People v. Elshire CA4/1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
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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
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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.
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