Filed 9/30/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B301267
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA076295)
v.
GENE MCCALLUM,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Salvatore Sirna, Judge. Reversed and
remanded with directions.
Milena N. Blake and Michael Romano for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Jaime L. Fuster and Joseph P. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________
Penal Code section 1170, subdivision (d)(1),1 authorizes the
trial court to modify a defendant’s sentence upon a
recommendation from the Secretary of the Department of
Corrections and Rehabilitation (Department), the Board of Parole
Hearings, or the district attorney to “recall the sentence and
commitment previously ordered and resentence the defendant in
the same manner as if they had not previously been
sentenced . . . .” After serving 12 years of his third strike
sentence of 30 years to life for residential burglary, the Secretary
of the Department recommended McCallum’s sentence be
recalled and McCallum be resentenced based on his violation-free
conduct while in prison and his completion of nine college classes,
a substance abuse program, and other counseling and self-
awareness programs. Upon receiving the recommendation from
the Secretary, McCallum’s attorney requested the court hold a
case management conference to discuss the Secretary’s
recommendation, and if necessary, to set a briefing and hearing
schedule.
The trial court considered the Secretary’s recommendation
and supporting materials, but in a minute order it declined to
exercise its discretion to recall McCallum’s sentence. The court
acknowledged McCallum’s efforts to take substance abuse
counseling and academic classes while in prison, but it noted
McCallum’s family and community support was “tenuous, with
no identifiable base of support.” The court did not hold a case
management conference or hearing, and it did not provide
McCallum or the People an opportunity to submit additional
information for the court’s consideration. McCallum contends on
1 Further statutory references are to the Penal Code.
2
appeal he had a due process right to a hearing, and further, the
trial court abused its discretion in failing to allow him to submit
additional information on changed circumstances since he was
first sentenced. McCallum asserts he would have submitted,
among other information, documentation showing he had been
accepted into a substance abuse and mental health inpatient
counseling program upon his release, providing the community
support the court found lacking.
We conclude the statutory language of section 1170,
subdivision (d)(1), read in the context of section 1170 as a whole,
shows the Legislature did not intend to require a trial court to
hold a hearing before acting on a recommendation by the
Secretary for recall and resentencing. It is up to the Legislature
to address in the first instance whether an inmate should be
afforded a hearing in response to a recommendation by the
Secretary for recall and resentencing.
However, in light of McCallum’s substantial right to liberty
implicated by the Secretary’s recommendation to recall
McCallum’s sentence (People v. Loper (2015) 60 Cal.4th 1155,
1158, 1163 (Loper)), the trial court abused its discretion in
denying McCallum an opportunity to present information
relevant to the Secretary’s recommendation. Further, the trial
court based its rejection of the Secretary’s recommendation in
part on a finding that McCallum had no family or community
support, apparently relying on information provided by the
Secretary showing McCallum did not have visitors during his
12 years in prison. Whether McCallum would have family and
community support upon his release is precisely the type of
information that would be known to McCallum, not the
Department. We reverse and remand for the trial court to allow
3
McCallum and the People an opportunity to present additional
information relevant to the Secretary’s recommendation, and for
the trial court in light of this information and any briefing
provided by the parties to exercise its discretion whether to recall
McCallum’s sentence. If the court recalls McCallum’s sentence,
he would have a right to be present at a resentencing hearing.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Residential Burglary and Sentencing
On the morning of September 5, 2006 Brandi Irick left her
room at the Evergreen Inn to do her laundry. When she
returned, she discovered someone had locked the deadbolt to her
door from the inside. As the manager was assisting Irick to open
the door, McCallum unlocked the door and walked out of the
room. McCallum had been staying with another resident of the
motel. When Irick asked McCallum why he was inside her room,
he responded he needed to use the restroom. McCallum appeared
to be under the influence of alcohol. Irick observed the window
screen near the door to her room had been broken. Further, a
coin purse Irick had left closed on the table was open and on the
bed; her overnight bag had been moved; and a bottle of hand
cream had been taken from the overnight bag and left on the
sink. The bed covers had been pulled back. The manager and
another resident detained McCallum. Los Angeles County
Sheriff’s Deputy Gregory Carr responded to the scene and placed
McCallum under arrest. Deputy Carr described McCallum as
“kind of spacey, mentally ill.” McCallum admitted to Deputy
Carr he had entered Irick’s room and knew it was wrong, but he
again claimed he entered to use the bathroom. (People v.
4
McCallum (Aug. 27, 2008, B199212) [nonpub. opn.]
(McCallum I).)
After a court trial, McCallum was convicted of first degree
residential burglary (§ 459), and the court found true the
allegations McCallum suffered two prior convictions of violent or
serious felonies under the three strikes law (§§ 667, subds. (b)-(i),
1170.12), one of which was a serious felony within the meaning of
section 667, subdivision (a)(1).2 The court denied McCallum’s
motion to strike his prior convictions, noting McCallum had been
convicted 17 times of various offenses, including two robberies,
theft, battery, and drug offenses. Further, he had violated
probation and parole on numerous occasions. The court
acknowledged McCallum had a substance abuse problem, but
McCallum had never addressed his addiction. The court
sentenced McCallum to 25 years to life plus five years for the
prior serious felony conviction enhancement under section 667,
subdivision (a)(1). This court affirmed. (McCallum I, supra,
B199212.)
B. The Secretary’s Recommendation To Recall McCallum’s
Sentence and Resentence Him
On May 21, 2019 the Secretary sent a letter to the trial
court recommending McCallum’s sentence be recalled and he be
2 Although the trial court initially found both prior robbery
convictions were serious felonies within the meaning of
section 667, subdivision (a)(1), it later concluded they were not
tried separately, and it imposed only one 5-year term.
5
resentenced pursuant to section 1170, subdivision (d)(1).3 The
Secretary “commended [McCallum] for remaining disciplin[e] free
since being received to [state prison] on May 4, 2007.” The letter
highlighted that McCallum was taking college classes while in
custody and had been “commended for his academic
accomplishments.” McCallum also successfully completed a drug
and alcohol treatment program in prison. The Secretary attached
to the letter a five-page cumulative case summary and evaluation
report (cumulative case summary), the abstract of judgment,
minute orders, the amended information and felony complaint, a
Division of Adult Parole Operations checklist of pre- and
postrelease services, and a Department handout answering
“frequently asked questions” about section 1170,
subdivision (d)(1).
The cumulative case summary described McCallum’s
commitment offense, extensive adult criminal history, and parole
violations. During the period from 1990 to 2004, McCallum was
convicted of being under the influence of alcohol or drugs while in
a vehicle (two convictions), two robberies (the two prior strikes),
possession of alcohol by a business, urinating in public, two petty
thefts with priors, battery, and grand theft. In connection with
his 1998 conviction for petty theft with priors, McCallum violated
his parole on five occasions.
McCallum did not receive any rules violations reports
during his 12 years in prison. He completed numerous courses
offered by Patten University at San Quentin, including classes in
3 The Secretary’s letter was addressed to Judge Charles
Horan, who tried the case and sentenced McCallum in 2007.
Judge Horan retired in 2011, and the case was assigned to
Judge Salvatore Sirna.
6
English, macroeconomics, statistics, algebra, and precalculus,
and he completed an adult school program in computer literacy.
McCallum also participated in various cultural, recreational, and
educational groups and completed programs addressing self-
awareness, addiction recovery, and anger management. Further,
he completed a 13-session substance abuse program.
McCallum was approved for three relatives or associates to
visit him, but he did not receive any visits while in prison. The
cumulative case summary noted two letters of support, one from
an unknown source dated February 6, 2019 “pledging full support
of McCallum to ensure a successful parole by assisting with a
residence, insurance, transportation, and work with and stay in
contact with all release support programs,” and a June 2017
letter of support from a substance recovery program
acknowledging he completed an addiction recovery counseling
drug and alcohol treatment program while in prison. McCallum
is eligible for parole as of April 15, 2029 and for elderly parole on
August 21, 2031.
The Secretary sent the recommendation and cumulative
case summary to the district attorney’s office and the public
defender’s office. On June 4, 2019 McCallum’s attorney lodged in
the trial court a notice of appearance and a separate motion for
case management conference.4 The motion requested “a case
management conference with the [c]ourt and [d]istrict [a]ttorney
to discuss [the Department’s] recommendation and, if necessary,
4 On our own motion we augment the record to include the
notice of appearance and motion for case management
conference, both marked received by the trial court on July 8,
2019. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
7
set a briefing and hearing schedule for the matter.” A case
management conference was never held.
C. The Trial Court’s Ruling on the Secretary’s
Recommendation
The trial court “read and considered” the Secretary’s
recommendation and supporting documents, and in a July 8,
2019 minute order the court “decline[d] to exercise its discretion
to recall the sentence under [section] 1170(d).” The court noted
McCallum’s criminal history showed his “extensive drug use,
theft crimes of increasing severity and physical violence,” as well
as five violations of parole. The court acknowledged “McCallum
has endeavored to take several academic classes, including
substance abuse court.” But the court concluded it was “not
inclined to exercise its discretion to recall Mr. McCallum’s
sentence based on these classes. Further, family and community
support for Mr. McCallum is tenuous, with no identifiable base of
support.” The minute order reflects McCallum was not present in
court “and not represented by counsel.”5 The court clerk served
copies of the minute order on McCallum, his attorney, and the
Secretary.
On September 6, 2019 McCallum timely appealed.
5 McCallum argues this statement shows the trial court
mistakenly believed McCallum was not represented by counsel.
But as noted by the People, the trial court served McCallum’s
attorney with the minute order. In any event, whether the trial
court at the time of its denial of the Secretary’s recommendation
believed McCallum was represented by counsel does not affect
our analysis.
8
DISCUSSION
A. Governing Law and Standard of Review
“Section 1170(d) is an exception to the common law rule
that the court loses resentencing jurisdiction once execution of
sentence has begun.” (Dix v. Superior Court (1991) 53 Cal.3d
442, 455 (Dix); accord, People v. Delson (1984) 161 Cal.App.3d 56,
62 (Delson) [“[S]ection 1170, subdivision (d) represents a limited
statutory exception to the general rule that a trial court loses
jurisdiction to reconsider a denial of probation or vacate or
modify the sentence when a defendant is committed and
execution of sentence begins.”].) Section 1170, subdivision (d),
enacted in 1976 as part of the Determinate Sentencing Act (Dix,
at p. 455), provides “the court may, within 120 days of the date of
commitment on its own motion, or at any time upon the
recommendation of the secretary or the Board of Parole Hearings
in the case of state prison inmates, the county correctional
administrator in the case of county jail inmates, or the district
attorney of the county in which the defendant was sentenced,
recall the sentence and commitment previously ordered and
resentence the defendant in the same manner as if they had not
previously been sentenced, provided the new sentence, if any, is
no greater than the initial sentence.” (§ 1170, subd. (d)(1).)6
Section 1170, subdivision (d)(1), provides further as to
resentencing that the court “shall apply the sentencing rules of
6 The version of section 1170, subdivision (d)(1), in effect at
the time of the trial court’s ruling was identical to the current
section, except that it used the words “he or she,” which were
changed to “they” effective August 6, 2020. (§ 1170, former
subd. (d)(1).)
9
the Judicial Council so as to eliminate disparity of sentences and
to promote uniformity of sentencing. The court resentencing
under this paragraph may reduce a defendant’s term of
imprisonment and modify the judgment, including a judgment
entered after a plea agreement, if it is in the interest of justice.”
In deciding whether to recall a sentence under
section 1170, subdivision (d)(1), the trial court may exercise its
authority “for any reason rationally related to lawful sentencing.”
(Dix, supra, 53 Cal.3d at p. 456.) Further, section 1170,
subdivision (d)(1), expressly authorizes the court in resentencing
a defendant to consider “postconviction factors, including, but not
limited to, the inmate’s disciplinary record and record of
rehabilitation while incarcerated, evidence that reflects whether
age, time served, and diminished physical condition, if any, have
reduced the inmate’s risk for future violence, and evidence that
reflects that circumstances have changed since the inmate’s
original sentencing so that the inmate’s continued incarceration
is no longer in the interest of justice.”
We review the trial court’s decision whether to recall a
defendant’s sentence for an abuse of discretion. (Delson, supra,
161 Cal.App.3d at p. 62 [trial court did not abuse its discretion in
refusing to set a hearing on Department’s recommendation under
§ 1170, former subd. (d), for recall of defendant’s sentence and
resentencing based on postsentence diagnostic report]; see
People v. Gibson (2016) 2 Cal.App.5th 315, 324-325 [applying
abuse of discretion standard to trial court’s decision whether to
recall a defendant’s sentence as a youth offender under § 1170,
subd. (d)(2), describing the subdivision’s language allowing recall
and resentencing as “permissive”].) “‘Where, as here, a
discretionary power is statutorily vested in the trial court, its
10
exercise of that discretion “must not be disturbed on appeal
except on a showing that the court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in
a manifest miscarriage of justice. [Citations.]”’ [Citation.] The
abuse of discretion standard ‘involves abundant deference’ to the
court’s ruling.” (People v. Jefferson (2016) 1 Cal.App.5th 235,
242-243; accord, People v. Miracle (2018) 6 Cal.5th 318, 346-347.)
We review questions of statutory construction de novo.
(ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 188; John v.
Superior Court (2016) 63 Cal.4th 91, 95; see Martinez v. Board of
Parole Hearings (2010) 183 Cal.App.4th 578, 587 [reviewing
interpretation of § 1170, subd. (e), de novo].)7
B. McCallum Is Not Entitled to a Hearing Under Section 1170,
Subdivision (d)(1)
“Our primary task ‘in interpreting a statute is to determine
the Legislature’s intent, giving effect to the law’s purpose.
[Citation.] We consider first the words of a statute, as the most
reliable indicator of legislative intent.’” (California Building
Industry Assn. v. State Water Resources Control Bd. (2018)
4 Cal.5th 1032, 1041; accord, In re A.N. (2020) 9 Cal.5th 343, 351-
352.) “‘“We interpret relevant terms in light of their ordinary
meaning, while also taking account of any related provisions and
7 The People do not dispute that the trial court’s order is an
appealable order. (See Loper, supra, 60 Cal.4th at pp. 1158,
1163; see also § 1237, subd. (b) [postconviction orders implicating
a defendant’s “substantial rights” are appealable]; Gray v.
Superior Court (2016) 247 Cal.App.4th 1159, 1164 [“It is plain
that a defendant’s ‘substantial rights’ include personal liberty
interests.”].)
11
the overall structure of the statutory scheme to determine what
interpretation best advances the Legislature’s underlying
purpose.”’ [Citations.] ‘If we find the statutory language
ambiguous or subject to more than one interpretation, we may
look to extrinsic aids, including legislative history or purpose to
inform our views.’” (In re A.N., at pp. 351-352; accord, ZB, N.A. v.
Superior Court, supra, 8 Cal.5th at p. 189 [“We consider the
provisions’ language in its ‘broader statutory context’ and, where
possible, harmonize that language with related provisions by
interpreting them in a consistent fashion. [Citation.] If an
ambiguity remains after this preliminary textual analysis, we
may consider extrinsic sources such as legislative history and
contemporaneous administrative construction.”].)
Section 1170, subdivision (d)(1), is silent as to whether the
trial court must hold a hearing prior to ruling on the Secretary’s
recommendation for recall and resentencing. We therefore
interpret subdivision (d)(1) in light of the language used in other
subdivisions of section 1170. (See Digital Realty Trust, Inc. v.
Somers (2018) ___ U.S. ___ [138 S.Ct. 767, 777] [“‘[W]hen
Congress “‘includes particular language in one section of a
statute but omits it in another[,] . . . this Court presumes that
Congress intended a difference in meaning.’”]; Bruns v.
E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 727
[interpreting statutory provision excluding period civil action was
stayed from five-year limit for civil case to be brought to trial not
to include a partial stay where Legislature in companion
provision explicitly referred to a partial stay, explaining the
difference “shows the Legislature knows how to specifically
reference a partial stay, in addition to a complete stay, when that
is its intent”]; People v. Trevino (2001) 26 Cal.4th 237, 242
12
[“When the Legislature uses materially different language in
statutory provisions addressing the same subject or related
subjects, the normal inference is that the Legislature intended a
difference in meaning.”].)
A review of section 1170 shows the Legislature was well
aware of what language to use to require the trial court to hold a
hearing before acting on a recommendation or petition to recall a
sentence. For example, section 1170, subdivision (e), authorizes
the Secretary to recommend recalling an inmate’s sentence if the
inmate is “terminally ill with an incurable condition” or
“permanently medically incapacitated.” (§ 1170, subd. (e)(2)(A),
(C).) Subdivision (e)(3) of section 1170 provides that upon
receiving a positive recommendation from the Secretary, “the
court shall hold a hearing to consider whether the prisoner’s
sentence should be recalled.” Section 1170, former subdivision
(f), likewise provided that within one year after a defendant’s
prison term commenced, the Board of Prison Terms was required
to review the sentence to determine “comparative disparity”
relative to other defendants’ sentences. (Dix, supra, 53 Cal.3d at
p. 458.)8 The subdivision provided that within 120 days of the
trial court being notified of a determination of disparity, the
“court ‘shall schedule a hearing and [after considering the
Board’s information] may recall the sentence and
commitment . . . and resentence the defendant in the same
manner as if the defendant had not been sentenced
8 The provision in section 1170, former subdivision (f), that
required the Board of Prison Terms to review sentences for
comparative disparity was deleted as part of a 1992 amendment.
13
previously . . . .’” (Dix, at p. 458, quoting § 1170, former
subd. (f)(1).)9
As this court concluded in Delson, supra, 161 Cal.App.3d at
pages 60 to 61, in considering whether the trial court was
required to hold a hearing under section 1170, former
subdivision (d), prior to rejecting a recommendation by the
Department to recall and resentence the defendant based on a
postsentence diagnostic report, “By its terms, the statute does not
provide for a hearing on the post sentence report and
recommendation of the Department of Corrections. In contrast,
[former] subdivision (f) of that same Penal Code section (1170)
expressly provide[d] that the court ‘shall schedule a hearing’
upon a finding by the Board of Prison Terms that a sentence is
disparate. The absence of any similar language in subdivision (d)
indicates the Legislature did not intend to require a hearing
under that provision.” Further, “[i]t is evident that had the
9 The Supreme Court in Dix, supra, 53 Cal.3d at page 459,
footnote 13, in analyzing section 1170, stated in dicta,
“Section 1170(d) allows the sentencing court to recall and
resentence at any time upon recommendation of the Board [of
Prison Terms] or the Director [of the Department], but unlike
section 1170, [former] subdivision (f), it does not require the court
to ‘consider’ any such recommendation.” The Dix court similarly
observed (again, in dicta), that section 1170, subdivision (d),
“apparently does not require the court to respond to the
[Secretary’s] recommendation.” (Dix, at p. 459.) We question
whether the Legislature intended for a trial court simply to
ignore a recommendation from the Secretary to recall an inmate’s
sentence. Further, this would be inconsistent with the conclusion
in Loper, supra, 60 Cal.4th at page 1167 that a defendant may
appeal from a trial court’s denial of recall and resentencing under
section 1170, subdivision (d).
14
Legislature intended to depart from tradition and create a new
procedural requirement for a hearing in enacting section 1170,
subdivision (d), it would have explicitly said so.” (Delson, at
p. 61.)10
McCallum relies heavily on People v. Superior Court
(Kaulik) (2013) 215 Cal.App.4th 1279, 1286, which interpreted
Proposition 36 (the Three Strikes Reform Act of 2012; § 1170.126)
to require notice and an opportunity to be heard before a trial
court finds a defendant does not pose an unreasonable risk of
danger to public safety and grants a petition for recall and
resentencing.11 McCallum’s analogy to Proposition 36 is not
10 Section 1170, subdivision (d)(2)(A)(i), which authorizes
youth offenders to petition the court to recall their sentences and
resentence them, like subdivision (d)(1), provides for a hearing for
resentencing, not the initial recall of sentence. The subdivision
provides if the court finds by a preponderance of evidence that at
least one of the criteria for recall is met, “the court shall recall
the sentence and commitment previously ordered and hold a
hearing to resentence the defendant in the same manner as if the
defendant had not previously been sentenced . . . .” (§ 1170,
subd. (d)(2)(E).)
11 Proposition 36, approved by the voters in the General
Election on November 6, 2012, “narrowed the class of third strike
felonies for which an indeterminate sentence could be imposed”
by providing a defendant convicted of a nonstrike offense “can
receive at most a sentence enhancement of twice the term
otherwise provided as punishment for that felony.” (People v.
Perez (2018) 4 Cal.5th 1055, 1062; accord, People v. Johnson
(2015) 61 Cal.4th 674, 679.) Inmates who have been sentenced
under the three strikes law for a nonserious, nonviolent felony
may petition the trial court for resentencing as second strike
offenders. (§ 1170.126, subds. (a), (b); see Perez, at p. 1062.)
15
persuasive. Unlike the permissive language in section 1170,
subdivision (d)(1) (the court “may” recall the sentence),
section 1170.126, subdivision (f), provides, upon the defendant’s
filing of a petition, the court “shall” determine whether the
defendant meets the criteria for recall and resentencing, and if
the criteria are satisfied, the defendant “shall be resentenced”
unless the court in its discretion determines the petitioner would
pose an unreasonable risk of danger to public safety after
considering the factors set forth in section 1170.126,
subdivision (g). The Kaulick court concluded the statute’s
inclusion of factors for the court to consider in making the finding
of dangerousness required information that would be in the
possession of the prosecutor and not otherwise available to the
court, including the petitioner’s disciplinary record and record of
rehabilitation, and therefore “[e]ven if the statutory language did
not expressly contemplate a hearing, one is implied by the listing
of factors which the court is to take into account in its
determination of the dangerousness issue.” (Kaulick, at p. 1297,
fn. omitted; see People v. Bradford (2014) 227 Cal.App.4th 1322,
1341 [“The determination [of petitioner’s dangerousness]
necessarily involves input from the parties and will likely result
in a contested hearing.”].)
Upon receiving a petition for resentencing, the trial court “shall
determine whether the petitioner satisfies the criteria” as listed
in the statute. (§ 1170.126, subd. (f).) If the criteria are met, the
petitioner “‘shall be resentenced . . . unless the court, in its
discretion, determines that resentencing the petitioner would
pose an unreasonable risk of danger to public safety.’” (People v.
Conley (2016) 63 Cal.4th 646, 658.)
16
McCallum also argues the 2018 amendments to
section 1170, subdivision (d)(1), which added a list of
postconviction factors the trial court “may” consider, is analogous
to the three factors the court “may consider” in exercising its
discretion under section 1170.126, subdivision (g), to determine
whether a petitioner poses an unreasonable risk of danger. But
the listing of factors in section 1170, subdivision (d)(1), does not
alter the fact the trial court has discretion whether to recall and
resentence the defendant. By contrast, as discussed, under
Proposition 36 the trial court “shall” resentence the defendant
upon a finding of eligibility, with an exception carved out where
the court determines the petitioner poses an unreasonable risk of
danger. (§ 1170.126, subd. (f).)
Moreover, we read the inclusion of postconviction factors in
section 1170, subdivision (d)(1), as providing guidance for the
trial court’s resentencing decision, not its initial decision whether
to recall the sentence. The postconviction factors were added in
2018 by Assembly Bill No. 1812 (2017-2018 Reg. Sess.),
section 17. Notably, Assembly Bill No. 1812 placed the sentence
containing the postconviction factors immediately following the
second and third sentences of section 1170, subdivision (d)(1),
both of which set limitations on the trial court’s resentencing
authority. We consider this structure of section 1170,
subdivision (d)(1), in interpreting the purpose of inclusion of the
postconviction factors. (FilmOn.com Inc. v. DoubleVerify Inc.
(2019) 7 Cal.5th 133, 144 [“[W]e interpret statutory language
within its context, and in light of its structure, analogous
provisions, and any other appropriate indicia of its purpose.”]; see
KB Home Greater Los Angeles, Inc. v. Superior Court (2014)
223 Cal.App.4th 1471, 1477 [interpreting statute to require
17
notice to a builder before repairs are made, noting “sequential
procedure” set forth in statute].) Further, the legislative history
accompanying Assembly Bill No. 1812 describes the amendment
of section 1170, subdivision (d)(1), as “authoriz[ing] the courts to
consider specific post-conviction factors when resentencing a
defendant.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d
reading analysis of Assem. Bill No. 1812 (2017-2018 Reg. Sess.)
as amended June 12, 2018, p. 3.)
McCallum’s reliance on cases holding a defendant has a
due process right to a hearing on remand for a trial court to
exercise its resentencing discretion is similarly misplaced. (See,
e.g., People v. Rodriguez (1998) 17 Cal.4th 253, 255 [defendant
has right to a hearing on remand for the trial court to exercise its
discretion whether to strike a prior felony conviction under
People v. Superior Court (Romero) (1996) 13 Cal.4th 497];
People v. Rocha (2019) 32 Cal.App.5th 352, 355 [defendant has a
right to a hearing on remand for the trial court to exercise its
discretion whether to strike a firearm enhancement under
amendments to § 12022.53, subd. (h), enacted as part of Senate
Bill No. 620 (2017-2018 Reg. Sess.)].) As the Supreme Court in
Rodriguez explained, “Because to permit the trial court to decide
how to exercise its discretion under section 1385 without
affording defendant and his counsel an opportunity to address
the subject would be manifestly unfair, section 1260 provides
sufficient authority to require defendant’s presence on remand. A
defendant, of course, has a constitutional right to be present at
all critical stages of the criminal prosecution, i.e., ‘all stages of
the trial where his absence might frustrate the fairness of the
proceedings.’” (Rodriguez, at p. 260.)
18
The question before us is not whether McCallum has a
right to be present at a resentencing hearing if the trial court
determines his sentence should be recalled—he does—but
whether the court must hold a hearing before determining
whether to recall McCallum’s sentence in the first place. As the
Supreme Court observed in Dix, supra, 53 Cal.3d at page 456,
“Once the sentence and commitment have validly been recalled,
section 1170(d) authorizes the court to ‘resentence . . . in the same
manner as if [the defendant] had not previously been
sentenced . . . .’ [T]he resentencing authority conferred by
section 1170(d) is as broad as that possessed by the court when
the original sentence was pronounced.” The Dix court made clear
a defendant has a right to a resentencing hearing, explaining
that after recalling the sentence under section 1170,
subdivision (d), the victim would also have a “right to attend
sentencing proceedings and express his or her views.” (Dix, at
p. 463.)12 The fact a defendant has a right to a resentencing
hearing, however, does not mean the defendant has a right to a
hearing on whether to recall his or her sentence. (See People v.
Oehmigen (2014) 232 Cal.App.4th 1, 6 [Proposition 36 accords
“the right to a resentencing hearing only upon a showing that he
is eligible,” but it does not provide “a right to a hearing on the
issue of eligibility”]; People v. Bradford, supra, 227 Cal.App.4th
at p. 1337 [§ 1170.126 “does not expressly require the trial court
to hold a hearing before considering the eligibility criteria, nor is
12 As discussed, section 1170, subdivision (d)(1), also requires
the court in resentencing the defendant to apply the Judicial
Council’s sentencing rules. The Judicial Council’s sentencing
rules require a sentencing hearing. (Cal. Rules of Court,
rule 4.433(a).)
19
there a reference to the taking of ‘evidence’ or other proceeding
that would compel involvement by the parties”].)
C. The Trial Court Abused Its Discretion in Rejecting the
Secretary’s Recommendation Without Allowing McCallum
To Present Additional Information Relevant to the
Secretary’s Recommendation
McCallum contends the trial court abused its discretion in
rejecting the Secretary’s recommendation without first allowing
him to submit information necessary for the court to exercise its
discretion whether to follow the recommendation. The People
respond there was no abuse of discretion because the trial court
considered the Secretary’s extensive cumulative case summary
describing McCallum’s postconviction conduct in prison, but it
determined his record was not sufficient to support recall of his
sentence. McCallum has the better argument. Once McCallum
requested an opportunity to respond to the Secretary’s
recommendation by requesting a case management conference
and possible briefing and presentation of evidence,13 the trial
court’s decision simply to ignore McCallum’s request to provide
input on the Secretary’s recommendation was an abuse of
discretion.
The Supreme Court’s decision in Loper, supra, 60 Cal.4th
1155 is instructive. The Loper court considered whether a
13 Although McCallum specifically requested a hearing in his
case management conference, in light of our conclusion a hearing
was not required, we read McCallum’s request as one seeking an
opportunity to submit additional information relevant to the
Secretary’s recommendation and briefing addressing why the
trial court should follow the recommendation.
20
defendant could appeal a trial court’s ruling denying the
recommendation by the Department to recall the defendant’s
sentence pursuant to the compassionate release provisions of
section 1170, subdivision (e). The Supreme Court held the
defendant had a right to appeal the trial court’s denial of
compassionate release pursuant to section 1237, subdivision (b),
because the court’s denial “was an order made after judgment
that affected [the] defendant’s substantial rights.” (Loper, at
pp. 1158, 1168.) In reaching this conclusion, the Supreme Court
disapproved two opinions that held the defendant could not
appeal denial of his motion to recall his sentence under
section 1170, former subdivision (d) (and the predecessor statute),
on the basis the statute did not authorize the defendant to
initiate a request to recall a sentence. (Loper, at pp. 1166-1167,
disapproving People v. Druschel (1982) 132 Cal.App.3d 667 and
People v. Niren (1978) 76 Cal.App.3d 850, 851.) The Loper court
analogized a defendant’s right to seek recall of his or her sentence
under section 1170, subdivision (d)(1), to a defendant’s right to
invite a trial court to exercise its power to strike a count or
allegation of an accusatory pleading, explaining, “‘“[T]he court
must consider evidence offered by the defendant in support of his
assertion that the dismissal would be in furtherance of justice.”’”
(Loper, at p. 1167, quoting People v. Carmony (2004) 33 Cal.4th
367, 375 (Carmony).)
Although McCallum could not invite the trial court to recall
his sentence absent a recommendation by the Secretary (unless
he had made the request within 120 days of his commitment),
here the trial court had jurisdiction to recall McCallum’s sentence
because the Secretary made precisely such a recommendation.
Thus, as in Carmony, upon a request by McCallum, the trial
21
court was required to consider evidence in support of the
Secretary’s recommendation.
Allowing McCallum to submit additional information
showing his rehabilitation and reentry plans is also consistent
with the Legislature’s express findings and declarations for
section 1170, amended in 2016 (effective January 1, 2017) as part
of Assembly Bill No. 2590 (2015-2016 Reg. Sess.), explaining “the
purpose of sentencing is public safety achieved through
punishment, rehabilitation, and restorative justice.” (§ 1170,
subd. (a)(1).)14 Further, Assembly Bill No. 2590 amended
section 1170, subdivision (a)(2), to declare that the Department
should make available for inmates “educational, rehabilitative,
and restorative justice programs that are designed to promote
behavior change and to prepare all eligible offenders for
successful reentry into the community” and develop “policies and
programs designed to educate and rehabilitate all eligible
offenders.”
Moreover, the only evidence before the court that arguably
supported its finding McCallum had “tenuous” family and
community support was the fact presented in the cumulative case
summary that McCallum did not have visitors during his
12 years in prison.15 As McCallum’s attorney pointed out at oral
14 Section 1170, former subdivision (a)(1) previously declared,
“The Legislature finds and declares that the purpose of
imprisonment for crime is punishment.”
15 The Department appears to have prepared the cumulative
case summary pursuant to its current regulations that became
operative on January 1, 2020, which require the cumulative case
summary to include: “1. Inmate’s name and CDCR number;
[¶] 2. Current commitment offense, brief description of the crime,
22
argument, a defendant may have no visitors for a variety of
reasons unrelated to family and community support, including
the distance from the defendant’s home to his or her place of
incarceration (here at San Quentin State Prison in Northern
California). Indeed, had the trial court allowed McCallum to
submit additional information before declining to recall his
sentence, the court likely would have learned the facts were to
the contrary—that McCallum had been accepted into an
and sentence; [¶] 3. County of commitment; [¶] 4. Summary of
sustained juvenile petitions and adult criminal convictions;
[¶] 5. Active or potential holds, warrants, and detainers;
[¶] 6. Institutional behavior, including serious rules violation
reports, drug test results, gang or disruptive group information,
placement score, current housing assignment, a summary of work
and educational assignments, and participation in rehabilitative
programs and self-help activities; [¶] 7. Inmate visitor history
(number of approved visitors and number of visits made during
incarceration); [¶] 8. Victim notification requirements;
[¶] 9. Other legally mandated notification requirements; and
[¶] 10. A copy of the Abstract of Judgment and minute order for
the inmate’s current commitment offense, including plea
agreements.” (Cal. Code Regs., tit. 15, § 3076.1, subd. (b)(3)(D).)
At the time of the Secretary’s 2019 recommendation, the
requirements for the cumulative case summary were contained in
former § 3076.2 and similarly focused on the inmate’s
commitment offense, criminal history, and gang affiliation, as
well as “work and education assignments, and participation in
self-help activities,” but they did not include consideration of the
inmate’s visitor history. (Id., former § 3076.2, subd. (b)(2)(A).)
Former section 3076.2 also required preparation of an evaluation
report for consideration by the Secretary, to include among other
information “[t]he inmate’s post-release plan.” (Id., former
§ 3076.2, subds. (b)(2)(C) & (e)).
23
inpatient substance abuse and mental health counseling program
with vocational training upon his release.16 This type of
information about an inmate’s reentry plans would typically be in
the possession of the defendant, not the Department. The court
also appears to have ignored (or minimized) the reference in the
cumulative case summary to a February 6, 2019 letter from an
unknown source “pledging full support of McCallum to ensure a
successful parole by assisting with a residence, insurance,
transportation, and work with and stay in contact with all release
support programs.” Again, McCallum would have been in the
best position to provide additional details on what support this
unnamed source intended to provide upon McCallum’s release.
The trial court’s rejection of the Secretary’s recommendation
without an opportunity for McCallum to present this information
was an abuse of discretion.17 (People v. Miracle, supra, 6 Cal.5th
16 McCallum asserts in his opening brief he was also prepared
to submit information showing the multiple layers of review by
the Department before the Secretary makes a recommendation to
recall a sentence; the paucity of recommendations by the
Secretary; McCallum’s “support from dedicated community peer
mentors”; and McCallum’s educational and vocational
programming records, commendations from prison staff and
volunteers, employment history, psychiatric evaluations, and
recidivism risk evaluations.
17 We note that under the Department’s current regulations,
where the Secretary elects to recommend an inmate for recall and
resentencing, the Secretary must send the recommendation letter
and cumulative case summary to the sentencing court, and
further, “a copy shall be provided to the inmate and another copy
placed in the inmate’s central file within 10 business days of the
decision.” (Cal. Code Regs., tit. 15, § 3076.1, subd. (e)(2).)
24
at pp. 346-347; People v. Gibson, supra, 2 Cal.App.5th at pp. 324-
325; Delson, supra, 161 Cal.App.3d at p. 62.)
DISPOSITION
The trial court’s order declining to recall McCallum’s
sentence is reversed. The matter is remanded to the trial court to
allow the parties to submit information relevant to the
Secretary’s recommendation and to provide briefing on whether
the trial court should follow the Secretary’s recommendation.
Upon receipt of this information, the court is to exercise its
discretion whether to recall and resentence McCallum.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
Although the regulations in effect at the time of the Secretary’s
recommendation did not require the inmate be informed of the
recommendation, as discussed, the Secretary sent a copy of its
recommendation to the public defender’s office and district
attorney’s office.
25