Filed 6/27/22 P. v. Moreland CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B313686
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA045898)
v.
DAVID WAYNE MORELAND,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Laura L. Laesecke, Judge. Reversed and remanded with directions.
Tanya Dellaca, 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 Noah P. Hill, Deputy Attorneys General, for Plaintiff
and Respondent.
INTRODUCTION
In 2001, a jury convicted appellant David Wayne Moreland of
kidnapping to commit robbery, carjacking, possession of a firearm by a felon,
and making terrorist threats. He was sentenced to 16 years plus life in
prison, with eligibility for parole in October 2027.
In November 2020, the Secretary of the California Department of
Corrections and Rehabilitation (CDCR) recommended that the trial court
recall appellant’s sentence pursuant to Penal Code section 1170, subdivision
(d)(1),1 and resentence him based on his exemplary conduct and commitment
to rehabilitation. The trial court declined to recall the sentence.
Appellant appeals from the trial court’s denial of the Secretary’s
recommendation. While this appeal was pending, Assembly Bill No. 1540
(2021-2022 Reg. Sess.) (Assembly Bill 1540) was signed into law in October
2021 and became effective on January 1, 2022. (Stats. 2021, ch. 719.) The
bill moved the recall and resentencing provisions of section 1170, subdivision
(d)(1) to a new section, 1170.03, and revised its terms.
Both appellant and respondent Attorney General ask this court to
reverse and remand to the trial court for reconsideration of the Secretary's
recommendation under section 1170.03. We grant the request in the interest
of judicial economy, and accordingly reverse and remand. As such,
appellant’s additional contentions raised under the former statute are moot.
FACTUAL AND PROCEDURAL BACKGROUND
I. Conviction
We summarize the factual and procedural history of appellant’s crime
as set forth in our prior unpublished opinion, People v. Moreland (Dec. 27,
2001, B149370) [nonpub. opn.].
The victim was driving his van in Long Beach on the evening of July
29, 2000. When the vehicle in front of him, a black Cadillac, came to a
sudden stop, the victim’s van collided with the back of the Cadillac. The
driver of the Cadillac got out, along with a passenger, who was later
identified as appellant. The victim also exited his vehicle. The driver of the
Cadillac demanded money from the victim to fix the dent in the Cadillac.
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All further statutory references are to the Penal Code unless otherwise
indicated.
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When the victim said he had no money, the driver pointed a gun at the victim
and said that they were going to go “find money.” The driver handed the gun
to appellant and got into the driver’s seat of the van. Appellant got into the
front passenger seat of the van, still holding the gun, and the victim got into
the back seat. The driver and appellant threatened to shoot the victim if he
did not get the money they wanted. After driving to multiple locations in an
attempt to obtain money from several acquaintances of the victim, the driver
and appellant dropped the victim off at his home and kept the van.
A jury convicted appellant of kidnapping to commit robbery (§ 209,
subd. (b)(1), count 1); carjacking (§ 215, subd. (a), count 2); possession of a
firearm by a felon (§ 12021, subd. (a), count 3); and making terrorist threats
(§ 422, count 4). The jury found true the enhancement allegations that
appellant personally used a firearm under sections 12022.53 (counts one and
two) and 12022.5, subd. (a)(1) (counts one, two, and four). Appellant
admitted that he served a prior prison term (§ 667.5, subd. (b)).
The trial court sentenced appellant to a total of 16 years in prison, plus
a consecutive life term. The determinate term consisted of a five-year base
term on count two, plus 10 years for the firearm enhancement under section
12022.53, subdivision (b), and one year for the prison prior. On count one,
the court imposed a consecutive indeterminate term of life with the
possibility of parole. The court also imposed a 10-year term for the firearm
enhancement on count one, to run concurrently to the determinate portion of
appellant’s sentence. The court imposed and stayed a three-year term on
count three pursuant to section 654, and imposed a concurrent term of three
years and four months on count four. We affirmed appellant’s conviction on
appeal.
II. Request for Resentencing
In November 2020, the trial court received a letter from the Secretary
of the CDCR, recommending that the court recall appellant’s sentence and
resentence him pursuant to former section 1170, subdivision (d)(1). In the
letter, the Secretary recommended resentencing appellant “based upon his
exceptional conduct while incarcerated.” Specifically, she stated that
appellant had demonstrated “a sustained compliance with departmental
rules, regulations, and requirements as well as prolonged participation in
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rehabilitative programming.” The Secretary also provided a “cumulative case
summary and evaluation report,” which summarized appellant’s underlying
offenses and prior criminal history and discussed his behavior and activities
while incarcerated, as relevant to the factors set forth in former section 1170,
subdivision (d)(1).
On December 3, 2020, the court issued a written ruling stating that it
had “read and considered” the CDCR’s letter but “decline[d] to follow the
recommendation.” The court found that appellant “committed this brazen,
egregious crime a mere three days after being released from custody and
placed on parole. His positive progress in custody will likely assist him when
he is evaluated for parole but does not merit resentencing.”
The trial court did not hold a hearing or provide any notice to the
parties before denying the Secretary's recommendation. Appellant appealed
the denial in September 2021.2
DISCUSSION
Former section 1170, subdivision (d)(1), was originally enacted as “‘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 (McCallum), quoting Dix v. Superior Court
(1991) 53 Cal.3d 442, 455 (Dix).) Among other things, it was intended to
provide a mechanism for recalling a defendant’s sentence and resentencing
him “‘at any time upon the recommendation of the secretary’” or certain other
parties. (McCallum, supra, at p. 210.)
Former section 1170, subdivision (d)(1) did not impose any specific
procedural requirements and was silent as to whether a trial court must
provide notice or a hearing or appoint counsel before ruling on a
recommendation from the Secretary. (McCallum, supra, 55 Cal.App.5th at p.
212; Dix, supra, 53 Cal.3d at p. 459.) Numerous recent cases have considered
the requirements of due process under the former statute. (See, e.g., People
v. Williams (2021) 65 Cal.App.5th 828, 834-835 [requiring notice and
opportunity to be heard]; People v. Mendez (2021) 69 Cal.App.5th 347, 355
[requiring notice and opportunity to submit briefing and additional relevant
2
We granted appellant’s application for relief from default for failure to
file a timely notice of appeal. ~(CT 85)~
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information]; McCallum, supra, 55 Cal.App.5th at pp. 215-217 [hearing not
required, but abuse of discretion to deny opportunity to present relevant
information upon request].)
Assembly Bill 1540 became effective on January 1, 2022. As a result,
the recall and resentencing provisions of former section 1170, subdivision
(d)(1) were incorporated into newly enacted section 1170.03, which also
included several additional requirements. Significantly, when recalling and
resentencing under section 1170.03, the court is required to “apply any
changes in law that reduce sentences or provide for judicial discretion.”
(§ 1170.03, subd. (a)(2).) Section 1170.03 also provides that, where the
Secretary submits a resentencing request, “[t]he court shall provide notice to
the defendant and set a status conference within 30 days after the date that
the court received the request,” and “[t]he court’s order setting the conference
shall also appoint counsel to represent the defendant.” (Id., subd. (b)(1).) In
addition, “[r]esentencing shall not be denied . . . without a hearing where the
parties have an opportunity to address the basis for the intended denial or
rejection,” (id., subd. (a)(8)) and “[t]he court shall state on the record the
reasons for its decision to grant or deny recall and resentencing.” (Id., subd.
(a)(6).) Lastly, “[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.” (Id., subd. (b)(2).)
In their briefing on appeal, filed after enactment of section 1170.03,
both parties requested that this court reverse and remand to the trial court
for reconsideration of the Secretary’s recommendation under the new statute.
Appellant contends reversal is required both because Assembly Bill 1540 is a
“clarifying amendment” intended to apply to transactions that predate it, and
is retroactive under In re Estrada (1965) 63 Cal.2d 740. The Attorney
General disagrees that the statute applies retroactively, but agrees that
reversal is appropriate “under the circumstances of this case” and for
“reasons of judicial efficiency.”
We need not resolve the parties’ dispute as to the retroactivity of the
statute, because we agree that judicial economy warrants reversal and
remand. As the Attorney General points out, even if this court were to decide
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that section 1170.03 does not apply here, the Secretary could simply submit a
new recommendation letter which would then be subject to the new law. As
such, it would be a waste of judicial resources to decide this case under the
former statute.
Further, we need not reach the merits of appellant’s additional
arguments under former section 1170 that the trial court violated his due
process rights and otherwise abused its discretion in denying the request.
Because the trial court will reconsider the request pursuant to the
requirements of section 1170.03, appellant’s remaining contentions are moot.
DISPOSITION
The order denying the Secretary’s recommendation is reversed. We
remand with directions to reconsider the request under Penal Code section
1170.03.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
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