Filed 8/5/22 P. v. Brooks 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C093996
Plaintiff and Respondent, (Super. Ct. No. 11F08623)
v.
ROY BROOKS,
Defendant and Appellant.
Defendant Roy Brooks appeals the trial court’s order denying the Department of
Corrections and Rehabilitation’s (CDCR) recommendation to consider recalling his
sentence and resentencing him. Defendant argues recent statutory changes to the recall
and resentencing provision apply to his case and require reconsideration, and the People
agree. We agree with the parties and will reverse and remand the matter.
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BACKGROUND
In 2012, a jury found defendant guilty of assault with a firearm (Pen. Code, § 245,
subd. (a)(2));1 discharging a firearm in a grossly negligent manner (§ 246.3); possession
of a firearm by a convicted felon (former § 12021, subd. (a)); misdemeanor criminal
threat (§ 422); and misdemeanor vandalism. (§ 594, subd. (a).) As to the assault count,
the jury also found true an allegation defendant personally used a firearm. (§ 12022.5,
subd. (a).) The trial court found defendant had three prior serious felony convictions.
(§§ 667, 1170.12.) The court proceeded to sentence defendant to an aggregate term of 29
years four months, comprised of: eight years for the assault count (the upper term,
doubled), plus 10 years for the firearm enhancement; 16 months for the possession of a
firearm count (one-third the midterm, doubled), five years for each of the prior serious
felony convictions, with one of the sentences stayed under section 654; and time served
for the two misdemeanor counts. The court stayed the sentence on the discharging a
firearm in a grossly negligent manner count.2
In 2021, the Secretary of the CDCR (Secretary) sent a letter to the trial court
recommending the recall and resentencing of defendant under former section 1170,
subdivision (d)(1), which authorized a court, at any time after receiving a
recommendation from the CDCR, to recall an inmate’s sentence and resentence that
inmate to a lesser sentence. The Secretary stated, “[T]he COVID-19 pandemic has
created an urgent necessity to decrease [the CDCR’s] in-custody population,” especially
for inmates such as defendant, “who has been determined to be at particularly high-risk
of serious complications should he contract COVID-19.” The Secretary noted defendant
1 Undesignated statutory references are to the Penal Code.
2 On direct appeal, we modified the judgment to impose a sentence on this count;
our modification did not change the aggregate sentence. (People v. Brooks (Feb. 26,
2015, C072134) [nonpub. opn.].)
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had served his base term and was sentenced before the passage of Senate Bill No. 1393
(2017-2018 Reg. Sess.) (Stats. 2018, ch. 1013), which granted courts discretion to strike
serious felony enhancements in the interest of justice, and Senate Bill No. 620 (2017-
2018 Reg. Sess.) (Stats. 2017, ch. 682), which granted similar discretion as to firearm
enhancements. Defendant had received two disciplinary infractions, but had “remained
disciplinary free since October of 2020.”
The trial court did not appoint counsel, provide notice to defendant, or hold a
hearing on the recommendation. Rather, in March 2021, the court issued a written order
declining to recall defendant’s sentence. Observing defendant had been sentenced to “the
upper term for the principal term and on the enhancement,” the court found that the
sentencing court “would have not been inclined to strike the [ ] section 12022.5 allegation
or punishment if it had had the discretion to do so.” The court also noted defendant’s
behavior in custody, which included two rules violation reports and two “counseling
chronos,” suggested incarceration was still warranted, particularly given defendant’s
lengthy criminal history. Finally, the court stated it was unclear why defendant was at
elevated risk from COVID-19, given the availability of COVID-19 vaccines.
On January 1, 2022, while defendant’s appeal was pending, Assembly Bill No.
1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719) (Assembly Bill 1540) came into
effect, and, among other things, moved the recall and resentencing provisions of former
section 1170, subdivision (d)(1) to new section 1170.03.
DISCUSSION
Defendant argues Assembly Bill 1540, which establishes new procedural and
substantive requirements for recall and resentencing requests, clarifies existing law and
therefore applies to cases involving the interpretation of former section 1170, subdivision
(d)(1). As a result, defendant asserts his case must be remanded so the trial court may
apply the new requirements. The People agree the trial court should reconsider the
request in light of the statutory amendments. We agree with the parties.
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“Former section 1170[, subdivision] (d)(1) authorized a trial court, at any time
upon the recommendation of the Secretary, to ‘recall the sentence and commitment
previously ordered and 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.’ This same language is contained in section 1170.03, which is where Assembly
Bill 1540 moved the recall and resentencing provisions of former section 1170[,
subdivision] (d)(1). (§ 1170.03, subd. (a)(1).)
“Former section 1170[, subdivision] (d)(1) (and now section 1170.03) authorizes
the Secretary of the CDCR to recommend to the superior court that the court recall a
previously imposed sentence and resentence the defendant. [Citations.] The CDCR
recommendation furnishes the court with jurisdiction it would not otherwise have to
recall and resentence and is ‘an invitation to the court to exercise its equitable
jurisdiction.’ [Citation.]
“In addition to moving the recall and resentencing provisions of former section
1170[, subdivision] (d)(1) to section 1170.03, Assembly Bill 1540 also clarifies the
required procedures including that, when recalling and resentencing, the court ‘shall . . .
apply any changes in law that reduce sentences or provide for judicial discretion.’
(§ 1170.03, subd. (a)(2).) Where, as here, the CDCR recommends recall and
resentencing, the court is also now required to hold a hearing (unless the parties
otherwise stipulate), state on the record its reasons for its decision, provide notice to the
defendant, and appoint counsel for the defendant. (§ 1170.03, subds. (a)(6)-(8), (b)(1).)
In addition, where a resentencing request is made, there is now a presumption in favor of
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.’ (§ 1170.03, subd.
(b)(2).)” (People v. McMurray (2022) 76 Cal.App.5th 1035, 1040.)
In People v. McMurray, supra, 76 Cal.App.5th 1035, we concluded: “[T]he
Legislature repeatedly indicated that Assembly Bill 1540 was intended to ‘make
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clarifying changes’ to former section 1170[, subdivision] (d)(1), including specifying the
required procedure and guidelines when the CDCR recommends recall and resentencing.
[Citation.] . . . Under the circumstances, the appropriate remedy is to reverse and
remand the matter, so that the trial court can consider the CDCR’s recommendation to
recall and resentence defendant under the new and clarified procedure and guidelines of
section 1170.03. [Citation.] This is especially true here, given that the trial court failed
to provide defendant with notice of the recommendation from the CDCR, appoint counsel
for defendant, hold a hearing, or state its reasons for declining to recall and resentence
defendant.” (McMurray, supra, at p. 1041.)
Although the trial court in this case stated its reasons for declining to recall and
resentence defendant, it did not follow the other procedures now required by section
1170.03. As in McMurray, reconsideration of the CDCR’s request under the provisions
of Assembly Bill 1540—including the presumption in favor of recall and resentencing—
is thus warranted. We express no opinion as to the appropriate outcome of such
reconsideration.3
3 Defendant further argues the trial court incorrectly applied its discretion under
former section 1170, subdivision (d)(1) by denying the CDCR’s request based on what
the sentencing court would have done with respect to defendant’s sentence
enhancements. Because we will remand the case for reconsideration under the new
statute, we need not reach defendant’s argument. We similarly decline to address
defendant’s argument that we should reverse and remand the matter under In re Estrada
(1965) 63 Cal.2d 740.
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DISPOSITION
The order declining to recall and resentence defendant is reversed. The matter is
remanded for reconsideration of the CDCR’s recommendation to recall and resentence
defendant, in accordance with section 1170.03.
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
HULL , J.
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