People v. Elshire CA4/1 ( 2022 )


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  • Filed 2/7/22 P. v. Elshire CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    THE PEOPLE,                                                          D077968
    Plaintiff and Respondent,
    v.                                                         (Super. Ct. No. SCD248774)
    LAURA JOYCE ELSHIRE,
    Defendant and Appellant.
    APPEAL from an order of the Superior Court of San Diego County,
    Eugenia A. Eyherabide, Judge. Reversed and remanded for further
    proceedings.
    Christopher A. Nalls, under appointment by the Court of Appeal, for
    Defendant and Appellant.
    Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
    Attorney General, Julie L. Garland, Assistant Attorney General, Robin H.
    Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff
    and Respondent.
    I.
    INTRODUCTION
    Defendant Laura Elshire appeals the trial court’s denial of her motion
    for recall of sentence and resentencing that she filed after the Secretary of
    the California Department of Corrections and Rehabilitation sent a letter to
    the court recommending that Elshire’s sentence be recalled and that she be
    resentenced. (See former Pen. Code,1 § 1170, subd. (d)(1).)
    In her opening brief on appeal, Elshire contended that the trial court
    failed to properly exercise its discretion when it denied her request to recall
    her sentence and that due process required that the court provide her an
    opportunity to be heard on that request. After briefing on appeal was
    completed, the Legislature passed, and the Governor signed into law,
    Assembly Bill Number 1540, which significantly alters the recall and
    resentencing provisions formerly set forth in section 1170, subdivision (d).
    The new provisions, which became effective January 1, 2022, weigh heavily
    in favor of recalling and resentencing defendants. (See Stats. 2021, ch. 719,
    §§ 1–7.)
    After the Governor signed Assembly Bill Number 1540, Elshire filed a
    supplemental brief requesting reversal and remand in light of the new
    legislation. The People responded, agreeing that the best course of action in
    light of the recent changes in the law would be for this court to reverse the
    trial court’s order and remand the matter to the trial court to allow that
    court to reconsider Elshire’s motion for recall and resentencing, applying
    the new recall and resentencing provisions. We agree with the parties that
    reversal and remand is appropriate.
    1     Further statutory references are to the Penal Code unless otherwise
    indicated.
    2
    II.
    BACKGROUND
    Elshire was charged with robbery (§ 211) based on her participation,
    with two other individuals, in the robbery of a Wells Fargo Bank in La Jolla. 2
    Elshire was also charged with possession of a deadly weapon while in a penal
    institution (§ 4502, subd. (a)) after a Ziploc bag containing two razor blades
    was found on her person while she was in custody at the Las Colinas
    Detention Facility.3
    Elshire pled guilty to both counts and admitted all prior allegations.
    At sentencing, the trial court struck one of the strike priors and found
    that both of the prior serious felony convictions stemmed from the same
    conduct, such that only a single five-year enhancement was appropriate. The
    court sentenced Elshire to a determinate term of 19 years in prison,
    comprised of a term of 10 years for the robbery conviction, a consecutive
    2 years for the weapon possession conviction, a consecutive 5 years for one of
    the prior serious felony allegations, and a consecutive 2 years for the two
    prison prior allegations.
    On September 12, 2019, the Secretary of the California Department of
    Corrections and Rehabilitation (CDCR) sent a letter to Judge Leo Valentine,
    Jr., stating that the “purpose” of the letter was “to provide the court with
    authority to resentence . . . Elshire pursuant to Penal Code section 1170,
    subdivision (d).” The Secretary’s letter stated:
    2    Because the underlying facts of Elshire’s case are not relevant to this
    appeal, we provide only a brief summary.
    3     The amended complaint also alleged that Elshire had two prison priors
    (§ 667.5, subd. (b)), two serious felony priors (§ 667, subd. (a)), and two strike
    priors (§§ 667, subds. (b)–(i), 1170.12).
    3
    “In light of the court’s newfound authority to not impose a
    consecutive enhancement pursuant to section 667,
    subdivision (a)(1) (authority which did not exist at the time
    of Elshire’s sentencing) I recommend that inmate Elshire’s
    sentence be recalled and that she be resentenced in
    accordance with section 1170, subdivision (d).”
    The letter was accompanied by documentation, which included
    Elshire’s programming history and a Rules Violation Report showing only
    two minor rule violations during her time in custody.
    On October 1, 2019, Judge Michael T. Smyth filed a letter in Elshire’s
    case stating, “The Court has read, reviewed and considered correspondence
    from the Department of Corrections and Rehabilitation. The Court will not
    take any action on this matter.”
    On June 26, 2020, Elshire filed a formal motion, seeking recall of her
    sentence and resentencing under section 1170, subdivision (d)(1); specifically,
    Elshire requested that the court strike the 5-year enhancement under section
    667, subdivision (a)(1), and the two enhancements under former section
    667.5, subdivision (b). Elshire argued that she had demonstrated a
    “diminished risk for future violence” through her “minimal disciplinary
    record, record of rehabilitation during her term of imprisonment, and amount
    of time already served.” The trial court denied Elshire’s motion that same
    day.
    On October 13, 2020, Elshire filed a notice of appeal.4 In briefing on
    appeal, Elshire argued that the trial court abused its discretion by refusing to
    recall Elshire’s sentence despite the Secretary’s recommendation.
    While Elshire’s appeal from the trial court’s denial of her motion was
    pending, and after full briefing was completed, the Governor signed Assembly
    4    On October 9, we granted Elshire’s application to file a late notice of
    appeal.
    4
    Bill Number 1540, effective January 1, 2022, which substantially alters the
    recall and resentencing process and moves the resentencing and recall
    provisions of section 1170, subdivision (d)(1) to new section 1170.03 (Stats.
    2021, ch. 719, §§ 1–7).
    Elshire sought leave to file a supplemental brief addressing these
    changes to the recall and resentencing process, arguing that because her
    appeal would not be final when these new provisions became effective, the
    new provisions should apply to her request for recall and resentencing. We
    granted Elshire’s request and permitted the People to file a supplemental
    response, which they have done.
    III.
    DISCUSSION
    The parties both concede that Assembly Bill Number 1540
    substantially alters the recall and resentencing process. The statute in effect
    at the time Elshire filed her motion and the trial court’s ruling provided as
    follows:
    “When a defendant subject to this section or subdivision (b)
    of Section 1168 has been sentenced to be imprisoned in the
    state prison or a county jail pursuant to subdivision (h) and
    has been committed to the custody of the secretary or the
    county correctional administrator, the court may, within
    120 days of the date of commitment on its own motion, or at
    any time upon the recommendation of the secretary or the
    Board of Parole Hearings in the case of state prison
    inmates, the county correctional administrator in the case
    of county jail inmates, or the district attorney of the county
    in which the defendant was sentenced, 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. The court resentencing
    under this subdivision shall apply the sentencing rules of
    the Judicial Council so as to eliminate disparity of
    5
    sentences and to promote uniformity of sentencing. The
    court resentencing under this paragraph may reduce a
    defendant’s term of imprisonment and modify the
    judgment, including a judgment entered after a plea
    agreement, if it is in the interest of justice. The court may
    consider postconviction factors, including, but not limited
    to, the inmate’s disciplinary record and record of
    rehabilitation while incarcerated, evidence that reflects
    whether age, time served, and diminished physical
    condition, if any, have reduced the inmate’s risk for future
    violence, and evidence that reflects that circumstances
    have changed since the inmate’s original sentencing so that
    the inmate’s continued incarceration is no longer in the
    interest of justice. Credit shall be given for time served.”
    (Former § 1170, subd. (d)(1).)
    As of January 1, 2022, however, the recall and resentencing provisions
    that were previously in section 1170, subdivision (d)(1) were significantly
    revised and moved to a new section, section 1170.03. (See Stats. 2021,
    ch. 719, §§ 1–7.) Under the new provisions, a court must “apply any changes
    in law that reduce sentences or provide for judicial discretion” when
    resentencing under the recall statute. (§ 1170.03, subd. (a)(2).) The revised
    statutory provisions also require that a court hold a hearing if it intends to
    deny resentencing or reject a stipulation by the parties, and the court must
    state its reasons on the record for granting or denying recall. (Id., subd.
    (a)(6), (8).) Further, where, as here, the Secretary of CDCR has
    recommended recall of the defendant’s sentence and resentencing, the new
    provisions require notice to the defendant and the appointment of counsel,
    and further require that the trial court apply a presumption in favor of recall
    that can be overcome only by a finding that the inmate poses an
    unreasonable risk to public safety. (Id., subd. (b)(2).)
    Assembly Bill Number 1540 substantially altered the recall and
    resentencing process. The People concede that, for reasons of judicial
    6
    efficiency, remanding the matter to the trial court to permit that court to
    reconsider Elshire’s request for recall and resentencing under the provisions
    of the amended statute would be the most prudent course of action. As noted,
    the Secretary of CDCR has already made a recommendation for recall of
    Elshire’s sentence in this case; in addition, this appeal will not be decided
    before the amended statute becomes effective, and even if this matter were to
    become final, the Secretary could, and likely would, initiate a new
    recommendation for recall and resentencing under the amended version of
    the statute. We agree that remand is appropriate under these circumstances.
    We therefore reverse the trial court’s order and remand the matter to the
    trial court to permit the court to reconsider Elshire’s request for recall of her
    sentence and resentencing under the new recall and resentencing provisions
    provided for in section 1170.03.
    IV.
    DISPOSITION
    The trial court’s order denying Elshire’s motion for recall and
    resentencing under prior section 1170, subdivision (d)(1) is reversed. The
    matter is remanded for the court to reconsider Elshire’s motion for recall and
    resentencing pursuant to the provisions of section 1170.03.
    AARON, J.
    WE CONCUR:
    HALLER, Acting P. J.
    DATO, J.
    7
    

Document Info

Docket Number: D077968

Filed Date: 2/7/2022

Precedential Status: Non-Precedential

Modified Date: 2/7/2022