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Filed 2/17/22 P. v. Clark CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v. BRIAN ROBERT CLARK, Defendant and Appellant. E07 7549 (Super.Ct.No. RIF112169 ) O PINION

APPEAL from the Superior Court of Riverside County. John D. Molloy , Judge. Reversed and remanded

. Robert F. Somers , under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta , Attorney G eneral, Julie L. Garland, Assistant Attorney General, and Robin Urbanski and Donald W. Ostertag , Deputy Attorney s General, for Plaintiff and Respondent.2

In 2004, Brian Robert Clark pled guilty to r obbery a nd was sentenced to 2 5 years in prison. In 2021 , the California Department of Corrections and Rehabilitation (CDCR) recommended recalling and reducing his sentence based on his exemplary behavior while in prison under the provisions of what was the n Penal Code section 1170, subdivision (d)

. The trial court declined the CDCR’s recommendation. On January 1, 2022, Assembly Bill No. 1540 (2021

- 2022 Reg. Sess.) ( Assembly
Bill 1540) went into effect, which changed the procedure for recall and resentencing upon a recommendation from the CDCR. Both parties agree that Clark is entitled to the ameliorative benefits of the changes to the law and that the appropriate remedy is remand to the trial court for a new hearing on his petition for recall and resentencing

. We agree with the parties, reverse, and remand.
I FACTS In 2004, the Riverside County District Attorney charged Clark with robbery (Pen. Code , § 211, unlabeled statutory citations refer to this code) and alleged he had three prior serious fe lony convictions under section 667, subdivision (a) , with the most recent of the serious felonies qualifying as a strike under sections 667, subdivisions (c) and (e)(1) and 1170.12, subdivision (c)(1). Clark pled guilty as charged in exchange for a

sentenc e of 25 years, which was composed of a five

- y ear upper term for the robbery, doubled to 10 years due to the prior strike, plus three consecutive five

- year sentences for each of the prior serious felonies.3

In January 202 1 , the Secretary of the CDCR sent the trial court a letter recommending it recall Clark’s sentence in accordance with then section 1170, subdivision (d)

. The prosecution opposed the recommendation

. The trial court held a hearing on the recommendation on July 22, 2021 , and declined to recall the sentence

. Clark timely appealed. On October 8, 2021, while Clark’s appeal was pending, the governor approved passage of A ssembly Bill 1540 , which took effect o n January 1, 2022.
II ANALYSIS
A ssembly Bill 1540 move d and amended the recall and resentencing provisions formerly set out in section 1170, subdivision (d)(1) , to a new section, 1170.03

. (Stats. 2021, c h. 719

. ) The new section 1170.03 now requires that when recall and resentencing is initiated

— whet her on the court’s own motion or upon the recommendation of certain statutorily specified parties

— the court must “apply any changes in law that reduce sentences or provide for judicial discretion.” (§ 1170.03, subd. (a)(2).) In addition, “[i] f a resentenci ng request

. . . is from the Secretary of the Department of Corrections and Rehabilitation ,” ( § 1170.03, subd. (a)) then “[t] here shall be a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the defe ndant is an unreasonable risk of danger to public safety .” (§ 1170.03, subd. (b)(2).)
If the CDCR petitioned for his recall and resentencing today , Clark would be entitled to a presumption in favor of recall and resentencing unless he poses an4

unreasonable risk to public safety. He would also be entitled to have the court apply any ameliorative changes in the law should the court decide to resentence him. The People and Clark both agree we should reverse and remand to allow the trial court to review the CDCR’s recommendation in light of the new law. However, the People contend 1170.03 isn’t retroactive, doesn’t apply to Clark, and the only reason they recommend remand is because as a practical matter it’s likely the CDCR will simply reissue its recomm endation sometime in the future. We disagree with the People and conclude section 1170.03 applies retroactive ly to Clark’s case . In general, ameliorative criminal legislation applies to all non

- final judgments. (See In re Estrada (1965) 63 Cal.2d 740 ( Estr ada ) .) The People contend this rule doesn’t apply here because Clark’s judgment was final when he appealed. Indeed, he was attempting to render the judgment non

- final by way of recall and resentencing. The People also point out that in People v. Dehoyos (2 018) 4 Cal. 5th 594 , 601

- 603 ( Dehoyos ) our Supreme Court found Proposition 47 retroactive , but also concluded that defendants with non

- final judgments couldn’t obtain its benefits directly on appeal and instead had to seek recall and resentencing after thei r cases became final

. However, this argument ignores that Clark is not appealing his judgment or sentence directly. He is appealing from a post

- judgment order affecting his rights. Estrada retroactivity can and does apply when an appellate court is conside ring an appealable post

-

judgment order. For example, in People v. Esquivel (2021) 11 Cal.5th
671 ( Esquivel ) , the Supreme Court determined that the Estrada rule applied when5

challenging a probation revocation order even if the original imposed but stayed sentence was final. Looking at prior decisions, the court stated “we . . . observed that Estrada referred not only to the finality of the judgment of convic tion, but also to the finality of the ‘ “ case[] ” ’ or ‘ “ prosecution[]. ” ’ ” ( Esquivel , at p. 678.) The court reasoned Estrada applied because “ Defendant had not exhausted direct review of the order causing his carceral punishment to take effect. The time for him to seek that review had not expired. ” ( Ibid. ) In sum “[t] he point is that to the extent Estrada ’s unarticulated constitutional concerns shed light on the meaning of ‘ final ’ for purposes of the presumption of retroactivity, those concerns appear to point toward an inquiry focused on whether the criminal prosecution or proceeding as a whole is complete. ” ( Id. at p. 679.) The criminal proceeding here is not complete. Clark is not directly challenging his conviction, which is final. He is only appealing an order denying him the opportunity to have his sentence recalled and to be resentenced. The time for review of that decision has not run, and while review was pending changes in the law entitled him to some measure of relief he didn’t have before. Estra da retroactivity therefore applies in this case. Nor is the People’s reliance on Dehoyos persuasive. In Dehoyos the defendant was directly challenging their conviction. They were seeking to have their sentence reduced in accordance with the change in the l aw without having to go through the statutory resentencing procedures which would have applied to them had their sentence been final. ( Dehoyos , supra , 4 Cal.5th at p. 597. ) That is not what is happening here. Clark is not directly challenging his sentence or attempting to have any ameliorative benefits applied6

to his sentence directly. Indeed, unlike in Dehoyos , Clark wants to be resentenced according to the procedures in section 1170.03 precisely because his c onviction is final and that is one of the only ways he can potentially reopen it. We therefore remand to the trial court to allow it to reconsider the CDCR’s petition in light of newly enacted section 1170.03.
III DISPOSITION
We reverse the trial court’s decision not to recall Clark’s sentence and resentence
him , and remand for it to re consider whether to recall and resentence him in light of newly enacted section 1170.03

. NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J. We co ncur:

McKINSTER Acting P. J.

FIELDS J.