Filed 3/17/22 P. v. Myers CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B311620
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA056625)
v.
DERRICK T. MYERS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Daviann L. Mitchell, Judge. Remanded with
directions.
Jennifer Peabody and Olivia Meme, under appointment by
the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and Viet H. Nguyen,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________
Derrick T. Myers was convicted of one count of second
degree robbery in 2013 and sentenced to 19 years in prison, the
sentence including a base term and several enhancements,
including a five-year prior serious felony enhancement pursuant
to Penal Code section 667, subdivision (a)(1).1 (People v. Myers
(2014) 227 Cal.App.4th 1219.)
In 2019, the secretary of the California Department of
Corrections and Rehabilitation (CDCR) sent a letter to the trial
court invoking the sentence recall provision of section 1170,
subdivision (d)(1) and requesting that in light of a recent
amendment to section 1385 the court consider striking Myers’s
serious felony prior and recalling its order to run his sentences
consecutively.
The court denied the request without a hearing, stating it
was “aware of its discretion” but elected not to exercise it.
Myers contends the trial court failed to properly exercise its
discretion, and due process required the court to provide notice
and an opportunity to be heard before denying the recall request.
Respondent concedes neither of these issues but observes
that the recall-and-resentencing provision of section 1170,
subdivision (d)(1) was itself recently revised and moved to a new
section, 1170.03, and now requires a court to “apply any changes
in law that reduce sentences or provide for judicial discretion”
when resentencing under the recall statute, to hold a hearing and
state its reasons on the record for granting or denying recall, to
give notice and appoint counsel where the recall request is
initiated by CDCR, and to make a presumption in favor of recall
1 Undesignated statutory references will be to the Penal
Code.
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that can be overcome only by a finding that the inmate is an
unreasonable risk to public safety. (Stats. 2021, ch. 719, § 3.1.)
Respondent observes that the new procedures do not
appear to apply retroactively to final cases, but certain indicia of
legislative intent in the new statute raise substantial questions
about how best to interpret former section 1170, subdivision
(d)(1), and in any event the new procedures would have to be
followed if the CDCR simply reinitiated its recall request.
We find these observations to be persuasive.
DISPOSITION
The case is remanded to the trial court with instructions to
vacate its order denying resentencing and to commence new
proceedings under section 1170.03.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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