People v. Rhodes CA3

Filed 4/12/22 P. v. Rhodes CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C094177

Plaintiff and Respondent, (Super. Ct. No. 11F04725)

v.

DONALD RHODES,

Defendant and Appellant.

Defendant Donald Rhodes appeals the trial court’s denial of the California Department of Corrections and Rehabilitation’s (the Department) recommendation under former Penal Code1 section 1170, subdivision (d)(1) (former section 1170(d)(1)) that the trial court consider recalling defendant’s sentence and resentencing him. His appointed counsel found no arguable issues and filed a brief under People v. Wende (1979) 25 Cal.3d 436 asking this court to independently review the record to determine whether there were any arguable issues on appeal. Although properly advised of his right to file a supplemental brief, defendant did not file one. While defendant’s appeal was pending, and after defense counsel filed the Wende brief, Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719) came into

1 Undesignated section references are to the Penal Code.

1

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 No. 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 No. 1540 added a presumption in favor of recall and resentencing. (§ 1170.03, subd. (b)(2).) We requested supplemental briefing on the effect of the new legislation on this appeal. Defendant argues that Assembly Bill No. 1540 applies retroactively to his case pursuant to In re Estrada (1965) 63 Cal.2d 740. The People argue Assembly Bill No. 1540 is not retroactive. The People acknowledge, however, that in the interest of judicial economy, we may reverse the trial court’s order and remand for new proceedings under section 1170.03. We conclude that Assembly Bill No. 1540 applies to defendant’s case because it is a clarification of former section 1170(d)(1), and we will therefore reverse and remand. FACTUAL AND PROCEDURAL BACKGROUND Defendant pled no contest to mayhem and admitted he had a prior serious felony and a prior strike. In October 2013, the trial court sentenced him to state prison for an aggregate term of 21 years. The trial court also imposed various fines and fees. In December 2019, the Department referred defendant’s case to the trial court for resentencing consideration per former section 1170(d)(1). The trial court held a hearing in May 2021 and declined to recall defendant’s sentence and resentence him. Defendant filed a timely appeal. DISCUSSION We “cannot disregard” the Legislature’s subsequent expressions of its intent regarding a prior statute. (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 244.) If an amendment “ ‘ “which in effect construes and clarifies a prior statute” ’ ” was