People v. Arnold CA2/1

Filed 12/29/21 P. v. Arnold CA2/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B305073
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA077104)
v.
JASON NICHOLAS ARNOLD,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Suzette Clover, Judge. Remanded with
directions.
Jennifer Hansen, 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, and Michael R. Johnsen, Deputy Attorney
General, for Plaintiff and Respondent.
_______________________
Defendant and appellant Jason Nicholas Arnold is
currently serving a sentence of more than 22 years for two counts
of armed robbery, and two five-year prior conviction
enhancements imposed under section 667, subdivision (a)(1). On
July 2, 2019, the secretary of the Department of Corrections and
Rehabilitation (CDCR) sent a letter to the trial court
recommending that the court recall Arnold’s sentence under
Penal Code section 1170, subdivision (d),1 and resentence him in
light of recent amendments to the law giving trial courts the
discretion to strike certain sentence enhancements that had
previously been mandatory, including those imposed under
section 667, subdivision (a)(1). The trial court denied his request,
and we affirmed its order in an unpublished opinion. (People v.
Arnold (Apr. 28, 2021, B305073) [2021 WL 1661337] (Arnold I).)
The Supreme Court granted Arnold’s petition for review
and on October 27, 2021, transferred the instant case to this
court with directions to vacate Arnold I and reconsider the cause
in light of Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats.
2021, ch. 719). We do not reach the merits, and in agreement
with the parties, instead remand the case for reconsideration in
light of recently enacted Assembly Bill No. 1540, which changes
the standards and procedures for considering recommendations
to resentence defendants under section 1170, subdivision (d).
FACTUAL AND PROCEDURAL SUMMARY
In August 2012, Arnold pled guilty to second degree
robbery (§ 211) and attempted carjacking (§§ 215, subd. (a), 664).
He further admitted that he suffered two prior serious felony
1 Subsequent statutory references are to the Penal Code.
2
convictions. (§ 667, subd. (a)(1).) The trial court sentenced him
to a total term of 22 years eight months in state prison. The term
included two five-year prior conviction enhancements under
section 667, subdivision (a)(1).
On July 2, 2019, CDCR recommended that the trial court
recall Arnold’s sentence pursuant to section 1170, subdivision (d),
and resentence Arnold in light of Senate Bill No. 1393.2
On July 29, 2019, the trial court denied the request,
making the following findings in the accompanying minute order:
“The court takes no action on the request of the Department of
Corrections dated July 2, 2019, for the court to exercise its
discretion as to the [five]-year state prison enhancement.
[Arnold’s] case was final when the new law went into effect. The
new law does not apply to cases that are final.”
We affirmed the trial court’s order in Arnold I, concluding
that the ameliorative provisions of Senate Bill No. 1393 do not
apply retroactively to final judgments, such as Arnold’s. The
2 Prior to the enactment of Senate Bill No. 1393, trial
courts had no authority to strike enhancements under section
667, subdivision (a)(1). (People v. Alexander (2020) 45
Cal.App.5th 341, 344).) Senate Bill No. 1393, which became
effective January 1, 2019, removed the prohibition on striking
such enhancements by deleting the following provision of former
section 1385, subdivision (b), which stated: “This section does not
authorize a judge to strike any prior conviction of a serious felony
for purposes of enhancement of a sentence under Section 667.”
(Sen. Bill No. 1393 (2017-2018 Reg. Sess.), ch. 1013, § 2.) Section
1385, subdivision (b)(1), now provides that “[i]f the court has the
authority . . . to strike or dismiss an enhancement, the court may
instead strike the additional punishment for that enhancement
in the furtherance of justice . . . .”
3
Supreme Court granted Arnold’s petition for review, and on
October 27, 2021, transferred the instant case to this court with
directions to vacate Arnold I and reconsider the cause in light of
recently-enacted Assembly Bill No. 1540.
DISCUSSION
Arnold argues the trial court mistakenly concluded the
finality of his judgment was a bar to providing the requested
relief.
Section 1170, subdivision (d)(1), as currently constituted,
creates a mechanism for recalling a defendant’s sentence and
resentencing him at any time upon the recommendation of the
secretary of the CDCR or certain other officials. If the court
elects to follow the CDCR’s recommendation, it must “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.” (Ibid.) “[U]nder the recall provisions
of section 1170, subdivision (d), the resentencing court has
jurisdiction to modify every aspect of the sentence, and not just
the portion subjected to the recall.” (People v. Buycks (2018) 5
Cal.5th 857, 893.) It “may . . . impose any otherwise lawful
resentence suggested by the facts available at the time of
resentencing.” (Dix v. Superior Court (1991) 53 Cal.3d 442, 456.)
The statute does not establish any procedural requirements the
court must follow in addressing a recommendation from the
CDCR; indeed, it “apparently does not require the court to
respond to the recommendation.” (Id. at p. 459, fn. omitted.)
Assembly Bill No. 1540 amends this law, moving the
resentencing provisions currently codified at section 1170,
subdivision (d)(1), to a newly created section 1170.03 (Stats.
4
2021, ch. 719, § 3).3 Assembly Bill No. 1540 also changes the law
in several respects. Section 1170.03 preserves the procedure by
which the secretary of the CDCR and certain other officials may
recommend recalling a defendant’s sentence. Under the new
statute, however, when an official submits a resentencing
recommendation, the court must “provide notice to the defendant
and set a status conference within 30 days after the date that the
court received the request. The court’s order setting the
conference shall also appoint counsel to represent the defendant.”
(§ 1170.03, subd. (b)(1).) Before the court can deny a defendant
resentencing, it must provide “a hearing where the parties have
an opportunity to address the basis for the intended denial or
rejection.” (§ 1170.03, subd. (a)(8).) The court must also “state on
the record the reasons for its decision to grant or deny recall and
resentencing.” (§ 1170.03, subd. (a)(6).)
Under the new law, the court gains the authority to
“[v]acate the defendant’s conviction and impose judgment on any
necessarily included lesser offense or lesser related offense,
whether or not that offense was charged in the original pleading,
and then resentence the defendant to a reduced term of
imprisonment,” subject to the concurrence of the defendant and
the local district attorney. (§ 1170.03, subd. (a)(3)(B).) Finally,
the law creates “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.”
(§ 1170.03, subd. (b)(2).)
3
All citations to section 1170.03 are to the law as effective
January 1, 2022.
5
The trial court denied Arnold’s petition before Assembly
Bill No. 1540 was enacted, and in doing so, it did not have reason
to apply the requirements of the new law. It neither appointed
counsel to represent Arnold nor held a hearing, and it did not
apply a presumption in favor of recalling and resentencing him.
We agree with the Attorney General that it is in the
interest of judicial economy to remand the case for
reconsideration of the CDCR recommendation under section
1170.03. The CDCR has already decided that Arnold is a worthy
candidate for recall and resentencing. It would be a waste of
resources to decide this case under the existing law, potentially
leading the CDCR to file a new recommendation to recall Arnold’s
sentence under the new standards of section 1170.03.
DISPOSITION
The case is remanded to the trial court with instructions to
vacate its order denying resentencing and to commence new
proceedings under section 1170.03 after January 1, 2022.
NOT TO BE PUBLISHED
CRANDALL, J.*
We concur:
ROTHSCHILD, P. J. BENDIX, J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
6