People v. Pennell CA3

Filed 5/23/22 P. v. Pennell CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C094149

Plaintiff and Respondent, (Super. Ct. No. STKCRFE20090006418, v. SF111573A)

AARON ROBERT PENNELL,

Defendant and Appellant.

Defendant Aaron Robert Pennell appeals the trial court’s denial of the Department of Corrections and Rehabilitation’s (CDCR) recommendation to consider recalling defendant’s sentence and resentencing him. Agreeing with the parties that recent statutory changes warrant reconsideration, we reverse and remand. I. BACKGROUND In February 2010, defendant entered a guilty plea, stipulating to a sentence of 24 years eight months for kidnapping and two counts of second degree robbery—all

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enhanced for personal use of a firearm under section 12022.53, subdivision (b)—and dissuading a witness by threat of force. In April 2021, the Secretary of the CDCR sent a letter to the trial court recommending recall and resentencing of defendant pursuant to the former version of Penal Code section 1170, subdivision (d)(1) (former section 1170(d)(1)),1 which authorized a court, at any time after receiving a recommendation from CDCR, to recall an inmate’s sentence and resentence that inmate to a lesser sentence. The recommendation was based on section 12022.53, subdivision (h), which had recently been amended by Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682) to grant courts discretion to strike or dismiss firearms enhancements in the interest of justice. In May 2021, the court, without appointing counsel, providing notice, holding a hearing, or explaining its reasoning, declined to exercise its discretion to recall defendant’s sentence or strike the enhancements. 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. II. DISCUSSION Defendant argues Assembly Bill 1540 (1) constitutes a clarification of existing law and therefore applies to cases involving the interpretation of former section 1170(d)(1), and (2) applies retroactively to his case pursuant to In re Estrada (1965) 63 Cal.2d 740. While the People do not concede the merits of defendant’s arguments, they acknowledge 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 agree with defendant that Assembly