Filed 10/ 6/ 23 P. v. Williams CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,
Plaintiff and Respondent,

v.

MARTEL CHARROD WILLIAMS ,
Defendant and Appellant

. H0 50287 ( Santa Clara County Super. Ct. No. C 1239917 )

Martel Charrod Williams appeals from a trial court order denying the recommendation of the Secretary of the California Department of Corrections and Rehabilitation (CDCR) to recall his sentence under Penal Code section 1170 , subdivision (d) (1) 1 (hereafter section 1170(d)(1)) and resentence him . Williams contends that , under
section 1172.1 ( section 1170(d) (1) as amended and renumbered) , 2 the trial court erred by

1 Unspecified statutory references are to the Penal Code. 2 Effective January 1, 2022, pursuant to Assembly Bill No. 1540 (2021

- 2022 Reg. Sess. ) (Assembly Bill 1540) , the Legislature amended section 1170(d)(1) to redesignate it
as section 1170.03 and to cla rify “the Legislature’s intent regarding procedural requirements and the provision’s application

. ” ( People v. McMurray (2022) 76 Cal.App.5th 1035, 1038 ( McMurray ); Stats. 2021, ch. 719, §§ 1(i) & 3.) The Legislature later renumbered section 1170.03 to se ction 1172.1, with no change to the text of the statute. (Stats. 2022, ch. 58, § 9, eff. June 30, 2022.) We refer to the current version of the provision as section 1172.1 , and we cite “former section 1170(d)(1)” to refer to the provision as it read prio r to the effective date of Assembly Bill 1540.2

not (1) granting him a hearing on the recommendation of the Secretary of the CDCR (Secretary) , (2) appointing counsel to represent him, and (3) recognizing the presumption in favor of recall and resentencing

. The Attorney General concedes that the trial court’s
order must be reversed and the matter remanded to the trial court for a hearing

. We agree and order the matter remanded for reconsideration under section 1172.1.

I. FACTS AND PROCEDURAL BACKGROUND In 2013, Williams pleaded no contest to seven counts of robbery ( § 211 ) and two counts of false imprisonment ( §§ 236 , 237 )

. Williams admitted the firearm enhancement (§ 12022.53) and g ang enhancement (§ 186.22) allegations attached to the robbery

counts , and the gang enhancement allegations attached to the false imprisonment counts

. The trial court sentenced Williams to 17 years , 4 months in prison. Of those 17 years , 4 months, the majority of Williams’s sentence ( 1 3 years , 4 months ) was imposed on the
firearm en hancements attendant to the robbery counts

. On April 12, 2021, the Secretary filed a letter with the trial court pursuant to
former section 1170(d)(1) recommending recall of Williams’s sentence and resentenc ing
because a January 1, 2018 amendment to section 12022. 53 , subdivision (h) revised the sentencing court’s obligation to impose firearm enhancements in connection with certain
felonies . The amendment empower ed courts to use their “ discretion to strike or dismiss a
p ersonal use firearm enhancement at sentencing or resentencing

. . . in the interest of justice

. ” T he Secretary attached various document s to the letter , including documents setting forth Williams’ s participation in work assignments, education, and self

- he lp
activities , as well as his prison disciplinary record.
On May 14 , 2021, without holding a hearing on the matter , t he trial court issued an order in which it declined to recall Williams’s sentence , stating “ T he sentencing court in this matter imposed a sentence that served the interests of justice. There is no basis presented to this court at this time to disturb those now final sentencing orders.” This
order was served on the d istrict a ttorney, the p ublic d efender, and the Secretary, but not3

on Williams. In subsequent orders filed July 2, 2021 , and April 2 1 , 2022 , responding to correspondence from Williams’s counsel and to a petition for resentencing filed by
Williams himself , the trial court denied William s’s counsel’s submission and Williams’s petition, respectively, relying on and attaching its earlier May 14 , 2021 order. Williams did not timely appeal any of these orders. On October 24, 2022, this court granted Williams’s unopposed application for
relie f from default for failure to file a timely notice of appeal and permitted him to file a belated notice of appeal of the trial court’s order denying recall. 3 On October 26, 2022,
Williams filed a notice appealing the May 14 , 2021 order

. II. DISCUSSION
Williams contends the trial court erred under section 1172.1. Specifically,
Williams argues the court erred when it (1) denied the recall request without a hearing , (2) did not appoint counsel to represent him , and ( 3 ) denied him “the presumpti on in favor of recall and resentencing ” without “a finding that [ he ] posed ‘an unreasonable risk of danger to public safety.’ ” The Attorney General “ concedes this court should reverse the order denying the
recall and remand the matter for re consideration of the [Secretary ] ’s request. ”
A. Former Section 1170(d) (1) and Section 1172.1
1. Former Section 1170(d) (1)
At the time of the trial court’s May 14 , 2021 order, former section 1170(d)(1) granted the court the authority to “recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced,” and authorized the court to recall and resentence “at any time upon the

3 A “trial court’s denial of recall is an appealable order” ( People v. E.M. (2022) 85 Cal.App.5th 1075, 1086 ( E.M. )) and “within the scope of this court’s authority and jurisdiction.” ( Id . at pp. 1086

– 1087.)4

recommendation of the secretary.” 4 ( Former § 1170(d)(1).) When resentencing, the

court could “reduce a defendant’s term of imprisonment and modify the judgment, including a judgment entered after a plea agreement, if it is in the interest of justice , ” and “consider postconviction factors.” ( Ibid .)

2. Section 1172 .1 In response to “incorrect[] interpret[ations]” of former section 1170(d)(1) by the

courts ( McMurray , supra , 76 Cal.App.5th at p. 1041) , the Legislature amended former
section 1170(d)(1) 5 by enacting Assembly Bill 1540, which took effect on January 1,
2 02 2

. ( Stats. 2021, ch. 719, § 3.)
S ection 1172.1 , subdivision (a)(1) grants the trial court authorization “at any time upon the recommendation of the secretary” to “recall the sentence and commitment previously ordered and resentence” a defendant “in the same manner as if they had not previously been sentenced

. ” (§ 1172.1, subd. (a)(1).)
T he Legislature added language to section 1172.1 to specify a defendant’s procedural rights in connection with a recall request , including the right to a hearing :

“ R esentencing shall not be denied

. . . without a hearing where the parties have an opportunity to address the basis for the intended denial or rejection.” ( § 1172.1 , sub d. (a)(8).) In addition, w hen the court grants or denies recall and resentencing, it must “state on the record the reasons for its decision.” ( Id. , subd. (a)(6).) Moreover, in the event of a resentencing request from the Secretary pursuant to
sectio n 1172.1 , subdivision (a) , the statute requires t he court to “ provide notice to the defendant and set a status conference within 30 days after the date that the court received

4 “The CDCR recommendation furnishes the court with jurisdiction it would not otherwise have to recall and resentence and is ‘an invitation to the court to exercise its equitable jurisdiction.’ ” ( McMurray , supra , 76 Cal.App.5th at p. 1040, quoting People v. Frazier (2020) 55 Cal.App.5th 858, 866.)

5 As discussed ante (fn. 2) , Assembly Bill 1540 also renumbered former section 1170(d)(1) as section 1170.03. The Legi slature later further renumbered the statute as section 1172.1.5

the request,” and to “appoint counsel to represent the defendant.” ( § 1172.1,
subd. (b)(1).) Whe n the resentencing request comes from the Se cretary, there also “ 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 [s] ection 1170.18. ” ( Id. , subd. (b)(2).)
B. Analysis We apply the abuse of discretion standard to a trial court’s denial of the request to
recall a sentence . ( E.M. , supra , 85 Cal.App.5th at p. 1082

. ) We review questions of statutory interpretation de novo . ( Imperial Merc hant Services, Inc. v. Hunt (2009) 47
Cal.4 th 381, 387.)

1. Authorization to Recall and Resentence
U nder both former section 1170(d)(1) and section 1172.1, the trial court was and
is authorized to recall Williams’s sentence and resentence him at any time after receipt of the Secretary’s recommendation . ( People v. Pillsbury (2021) 69 Cal.App.5th 776, 782,
785

– 786 [ applying former § 1170(d)(1) ] ; see also E.M. , supra , 85 Cal.App.5th at
p p

. 1083 , 1090 [ applying § 1172.1 ] .) The Secretary’s recomme ndation to recall Williams’s sentence was based on
Senate Bill No. 6 20 (2017

- 2018 Reg. Sess.) , which gave sentencing courts the discretion to “strike or dismiss an enhancement otherwise required to be imposed by ” s ection
12022.53 , including firearm enhance ments

. (§ 12022.53, subd. (h); Stats. 2017, ch. 682, § 2.) “ The authority provided by [ subdivision (h) of section 12022.53 ] applies to any resentencing that may occur pursuant to any other law.” (§ 12022.53, subd. (h);
Stats. 2017, ch. 682, § 2 .) Williams’s sentence included such enhancements , and, thus, falls within the ambit of the court’s recall and resentencing authority under former
section 1170(d)(1) and section 1172.1

.6

2. Assembly Bill 1540 and Section 1172.1 Although Assembly Bill 1540 had no t been enacted when the trial court first
considered the Secretary ’s recommendation regarding Williams , the Legislative history of Assembly Bill 1540 makes clear that the Legislature intended to correct what it viewed as courts’ misinterpretations of forme r section 1170(d)(1). ( McMurray , supra , 76 Cal.App.5th at p. 1041

. ) As Asse m bly Bill 1540 is a clarification, rather than a
substantive revision of former section 1170(d)(1) , section 1172.1 applies to the trial court’s consideration of the Secretary’s re commendation to recall Williams’s sentence

. ( McMurray , at p. 1038.) Section 1172.1, subdivision (a)(8) states that “[r]esentencing shall not be
denied

. . . without a hearing where the parties have an opportunity to address the basis
for the intended deni al or rejection.” 6 (§ 1172.1, subd. (a)(8).) When the recall and resentencing request comes from the Secretary, under subdivision (b)(1) of section 1172.1, “[t]he court shall provide notice to the defendant and set a status conference within 30 days aft er the date that the court received the request,” and, in that “order setting the conference,” the court “shall also appoint counsel to represent the defendant.” (§ 1172.1, subd. (b)(1).) T he plain language of the statute thus requires the court considering a recall and resentencing request from the Secretary to provide notice to the
defendant , set a hearing date, hold a hearing, and appoint counsel to represent the
defendant

. In addition, under subdivision (b)(2) of section 1172.1, wh en the recall and resentencing request comes from the Secretary, “[t]here shall be a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the

6 The only exception to this requirement in section 1172.1 is set forth in subdivision (a)(7): “Resentencing may be granted without a hearing upon stipulation by the parties.” (§ 1172.1, sub d. (a)(7).) The parties in this case did not so stipulate.7

defendant is an unreasonable risk of danger to public safety , as defined in subdivision (c)
of [s] ection 1170.18.” (§ 1172.1, subd. (b)(2).)
The procedure followed by the trial court in this case did not comply with section 1172.1 in several respects. The court neither granted Williams a hearing nor appointed

c ounsel to represent him. The trial court also failed to provide notice to Williams. A trial court decision based on an error of law constitutes an abuse of discretion. ( In re Butler (2018) 4 Cal.5th 728, 743.)
We conclude that the trial court abused its discretion in denying recall without first conducting a hearing and appointing counsel to represent Williams. Accordingly, we will reverse the trial court’s order denying recall and remand for the trial court to consider the
matter under section 1172.1. ( See McMurray , supra , 76 Cal.App.5th at p. 1038.)
III. DISPOSITION The trial court’s order denying recall is reversed, and the matter is remanded to the
trial court with directions to conduct further proceedings in accordance with Penal Code
section 1172.1 to determine whether to recall Williams’s sentence and resentence him

.______________________________________ D anner, J.

WE CONCUR:

____________________________________ Bamattre

- Manoukian , Acting P. J.

____________________________________ Bromberg, J.

H050287 People v. Williams