Filed 3/9/22 P. v. Williams CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B305915
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA073548)
v.
GARY WAYNE WILLIAMS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Leslie E. Brown, Judge. Reversed and
remanded.
Tanya Dellaca, under appointment by the Court of Appeal,
for Defendant and Appellant.
Ron Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen and Stephanie
C. Santoro, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________
Defendant Gary Wayne Williams was sentenced to prison
for burglary and robbery in 2012. In 2020, the California
Department of Corrections and Rehabilitation (CDCR) sent a
letter to the trial court, recommending that defendant’s sentence
be recalled and he be resentenced under changes in the law that
were applicable to defendant. The trial court summarily declined
to exercise its discretion to resentence defendant. On appeal,
defendant raises a number of challenges to the trial court’s
denial, arguing he was entitled to several procedural protections.
While this appeal was pending, the Legislature enacted a statute
specifically providing the protections defendant seeks in
proceedings following a CDCR recommendation for resentencing.
While the Attorney General does not concede that the new
statute is retroactive to defendant’s case, it suggests that, in the
interest of judicial efficiency, we remand for a hearing under the
new statute. We conclude the trial court erred issuing its order
denying resentencing without providing adequate notice to
defendant. We accept the suggestion of the Attorney General and
remand.
FACTUAL AND PROCEDURAL BACKGROUND
On July 29, 2010, defendant was charged by information
with two counts of first degree burglary (Pen. Code, § 459)1 and
three counts of robbery (§ 211) arising out a single incident. It
was alleged that a principal was armed within the meaning of
section 12022, subdivision (a)(1). Defendant was also alleged to
have suffered two prior strikes (§ 667, subds. (b)-(i)); two prior
serious felony convictions (§ 667, subd. (a)) and two prior prison
terms (§ 667.5, subd. (b)).
1 All further statutory references are to the Penal Code.
2
Defendant was convicted as charged, although it appears
that only a single prior serious felony was found true. At
sentencing, the trial court exercised its discretion to strike one of
the prior strikes, and sentenced defendant to 24 years in prison,
calculated as follows: For one count of robbery, the upper term of
9 years, doubled to 18 years for the strike; plus 1 year for the
firearm enhancement and 5 years for the prior serious felony
enhancement. Concurrent terms were imposed on the remaining
counts.
On January 24, 2020, the Secretary of CDCR wrote the
court, “to provide the court with authority to resentence Gary W.
Williams pursuant to Penal Code section 1170, subdivision (d).”
CDCR specifically noted that, at the time defendant was
sentenced, courts could not strike prior serious felony
enhancements, but effective September 30, 2018, courts now
possessed that discretion. The Secretary wrote that, in light of
the “newfound authority to not impose a consecutive
enhancement pursuant to section 667, subdivision (a)(1)
(authority which did not exist at the time of Williams’ sentencing)
I recommend that inmate Williams’ sentence be recalled and that
he be resentenced in accordance with section 1170, subdivision
(d).” The letter attached documents reflecting, among other
things, defendant’s performance in prison.
On February 27, 2020, the trial court issued a minute order
acknowledging receipt of CDCR’s recommendation. The court
stated, “After a review of the court file and the letter, including
attachments, the court declines to exercise its discretion to
resentence.”
Defendant filed a timely notice of appeal.
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DISCUSSION
On appeal, defendant initially raised two arguments:
(1) the court failed to exercise discretion informed and guided by
the spirit of the law; (2) the court violated his constitutional right
to due process by not affording him notice and an opportunity to
be heard. After the Attorney General responded to these
arguments by asserting there was no error, defendant filed a
supplemental opening brief. In his supplemental brief, defendant
added arguments that the court erred by: (3) failing to afford him
the assistance of counsel; (4) not setting forth the reasons for its
resentencing decision on the record. In addition, he argued that a
recently enacted law, AB 1540 (effective January 1, 2022),
clarified the law in this area and would apply retroactively to his
case. He sought remand for a hearing under the new procedures
established by AB 1540.
The Attorney General filed its response to the
supplemental opening brief on November 22, 2021. It declined to
concede retroactive application of AB 1540. However, it
acknowledged that the “new version of the statute substantially
alters the framework for recall and resentencing,” and that there
were “substantial questions about how best to interpret that
statute as applied to this case.” In addition, the Attorney
General suggested that “considerations of judicial efficiency may
counsel in favor of simply applying the new statutory terms
regardless of the merits of appellant’s present claims.” This was
so because, if we were to remand for any error under the prior
law, any rehearing on remand would be subject to the new
procedures. Moreover, the Attorney General conceded that the
new procedures would apply “irrespective of any error, if CDCR
simply re-initiated the recall request after the new year.” Under
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the circumstances, the Attorney General saw “little point in
litigating the claims in this appeal under the old statute” and
suggested we reverse the order and remand for a new hearing
under the new law.
We agree that remand is necessary. AB 1540 enacted
section 1170.03 as a replacement for the provisions previously in
section 1170, subdivision (d)(1). Section 1170.03 provides
procedures following the receipt of a letter from CDCR
recommending defendant’s sentence be recalled and the
defendant resentenced. Among those provisions is 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).) When the
recommendation for resentencing is from the Secretary of CDCR,
the court shall provide notice to the defendant, appoint counsel to
represent the defendant, and set the matter for a status
conference. (§ 1170.03, subd. (b)(1).) Moreover, “[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).)
In his supplemental brief, the Attorney General suggests
that we remand this matter for a new hearing to be held under
section 1170.03. Although respondent does not concede the new
statute is retroactive to the date the trial court denied
resentencing here, we observe that statutory amendments have
added procedural safeguards for resentencing hearings under
section 1170.03, effective January 1, 2022. Among those changes
is: “The court shall provide notice to the defendant and set a
status conference within 30 days after the date that the court
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received the request.” (§ 1170.03, subd. (b)(1).) We find no need
to decide the retroactivity of section 1170.03. In People v.
Williams (2021) 65 Cal.App.5th 828 (Williams), the People
argued that the trial court erred by not providing notice before
recalling a sentence and resentencing the defendant under prior
section 1170, subdivision (d).2 Our colleagues in the Fourth
District agreed: “Here, there is nothing in the record to suggest
the court gave the parties any indication of its intention to adopt
CDCR’s recommendation or an opportunity to be heard.
Although we recognize the lack of procedural guidance in
subdivision (d)(1) of section 1170, we find the court was required
to prepare a tentative order for service on the parties indicating
its intent to recall the sentence and its proposed disposition and
to provide a reasonable deadline for receipt of any objection.”
(Williams, at pp. 834–835.)
We find Williams equally applicable to the present case and
agree with the Attorney General that a noticed hearing under
section 1170.03 is required.
2 Although the defendant in the Fourth District Williams
case has the same last name as the defendant in the current
appeal, they are not the same person.
The Williams court described the trial court proceedings as
follows: “In an unreported minute order dated September 30,
2019, and without the parties present, the sentencing judge
recalled defendant’s sentence and struck the five-year
punishment for the section 667 serious felony enhancement. The
rest of defendant’s sentence remained unchanged.” (Williams,
supra, at p. 832.)
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DISPOSITION
The order denying resentencing is reversed, and the matter
remanded for a hearing under Penal Code section 1170.03.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
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