55 Cal.App.5th 202
Cal. Ct. App.2020Background
- McCallum was convicted of first‑degree residential burglary and sentenced to a third‑strike term of 30 years to life; after 12 years the Secretary of CDCR recommended recall and resentencing under Penal Code §1170(d)(1).
- The Secretary’s recommendation highlighted McCallum’s disciplinary‑free record in prison, completion of college courses, substance‑abuse programming, and attached a cumulative case summary and supporting materials.
- McCallum’s counsel filed a motion requesting a case management conference and an opportunity to brief and present information in response to the Secretary’s recommendation.
- The trial court “read and considered” the recommendation but issued a minute order declining to recall the sentence, without holding a hearing or allowing McCallum or the People to submit further materials; the court cited McCallum’s criminal history and said family/community support was “tenuous.”
- McCallum appealed; the Court of Appeal held the statute does not require a pre‑decision hearing but reversed because the trial court abused its discretion by denying McCallum an opportunity to present additional information material to the Secretary’s recommendation, and remanded for submission and renewed exercise of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1170(d)(1) requires the trial court to hold a hearing before acting on a Secretary recommendation to recall and resentence | No — the statute is permissive ("may" recall) and contains no hearing mandate; other subdivisions expressly require hearings where intended | A hearing is required as a matter of due process and to allow the defendant to present relevant evidence | Court: No statutory hearing required under §1170(d)(1); Legislature may provide one, but the statute itself is silent on a required hearing |
| Whether the trial court abused its discretion by declining the Secretary’s recommendation without allowing McCallum to submit additional, material information (reentry plans, support) after McCallum requested an opportunity to respond | The court properly relied on the Secretary’s cumulative case summary and exercised discretion to deny recall | The court abused discretion by ignoring McCallum’s request to present supplemental evidence material to the recall decision (e.g., postrelease placements, letters of support) | Court: Trial court abused its discretion by denying McCallum an opportunity to present information; reversal and remand for submission of materials and renewed exercise of discretion |
| Whether it was permissible for the court to infer lack of community support from the inmate’s lack of visitors without allowing the inmate to rebut | The cumulative case summary showing no visits supports the court’s finding | Lack of visits is not dispositive; defendant is best positioned to show reentry plans/support | Court: Reliance on visitor history alone was improper without allowing McCallum to supplement the record; he should be permitted to present contrary evidence |
Key Cases Cited
- People v. Loper, 60 Cal.4th 1155 (Cal. 2015) (recommendation to recall implicates substantial liberty interests; denial is appealable)
- Dix v. Superior Court, 53 Cal.3d 442 (Cal. 1991) (§1170(d) creates limited authority to recall and resentence; court may consider recommendations)
- People v. Delson, 161 Cal.App.3d 56 (Cal. Ct. App. 1984) (absence of statutory hearing language in §1170(d) indicates no required hearing)
- People v. Kaulick (People v. Superior Court), 215 Cal.App.4th 1279 (Cal. Ct. App. 2013) (under Prop. 36 court must afford notice and opportunity to be heard because statute mandates eligibility determination and lists factors)
- People v. Carmony, 33 Cal.4th 367 (Cal. 2004) (when a defendant invites exercise of discretion, court must consider evidence offered in support)
- People v. Rodriguez, 17 Cal.4th 253 (Cal. 1998) (defendant has right to be present and heard when court exercises certain post‑judgment sentencing discretion)