People v. Chavez CA3

Filed 7/22/22 P. v. Chavez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C094323

Plaintiff and Respondent, (Super. Ct. No. 05F07263)

v.

HENRY CHAVEZ,

Defendant and Appellant.

Defendant Henry Chavez is currently serving an indeterminate term of 300 years to life plus a 20-year determinate term. On January 24, 2020, the Secretary of the California Department of Corrections and Rehabilitation (CDCR) recommended the trial court recall defendant’s sentence (Pen. Code, § 1170, subd. (d))1 and consider whether to strike his four serious felony sentencing enhancements (§ 667, subd. (a)(1)) in light of

1 Further undesignated statutory references are to the Penal Code.

1

legislative changes authorizing discretion to strike the previously mandatory enhancement. (See Sen. Bill No. 1393 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1013, §§ 1, 2.) Following the appointment of counsel, briefing, and a hearing outside defendant’s presence,2 the trial court declined to recall defendant’s sentence. Defendant appeals arguing: (1) he is entitled to retroactive application of Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Assembly Bill No. 1540), which moved the recall and resentencing provisions of section 1170, subdivision (d)(1) to newly created section 1170.03 and revised its terms (Stats. 2021, ch. 719, §§ 1-7); and, alternatively, (2) the trial court abused its discretion by failing to consider the CDCR’s request in light of changes in the law and relevant postconviction factors. The Attorney General disagrees that Assembly Bill No.1540 applies retroactively, but agrees that the interests of justice and judicial economy support reversing the trial court’s order and remanding the matter for further proceedings under section 1172.1 (former § 1170.03).3 Former section 1170, subdivision (d)(1), was originally enacted as “ ‘an exception to the common law rule that the court loses resentencing jurisdiction once execution of sentence has begun.’ ” (People v. McCallum (2020) 55 Cal.App.5th 202, 210, quoting Dix v. Superior Court (1991) 53 Cal.3d 442, 455.) Among other things, it was intended to provide a mechanism for recalling a defendant’s sentence and resentencing him “ ‘at