Filed 7/22/22 P. v. Chavez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C094323
Plaintiff and Respondent, (Super. Ct. No. 05F07263)
v.
HENRY CHAVEZ,
Defendant and Appellant.
Defendant Henry Chavez is currently serving an indeterminate term of 300 years
to life plus a 20-year determinate term. On January 24, 2020, the Secretary of the
California Department of Corrections and Rehabilitation (CDCR) recommended the trial
court recall defendant’s sentence (Pen. Code, § 1170, subd. (d))1 and consider whether to
strike his four serious felony sentencing enhancements (§ 667, subd. (a)(1)) in light of
1 Further undesignated statutory references are to the Penal Code.
1
legislative changes authorizing discretion to strike the previously mandatory
enhancement. (See Sen. Bill No. 1393 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1013,
§§ 1, 2.) Following the appointment of counsel, briefing, and a hearing outside
defendant’s presence,2 the trial court declined to recall defendant’s sentence.
Defendant appeals arguing: (1) he is entitled to retroactive application of
Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Assembly Bill No. 1540), which
moved the recall and resentencing provisions of section 1170, subdivision (d)(1) to newly
created section 1170.03 and revised its terms (Stats. 2021, ch. 719, §§ 1-7); and,
alternatively, (2) the trial court abused its discretion by failing to consider the CDCR’s
request in light of changes in the law and relevant postconviction factors. The Attorney
General disagrees that Assembly Bill No.1540 applies retroactively, but agrees that the
interests of justice and judicial economy support reversing the trial court’s order and
remanding the matter for further proceedings under section 1172.1 (former § 1170.03).3
Former section 1170, subdivision (d)(1), was originally enacted as “ ‘an exception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, quoting
Dix v. Superior Court (1991) 53 Cal.3d 442, 455.) Among other things, it was intended
to provide a mechanism for recalling a defendant’s sentence and resentencing him “ ‘at
2 Section 1172.1 (former § 1170.03), subdivision (a)(8)’s recognition that a defendant
may appear remotely suggests defendant had the right to appear. “Resentencing shall not
be denied, nor a stipulation rejected, without a hearing where the parties have an
opportunity to address the basis for the intended denial or rejection. If a hearing is held,
the defendant may appear remotely and the court may conduct the hearing through the
use of remote technology, unless counsel requests their physical presence in court.”
(Ibid.) However, we are not asked to address this issue and need not do so in order to
resolve the issues on appeal.
3 Effective June 30, 2022, section 1170.03 was renumbered section 1172.1, with no
change in text. (Stats. 2022, ch. 58, § 10.)
2
any time upon the recommendation of the secretary’ ” or certain other parties.
(McCallum, at p. 210.) Under that statute if a court elected to recall a sentence, it was
required to “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.”
(Former § 1170, subd. (d)(1).) However, section 1170, subdivision (d)(1) did not impose
any specific procedural requirements and was silent as to whether a trial court had to
provide notice, a hearing, or appoint counsel before ruling on a recommendation from the
CDCR. (McCallum, at p. 212; Dix, at p. 459.)
During the pendency of this appeal, the Legislature enacted and the Governor
signed Assembly Bill No. 1540 into law which subsequently became effective on
January 1, 2022. (Stats. 2021, ch. 719, § 3.1.) Assembly Bill No. 1540 created section
1170.03 (now section 1172.1), which includes the recall and resentencing provision of
former section 1170, subdivision (d)(1) and added several requirements to the process.
Most pertinent to this appeal, section 1172.1 provides that, where the CDCR Secretary
submits a resentencing request, “[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).)
As noted above, the parties agree that this court should reverse and remand so that
the trial court may reconsider the CDCR’s recommendation by applying section 1172.1.
We need not resolve the dispute regarding retroactivity here, as we agree that judicial
economy warrants reversal and remand given that CDCR 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 old law.
Further supporting the need to reverse and remand this matter is this court’s recent
opinion in People v. McMurray (2022) 76 Cal.App.5th 1035, which held that Assembly
Bill No. 1540 made “ ‘clarifying changes’ ” to former section 1170, subdivision (d)(1).
3
(McMurray, at p. 1041.) “When a case involving such a clarifying amendment is on
appeal, the appropriate resolution is to reverse and remand the matter for further
proceedings in compliance with the amended legislation.” (Id. at p. 1039, citing Western
Security Bank v. Superior Court (1997) 15 Cal.4th 232, 253.) Accordingly, in McMurray
we reversed and remanded to allow the trial court to “consider the CDCR’s
recommendation to recall and resentence defendant under the new and clarified
procedure and guidelines of section 1170.03.” (McMurray, at p. 1041.) The same
remedy is appropriate here.
DISPOSITION
The trial court’s order denying the Secretary’s recommendation is reversed and the
matter remanded with directions to reconsider the request under newly enacted section
1172.1.
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Hoch, J.
4