76 Cal.App.5th 1035
Cal. Ct. App.2022Background
- In 2008 McMurray was charged with two counts of second‑degree robbery and personal firearm‑use enhancements; in 2010 he pleaded guilty to one robbery count and admitted a §12022.53(b) enhancement and certain priors.
- The trial court sentenced him to 25 years (5 years doubled to 10 for the strike, +10 years for the firearm enhancement, +5 years for a prior serious felony); the judgment became final and McMurray did not appeal.
- In October 2019 the CDCR Secretary recommended recalling McMurray’s sentence under former Penal Code §1170(d)(1) because §12022.53 was amended to allow courts discretion to strike personal firearm enhancements.
- The trial court summarily declined the CDCR recommendation ex parte and did not provide notice to McMurray, appoint counsel, hold a hearing, or state reasons.
- Assembly Bill 1540 (effective Jan. 1, 2022) moved the recall/resentencing provision to §1170.03 and clarified procedures: courts must apply ameliorative changes in law on resentencing, provide notice, appoint counsel, hold a hearing (unless stipulated), state reasons, and a presumption favors recall unless defendant poses an unreasonable danger.
- The Court of Appeal held AB 1540 clarifies former §1170(d)(1), applies here, and reversed and remanded so the trial court can reconsider the CDCR recommendation under the clarified §1170.03 procedures.
Issues
| Issue | People’s Argument | McMurray’s Argument | Held |
|---|---|---|---|
| Whether AB 1540 applies to this case/clarifies former §1170(d)(1) | AB 1540 is not retroactive; judgment was final so statute cannot authorize resentencing after finality | AB 1540 clarifies prior law and therefore applies to cases interpreting former §1170(d)(1) | AB 1540 is a clarification of former §1170(d)(1) and applies; remand for proceedings under §1170.03 |
| Whether trial court had jurisdiction to modify a final judgment based on CDCR recommendation | Trial court lacked authority because judgment was final and amendments to §12022.53 do not reach final convictions; any discretion limited to what existed at original sentencing | CDCR recommendation under former §1170(d)(1) supplies jurisdiction to recall and resentence; amendments granting discretion to strike enhancements are applicable on resentencing | CDCR recommendation furnishes jurisdiction to recall and resentence; court must follow §1170.03 procedure |
| Whether McMurray’s plea or plea bargain forecloses resentencing/removal of enhancement | Because McMurray admitted the enhancement as part of a negotiated plea, the court cannot ignore plea terms or reduce agreed consequences | Even with a plea, a resentencing under the CDCR recommendation is permissible and the court must consider ameliorative changes in law on resentencing | Court did not decide plea‑bar issues in detail but required remand so the court can consider resentencing under §1170.03 (including application of legal changes) |
| Whether defendant was entitled to notice, counsel, hearing, and statement of reasons before denial | No right to additional procedure under former §1170(d)(1); trial court rules and plea procedure suffice | Denial without notice, counsel, or hearing violated procedures clarified by AB 1540 and due process; defendant must receive those safeguards | AB 1540 requires notice, appointment of counsel, a hearing (unless stipulated), and an on‑the‑record statement of reasons; remand required because trial court failed to provide those safeguards |
Key Cases Cited
- Western Security Bank v. Superior Court, 15 Cal.4th 232 (legislative amendment that clarifies prior statute may be treated as construction of original act and applied)
- In re Estrada, 63 Cal.2d 740 (changes that ameliorate punishment may apply retroactively)
- People v. Loper, 60 Cal.4th 1155 (CDCR recommendation authorizes court to recall and resentence)
- Dix v. Superior Court, 53 Cal.3d 442 (discussion of CDCR recommendation and court jurisdiction to act)
- People v. Frazier, 55 Cal.App.5th 858 (court described CDCR referral as invitation to exercise equitable jurisdiction; earlier cases found no counsel/hearing requirement under former §1170(d)(1))
- People v. McCallum, 55 Cal.App.5th 202 (held former §1170(d)(1) did not require a hearing)
- People v. Federico, 50 Cal.App.5th 318 (contrary appellate interpretation noted in legislative history)