Opinion
E076741
04-29-2022
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY CHARLES DUNCAN, Defendant and Appellant.
Jennifer W. Stone, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Acting Assistant Attorney General, Melissa Mandel, Warren J. Williams and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF033354. John D. Molloy, Judge. Reversed.
Jennifer W. Stone, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Acting Assistant Attorney General, Melissa Mandel, Warren J. Williams and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FIELDS J.
INTRODUCTION
Approximately 20 years after defendant and appellant Timothy Charles Duncan pled guilty pursuant to a plea agreement and was sentenced, the Secretary of the California Department of Corrections and Rehabilitation (CDCR) requested that the trial court consider resentencing him pursuant to Penal Code former section 1170, subdivision (d). The trial court declined to do so.
All further statutory references will be to the Penal Code unless otherwise noted.
On January 1, 2022, Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Assembly Bill 1540) went into effect, which changed the procedure for recall and resentencing upon a recommendation from the CDCR. Both parties agree that we should reverse and remand the matter to allow the trial court to review the CDCR's recommendation in light of the new law. We agree and reverse.
PROCEDURAL BACKGROUND
In 2000, defendant was charged by information with six felonies and three misdemeanors related to a residential robbery, plus various prior conviction enhancements. He entered a plea agreement and pled guilty to first degree robbery (§ 211) and admitted that he personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)). Defendant also admitted one prior strike conviction (§§ 667, subd. (c) & (e)(2), 1170.12, subd. (c)(2)), three prior serious felony convictions (§ 667, subd. (a)), and two prior prison convictions (§ 667.5, subd. (b)). In exchange, a trial court sentenced him to a total term of 29 years in state prison. It later modified the sentence to 28 years.
On or about February 12, 2021, the CDCR Secretary (the Secretary) sent a letter to the trial court pursuant to former section 1170, subdivision (d), recommending that the court recall and resentence defendant. The letter noted that the COVID-19 pandemic had created an "urgent necessity to decrease [the] in-custody population," because "the communal nature of prisons makes our population more susceptible to the virus." The letter then stated that defendant had been determined to be at "high-risk of serious complications should he contract COVID-19." The letter stated that defendant was 56 years old and had an earliest possible release date of April 15, 2022. Noting that he had served his base term, the Secretary believed defendant warranted the attention of the court, considering his susceptibility to COVID-19 complications. The Secretary further noted that defendant had received two disciplinary infractions, but none since 2007, and she attached a cumulative case summary of his case, along with copies of the information and abstract of judgment. The case summary indicated that as of October 21, 2020, defendant's medical health factors were "listed as Outpatient Level of Care, Frequent Basic Consultation, Full Duty, High Medical Risk, and Basic Nursing."
On March 5, 2021, the CDCR letter was filed with the court. A minute order dated March 5, 2021, reflects that the court read and considered the CDCR letter and declined to exercise its discretion to recall the sentence.
On October 8, 2021, while defendant's appeal was pending, the Governor approved passage of Assembly Bill 1540, which took effect on January 1, 2022.
DISCUSSION
The Matter Should Be Remanded
Assembly Bill 1540 moved and amended the recall and resentencing provisions formerly set out in section 1170, subdivision (d)(1), to a new section, 1170.03. (Stats. 2021, ch. 719.) Added section 1170.03 requires that when recall and resentencing is initiated on the court's own motion or upon the recommendation of the Secretary, the court "shall . . . apply any changes in law that reduce sentences or provide for judicial discretion." (§ 1170.03, subd. (a)(2).) As relevant here, if a resentencing request is from the Secretary, "[t]here shall be a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18." (§ 1170.03, subd. (b)(2).) Furthermore, the new provision provides that, "Resentencing shall not be denied . . . without a hearing where the parties have an opportunity to address the basis for the intended denial or rejection." (§ 1170.03, subd. (a)(8).)
Defendant and the People agree that we should reverse and remand to allow the trial court to review the CDCR's recommendation under the standards of section 1170.03. However, the People contend section 1170.03 is not retroactive and does not apply to defendant since the judgment at issue is final, and "section 1170's recall-and-resentencing provision is itself a mechanism for reopening final judgments." The People only recommend remand in the interest of judicial efficiency, since the CDCR could simply initiate a new recommendation under the recall and resentencing provisions provided for in section 1170.03.
Defendant contends that the amendments under Assembly Bill 1540 apply retroactively to this case. We agree. When the Legislature enacts a statute or statutes manifesting its intent regarding a prior statute, courts are not free to disregard those legislative expressions. (People v. McMurray (2022) 76 Cal.App.5th 1035, 1039.) "Assembly Bill 1540 was intended to 'make clarifying changes' to former section 1170(d)(1), including specifying the required procedure and guidelines when the CDCR recommends recall and resentencing." (Id. at p. 1041.) "When a case involving such a clarifying amendment is on appeal, the appropriate resolution is to reverse and remand the matter for further proceedings in compliance with the amended legislation." (Id. at p. 1039.)
Thus, we "reverse and remand the matter, so that the trial court can consider the CDCR's recommendation to recall and resentence defendant under the new and clarified procedure and guidelines of section 1170.03." (People v. McMurray, supra, 76 Cal.App.5th at p. 1041.)
DISPOSITION
The order declining to recall defendant's sentence is reversed. The matter is remanded to the trial court for further proceedings on the recall and resentencing recommendation, applying the newly enacted section 1170.03.
We concur: CODRINGTON Acting P. J., SLOUGH J.