People v. McMurray

Filed 3/30/22 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C090767

Plaintiff and Respondent, (Super. Ct. No. STKCRFE20070010935) v.

WOODY MCMURRAY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Joaquin County, Seth R. Hoyt, Jr., Judge. Reversed and remanded.

Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christofferson and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Woody McMurray appeals the trial court’s denial of a recommendation made by the Secretary (Secretary) of the California Department of Corrections and

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Rehabilitation (CDCR) under former Penal Code section 1170, subdivision (d)(1)1 (former section 1170(d)(1)) that the trial court consider recalling defendant’s sentence and resentencing him in light of changes made to section 12022.53. Defendant contends that the trial court’s denial of resentencing without notice or the appointment of counsel violated his constitutional rights and was reversible error. The People contend we must dismiss defendant’s appeal because the trial court lacked jurisdiction to modify defendant’s sentence because defendant’s judgment was final before the amendments to section 12022.53 became operative, and that statute does not contain any language authorizing resentencing of convictions after they become final. In the alternative, the People contend the trial court lacked authority to strike the section 12022.53 enhancement because defendant’s judgment was final and the trial court in 2019 could only exercise the discretion available at the time of original sentencing. The People next argue the trial court lacked authority to modify the sentence because defendant admitted the section 12022.53 enhancement as part of a negotiated plea, and the trial court cannot disregard the terms of the plea. The People further argue defendant does not have a right to counsel or a right to provide additional information. While defendant’s appeal was pending, Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719, §§ 1-7) (Assembly Bill 1540) came into effect on January 1, 2022, and moved the recall and resentencing provisions of former section 1170(d)(1) to new section 1170.03. Assembly Bill 1540 also clarified the Legislature’s intent regarding procedural requirements and the provision’s application to “ameliorative laws . . . that reduce sentences or provide for judicial discretion, regardless of the date of the offense of conviction.” (Stats. 2021, ch. 719, § 1(i).) In addition, where requests for recall and resentencing are made, Assembly Bill 1540 added a presumption in favor of recall and