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First Assembly Bill (AB) 1540 Resentencing Appeal Case

In the process of any new law being implemented by trial courts, there are going to be judges who err in applying the new law.
The Gist of this Article: Under Assembly Bill 1540, a judge may not respond to a CDCR recommendation for resentencing by issuing an ex parte order, with no hearing and no appointment of counsel for defendant, stating that the judge declines to exercise his discretion to resentence defendant,, as this summary explains.        
The following summary is of an appeal to the Third Appellate District Court in Sacramento by Woody McMurray after a San Joaquin County Superior Court judge refused to resentence him after the California Department of Corrections and Rehabilitation (CDCR) recommended he be resentenced.

In 2008, Mr. McMurray was charged with two counts of second degree robbery (Penal Code § 211) with the personal use of a firearm (Penal Code § 12022.53(b)).  It was further alleged that Mr. McMurray had four prior strikes (Penal Code §§ 667(d), 1170.12(b)), a prior serious felony conviction (Penal Code § 667(a)) and had served two prior prison terms (Penal Code § 667.5(b)).

In 2010, Mr. McMurray pled guilty to one charge of second degree robbery and admitted the personal firearm use enhancement.  He also admitted one prior strike and one prior serious felony.  The remaining charges and allegations were dismissed. 

The court’s minutes did not state that McMurray agreed to a stipulated sentence and prior to taking his plea, the trial court confirmed that McMurray knew “the possible range of penalties” and asked him if any promises were made as to “what the punishment could or might be.”  This description of how sentencing went is important because it demonstrates that the judge had a role in sentencing McMurray and decided his sentence, as will be the basis for AB 1540 relief eligibility about 12 years later in 2022.

The judge then sentenced Mr. McMurray to 25 years in state prison as follows: five years for the robbery charged doubled to ten years due to the strike, ten years consecutive for the firearm use enhancement and five years consecutive for the prior serious felony. 

Defendant did not appeal and the sentence became final.

In October 2019, the CDCR sent a letter to the trial court recommending that it recall Mr. McMurray’s sentence and that he be resentenced pursuant to the former Penal Code § 1170(d)(1).  The recommendation was based on changes to Penal Code § 12022.53 which now gives the trial court discretion to strike or dismiss personal firearm use enhancements.  The letter included a copy of the information, abstract of judgment and minutes from the plea and sentencing hearing.  The letter and the supporting evidence were forwarded to the local district attorney and public defender office.

Later that month, the trial court judge issued an ex parte order noting that it had reviewed the letter from the CDCR but “declined the invitation to exercise its authority and discretion to resentence defendant.”  The trial court did not state any reason for its decision.

Mr. McMurray appealed this decision to the Third Appellate District, arguing that the trial court judge’s denial of resentencing without notice or the appointment of counsel violated his constitutional rights and was reversible error. 

While Mr. McMurray’s appeal was pending, Assembly Bill 1540 came into effect on January 1, 2022, and moved the recall and resentencing provisions of former § 1170(d)(1) to a new section, § 1170.03. 

The Third Appellate District, in ruling on the appeal, noted that Assembly Bill 1540 gives the trial court jurisdiction it would not otherwise have once the CDCR recommends to the court to recall a previously imposed sentence and resentence defendant.  The CDCR recommendation is “an invitation to the court to exercise its equitable jurisdiction.”  People v. Frazier (2020) 55 Cal. App. 5th 858, 866.

Assembly Bill 1540 also clarifies the required procedures including that, when recalling and resentencing, the court “shall . . . apply any changes in law that reduce sentences or provide for judicial discretion.”  Penal Code § 1170.03(a)(2). 

Where, as here, the CDCR recommends recall and resentencing, the court is now required to hold a hearing (unless the parties otherwise stipulate), state on the record the reasons for its decision, provide notice to defendant, and appoint counsel for the defendant.  Penal Code § 1170.03(a)(6) – (8), (b)(1).  In addition, where a resentencing request is made, there is now a presumption in favor of recall and resentencing of defendant, “where may only be overcome if a court finds the defendant is an unreasonable risk of danger to the public.”  § 1170.03(b)(2).

Accordingly, the order declining to recall and resentence defendant is reversed, and the matter was remanded for further proceedings.

We present this summary because it exemplifies how significant the CDCR’s recommendation to recall and resentence is and how it basically ties the trial court judge’s hands to resentence defendant.

The citation for the Third Appellate District Court ruling discussed above is People v. Woody McMurray (3rd App. Dist., 2022) 76 Cal. App. 5th 1035, 292 Cal. Rptr. 3d 145.

For more information about AB 1540 and other recent new laws on resentencing, please click on the following articles:
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