may recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if the defendant had not been sentenced previously, provided the new sentence is no greater than the initial sentence.   In resentencing under this subdivision the court shall apply the sentencing rules of the Judicial Council and shall consider the information provided by the Board of Prison Terms.”

Since, as has been noted, section 1170(d) also allows recall “at any time ” upon the recommendation of the Director of Corrections or the Board of Prison Terms, it is a little difficult to fathom why subdivision (f)(1) exists if the majority's interpretation of subdivision (d) is correct.   Why would the Legislature provide in subdivision (d) that a disparate sentence review and recall may take place at any time on the recommendation of the Board of Prison Terms and then in the next breath set specific times (subd. (f)(1)) by requiring that same board to conduct its disparity review within a year of sentencing and requiring the court to hold a hearing within 120 days of notification of disparity by the Board of Prison Terms?   The reason, I suggest, is that the Legislature meant no such thing.   Instead, it provided a scheme for recall and resentencing in subdivision (d), unlike that provided for in subdivision (f)(1).   Subdivision (d) recall and resentencing are neither designed for nor limited to the correction of disparate sentences and therefore encompass any reason which furthers the interests of justice.

In summation, I read section 1170(d) as vesting the trial court with unrestricted power to recall and resentence so long as it does so within the time set forth by the statute.   Thus, this trial court was acting within its power when it recalled Alan Dale Bradley's sentence within 120 days of commitment in order to achieve what the court determined to be in the interests of justice:  namely, that Philip Kellotat be brought to trial for his alleged contribution to the murder of Vince Capitan.

In contrast to its inability to find jurisdiction in the superior court to recall and resentence Bradley, the majority opinion has no difficulty in finding standing in the victim William Dix to bring the instant petition for a writ of mandate.   This reach for jurisdiction in this court is as unconvincing as the denial of jurisdiction in the superior court.

Clearly, Dix would have no standing to appeal were there an appealable order before this court for he is not a party to the instant proceeding.  (§ 1235.)   Nor has Dix been deprived of his statutory (§ 1191.1) or constitutional right (Cal.Const., art. I, § 28, subd. (a)) as Bradley's victim to appear and be heard at Bradley's resentencing because Bradley has not yet been resentenced.   For that reason, Dix cannot satisfy one of the fundamental statutory requirements for relief in mandamus:  that he be a “party beneficially interested.”  (Code Civ.Proc., § 1086;  Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796–797, 166 Cal.Rptr. 844, 614 P.2d 276;  Parker v. Bowron (1953) 40 Cal.2d 344, 351, 254 P.2d 6.) 7  Witkin puts it best:  “The petition may show a substantial duty in the respondent, and perhaps a substantial right to enforce it in someone, but may still fail to show that the petitioner has a sufficient beneficial interest” to support issuance of the writ.  (8 Witkin, Cal. Procedure (3d. ed. 1985), Extraordinary Writs, § 67, p. 705.)

The majority attempts to circumvent the requirement of beneficial interest by finding this case to present a question of great public interest:  “unless the victim has standing, there remains no party to protest the act which exceeded the [subject matter] jurisdiction of the court.”  (See majority opn., ante, p. 94.)   My answer is that the Legislature has placed the task of representing and protecting the public's interest in criminal proceedings in the prosecuting attorney, who not only has no objection but in fact is the moving force behind the recall proceedings here.   If the parties do not object to the jurisdiction of the court to recall and resentence, standing to do so should not be artificially created in a non party merely to provide a vehicle for displaying an appellate court's displeasure with the sentencing outcome in the superior court.

For the foregoing reasons, I would discharge the alternative writ and deny the petition for writ of mandate.

FOOTNOTES

FN1. Unless otherwise indicated, all further statutory references are to the Penal Code..  FN1. Unless otherwise indicated, all further statutory references are to the Penal Code.

2.   Both petitioner and the People have filed in this court declarations to explain the circumstances giving rise to their conduct and respondent court's action.   There is no record to show these facts were before the trial court and no means of verifying the accuracy of much of the material.   In such circumstances, these facts would ordinarily be disregarded by this court.  (See Mahoney v. Superior court (1983) 142 Cal.App.3d 937, 940, fn. 2, 191 Cal.Rptr. 425.)   They are mentioned here only to put into context what would otherwise be the unfathomable actions of respondent court.   In our opinion they are irrelevant to the question before this court which is one of statutory interpretation.

3.   As amended in 1969, the provision in section 1168 read:  “When a defendant has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Director of Corrections, if it is deemed warranted by the diagnostic study and recommendations approved pursuant to Section 5079, the court may, within 120 days of the date of commitment on its own motion, or thereafter upon recommendation of the Director of Corrections, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he had not previously been sentenced.”  (Stats.1969, ch. 990, § 1, at pp. 1959–1960.)   Section 5079 provided at that time, as it does now, that the Director of Corrections maintain “a psychiatric and diagnostic clinic ․ at one or more of the state prisons․  [¶] The work of the clinic shall include a scientific study of each prisoner, his career and life history, the cause of his criminal acts and recommendations for his care, training, and employment with a view to his reformation and to the protection of society.”

4.   Early release is warranted by the prisoner's behavior recognized by the system of credits for behavior and work.   Reduction of sentence may also be obtained from the Department of Corrections for “Heroic acts and exceptional assistance.”  (Cal.Code of Regs., tit. 15, § 3043, subd. (g).)  At present, such acts include “Providing sworn testimony in judicial proceedings involving prosecution of a felony offense which occurred within the prison.”   Prior to amendment of section 3043 of the Code of Regulations in 1987, section 3043 permitted a reduction of sentence for “Providing sworn testimony in any judicial proceeding involving the prosecution of a felony offense.”   To accept the People's interpretation of section 1170, subdivision (d), would produce the anomalous result that a sentence could be recalled for an act which could not now result in the reduction of a sentence.

5.   Rehearing was granted on this court's own motion to allow Mr. Bradley, who was not named as a real party in interest, to appear before this court in opposition to the petition. Before consideration of a petition which seeks to overrule a sentence recall, due process, as well as jurisdictional considerations, requires notice to the criminal defendant and the opportunity to appear. (U.S. Const., Amend. (1974) 39 Cal.App.3d 611, 617, 114 Cal.Rptr. 404.)

6.   Section 4801 provides:  “The Board of Prison Terms may report to the Governor from time to time the names of any and all persons imprisoned in any state prison who, in its judgment, ought to have a commutation of sentence or be pardoned and set at liberty on account of good conduct, or unusual term of sentence, or any other cause which, in their opinion, should entitle the prisoner to a pardon or commutation of sentence.”

7.   “The Victims' Bill of Rights” (Cal. Const., art. I, § 28), provides in part as follows:  “Sec. 28.  (a) The People of the State of California find and declare that the enactment of comprehensive provisions and laws ensuring a bill of rights for victims of crime, including safeguards in the criminal justice system to fully protect those rights, is a matter of grave statewide concern.  [¶] The rights of victims pervade the criminal justice system, encompassing not only the right to restitution from the wrongdoers for financial losses suffered as a result of criminal acts, but also the more basic expectation that persons who commit felonious acts causing injury to innocent victims will be appropriately detained in custody, tried by the courts, and sufficiently punished so that the public safety is protected and encouraged as a goal of highest importance․”Section 1191.1 provides in pertinent part as follows:  “The victim of any crime ․ has the right to attend all sentencing proceedings under this chapter and shall be given adequate notice by the probation officer of all sentencing proceedings concerning the person who committed the crime.  [¶] The victim ․ has the right to appear, personally or by counsel, at the sentencing proceeding and to reasonably express his or her views concerning the crime, the person responsible, and the need for restitution.   The court in imposing sentence shall consider the statements of victims ․ and shall state on the record its conclusion concerning whether the person would pose a threat to public safety if granted probation.”

8.   The Attorney General in opposition to the petition contends that a victim does not have a right to protest a recall of sentence pursuant to section 1170, subdivision (d), but would have a right to appear at resentencing.   There is validity in this contention due to the fact that section 1191.1 gives the victim the right to attend all sentencing proceedings “under this chapter.”  Section 1170 does not appear under Title 8, Chapter 1, but under Title 7, Chapter 4.5 of Part 2 of the Penal Code.

1.   Unless otherwise indicated, all statutory references are to the Penal Code.

2.   As I read section 1170(d), only the recall not the resentencing need occur within 120 days of the original commitment.  (But see People v. Roe (1983) 148 Cal.App.3d 112, 116–118, 195 Cal.Rptr. 802.)

3.   Section 602 reads in full:  “(a) The superior court has absolute discretion to recall a sentence within the first 120 days of the date of sentencing.   The court is not required to request or accept the Department's Diagnostic Study and Recommendation;  however, Department staff shall provide the sentencing judge with the study and recommendation whenever requested.  [¶] (b) The Board of Prison Terms, under Penal Code Section 1170(f), is required to review all cases for sentence disparity and recommend recall, if necessary, within the first 12 months of commitment.   In addition, as a matter of policy, the Board of Prison Terms will assume responsibility, under P.C. § 1170(d), for recommending recall of sentences which subsequently become disparate due to non-retroactive legislative changes which reduce or eliminate the criminal penalty for an offense.  [¶] (c) The Director may recommend recall before the Board's disparate review when the additional time will create an undue hardship on the inmate, or any time after reception based on changes in the inmate's situation or significant new information that was not considered by the court in pronouncing sentence.”Subdivision (a) of section 603, reads in full:  “The court may recall a sentence within the first 120 days, pursuant to P.C. § 1170(d) with or without obtaining a Diagnostic Study and Recommendation from the Department.   The study shall assess the inmate's potential for completing probation or other alternate sentencing, and the threat posed to the community if he/she fails to realize that potential.”

4.   Moreover, because the Attorney General is, by law, the legal adviser of the Department of Corrections (see, e.g., Gov.Code, §§ 11157, 12511, 15000), the promulgation of such regulations necessarily implies the advice and approval of the Attorney General.Since 1985, the Legislature has twice amended section 1170 (Stats.1988, ch. 635, § 1;  Stats.1987, ch. 1423, § 2), but has left untouched the statutory language at issue in this case concerning recall of sentences.The Department's published interpretation of the recall statute, the Attorney General's approval of it, and the Legislature's subsequent decision to leave unchanged the language at issue here, add up to strong evidence that the Legislature intends its statute to be implemented in accordance with the Department of Corrections' interpretation.  “An administrative application of the language of an act is entitled to respect by the courts, and unless clearly erroneous is a significant factor to be considered in ascertaining the meaning of a statute.”  (Mudd v. McColgan (1947) 30 Cal.2d 463, 470, 183 P.2d 10.)   And, “[t]he construction of a statute by the officials charged with its administration must be given great weight.”  (Worthington v. Unemployment Ins. Appeals Bd. (1976) 64 Cal.App.3d 384, 389, 134 Cal.Rptr. 507.)   Moreover, “ ‘[i]t must be presumed that the aforesaid interpretation [of the Attorney General] has come to the attention of the Legislature, and if it were contrary to the legislative intent that some corrective measure would have been adopted in the course of many enactments on the subject in the meantime.”  (California Correctional Officers' Assn. v. Board of Administration (1978) 76 Cal.App.3d 786, 794, 143 Cal.Rptr. 125.)Failure to make changes in a given statute in a particular respect when the subject matter is before the Legislature and where changes to the statute are made in other respects, is indicative of a legislative intention to leave the law unchanged in that respect.  (Orr v. Superior Court (1969) 71 Cal.2d 220, 226, 77 Cal.Rptr. 816, 454 P.2d 712;  In re B.J.B. (1986) 185 Cal.App.3d 1201, 1216, 230 Cal.Rptr. 332;  County of Los Angeles v. State of California (1984) 153 Cal.App.3d 568, 572, 200 Cal.Rptr. 394.)

5.   Former section 1168 was amended one more time in 1969 to set time limits for the trial court to recall.   However, the conditions for acting, i.e., a diagnostic study and recommendations, did not vary:  the trial court could not act on its own motion.   Thus, in its final indeterminate sentencing form, former section 1168 provided:  “When a defendant has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Director of Corrections, if it is deemed warranted by the diagnostic study and recommendations approved pursuant to Section 5079, the court may, within 120 days of the date of commitment on its own motion, or thereafter upon recommendation of the Director of Corrections, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he had not previously been sentenced.”  (Stats.1969, ch. 990, § 1, pp. 1959–1960.)As I read Holder, its analysis would still be the same under the final version:  the trial court could not consider post-incarceration conduct for to do so would contradict the role of the Adult Authority.

6.   In its earliest forms Senate Bill No. 42 would have created section 1170, subdivision (b) to read as follows:  “When a defendant subject to this section has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Director of Corrections, the sentencing court may, at any time upon the recommendation of the Director of Corrections, or, if it is deemed warranted by the diagnostic study and recommendations approved pursuant to Section 5079, the court may, within 120 days of the date of commitment on its own motion recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he had not previously been sentenced.   The resentence under this subdivision shall take into consideration sentences of other persons convicted of similar crimes so as to eliminate disparity of sentences and to promote uniformity of sentencing.”  (See Sen.Bill No. 42 (1975–1976 Reg.Sess.) as amended in Senate March 4, 1975 (pp. 127–128);  id., as amended in Senate April 28, 1975 (pp. 108–109).)

7.   The term “beneficially interested” has been interpreted to mean that the writ will issue only if the person has some special interest to be served or some particular right to be preserved or protected over and above the interest held with the public at large.  (Carsten v. Psychology Examining Com., supra, 27 Cal.3d at p. 796, 166 Cal.Rptr. 844, 614 P.2d 276.)

ANDERSON, Presiding Justice.

PERLEY, J., concurs.