People v. Elshire CA4/1

Filed 2/7/22 P. v. Elshire CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D077968

Plaintiff and Respondent,

v. (Super. Ct. No. SCD248774)

LAURA JOYCE ELSHIRE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Eugenia A. Eyherabide, Judge. Reversed and remanded for further proceedings. Christopher A. Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin H. Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION Defendant Laura Elshire appeals the trial court’s denial of her motion for recall of sentence and resentencing that she filed after the Secretary of the California Department of Corrections and Rehabilitation sent a letter to the court recommending that Elshire’s sentence be recalled and that she be resentenced. (See former Pen. Code,1 § 1170, subd. (d)(1).) In her opening brief on appeal, Elshire contended that the trial court failed to properly exercise its discretion when it denied her request to recall her sentence and that due process required that the court provide her an opportunity to be heard on that request. After briefing on appeal was completed, the Legislature passed, and the Governor signed into law, Assembly Bill Number 1540, which significantly alters the recall and resentencing provisions formerly set forth in section 1170, subdivision (d). The new provisions, which became effective January 1, 2022, weigh heavily in favor of recalling and resentencing defendants. (See Stats. 2021, ch. 719, §§ 1–7.) After the Governor signed Assembly Bill Number 1540, Elshire filed a supplemental brief requesting reversal and remand in light of the new legislation. The People responded, agreeing that the best course of action in light of the recent changes in the law would be for this court to reverse the trial court’s order and remand the matter to the trial court to allow that court to reconsider Elshire’s motion for recall and resentencing, applying the new recall and resentencing provisions. We agree with the parties that reversal and remand is appropriate.