California Court of Appeal Sep 1, 2022 No. E076325AUnpublished
Filed 9/1/22 P. v. Fill CA4/2 Opinion after recalling remittitur
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076325
v. (Super.Ct.No. FSB040619)
LINDA MARIE FILL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ronald M.
Christianson, Judge. Reversed and remanded with directions.
Three Strikes Project, Stanford Law School, and Milena Blake; McConville Law
and Karen McConville for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles Ragland and Eric A.
Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
1
In 2003, defendant and appellant Linda Marie Fill fatally shot a mobile home park
manager multiple times in the head with a rifle because she had been evicted by the
manager. Defendant also shot another resident of the mobile home park in the face, but
the resident survived. In 2004, pursuant to a negotiated plea agreement, defendant
(§§ 664/187, subd. (a); count 2), and kidnapping (§ 207, subd. (a); count 3). The
information also alleged that in the commission of counts 1 and 2, defendant had
personally and intentionally discharged a firearm, proximately causing great bodily injury
or death (§ 12022.53, subd. (d)). As to count 1, the information further alleged a special
circumstance allegation that the manager was a witness to a crime and was intentionally
killed for preventing her testimony in a criminal proceeding (§ 190.2, subd. (a)(10)).
Finally, the information alleged that defendant had suffered three prior prison terms
(§ 667.5, subd. (b)).
On April 1, 2004, the second day of trial, defendant entered into a negotiated plea
agreement with the People. Pursuant to the negotiated disposition, defendant pleaded
guilty to first degree murder with the personal use of a firearm. In exchange, the People
dismissed the remaining counts and enhancement allegations, and defendant was
sentenced to a stipulated term of 35 years to life in prison.
4
On April 17, 2019, the Secretary of the CDCR sent the superior court a letter
recommending that defendant’s sentence be recalled under former section 1170(d)(1) so
that it may consider whether to resentence her.
On October 6, 2020, defendant’s retained counsel filed a brief in support of the
CDCR’s recommendation to recall defendant’s sentence. The brief explained the reasons
why the trial court should follow the CDCR’s recommendation. The brief included
approximately 150 pages of exhibits showing defendant’s postconviction conduct in
support of the CDCR’s recommendation. The exhibits included, among others, the
recommendation and evaluation reports from the CDCR, numerous letters in support,
awards and certificates of completion from various programs, medical diagnoses, relapse
prevention plans, drug test results, and letters of remorse.3
On November 3, 2020, the trial court declined to exercise its discretion under
former section 1170(d)(1). In an ex parte minute order dated November 3, 2020, the
court explained: “In response to the April 17, 2019 recommendation of the Secretary of
the Department of Corrections and Rehabilitation under Penal Code section 1170(d) to
recall the sentence of the Defendant, the court has conducted a review of the court file
and the materials sent to the court by the Secretary. [¶] The Defendant was originally
charged with the crimes of murder (with a special circumstance allegation that the killing
was of a witness to another crime), attempted murder and kidnapping with gun use
enhancements on all counts, and faced a potential exposure of LWOP plus 25 years to life
3 The record does not contain any response briefs from the People.
5
just on the murder charge. [ ] During jury selection, the parties reached a plea agreement
wherein the Defendant pled to first degree murder with the use of a firearm and on April
4, 2004 was sentenced to 35 years to life in prison. [¶] Based upon the heinous nature
and circumstances of the crime and the fact that the parties reached a plea bargain
agreement wherein the Defendant obtained a resulting sentence significantly less severe
than the potential had there been a conviction as charged at trial, the court declines to
exercise its discretion under Penal Code section 1170(d). The original sentence imposed
on April 4, 2004 is to remain in full force and effect. [¶] A copy of this Minute Order to
be sent to the Secretary of the Department of Corrections, the District Attorney and the
Public Defender.”4
On December 18, 2020, defendant filed a notice of appeal from the trial court’s
order declining to recall her sentence.
On October 8, 2021, while defendant’s current appeal was pending, the governor
signed Assembly Bill 1540, which went into effect on January 1, 2022. We affirmed the
trial court’s order in an unpublished opinion on October 14, 2021, concluding the trial
court did not abuse its discretion or violate defendant’s due process rights when it
declined to recall her sentence without holding a noticed hearing. (Fill I, supra,
E076325.)
4The minute order incorrectly states the sentencing occurred on April 4, 2004. Defendant was sentenced on the same day she pleaded guilty on April 1, 2004.
6
On June 6, 2022, new appellate counsel filed a motion to recall the remittitur
based on ineffective assistance of counsel and attached a supporting declaration from
former counsel. On July 1, 2022, we granted defendant’s motion, recalled the remittitur,
and directed the parties to file supplemental briefs.
II
DISCUSSION
Assembly Bill 1540 moved and amended the recall and resentencing provisions
set out in former section 1170(d)(1), to a new section, 1170.03. (Stats. 2021, ch. 719.)
Added section 1170.03 requires that, when recall and resentencing is initiated on the
court’s own motion or upon the recommendation of the Secretary of the CDCR, the court
“shall apply the sentencing rules of the Judicial Council and apply any changes in law
that reduce sentences or provide for judicial discretion.” (§ 1170.03, subd. (a)(2).) As
relevant here, the resentencing court may “[r]educe a defendant’s term of imprisonment
by modifying the sentence” “regardless of whether the original sentence was imposed
after a trial or plea agreement.” (§ 1170.03, subd. (a)(3)(A).) Furthermore, if a
resentencing request is from the Secretary of the CDCR, “[t]here shall be a presumption
favoring recall and resentencing of the defendant, which may only be overcome if a court
finds the defendant is an unreasonable risk of danger to public safety, as defined in
subdivision (c) of Section 1170.18.” (§ 1170.03, subd. (b)(2).)
7
In addition, significant for this appeal, section 1170.03 now obligates the
resentencing court to provide notice to the defendant of the recommendation, set a status
conference within 30 days after receipt of the recommendation, appoint counsel to
represent the defendant, and provides that a defendant has a statutory right to be present
at the recall hearing. (§ 1170.03, subds. (a)(8), (b)(1).) Furthermore, the court must
“state on the record the reasons for its decision to grant or deny recall and resentencing.”
(§ 1170.03, subd. (a)(6).)
“The legislative history of these changes indicates that the bill was, in part,
intended to clarify the Legislature’s intent regarding former section 1170(d)(1), which it
had amended in 2018. Specifically, the Legislature sought through Assembly Bill 1540
to ‘ensure due process and equitable application in these types of resentencing cases’ and
indicate that trial courts should accept the CDCR’s resentencing recommendations. (See,
e.g., Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill
No. 1540 (2021-2022 Reg. Sess.) as amended Sept. 3, 2021, p. 3 [bill clarifies
legislature’s intent to honor time, thought, and effort law enforcement agencies put into
referrals]; Sen. Com. on Public Safety, Rep. on Assem. Bill No. 1540 (2021-2022 Reg.
Sess.) as amended June 22, 2021, pp. 2-3 [bill ‘makes clarifying changes,’ including
requiring notice to defendant, appointment of counsel, a hearing, a statement of reasons
for denying or granting recall and resentencing, and a presumption favoring recall and
resentencing]; Assem. Com. on Pub. Safety, Analysis of Assem. Bill No. 1540 (2021-
2022 Reg. Sess.) as amended Apr. 22, 2021, Author’s Statement, p. 4 [‘The changes
8
contained in A[ssembly] B[ill] 1540 strengthen common [procedures] to address equity
and due process concerns in how courts should handle second look sentencing
requests’].)” (People v. McMurray (2022) 76 Cal.App.5th 1035, 1040-1041
(McMurray); accord, People v. Cepeda (2021) 70 Cal.App.5th 456, 471 [Assembly Bill
1540 requires courts to apply any changes in the law once a sentence has been recalled
for resentencing.].)
Defendant and the People agree that we should remand to allow the trial court to
hold a hearing and review the CDCR’s recommendation under the standards of section
1170.03. We also agree. “Assembly Bill 1540 was intended to ‘make clarifying
changes’ to former section 1170(d)(1), including specifying the required procedure and
guidelines when the CDCR recommends recall and resentencing.” (McMurray, supra, 76
Cal.App.5th at p. 1041.) “When a case involving such a clarifying amendment is on
appeal, the appropriate resolution is to reverse and remand the matter for further
proceedings in compliance with the amended legislation.” (Id. at p. 1039.)
Thus, we “reverse and remand the matter, so that the trial court can consider the
CDCR’s recommendation to recall and resentence defendant under the new and clarified
procedure and guidelines of section 1170.03” (McMurray, supra, 76 Cal.App.5th at
p. 1041) without permitting the prosecution to withdraw from their plea agreement (see
Harris v. Superior Court (2016) 1 Cal.5th 984, 992-993).
9
III
DISPOSITION
The order declining to recall defendant’s sentence is reversed. The matter is
remanded to the superior court for the court to reconsider the Secretary of the CDCR’s
recommendation and exercise its discretion under section 1170.03 whether to recall and
resentence defendant. On remand, the court is to provide defendant with all procedural
protections afforded under section 1170.03, including among others, appointment of
counsel for defendant, notice, and a hearing on the Secretary’s recommendation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J. We concur:
MILLER J.
FIELDS J.
10
AI Brief
AI-generated · verify before citing
Holding. The court reversed the order denying a sentence recall and remanded for a new hearing under Penal Code section 1170.03, holding that the trial court must follow the new procedural requirements and the presumption favoring recall, without allowing the prosecution to withdraw from the original plea agreement.
Issues
Whether the trial court erred in failing to hold a hearing and apply the standards of Penal Code section 1170.03 regarding a CDCR sentence recall recommendation.
Whether the prosecution may withdraw from a plea agreement if the trial court decides to reduce a sentence upon recall and resentencing.
Disposition. reversed and remanded
Quotations verified verbatim against the opinion
“We reverse the order declining to recall the sentence and remand for a new hearing consistent with Assembly Bill 1540 without permitting the prosecution to withdraw from their plea agreement.”