People v. Green CA5

Filed 6/9/22 P. v. Green CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F083294 Plaintiff and Respondent, (Super. Ct. No. 145370) v.

DARNELL LEO GREEN, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge. Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Peña, Acting P. J., Meehan, J. and DeSantos, J.

Defendant Darnell Leo Green was convicted of multiple offenses arising from a 1997 robbery of several individuals in a residence by several armed gang members. He was sentenced to 45 years eight months in prison. In 2021, the Secretary of the Department of Corrections and Rehabilitation (CDCR) sent a letter to the sentencing court recommending that defendant be resentenced pursuant to former Penal Code section 1170, subdivision (d)(1).1 After the issue was briefed, the trial court declined to exercise its discretion to resentence defendant. While the matter was pending on appeal, the Governor signed Assembly Bill No. 1540 (2021–2022 Reg. Sess.) (Assembly Bill 1540), which moved the recall and resentencing provisions of former section 1170, subdivision (d)(1) to new section 1170.03, and among other things, would entitle an inmate for whom the Secretary of the CDCR filed a resentencing request on January 1, 2022, to a hearing on the request, a reasoned decision on the record, appointment of counsel, and—perhaps most meaningfully—a rebuttable presumption in favor of recall and resentencing. Defendant asks that the trial court’s order declining to exercise its discretion be vacated and the matter be remanded to the trial court to reconsider the matter in light of the changes effected by Assembly Bill 1540. The People agree that we should remand for the trial court to reconsider in light of Assembly Bill 1540, but argue that Assembly Bill 1540 is not retroactive pursuant to In re Estrada (1965) 63 Cal.2d 740. We vacate the trial court’s order and remand for reconsideration of the Secretary of the CDCR’s request in light of Assembly Bill 1540. PROCEDURAL SUMMARY On October 6, 1998, defendant was convicted of three counts of robbery in concert of an inhabited dwelling (§§ 211, 212.5; counts 2, 3, & 5), two counts of attempted robbery (§§ 211, 212.5, 664; counts 1 & 4), burglary (§ 459; count 6), conspiracy to