The order summarily denying CDCR’s recommendation for recall of defendant’s 2011 stipulated sentence was reversed based on the new recall and resentencing procedures. The defendant entered into a plea agreement under which he received a stipulated term of 19 years 4 months. CDCR asked the trial court to recall and resentence defendant based on the amendment to Penal Code section 12022.53, allowing discretion to strike a gun use enhancement. Recall was denied. Defendant appealed. Held: Reversed. AB 1540, effective January 1, 2022, amended and moved the recall and resentencing provisions of former Penal Code section 1170(d)(1) to a new section, which was then renumbered to section 1172.1. Where recommended by CDCR, there is now a presumption in favor of recall and resentencing of a defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety. Resentencing may only be denied after hearing and appointment of counsel. Further, section 1172.1, subdivision (a)(3)(A) provides that, regardless of whether the initial sentence was imposed after a plea agreement, the trial court may reduce a term of imprisonment by modifying the sentence. Here, the appropriate remedy was to reverse and remand the matter, so that the trial court can consider CDCR’s recommendation to recall and resentence defendant under the new and clarified procedure and guidelines.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/B322890.PDF