People v. Pierce

California Court of Appeal Feb 28, 2023 No. B322890Published

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Holding. The court held that the trial court's summary denial of the CDCR Secretary's recommendation to recall and resentence the defendant must be reversed and remanded to comply with the procedural requirements and guidelines of Penal Code section 1172.1.

Issues

Whether the trial court erred in summarily denying the CDCR Secretary's recommendation to recall and resentence the defendant under Penal Code section 1172.1.
Whether a plea agreement's stipulated sentence precludes the court from exercising its authority to recall and resentence under section 1172.1.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The order summarily denying the recommendation for recall of appellant’s 2011 sentence and to resentence him is reversed. The matter is remanded to the trial court for reconsideration of the recommendation in accordance with the requirements of section 1172.1.”

Filed 2/28/23 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B322890 (Super. Ct. No. F10903822) Plaintiff and Respondent, (Fresno County)

YUSEF LAMONT PIERCE,

Defendant and Appellant.

Yusef Lamont Pierce appeals from an order denying a recommendation by the Secretary of the California Department of Corrections and Rehabilitation (CDCR) to recall his 2011 sentence and resentence him pursuant to Penal Code section 1170, former subdivision (d)(1).1 The People concede that,

Unless otherwise stated, all statutory references are to 1

the Penal Code.

The appeal was originally filed in the Court of Appeal, Fifth Appellate District. The Supreme Court transferred the appeal to the Second Appellate District.

pursuant to section 1172.1, “this Court should reverse the order denying the recall and remand for reconsideration of the [Secretary’s] request.” We accept the concession, reverse and do not reach additional contentions. Appellant’s Plea Agreement and Sentence “[A]ppellant . . . was charged in a criminal complaint with four counts of second degree robbery involving different victims (Pen.Code, § 211, counts 1–4), kidnapping (§ 209, subd. (b)(1), count 5), four counts of false imprisonment, again involving different victims (§ 236, counts 6–9), being a felon in possession of a firearm (§ 12021, subd. (a)(1), count 10), being a felon in possession of ammunition (§ 12316, subd. (b)(1), count 11), felony evasion of a peace officer while operating a motor vehicle (Veh.Code, § 2800.2, subd. (a), count 12), misdemeanor hit and run driving (Veh.Code, § 20002, subd. (a), count 13), and misdemeanor resisting arrest (§ 148, subd. (a)(1), count 14). Counts 1 through 5 alleged that appellant used a firearm within the meaning of section 12022.53, subdivision (b). Counts 6 through 9 alleged a firearm use enhancement (§ 12022.5, subd. (a)). Appellant was also charged with a prior prison term enhancement (§ 667.5, subd. (b)).” (People v. Pierce (No. F063064, July 17, 2012) [nonpub. opn.] 2012 WL 2900484, at

People v. Pierce

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

YUSEF LAMONT PIERCE,

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