Filed 4/21/22 P. v. Johnson CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
RODWICK JOHNSON,
Defendant and Appellant. | H049193 (Monterey County Super. Ct. No. SS052400) |
MEMORANDUM OPINION[1]
In 2007, defendant Rodwick Johnson pleaded guilty to kidnapping and two counts of second degree robbery. (Pen. Code, §§ 207, 211.)[2] He also admitted a gang enhancement, a firearm possession enhancement, and that he had suffered a prior strike conviction. (§§ 186.22, subd. (b)(1), 1170.12, subd. (c)(1), 12022.53, subd. (b).) The trial court imposed a total term of 40 years in state prison.
In March 2021, the Secretary of the California Department of Corrections and Rehabilitation (the Secretary) sent a letter to the trial court recommending that it recall Johnson’s sentence under former section 1170, subdivision (d)(1) based on his “exceptional conduct while incarcerated.” The trial court declined to consider modifying or reducing Johnson’s sentence based on the ground that it was the result of a negotiated disposition. Johnson moved for reconsideration on the ground that he had not been given the opportunity to submit additional materials in support of a recall, and he argued the trial court had the lawful discretion to recall his sentence notwithstanding the negotiated disposition. The trial court denied the motion.
Johnson appeals from the trial court’s denial on the ground the court abused its discretion by failing to give him an adequate hearing, and because the trial court failed to exercise its discretion as authorized by the law. The Attorney General concedes that we should reverse and remand for the trial court to consider the Secretary’s recommendation, given that the law governing recall of sentences has since changed.
The Attorney General’s concession is well-taken. The newly enacted Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Assembly Bill 1540) moved the recall and resentencing provision to section 1170.03 and revised its terms. Section 1170.03 took effect on January 1, 2022. Section 1170.03 adds several requirements to the recall and resentencing process, including notice, appointment of counsel, a hearing, and a statement of reasons for the ruling on the record. (Assem. Bill 1540, Stats. 2021, ch. 719, § 3.1, subds. (a)(6), (7), & (8).) With respect to the Secretary’s recommendation to reduce a sentence that was the product of a negotiated plea agreement, section 1170.03 provides that “the resentencing court may, in the interest of justice and regardless of whether the original sentence was imposed after a trial or plea agreement, do the following: [¶] (A) Reduce a defendant’s term of imprisonment by modifying the sentence.” (§ 1170.03, subd. (a)(3)(A).) The new statute also indicates that where the recall and resentencing recommendation is made by the Secretary, “[t]here shall be 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, as defined in subdivision (c) of Section 1170.18.” (Assem. Bill 1540, Stats. 2021, ch. 719, § 3.1, subd. (b)(2).) The new section further requires a court to “apply any changes in law that reduce sentences or provide for judicial discretion” when resentencing under the recall statute. (Ibid.)
Accordingly, we will reverse the trial court’s orders declining to recall Johnson’s sentence and remand for reconsideration under the new law.
Disposition
The trial court’s orders declining to recall Johnson’s sentence are reversed, and the matter is remanded for the trial court to reconsider the recommendation of the Secretary of the California Department of Corrections and Rehabilitation.
_______________________________
Greenwood, P. J.
WE CONCUR:
______________________________________
Grover, J.
______________________________________
Lie, J.
People v. Johnson
No. H049193
[1] We resolve this case by memorandum opinion under California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.) The facts of the offense are immaterial to this appeal.
[2] Subsequent undesignated statutory references are to the Penal Code.
