People v. Brooks CA3

Filed 8/5/22 P. v. Brooks CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C093996

Plaintiff and Respondent, (Super. Ct. No. 11F08623)

v.

ROY BROOKS,

Defendant and Appellant.

Defendant Roy Brooks appeals the trial court’s order denying the Department of Corrections and Rehabilitation’s (CDCR) recommendation to consider recalling his sentence and resentencing him. Defendant argues recent statutory changes to the recall and resentencing provision apply to his case and require reconsideration, and the People agree. We agree with the parties and will reverse and remand the matter.

1

BACKGROUND In 2012, a jury found defendant guilty of assault with a firearm (Pen. Code, § 245, subd. (a)(2));1 discharging a firearm in a grossly negligent manner (§ 246.3); possession of a firearm by a convicted felon (former § 12021, subd. (a)); misdemeanor criminal threat (§ 422); and misdemeanor vandalism. (§ 594, subd. (a).) As to the assault count, the jury also found true an allegation defendant personally used a firearm. (§ 12022.5, subd. (a).) The trial court found defendant had three prior serious felony convictions. (§§ 667, 1170.12.) The court proceeded to sentence defendant to an aggregate term of 29 years four months, comprised of: eight years for the assault count (the upper term, doubled), plus 10 years for the firearm enhancement; 16 months for the possession of a firearm count (one-third the midterm, doubled), five years for each of the prior serious felony convictions, with one of the sentences stayed under section 654; and time served for the two misdemeanor counts. The court stayed the sentence on the discharging a firearm in a grossly negligent manner count.2 In 2021, the Secretary of the CDCR (Secretary) sent a letter to the trial court recommending the recall and resentencing of defendant under former section 1170, subdivision (d)(1), which authorized a court, at any time after receiving a recommendation from the CDCR, to recall an inmate’s sentence and resentence that inmate to a lesser sentence. The Secretary stated, “[T]he COVID-19 pandemic has created an urgent necessity to decrease [the CDCR’s] in-custody population,” especially for inmates such as defendant, “who has been determined to be at particularly high-risk of serious complications should he contract COVID-19.” The Secretary noted defendant