People v. Cross CA3 ( 2023 )

Filed 1/25/23 P. v. Cross 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C095674
Plaintiff and Respondent, (Super. Ct. No. 04F08966)
v.
JAMES CROSS,
Defendant and Appellant.
Defendant James Cross appeals the trial court’s denial of the California
Department of Corrections and Rehabilitation’s (Department) recommendation to
consider recalling his sentence and resentencing him. Agreeing with the parties that
recent statutory changes warrant reconsideration, we reverse and remand.
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BACKGROUND1
I
Sentencing and Direct Appeal
In 2004, defendant and a coconspirator supplied a confidential informant with
multiple firearms in a plan to kill another individual. Before the plan could be executed,
the informant turned the firearms over to law enforcement and search warrants were
served. (People v. Cross, supra, C059882.) In 2008, after a jury found defendant guilty
of multiple counts including conspiracy to commit murder (Pen. Code, §§ 182, subd.
(a)(1), 187)2 and found true a firearm enhancement (§ 12022, subd. (a)(2)), the trial court
sentenced defendant to an aggregate indeterminate term of 25 years to life, plus a three-
year determinate term in prison.
II
Department’s Recommendation
On January 21, 2020, the Department filed a letter under former section 1170,
subdivision (d)(1), recommending the trial court recall defendant’s sentence. The
Department summarized defendant’s rehabilitative history and noted defendant exhibited
exceptional conduct, participated in programming, and received laudatory
recommendations from employers and staff. In a February 25, 2020 letter addressed to
the Board of Parole Hearings, the trial court denied the Department’s recommendation
because it found defendant presented a danger to public safety based on statements he
made to a clinician in 2014. The trial court did not set a hearing, appoint counsel, or
provide notice to defendant of the Department’s recommendation. On June 12, 2020, the
1 The facts are taken from our opinion in defendant’s direct appeal. (People v. Cross
(Mar. 8, 2010, C059882) [nonpub. opn.].) We previously granted the People’s request to
incorporate by reference the record from the direct appeal.
2 Undesignated statutory references are to the Penal Code.
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trial court issued an ex parte minute order declining to exercise its discretion to recall
defendant’s sentence.
DISCUSSION
Defendant contends that due to the clarifying provisions made effective through
Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719, § 3.1) (Assembly
Bill 1540), he is entitled to reconsideration of the Department’s recommendation to recall
and resentence him. The People dispute whether Assembly Bill 1540 applies
retroactively, but concede “judicial efficiency counsel[s] in favor of simply applying the
new statutory terms.” Thus, the parties agree this matter should be remanded for
reconsideration of the Department’s recommendation. We agree with the parties.
Defendant further argues that given due process protections, the trial court abused
its discretion in declining to recall defendant’s sentence without providing formal notice
or an opportunity to present briefing. At the time of the Department’s recommendation,
former section 1170, subdivision (d)(1) permitted a trial court, at any time upon the
recommendation of the Department, to “recall the sentence and commitment previously
ordered and resentence the defendant” provided the new sentence is no greater than the
initial sentence. (Former § 1170, subd. (d)(1).)
While this appeal was pending, Assembly Bill 1540, effective January 1, 2022,
made several “ ‘clarifying changes’ ” to the standards and factors a trial court must
employ when considering the Department’s recommendation. (People v. McMurray
(2022) 76 Cal.App.5th 1035, 1041 (McMurray); see Stats. 2021, ch. 719, § 3.1.)3 As
relevant here, where the Department makes the recommendation, the court shall provide
3 Assembly Bill 1540 also moved the recall and resentencing provisions of former
section 1170, subdivision (d)(1) to new section 1170.03. (Stats. 2021, ch. 719, § 3.1.)
Effective June 30, 2022, section 1170.03 was renumbered section 1172.1, with no change
in text. (Stats. 2022, ch. 58, § 10.)
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notice to defendant, set a hearing within 30 days of the court’s receipt of the
Department’s request, and appoint counsel to represent defendant. (§ 1172.1, subd.
(b)(1).) Furthermore, the trial court must consider an added “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.” (§ 1172.1, subd. (b)(2),
added by Stats. 2021, ch. 719, § 3.1, subd. (b)(2).) “A statute that merely clarifies, rather
than changes, existing law is properly applied to transactions predating its enactment.”
(Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922.) Because
Assembly Bill 1540 was passed in part to clarify legislative intent, it is properly
considered in interpreting former section 1170, subdivision (d). (Carter, at p. 922.)
Therefore, because the trial court’s denial of the Department’s recommendation predated
enactment of Assembly Bill 1540, the clarification of the law applies here.
Defendant is entitled to have the court apply the new procedures of Assembly
Bill 1540, including notice, a hearing, and a statement of reasons on the record. He is
also entitled to have the court apply the presumption favoring recall. (§ 1172.1, subd.
(b)(2).) Lastly, the court must consider whether the presumption favoring recall has been
overcome by a finding of unreasonable risk of danger to public safety as defined in the
statute; that is, that defendant will commit a new violent felony within the meaning of
section 667, subdivision (e)(2)(C)(iv). (§ 1172.1, subd. (b)(2); see People v. Valencia
(2017) 3 Cal.5th 347, 351.) Accordingly, the proper remedy is to reverse and remand the
matter for the trial court to consider the Department’s recommendation under the new
standards. (McMurray, supra, 76 Cal.App.5th at p. 1041.)
Given our conclusion, we need not address defendant’s further claims.
Additionally, we need not resolve the question of retroactivity. (McMurray, supra,
76 Cal.App.5th at p. 1042.)
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DISPOSITION
The trial court’s order declining to recall and resentence defendant is reversed.
The matter is remanded for reconsideration of the Department’s recommendation to
recall and resentence defendant in accordance with section 1172.1 as added by Assembly
Bill 1540.
/s/
BOULWARE EURIE, J.
We concur:
/s/
DUARTE, Acting P. J.
/s/
RENNER, J.
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