People v. Randall CA2/3 ( 2022 )

Filed 9/15/22 P. v. Randall CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B317549
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. LA080403
v.
MICHAEL KEVIN RANDALL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael V. Jesic, Judge. Reversed and
remanded with instructions.
Olivia Meme, 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, Scott A. Taryle and Idan Ivri,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Michael Kevin Randall appeals from the trial court’s
order “elect[ing] to take no action on the recommendation”
of the Secretary of the California Department of Corrections
and Rehabilitation (CDCR) under former Penal Code section
1170, subdivision (d)(1) (section 1170(d)(1))1 to recall Randall’s
sentence and resentence him in light of the amendments to
sections 667, subdivision (a)(1) and 1385, effective January 1,
2019. The Attorney General agrees with Randall that we should
remand the matter for reconsideration in light of newly-enacted
section 1170.03.2 Accordingly, we reverse the order declining to
take action on the CDCR’s recommendation and remand the case
to the trial court for further proceedings.
BACKGROUND
In 2015, the People charged Randall with four counts of
first degree residential burglary, with an allegation that a person
was present during the crimes. The People alleged the victim
was 81 years old, and Randall had two prior strikes, in 1989
and 1996, also for burglary. Those two convictions qualified as
five-year serious felony priors under section 667, subdivision
(a)(1), as well.
According to the probation officer’s report, the victim
noticed food and money missing from his home. He installed
a surveillance camera in his garage. (The victim frequently left
the garage open when he was at home.) The surveillance footage
1 References to statutes are to the Penal Code.
2
Effective June 30, 2022, the Legislature passed Assembly
Bill No. 200 (2021-2022 Reg. Sess.) which, among other things,
renumbered section 1170.03 as section 1172.1, with no change
to the text. (Stats. 2022, ch. 58, § 9.) For convenience, we refer
to the former statute number throughout this opinion.
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revealed Randall had come into the victim’s home on “at least”
four different occasions and left with food or money or both.
On September 22, 2015, Randall entered an open plea
to the court based on the court’s indicated sentence. (The
prosecution’s offer had been 30 years. Randall was almost
53 years old at the time.) The court’s indicated sentence was
22 years, calculated as the upper term of six years, doubled
because of one of the strikes, plus two five-year priors.
Randall then pleaded no contest to each of the four counts
and admitted the “elder victim” enhancements as well as both
strike priors. On January 11, 2016, the court imposed the
indicated sentence on count 1. On counts 2, 3, and 4, the court
sentenced Randall to the midterm of four years, to be served
concurrently with count 1.
In February 2021 Randall filed a document entitled
“Motion, Declaration, Exhibits seeking to strike all previously
imposed sentence enhancements.” Randall cited “Penal Code
sections 667, (A) PC,” “1170(d)1,” and a number of other sections
of the Penal Code. Randall also cited the “special directive”
issued by the new district attorney in Los Angeles. Randall
attached a number of items, including a July 2015 psychologist’s
report (prepared at the request of his trial court counsel),
a transcript showing courses he’d taken while in custody,
certificates of programs he’d attended, and a “laudatory chrono”
as well as other “chronos” from corrections officials. On
February 23, 2021, the trial court denied the motion.
On August 23, 2021, Randall filed a form pleading entitled
“Motion for Modification of Sentence, Pursuant to Senate Bill
No.’s 1393 & 1618.” The record on appeal doesn’t reflect a ruling
on that motion.
3
On October 19, 2021, Kathleen Allison, Secretary of the
CDCR, sent the trial court a letter “request[ing]” the court
“resentence” Randall under section 1170(d)(1). Allison stated,
“As of June 27, 2018, a court’s power to resentence under this
section expressly extends to judgments entered after a plea
agreement, if in the interest of justice.” Allison noted Randall’s
“earliest possible release date” was November 7, 2029.3
Allison stated that, while courts “were previously barred
from striking” serious felony priors, “effective January 1, 2019,
courts are now authorized to exercise their discretion to strike”
those priors under section 667, subdivision (a)(1), “or to strike the
punishment for the enhancement” under section 1385. Allison
wrote, “In light of the court’s newfound authority . . . , and after
personally reviewing inmate Randall’s commitment offense and
in-prison conduct, I recommend that inmate Randall’s sentence
be recalled and that he be resentenced in accordance with PC
section 1170, subdivision (d)(1).”
Allison attached a Cumulative Case Summary and
Evaluation Report discussing the facts of Randall’s crimes,
his criminal and parole history, his conduct while in prison,
and the courses he’d completed and certificates he’d received.
Allison noted Randall had received visits from relatives and
he has a daughter in Costa Mesa.
On November 3, 2021, the trial court sent Allison a letter.
The court stated, “This defendant was sentenced pursuant to
a case settlement, not a trial. The defendant was facing the
3 A report Allison enclosed stated Randall’s earliest possible
release date was October 11, 2031. The record doesn’t reflect
which is correct.
4
possibility of a life sentence. The matter has been considered
and the court elects to take no action on the recommendation.”
DISCUSSION
Randall contends the trial court abused its discretion
“because the court was unaware of the legal basis for its
authority to resentence [him] despite his conviction having been
obtained via a plea deal, and because the court failed altogether
to consider the circumstances relevant to [his] case, which
demonstrate his commitment to education and rehabilitation.”
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.’ ” (People v. McMurray
(2022) 76 Cal.App.5th 1035, 1040 (McMurray).) Assembly Bill
No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719, §§ 1-7)
(Assembly Bill 1540), which took effect January 1, 2022,
moved the recall-and-resentencing provisions of former
section 1170(d)(1) to a new section, 1170.03, and added
a number of requirements to the process. (Stats. 2021, ch. 719,
§ 3.1; McMurray, at pp. 1038, 1040.) Among them are notice
and appointment of counsel. (§ 1170.03, subd. (b)(1).) The new
provision also requires a court to hold a hearing before denying
resentencing. (Id., subd. (a)(8).) In addition, it requires the court
to state its reasons on the record for granting or denying relief.
(Id., subd. (a)(6).)
The new statute also provides, “There shall be a
presumption favoring recall and resentencing of the defendant,
which may only be overcome if a court finds the defendant is
5
an unreasonable risk of danger to public safety, as defined in
subdivision (c) of [s]ection 1170.18.” (§ 1170.03, subd. (b)(2).)
Section 1170.18, subdivision (c) defines “ ‘unreasonable risk
of danger to public safety’ ” as “an unreasonable risk that the
petitioner will commit a new violent felony within the meaning of
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e)
of [s]ection 667,” a so-called superstrike. (§ 1170.18, subd. (c).)4
In light of these legislative changes, the parties agree
we should reverse the trial court’s order and remand the case.5
We accept the parties’ agreement and do so.
4 Those felonies include sexually violent offenses, certain sex
crimes against children, certain homicide offenses, solicitation
to commit murder, assault with a machine gun on a peace officer
or firefighter, possession of a weapon of mass destruction, and
any serious or violent offense punishable in California by life
imprisonment or death. (§ 667, subd. (e)(2)(C)(iv).)
5 The Attorney General contends “[t]he new procedures
specified in section 1170.03 do not, as a formal matter, apply
retroactively to rulings (such as the one in this case) that
were made before January 1, 2022.” In re Estrada (1965) 63
Cal.2d 740, the Attorney General says, applies only to nonfinal
judgments. Section 1170.03, by contrast, “is itself a procedural
mechanism to permit resentencing on a final judgment.”
Nevertheless, the Attorney General continues, judicial economy
would be served by “applying the section 1170.03 procedures
in this case,” because, for example, the CDCR could “simply
reinitiate[ ] its recall recommendation under the new law.”
(See also McMurray, supra, 76 Cal.App.5th at pp. 1041-1042
[“appropriate remedy is to reverse and remand the matter”
so trial court can consider the CDCR’s recommendation
“under the new and clarified procedure and guidelines of
section 1170.03”; accordingly, appellate court “need not address
whether [it] also must reverse and remand” under Estrada].)
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DISPOSITION
We reverse the trial court’s order “elect[ing] to take
no action on the [CDCR’s] recommendation.” We remand the
matter for the court to appoint counsel for Michael Kevin Randall
and to conduct proceedings in accordance with newly-enacted
Penal Code section 1170.03, exercising its discretion in light
of the presumption the Legislature has added to the governing
statute.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
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