People v. Shorter CA2/2

Filed 8/1/23 P. v. Shorter 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B320016
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA054743)
v.
ANTHONY SHORTER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Hector M. Guzman, Judge. Reversed and
remanded with directions.
Carol J. Ojo, 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, Wyatt E. Bloomfield and William H. Shin,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Defendant and appellant Anthony Shorter challenges the
trial court’s order summarily denying the recommendation of the
California Department of Corrections and Rehabilitation (CDCR)
to recall his sentence. The People concede that the trial court
erred and that the matter must be remanded for a new hearing
pursuant to Penal Code section 1172.1.1
We agree with the parties and accordingly reverse and
remand the trial court’s order with directions to appoint counsel
for defendant and hold a noticed hearing.
PROCEDURAL BACKGROUND
Original conviction and first appeal
In 2003, defendant was convicted of three counts of first
degree burglary, three counts of receiving stolen property, and
one count of theft. Three prior serious felony allegations and
“strike” allegations were also found true. Defendant’s total
sentence was 90 years to life. Defendant appealed the judgment,
and we affirmed. (People v. Shorter (July 7, 2005, B174700)
[nonpub. opn.].)
First petition for recall and resentencing; appeal; remand
On February 27, 2015, defendant filed a petition for recall
and resentencing pursuant to section 1170.18, subdivisions (a)
and (f). The trial court granted his petition in part; his total
prison sentence remained 90 years to life. Defendant appealed,
and we affirmed the judgment. (People v. Shorter (Mar. 8, 2016,
B263972) [nonpub. opn.], at p. 2.)
Defendant filed a petition for review (S233177), which the
Supreme Court granted, and the matter was transferred back to
the Court of Appeal. On September 27, 2017, we remanded
defendant’s case to the trial court. (People v. Shorter (Aug. 25,
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
2020, B301955) [nonpub. opn.], at p. 2.) On February 26, 2018,
the trial court held a resentencing consideration hearing and
reduced defendant’s section 484e, subdivision (d), conviction to a
misdemeanor. (People v. Shorter, supra, B301955, at p. 2.)
Second petition for recall and resentencing and appeal
“‘On September 30, 2018, the Governor signed Senate Bill
1393 which, effective January 1, 2019, amend[ed] sections 667[,
subdivision] (a) and 1385[, subdivision] (b) to allow a court to
exercise its discretion to strike or dismiss a prior serious felony
conviction for sentencing purposes. [Citation.]’ (People v. Garcia
(2018) 28 Cal.App.5th 961, 971.) The newly amended statutes
prompted defendant to file a motion to strike or dismiss his prior
serous felony enhancements pursuant to sections 667,
subdivision (a)(1), and 1385.” (People v. Shorter, supra, B301955,
at p. 3.)
“The trial court summarily denied his motion on
September 19, 2019, with a notation to ‘see previous denials.’”
(People v. Shorter, supra, B301955, at p. 3.)
Defendant timely filed a notice of appeal, and on August 25,
2020, we affirmed the trial court order. (People v. Shorter, supra,
B301955, at p. 4.)
Instant petition for recall and resentencing
In a letter received by the trial court on March 18, 2022,
the CDCR recommended recalling defendant’s sentence in
accordance with former section 1170.03, subdivision (a)(1).2 On
March 28, 2022, without appointing counsel or holding a hearing,
the trial court declined to recall the sentence: “The court has
read the CDCR Secretary’s letter filed March 18, 2022. The
letter is recommending recall and resentencing due to a change in
2 Effective June 30, 2022, former section 1170.03 was
renumbered section 1172.1 without change.
3
the law. Effective January 2019, courts were authorized to
exercise their discretion to strike prior serious felony convictions.
The defendant was sentenced in 2004, well [before] the change in
law. The defendant’s case has been final on appeal for some time
now. [¶] In addition, this court previously denied the same
request from the inmate on September 30, 2018.[3] The court
again declines to exercise its discretion.”
This timely appeal ensued.
DISCUSSION
Section 1172.1, subdivision (a)(1), provides, in relevant
part: “When a defendant, upon conviction for a felony offense,
has been committed to the custody of the [CDCR] . . . , the court
may, within 120 days of the date of commitment on its own
motion, at any time upon the recommendation of the secretary
. . . , recall the sentence and commitment previously ordered and
resentence the defendant . . . .” (§ 1172.1, subd. (a)(1).) “In
enacting this code section, the Legislature amended and
renumbered former section 1170(d), which had included the
above-quoted language.” (People v. E.M. (2022) 85 Cal.App.5th
1075, 1082.)
When a trial court receives a former section 1170,
subdivision (d)(1), letter from the CDCR, it “has broad discretion
whether to recall the existing sentence and resentence the
incarcerated individual. ‘[T]he Secretary’s recommendation
letter is but an invitation to the court to exercise its equitable
jurisdiction[,]’ which ‘furnishes the court with the jurisdiction it
would not otherwise possess to recall and resentence[.]’
[Citation.]” (People v. Cepeda (2021) 70 Cal.App.5th 456, 469.)
3 The appellate record does not contain an order dated
September 30, 2018.
4
However, “[r]esentencing shall not be denied, nor a
stipulation rejected, without a hearing where the parties have an
opportunity to address the basis for the intended denial or
rejection.” (§ 1172.1, subd. (a)(8).) The trial court must provide
notice to the defendant, set a status hearing within 30 days of
receiving the Secretary’s recommendation, and appoint counsel to
represent the defendant. (§ 1172.1, subd. (b)(1).) The statute
also includes a presumption in favor of recall and resentencing,
which may only be overcome if the trial court finds that the
defendant is an unreasonable risk of danger to public safety as
defined in subdivision (c) of section 1170.18. (§ 1172.1, subd.
(b)(2).)
Here, there is no indication in the appellate record that the
trial court provided notice to defendant, set a status hearing date,
appointed counsel to represent defendant, or otherwise gave
defendant the opportunity to address the basis for its rejection of
the recommendation. There is also no indication that the trial
court, in reaching its decision, applied the new standard and
presumption set forth in section 1172.1. Thus, we must reverse
the trial court’s order and remand it for further proceedings. (See
People v. McMurray (2022) 76 Cal.App.5th 1035, 1041.)
That said, we remind the parties that the recall-and-
resentencing decision remains an equitable and discretionary
one.4 The trial court is not obligated to recall defendant’s
sentence even under the new statute, and it may consider
evidence of defendant’s dangerousness in weighing the public
safety issue. It is, however, required to apply the new
presumption in favor of recall and hold a counseled hearing
4 In light of our determination that a remand is appropriate,
we do not address defendant’s argument that the trial court’s
“[r]easons” for declining his petition constituted an abuse of
discretion.
5
where the parties may make a record. (§ 1172.1, subds. (a)(8),
(b)(2).)
DISPOSITION
The order denying defendant’s petition for recall is reversed
and the matter is remanded to the trial court for a new hearing
in accordance with section 1172.1.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
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