People v. Cross CA3

Filed 6/9/22 P. v. Cross CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (El Dorado) ----

THE PEOPLE, C093210

Plaintiff and Respondent, (Super. Ct. No. PR000237)

v.

CHARLES THOMAS CROSS,

Defendant and Appellant.

Defendant Charles Thomas Cross appeals from the trial court’s denial of his request to recall his sentence and resentence him pursuant to former Penal Code1 section 1170, subdivision (d)(1) (section 1170(d)(1)). He argues the trial court abused its discretion in denying said request. He also argues the case should be remanded due to the recent enactment of Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719) (Assembly Bill 1540). The Attorney General concedes defendant is entitled to

1 Unspecified statutory references are to the Penal Code.

1

reversal and a resentencing hearing consistent with the provisions of Assembly Bill 1540. We accept the Attorney General’s concession and shall reverse and remand. FACTUAL AND PROCEDURAL BACKGROUND The substantive facts underlying defendant’s conviction are not necessary to our resolution of this case on appeal and are summarily recounted here. The victim returned to his house to find two men ransacking his home. He confronted the men and hit one of them with a baseball bat. The person the victim hit fired two shots at the victim as the victim ran away. Defendant was apprehended at a local motel. He admitted he was “ ‘partly guilty’ ” of the burglary, but claimed he did not know his accomplice had a gun.2 A jury convicted defendant of first degree burglary (§ 459) and found true an enhancement that a principal was armed with a firearm (§ 12022, subd. (a)(1)). The trial court also found prior conviction allegations pursuant to section 667, subdivisions (a)(1) and (b), true. The trial court sentenced defendant to a term of 25 years to life for the burglary conviction plus three consecutive five-year terms for the prior conviction allegations. After an appeal and remand, defendant’s sentence was reduced to a term of 11 years plus 25 years to life. In December 2019, the Secretary of California’s Department of Corrections and Rehabilitation (Secretary) sent the El Dorado County Superior Court a letter pursuant to former section 1170(d)(1), recommending the trial court consider recalling defendant’s sentence and conviction, and consider exercising its discretion to strike the prior serious felony convictions or their punishment, pursuant to section 1385.