Filed 3/30/22 P. v. Jackson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Frederic L. Link, Judge. Reversed.

Shay Dinata-Hanson, 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, Robin Urbanski and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

In 2001, a jury convicted defendant Keith Wallace Jackson of five counts of robbery (former Pen. Code, § 211)[1] and found true he personally used a firearm in the commission, or attempted commission, of each charged offense (former § 12022.53, subd. (b)). The court sentenced Jackson to 32 years and 4 months in prison.

On November 21, 2019, the Secretary of the California Department of Corrections and Rehabilitation (CDCR) sent a letter to the trial court, recommending that Jackson’s sentence be recalled and he be resentenced under former section 1170, subdivision (d). In support, CDCR relied on the changes to section 12022.53, subdivision (h), which became effective January 1, 2018 and which gave the court discretion to strike or dismiss, in furtherance of justice, a personal use firearm enhancement. (§ 1385.) Also copied on the November 21 CDCR letter was the District Attorney’s and Public Defender’s Offices, but not Jackson. On February 16, 2021, the court issued an ex parte minute order declining the CDCR’s recommendation.

On January 1, 2022, Assembly Bill No. 1540 (see Stats. 2021, ch. 719, § 3.1) went into effect, changing the procedure for recall and resentencing upon a recommendation of CDCR. Both parties agree that Jackson is entitled to the ameliorative benefits of the changes to this law and that the appropriate remedy is remand. We agree with the parties, and therefore reverse the court’s February 16 order and remand.

OVERVIEW

On April 30, June 3, August 6, and September 11, 2000, Jackson entered a department store, pointed a gun at a store employee or employees and demanded cash from the register, and then left the store with the money.

CDCR’s November 21 letter included multiple sections pertaining to CDCR’s recommendation, including Jackson’s “prior juvenile and adult criminal history”; “institutional adjustment”; “self-help activities”; “medical/mental health”; “support”; and “notification/registration requirements.” (Capitalization omitted.)

In its February 16 denial, the court stated it had “received, read, and considered [the] Letter of recommendation from the [CDCR] dated 11/21/2019 to recall the sentence and resentence pursuant to [section] 1170(d)[.] The Court rules No Recall. The Court takes no further action.” Jackson timely appealed.

DISCUSSION

In his opening brief, Jackson initially raised several arguments including that the trial court failed to exercise discretion informed by former section 1170, subdivision (d), in light of the court’s newfound discretion under section 1385 to strike or dismiss a personal use firearm enhancement imposed under section 12022.53; and that it violated his constitutional right to due process and appointment of counsel by summarily declining CDCR’s recommendation.

While this appeal was pending, the Legislature enacted Assembly Bill No. 1540. This legislation relocated the recall and resentencing provisions from section 1170, subdivision (d), to newly enacted section 1170.03, and made a number of changes to the governing law. Specifically, section 1170.03 adds a number of procedural requirements to the recall and resentencing process, including notice, a hearing, and a statement of reasons for the ruling. (§ 1170.03, subd. (a)(6), (8).)

In addition, where (as here) the request is initiated by CDCR, the new statute requires the court to “provide notice to the defendant and set a status conference within 30 days after the date that the court received the request” (§ 1170.03, subd. (b)(1)); “appoint counsel to represent the defendant” (ibid.); and apply a “presumption” in favor of recall and resentencing that can be overcome only by a finding that the defendant “is an unreasonable risk of danger to public safety” (id., subd. (b)(2)).

In the findings and declarations set forth in Assembly Bill No. 1540, the Legislature explicitly stated its intent “for judges to recognize the scrutiny that has already been brought to . . . referrals [for resentencing] by the referring entity, and to ensure that each referral be granted the court’s consideration by setting an initial status conference, recalling the sentence, and providing the opportunity for resentencing for every felony conviction referred by one of these entities.” (Stats. 2021, ch. 719, § 1, subd. (h).) The Legislature also expressed an intent “that resentencing proceedings pursuant to [s]ection 1170.03 of the Penal Code apply ameliorative laws passed by this body that reduce sentences or provide for judicial discretion, regardless of the date of the offense or conviction.” (Stats. 2021, ch. 719, § 1, subd. (i).)

As noted, the People in their respondent’s brief concede Jackson is entitled to a remand because he was not given notice or an opportunity to be heard before the court issued its February 16 denial.[2] The People also recognize that newly enacted section 1170.03 should govern the proceedings on remand. We agree with the parties. (See Stats. 2021, ch. 719, § 1, subd. (i); see also People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308 [citing In re Estrada (1965) 63 Cal.2d 740 in concluding the Legislature “ ‘ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible,’ ” including retroactively to nonfinal cases].)[3]

DISPOSITION

The order summarily declining recall of Jackson’s sentence is reversed. The matter is remanded to the trial court for further proceedings on the recall and resentencing recommendation of CDCR as provided under newly enacted section 1170.03.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

DO, J.

[1] All further statutory references are to the Penal Code.

[2] The day after the People filed their respondent’s brief, with the court’s permission Jackson filed a supplemental brief (1) arguing Assembly Bill No. 1540 retroactively applied to his case and (2) seeking remand for a hearing under the new procedures established by this law.

[3] In light of our decision, we deem Jackson’s September 22, 2021 request for judicial notice moot.