Filed 3/17/22 P. v. Scholer CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B312177
(Super. Ct. No. MA018175)
Plaintiff and Respondent, (Los Angeles County)
v.
CHAD KY SCHOLER,
Defendant and Appellant.
Chad Ky Scholer appeals the trial court’s denial of a
request to recall his sentence made by the Secretary of the
California Department of Corrections and Rehabilitation (CDCR)
under Penal Code section 1170, subdivision (d)(1).1
The trial court summarily denied the request citing facts in
the record to support its decision. While this matter was on
appeal, the Legislature passed Assembly Bill No. 1540 (2021 Reg.
Sess.) (Stats. 2021, ch. 719, § 2) (hereafter AB 1540). The parties
agree that in light of this bill a remand is required for a new
1 All statutory references are to the Penal Code.
hearing that meets the standards this legislation requires. We
reverse and remand for further proceedings.
FACTS
In 1999, Scholer and Richard P. Ritchie committed three
home invasion robberies in the Lancaster-Palmdale area. The
two men wore stocking caps or masks, they gagged the residents
with duct tape, ransacked the homes, and took household and
electric goods and an automobile.
Scholer was convicted of six counts of robbery (§ 211), five
counts of false imprisonment (§ 236), three counts of grand theft
(§§ 487, subd. (d), 498, subd. (d)), burglary (§ 459), assault with a
firearm (§ 245, subd. (a)(1)), two counts of possession of a firearm
by a felon (§ 12021, subd. (a)(1)), receiving stolen property (§ 496,
subd. (a)), and domestic violence involving a child (§ 273a, subd.
(a)). He was sentenced to an aggregate term of 39 years 4
months in prison.
While in prison Scholer made numerous efforts at
rehabilitation. He worked hard in his work assignments and
took “great pride in his work.” A supervisor noted that Scholer
possessed “many meritorious character traits that would not only
result in him being able to successfully cope in society, but also
thrive and contribute as a productive and law abiding citizen.”
One 2019 supervisor’s report “commended” Scholer for “his ability
to articulate himself very well, being respectful and kind to all
around him, and demonstrating a strong work ethic that will
follow him into the future with any work environment he finds
himself in.”
In February 2021, the CDCR Secretary recommended to
the trial court that Scholer’s sentence be recalled under section
1170, subdivision (d)(1) based on Scholer‘s “exceptional conduct
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while incarcerated.” She said he had “two Rules Violation
Reports since being received to CDCR on December 31, 2002,” but
he has “remained disciplinary free since March of 2009. . . .
Inmate Scholer also participates in College (Onsite) and
Celebrate Recovery. Scholer has received numerous certificates
and 15 laudatory chronos from these group sponsors
acknowledging his commitment and dedication to these self-
awareness and improvement groups.” She said he “met the
standards of the General Educational Development and received
his High School Equivalency Certificate.” Her ruling stated,
“[A]s the Secretary, I recommend the inmate’s sentence be
recalled and that he be resentenced.”
The trial court summarily denied the request without
holding a hearing. It did not give prior notice to Scholer, and it
did not appoint counsel for him. The court summarized Scholer’s
criminal history from 1998 and 1999. It then said, “At the time of
this conviction, Scholer was 27 years old and affiliated with Nazi
Low Rider, a violent, white supremacist group. While in custody
he signed a document renouncing his affiliation. He has received
two disciplinary reports for disruptive behavior involving force.
He actively participated in work assignments, self-help programs,
and classes and has received numerous commendations. He will
be eligible for parole in 2030.” “The request to resentence Scholer
is respectfully denied.”
DISCUSSION
“ ‘Section 1170 [subdivision (d)(1)] is an exception to the
common law rule that the court loses resentencing jurisdiction
once execution of sentence has begun.’ ” (People v. McCallum
(2020) 55 Cal.App.5th 202, 210.) This provision allows the trial
court to recall and resentence the defendant to a lower sentence
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than his or her original term after considering “ ‘postconviction
factors, including, but not limited to, the inmate’s disciplinary
record and record of rehabilitation while incarcerated.’ ” (Ibid.)
“We review the trial court’s decision whether to recall a
defendant’s sentence for an abuse of discretion.” (Ibid.)
Section 1170 authorizes the CDCR Secretary to initially
request the trial court to recall and resentence the prisoner based
on factors the Secretary considers to be relevant for the prisoner’s
rehabilitation. (People v. McCallum, supra, 55 Cal.App.5th at
p. 205.)
Procedure and Findings on Rehabilitation
Scholer contends the trial court erred: 1) by not giving him
notice and an opportunity to present information about his
rehabilitation, and 2) by not deciding the necessary facts to
determine whether to follow the CDCR Secretary’s
recommendation. We agree.
In McCallum, the appellate court reversed a trial court’s
summary denial of a section 1170, subdivision (d)(1) request to
recall the sentence. (People v. McCallum, supra, 55 Cal.App.5th
at pp. 217-219.) It ruled the trial court abused its discretion by
summarily rejecting the Secretary’s recommendation “without an
opportunity for [the defendant] to present” information about his
rehabilitation efforts. (Id. at p. 219.)
That is what happened here. At the time of his trial, the
law as it then existed did not allow Scholer the opportunity to
respond to the findings the trial court made in summarily
denying the Secretary’s recommendation. This procedural
omission requires a reversal of the court’s order. “Allowing [the
defendant] to submit additional information showing his
rehabilitation and reentry plans is . . . consistent with the
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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.) . . . .” (People v. McCallum,
supra, 55 Cal.App.5th at. p. 217.)
In McCallum, the appellate court set out procedural steps
the trial court must take in response to a request to recall the
sentence under section 1170, subdivision (d)(1). These steps are:
1) The trial court issues its tentative ruling not to recall the
sentence; 2) the defendant is given notice of the decision; 3) the
defendant is given an opportunity “to submit information
relevant to the Secretary’s recommendation”; 4) the parties may
“provide briefing on whether the trial court should follow the
Secretary’s recommendation”; and 5) “[u]pon receipt of this
information, the court is to exercise its discretion whether to
recall and resentence [the defendant].” (People v. McCallum,
supra, 55 Cal.App.5th at p. 219.)
Here the trial court cited Scholer’s criminal history in 1998
and 1999. It noted that he was affiliated with a “Nazi Low Rider”
gang. But Scholer renounced his affiliation with that group while
in custody. The court said, “He has received two disciplinary
reports for disruptive behavior involving force.”
The Secretary noted that since 2009 he had a perfect
disciplinary record. The Secretary said that he “demonstrates a
sustained compliance with departmental rules” and “prolonged
participation in rehabilitative programming”; that he had
“exceptional conduct” while incarcerated. The Secretary noted
that in making this request for Scholer, she is taking her
“obligation to public safety very seriously.”
In making findings on postconviction factors under section
1170, the trial court should consider “whether the defendant’s
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risk for future violence has been reduced due to age, time served,
or diminished physical condition, or any evidence that
circumstances have changed since the original sentencing such
that defendant’s continued incarceration is no longer in the
interest of justice.” (People v. Williams (2018) 65 Cal.App.5th
828, 835, italics added.) Here the court did not make findings on
these issues and Scholer was not given an opportunity to present
information on them.
The New Standards Required by AB 1540
The parties note that the Legislature has recently passed
AB 1540 and the new law is effective on January 1, 2022. AB
1540 added section 1170.03 which sets forth specific standards
for sentencing recall proceedings. (Stats. 2021, ch. 719, § 3.) In
light of the passage of AB 1540, the order in this case must be
reversed and the case remanded for the trial court to comply with
these standards.
A criminal defendant is entitled to the benefit of a change
in the law during the pendency of his appeal. (People v. Babylon
(1985) 39 Cal.3d 719, 722; In re Estrada (1965) 63 Cal.2d 740,
744, 748.) Under Estrada, a new law that reduces punishment
may apply to a pending case. But retroactive application is not
limited to that type of new punishment statute. “Estrada’s
inference of retroactivity” also applies to a new criminal law that
“reduces the possible punishment for a class of persons” even
though it does not directly or expressly reduce a sentence.
(People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303, italics
added.)
This is such a law. Prior legislation did not specify the
procedural requirements for deciding requests to recall the
sentence. Without specific guidance from the Legislature, courts
6
rendered conflicting decisions regarding the procedures. The
Legislature enacted AB 1540 to clarify the mandatory uniform
procedure that all defendants are entitled to receive. The
language of AB 1540 shows a legislative intent to apply this
legislation to pending cases. (Western Security Bank v. Superior
Court (1977) 15 Cal.4th 232, 252.)
Section 1170.03, subdivision (a)(2) provides, “The court, in
recalling and resentencing under this subdivision, shall apply the
sentencing rules of the Judicial Council and apply any changes in
law that reduce sentences or provide for judicial discretion so as
to eliminate disparity of sentences and to promote uniformity of
sentencing.” (Italics added.)
Section 1170.03, subdivision (a)(8) provides, in relevant
part, “Resentencing shall not be denied . . . without a hearing
where the parties have an opportunity to address the basis for
the intended denial or rejection.” (Italics added.) Section
1170.03, subdivision (b)(1) provides, “The court shall provide
notice to the defendant and set a status conference within 30 days
after the date that the court received the request. The court’s
order setting the conference shall also appoint counsel to
represent the defendant.” (Italics added.) Section 1170.03,
subdivision (b)(2) provides, “There 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 . . . .” (Italics added.)
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DISPOSITION
The trial court’s order is reversed. The case is remanded
for further proceedings to allow the parties a new hearing that
meets the requirements of section 1170, subdivision (d)(1). We
make no recommendation how the trial court should rule.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
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Laura L. Laesecke, Judge
Superior Court County of Los Angeles
______________________________
Jennifer L. Peabody, 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, Noah P. Hill and Michael R. Johnsen, Deputy
Attorneys General, for Plaintiff and Respondent.
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