People v. Bernal CA2/2 ( 2023 )

Filed 5/12/23 P. v. Bernal CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B318591
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA075499)
v.
RICHARD BERNAL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. William C. Ryan, Judge. Reversed and
remanded with directions.
R. Chris Lim, 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, Senior
Assistant Attorney General, Scott A. Taryle and Stefanie Yee,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Richard Bernal appeals the denial of a recommendation by
the Secretary of the California Department of Corrections and
Rehabilitation (CDCR) to recall his sentence under Penal Code1
section 1172.1.2 The People concede that “the case should be
remanded for reconsideration in light of recent clarifications to
the recall-and-resentencing statute.” We accept the People’s
concession and remand the matter to the superior court for a new
determination on the CDCR’s recommendation in accordance
with the procedural requisites, considerations, and presumptions
specified in section 1172.1.
PROCEDURAL BACKGROUND3
In 2006, appellant pleaded guilty to one count of assault
with a semiautomatic firearm (§ 245, subd. (b)) and admitted the
personal use of a firearm allegation (§ 12022.5, subd. (a)).
Appellant also admitted a 1993 prior strike conviction for first
degree burglary. (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d).)
In accordance with the plea, appellant was sentenced to nine
years in state prison, doubled to 18 years for the prior strike
conviction, plus three years for the firearm enhancement, for an
aggregate term of 21 years in state prison.
1 Undesignated statutory references are to the Penal Code.
2 Effective January 1, 2022, Assembly Bill No. 1540
amended and moved the recall and resentencing provisions of
section 1170, subdivision (d)(1) to new section 1170.03. (Stats.
2021, ch. 719, § 3.) Subsequently, Assembly Bill No. 200
renumbered section 1170.03 as section 1172.1 with no
substantive changes. (See Stats. 2022, ch. 58, § 9.)
3 Because this appeal raises no issues concerning the facts
of the underlying offenses, we omit a statement of facts. (See
People v. White (1997) 55 Cal.App.4th 914, 916, fn. 2.)
2
In a letter to the superior court dated January 27, 2021, the
CDCR recommended that the court recall appellant’s sentence
and resentence him pursuant to former section 1170, subdivision
(d)(1). On February 8, 2021, the court requested a response to
the CDCR’s recommendation from the Los Angeles County
District Attorney’s Office, but did not appoint counsel for
appellant. On March 22, 2021, “[a]fter review of the court file,
the [superior] court decline[d] to exercise its discretion to
resentence this defendant.” No parties were present, and the
court stated no reason(s) for its decision.
On October 12, 2021, appellant sought leave to present
relevant information in support of the CDCR’s recall and
resentencing recommendation and requested that the superior
court state its reasons for declining to exercise its discretion to
resentence appellant.4 On November 1, 2021, the superior court
denied appellant’s motion on the ground that it had lost
resentencing jurisdiction when it declined to recall and
resentence appellant in March 2021.
After we granted relief from default for a late notice of
appeal from the superior court’s order of March 22, 2021, this
appeal followed.
4 In the declaration of counsel in support of the request,
Deputy Public Defender Huey stated the superior court had
appointed the Office of the Los Angeles County Public Defender
to represent appellant. However, the record does not indicate
when the superior court appointed counsel in these proceedings.
The court’s minute order denying appellant’s request reflects that
“defendant [was] not present in court, and not represented by
counsel.”
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DISCUSSION
1. Relevant law
Prior to January 1, 2022, “[f]ormer section
1170[, subdivision] (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).) When the
Legislature enacted Assembly Bill No. 1540 and moved the recall
and resentencing provisions from section 1170, subdivision (d)(1)
to section 1170.03, it retained the recall and resentencing
language and added guidelines and procedures to be followed
when the Secretary of the CDCR or other specified public official
recommends recall and resentencing. (McMurray, at pp. 1040–
1041.) Assembly Bill No. 200, which took effect June 30, 2022,
renumbered section 1170.03 as section 1172.1, but made no
substantive changes to the recall and resentencing provisions.
(People v. Salgado (2022) 82 Cal.App.5th 376, 378, fn. 2
(Salgado); see Stats. 2022, ch. 58, § 9.)
Assembly Bill No. 1540 added several requirements to the
superior court’s consideration of a recall and resentencing
recommendation, including:
(1) In recalling and resentencing under section 1172.1,
subdivision (a)(1), the court “shall apply the sentencing rules of
the Judicial Council and apply any changes in law that reduce
sentences or provide for judicial discretion so as to eliminate
disparity of sentences and to promote uniformity of sentencing.”
(§ 1172.1, subd. (a)(2).)
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(2) “[T]he court may consider postconviction factors,
including, but not limited to, the disciplinary record and record of
rehabilitation of the defendant while incarcerated, evidence that
reflects whether age, time served, and diminished physical
condition, if any, have reduced the defendant’s risk for future
violence, and evidence that reflects that circumstances have
changed since the original sentencing so that continued
incarceration is no longer in the interest of justice.” (§ 1172.1,
subd. (a)(4).)
(3) The superior court may not deny resentencing without a
hearing at which the defendant may appear remotely or in person
(§ 1172.1, subd. (a)(8)), and “[t]he court shall state on the record
the reasons for its decision to grant or deny recall and
resentencing.” (Id., subd. (a)(6).)
In addition, where the resentencing recommendation comes
from the Secretary of the CDCR, section 1172.1, subdivision (b)(1)
requires the superior court to provide notice and set a status
conference on the CDCR’s recommendation within 30 days of
receipt of the request and appoint counsel for the defendant.
Finally, subdivision (b)(2) calls for “a 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, as defined in subdivision (c) of Section 1170.18.”
We review a superior court’s denial of recall and
resentencing for abuse of discretion. (People v. Mendez (2021) 69
Cal.App.5th 347, 353; People v. E.M. (2022) 85 Cal.App.5th 1075,
1082 (E.M.).)
2. Retroactivity
The superior court denied recall in this case prior to the
effective date of former section 1170.03 (renumbered as section
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1172.1), which raises the question of whether section 1172.1’s
procedures and guidelines apply here at all. Confronted with the
same question, several courts have determined that because the
changes made by Assembly Bill No. 1540 were intended as
clarifications of existing law, remand is appropriate for the
superior court’s reconsideration of the CDCR’s recommendation
in light of section 1172.1. (McMurray, supra, 76 Cal.App.5th at
p. 1041; E.M., supra, 85 Cal.App.5th at pp. 1089–1090; Salgado,
supra, 82 Cal.App.5th at p. 381.)
The legislative history of Assembly Bill No. 1540 clearly
demonstrates that the bill “was intended to ‘make clarifying
changes’ to former section 1170[, subdivision] (d)(1), including
specifying the required procedure and guidelines when the CDCR
recommends recall and resentencing.” (McMurray, supra, 76
Cal.App.5th at p. 1041; 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 the significant time,
thought, and effort that 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 [Assembly]
Bill No.] 1540 strengthen common [procedures] to address equity
6
and due process concerns in how courts should handle second
look sentencing requests”].)
As the court in McMurray reasoned, where an amendment
that effectively construes and clarifies a prior statute is adopted
soon after controversies over the proper interpretation of the
statute have arisen, it is logical to consider the amendment as a
legislative interpretation of the original law. (McMurray, supra,
76 Cal.App.5th at p. 1039.) Thus, “[w]hen a case involving such a
clarifying amendment is on appeal, the appropriate resolution is
to reverse and remand the matter for further proceedings in
compliance with the amended legislation.” (Ibid.; accord, E.M.,
supra, 85 Cal.App.5th at pp. 1089–1090.)
3. Remand is necessary for reconsideration of the CDCR
recommendation in compliance with section 1172.1
It appears on the record of this case that the proceedings
below failed to comport with the procedural requirements of
section 1172.1. Specifically, the superior court did not provide
notice or appoint counsel for appellant, it did not give the parties
an opportunity to address the basis for the court’s intended
denial, it did not state any reasons for its decision to deny recall
and resentencing, and it failed to make any finding that
appellant presents a current unreasonable risk of danger to
public safety in order to overcome the presumption favoring recall
and resentencing, as required by section 1172.1.
As the parties agree, under these circumstances, remand to
the superior court is appropriate for further proceedings in accord
with the statutory framework for addressing a recommendation
by the Secretary of the CDCR for recall and resentencing.
DISPOSITION
The order denying the California Department of
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Corrections and Rehabilitation Secretary’s recommendation to
recall appellant’s 2006 sentence and to resentence him is
reversed. The matter is remanded to the superior court for
reconsideration of the recommendation in light of Penal Code
section 1172.1.
NOT TO BE PUBLISHED.
KWAN, J.*
We concur:
ASHMANN-GERST, Acting P. J.
HOFFSTADT, J.
*Judge of the Superior Court of Los Angeles County
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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