Filed 6/9/22 P. v. Green CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083294
Plaintiff and Respondent,
(Super. Ct. No. 145370)
v.
DARNELL LEO GREEN, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Thomas D.
Zeff, Judge.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Tia
M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Peña, Acting P. J., Meehan, J. and DeSantos, J.
Defendant Darnell Leo Green was convicted of multiple offenses arising from a
1997 robbery of several individuals in a residence by several armed gang members. He
was sentenced to 45 years eight months in prison. In 2021, the Secretary of the
Department of Corrections and Rehabilitation (CDCR) sent a letter to the sentencing
court recommending that defendant be resentenced pursuant to former Penal Code
section 1170, subdivision (d)(1).1 After the issue was briefed, the trial court declined to
exercise its discretion to resentence defendant. While the matter was pending on appeal,
the Governor signed Assembly Bill No. 1540 (2021–2022 Reg. Sess.) (Assembly Bill
1540), which moved the recall and resentencing provisions of former section 1170,
subdivision (d)(1) to new section 1170.03, and among other things, would entitle an
inmate for whom the Secretary of the CDCR filed a resentencing request on January 1,
2022, to a hearing on the request, a reasoned decision on the record, appointment of
counsel, and—perhaps most meaningfully—a rebuttable presumption in favor of recall
and resentencing.
Defendant asks that the trial court’s order declining to exercise its discretion be
vacated and the matter be remanded to the trial court to reconsider the matter in light of
the changes effected by Assembly Bill 1540. The People agree that we should remand
for the trial court to reconsider in light of Assembly Bill 1540, but argue that Assembly
Bill 1540 is not retroactive pursuant to In re Estrada (1965) 63 Cal.2d 740. We vacate
the trial court’s order and remand for reconsideration of the Secretary of the CDCR’s
request in light of Assembly Bill 1540.
PROCEDURAL SUMMARY
On October 6, 1998, defendant was convicted of three counts of robbery in concert
of an inhabited dwelling (§§ 211, 212.5; counts 2, 3, & 5), two counts of attempted
robbery (§§ 211, 212.5, 664; counts 1 & 4), burglary (§ 459; count 6), conspiracy to
1 All further statutory references are to the Penal Code.
2.
commit robbery (§§ 182, 211, 212.5; count 7), active participation in a criminal street
gang (§ 186.22, subd. (a); count 8), and possession of a firearm by a felon (former
§ 12021; count 10).2 As to counts 1 through 4 and 6 through 8, the jury further found
that defendant personally used a firearm (§ 12022.5); as to count 5, the jury found that
defendant was armed with a firearm (§ 12022, subd. (a)); and as to counts 1 through 7,
and 10, the jury found that defendant committed the offenses for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)). As to counts 1 through 8, and 10, the trial court
found that defendant had suffered a prior “strike” conviction within the meaning of the
“Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) that also qualified as
a prior serious felony conviction (§ 667, subd. (a)).
After resentencing in 2015, defendant was sentenced to 45 years eight months in
prison as follows: on count 2, 18 years (the upper term doubled due to the prior strike
conviction) plus a four-year firearm enhancement and a five-year serious felony
conviction enhancement; on counts 1 and 4, two years (one-third the middle term doubled
due to the prior strike conviction) plus a 16-month firearm enhancement (one-third the
full enhancement), consecutive to the sentence on count 2; on count 3, four years
(one-third the middle term doubled due to the prior strike conviction) plus a 16-month
firearm enhancement (one-third the full enhancement), consecutive to the sentence on
count 2; count 5, four years (one-third the middle term doubled due to the prior strike
conviction), consecutive to the sentence on count 2; on count 8, 16 months (one-third the
middle term doubled due to the prior strike conviction) plus a 16-month firearm
enhancement (one-third the full enhancement), consecutive to the sentence on count 2.
The sentence on all remaining counts and enhancements was stayed.
2 Counts 9 and 10 both alleged possession of a firearm by a felon on the same date.
No verdict was returned on count 9.
3.
On February 18, 2021, the Secretary of the CDCR sent a letter to the trial court
recommending defendant’s sentence be recalled and he be resentenced pursuant to former
section 1170, subdivision (d)(1) “based upon his exceptional conduct while incarcerated.”
The People filed a response to the Secretary of the CDCR’s letter, opposing the relief
sought. Defendant filed a response in favor of relief.
On July 13, 2021, the trial court held a hearing at which it allowed the parties to
present argument in support of their positions. On July 22, 2021, the trial court ordered
the parties to submit supplemental sentencing briefs. The parties did so. On August 19,
2021, after supplemental briefing was submitted, the trial court declined to exercise its
discretion to recall defendant’s sentence.
On September 3, 2021, defendant filed a notice of appeal.
DISCUSSION3
The Third Appellate District, in People v. McMurray (2022) 76 Cal.App.5th 1035
(McMurray), recently succinctly summarized the amended statutory framework and
addressed the retroactivity issue now before us. We agree with its reasoning and
conclusions in full. It explained:
“Former section 1170(d)(1) authorized a trial court, at any time upon
the recommendation of the Secretary [of the CDCR], 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(d)(1). (§ 1170.03, subd. (a)(1).)
“Former section 1170(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.
(See People v. Loper (2015) 60 Cal.4th 1155, 1165, citing Dix v. Superior
Court (1991) 53 Cal.3d 442, 460.) The CDCR recommendation furnishes
3 Because defendant raises only legal issues, we omit any factual summary.
4.
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.’ (People v. Frazier (2020) 55 Cal.App.5th 858, 866
(Frazier).)
“In addition to moving the recall and resentencing provisions of
former section 1170(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).)
“The legislative history of these changes indicates that the bill was,
in part, intended to clarify the Legislature’s intent regarding former
section 1170(d)(1), which it had amended in 2018. Specifically, the
Legislature sought through Assembly Bill 1540 to ‘ensure due process and
equitable application in these types of resentencing cases’ and indicate that
trial courts should accept the CDCR’s resentencing recommendations.
(See, e.g., Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading
analysis of Assem. Bill No. 1540 (2021–2022 Reg. Sess.) as amended
Sept. 3, 2021, p. 3 [bill clarifies legislature’s intent to honor time, thought,
and effort law enforcement agencies put into referrals]; Sen. Com. on
Public Safety, Rep. on Assem. Bill No. 1540 (2021–2022 Reg. Sess.) as
amended June 22, 2021, pp. 2-3 [bill ‘makes clarifying changes,’ including
requiring notice to defendant, appointment of counsel, a hearing, a
statement of reasons for denying or granting recall and resentencing, and a
presumption favoring recall and resentencing]; Assem. Com. on Public
Safety, Analysis of Assem. Bill No. 1540 (2021–2022 Reg. Sess.) as
amended Apr. 22, 2021, Author’s Statement, p. 4 [‘The changes contained
in A[ssembly] B[ill] 1540 strengthen common [procedures] to address
equity and due process concerns in how courts should handle second look
sentencing requests’].)
“The legislative history further indicates that Assembly Bill 1540
was intended to clarify certain aspects of former section1170(d)(1) that the
appellate courts had incorrectly interpreted, including that, ‘when a
5.
sentence is recalled or reopened for any reason, in resentencing the
defendant trial courts must apply “any changes in law that reduce sentences
or provide for judicial discretion.” ’ (Sen. Com. on Public Safety, Rep. on
Assem. Bill No. 1540 (2021–2022 Reg. Sess.) as amended June 22, 2021,
p. 3 [noting that People v. Federico (2020) 50 Cal.App.5th 318, review
granted August 26, 2020, S263082, held to the contrary].) We note that
there are several published appellate decisions finding that former
section 1170(d)(1) did not require certain procedural safeguards that the
Legislature has now clarified are indeed required under section 1170.03.
(See, e.g., Frazier, supra, 55 Cal.App.5th at pp. 865–868 [finding no
requirement for the appointment of counsel under former
section 1170(d)(1)]; People v. McCallum (2020) 55 Cal.App.5th 202, 215–
216 [finding no requirement for a hearing before determining whether to
recall a defendant’s sentence].)
“In sum, the Legislature repeatedly indicated that Assembly Bill
1540 was intended to ‘make clarifying changes’ to former
section 1170(d)(1), including specifying the required procedure and
guidelines when the CDCR recommends recall and resentencing. (See,
e.g., Sen. Com. on Public Safety, Rep. on Assem. Bill No. 1540
(2021–2022 Reg. Sess.) as amended June 22, 2021, pp. 2–3.) These
changes were adopted in 2021, thereby promptly addressing appellate
decisions from 2020 that had interpreted the Legislature’s intent regarding
former section 1170(d)(1). 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.
(See Western Security Bank [v. Superior Court (1997)] 15 Cal.4th [232,]
253.)” (McMurray, supra, 76 Cal.App.5th at pp. 1040–1041.)
For that reason, the McMurray court noted it was not necessary for it to determine
whether Assembly Bill 1540 was retroactive pursuant to In re Estrada. (McMurray,
supra, 76 Cal.App.5th at p. 1042.) We agree with the McMurray court in all respects.
Here, especially because the trial court did not state its reasons for declining to
recall and resentence defendant, the appropriate remedy is to remand the matter to the
trial court for reconsideration.4
4 We note that the outcome we reach is also in the interest of efficiency and judicial
economy. The Secretary of the CDCR could reissue her letter in light of the changes in
6.
DISPOSITION
The trial court’s order declining to exercise its discretion to recall defendant’s
sentence and resentence him is vacated. The matter is remanded to the trial court for
further proceedings consistent with section 1170.03.
law brought about by Assembly Bill 1540 and the trial court would be obliged to restart
the process.
7.