People v. Xiong CA3

Filed 9/27/22 P. v. Xiong CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C095061

Plaintiff and Respondent, (Super. Ct. No. 12F02578)

v.

JOHN XIONG,

Defendant and Appellant.

Following a conviction for robbery with the use of a firearm, defendant John Xiong was sentenced to a 36-year four-month prison term. Three years into serving his sentence, the California Department of Corrections and Rehabilitation (Department) recommended the trial court recall and resentence defendant. The trial court declined to recall defendant’s sentence and he appealed. Our court remanded for reconsideration of the Department’s recommendation and the trial court again declined to recall and resentence defendant. Defendant appealed. During the pendency of this appeal, Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Assembly Bill 1540), effective January 1, 2022, moved the recall and resentencing

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provisions of former Penal Code1 section 1170, subdivision (d)(1) to new section 1170.032 (Stats. 2021, ch. 719) and made several clarifications to the standards and factors a trial court must employ when considering the Department’s recommendation to recall and resentence. In light of its passage and the Legislature’s presumed intent, defendant argues he is entitled to reconsideration of the Department’s recommendation and the benefit of any other ameliorative changes in the law. We agree and reverse and remand. BACKGROUND In 2016, the trial court sentenced defendant to a term of 36 years four months; the sentence included doubling the five-year upper term for robbery due to a prior strike, one- third the midterm doubled due to restricted firearm possession, a 20-year firearm enhancement, and a five-year prior conviction enhancement. This court affirmed the conviction following Wende review and the judgment became final in 2017. (People v. Xiong (Feb. 24, 2017, C081131) [nonpub. opn.].) In 2019, the Department recommended the trial court recall and resentence defendant pursuant to amendments to section 667, subdivision (a), effective January 2019, which permitted the trial court to strike the enhancement. By written order, the trial court summarily denied the Department’s request, concluding that the “sentence imposed reflects the proper measure of justice.” Defendant appealed and we reversed to give the trial court an opportunity to reconsider the Department’s recommendation. (People v. Xiong (June 17, 2021, C089915) [nonpub. opn.].)3