People v. Cross CA3

California Court of Appeal Jan 25, 2023 No. C095674Unpublished

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Holding. The court held that the trial court must reconsider the Department of Corrections and Rehabilitation's recommendation to recall and resentence the defendant in accordance with the procedural and substantive requirements of Assembly Bill 1540 (now Penal Code section 1172.1).

Issues

Whether the trial court erred in denying the Department's recommendation to recall and resentence the defendant without providing notice, a hearing, or counsel.
Whether the procedural and substantive changes introduced by Assembly Bill 1540 apply to the trial court's reconsideration of the Department's recommendation.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“Defendant is entitled to have the court apply the new procedures of Assembly Bill 1540, including notice, a hearing, and a statement of reasons on the record.”

“He is also entitled to have the court apply the presumption favoring recall.”

“The matter is remanded for reconsideration of the Department’s recommendation to recall and resentence defendant in accordance with section 1172.1 as added by Assembly Bill 1540.”

Filed 1/25/23 P. v. Cross CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C095674

Plaintiff and Respondent, (Super. Ct. No. 04F08966)

JAMES CROSS,

Defendant and Appellant.

Defendant James Cross appeals the trial court’s denial of the California Department of Corrections and Rehabilitation’s (Department) recommendation to consider recalling his sentence and resentencing him. Agreeing with the parties that recent statutory changes warrant reconsideration, we reverse and remand.

BACKGROUND1 I Sentencing and Direct Appeal In 2004, defendant and a coconspirator supplied a confidential informant with multiple firearms in a plan to kill another individual. Before the plan could be executed, the informant turned the firearms over to law enforcement and search warrants were served. (People v. Cross, supra, C059882.) In 2008, after a jury found defendant guilty of multiple counts including conspiracy to commit murder (Pen. Code, §§ 182, subd. (a)(1), 187)2 and found true a firearm enhancement (§ 12022, subd. (a)(2)), the trial court sentenced defendant to an aggregate indeterminate term of 25 years to life, plus a three- year determinate term in prison. II Department’s Recommendation On January 21, 2020, the Department filed a letter under former section 1170, subdivision (d)(1), recommending the trial court recall defendant’s sentence. The Department summarized defendant’s rehabilitative history and noted defendant exhibited exceptional conduct, participated in programming, and received laudatory recommendations from employers and staff. In a February 25, 2020 letter addressed to the Board of Parole Hearings, the trial court denied the Department’s recommendation because it found defendant presented a danger to public safety based on statements he made to a clinician in 2014. The trial court did not set a hearing, appoint counsel, or provide notice to defendant of the Department’s recommendation. On June 12, 2020, the

People v. Cross CA3

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THE PEOPLE, C095674

JAMES CROSS,

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