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Filed 6/27/22 P. v. Pruitt 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

DARNELL EUGENE PRUITT,

Defendant and Appellant.

C093877

(Super. Ct. No. 10F06215)

Defendant Darnell Eugene Pruitt appeals the trial court’s denial of the Department 

of Corrections and Rehabilitation’s (CDCR) recommendation to consider recalling his

sentence and resentencing him. Agreeing with the parties that recent statutory changes 

warrant reconsideration, we reverse and remand. In doing so, we reject defendant’s 

request that, upon remand, we direct this case to be assigned to a different judge.
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FACTS AND HISTORY OF THE PROCEEDINGS

In February 2012, defendant entered a no contest plea, stipulating to a 30-year sentence 

consisting of five years for carjacking, doubled under the three strikes law, and a total of 

20 years for four prior serious felony convictions—battery with serious bodily injury in 

1989, making terrorist threats in 1994, second degree robbery in 1995, and second degree

robbery with personal use of a firearm in 1998—pursuant to Penal Code section 667, 

subdivision (a). (Statutory section citations that follow are found in the Penal Code 

unless otherwise stated.)

In January 2021, the Secretary of the CDCR (Secretary) sent a letter to the trial 

court recommending recall and resentencing of defendant pursuant to the former version 

of section 1170, subdivision (d)(1) (former section 1170(d)(1)), which authorized a court, 

at any time after receiving a recommendation from the CDCR, to recall an inmate’s 

sentence and resentence that inmate to a lesser sentence. The Secretary stated that “the 

COVID-19 pandemic has created an urgent necessity to decrease [CDCR’s] in-custody 

population,” especially for inmates such as defendant, then 53 years old, “who has been 

determined to be at particularly high-risk of serious complications should he contract 

COVID-19.” The Secretary noted defendant had served his base term and was sentenced 

before the passage of Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 

1013), which granted courts discretion to strike serious felony enhancements in the 

interest of justice. Defendant had served six prior prison terms, had been returned to 

prison for multiple parole revocations, and had received three disciplinary infractions—

two for fighting—while serving his current sentence. But he had “remained disciplinary 

free since January 2018” and had “taken advantage of positive activities, such as 

transitional programs, substance use disorder treatment, victim impact and awareness 

groups, voluntary education, and [had] maintained steady employment.” 
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In March 2021, the court, without appointing counsel, providing notice, or holding 

a hearing, declined to recall defendant’s sentence or strike the enhancements. The court

issued a written order setting forth its reasons for denying the CDCR’s recommendation. 

First, defendant had avoided a possible life sentence by entering into a favorable plea 

bargain that makes him eligible for release in 2034 at the age of 66, which was 

“reasonably . . . within his lifetime.” Second, the availability of the COVID-19 vaccine 

reduced the threat posed to vulnerable inmates such as defendant, thereby “alleviating the 

need for California superior court judges to reduce sentences of those inmates.” Third, 

the Secretary had not “shown that defendant . . . would not present an unreasonable risk 

of danger to society.” Rather, “the Secretary has listed a lifetime of nonstop convictions 

acquired by defendant Pruitt, beginning in 1985 all the way through the current 2010 

carjacking,” and defendant had “never showed any appreciable period of time when he 

was out of custody in which he failed to engage in not only any kind of criminality, but 

assaultive behavior.” The court concluded that defendant “simply is not a person who 

has ever demonstrated ability to reprogram and become a law-abiding member of 

society.”

In an aside, the court stated it “should not become the venue for determining 

whether inmates should have their prison sentences reduced. Indeed, this court questions 

whether this court can have such a power, which appears to this court to be the power of 

commutation of sentence, a power exclusively reserved for the Governor.” “Regardless,” 

the court concluded, defendant was not “a suitable person for consideration for reduction 

of sentence” because he “has spent his entire adult life engaging in assaultive behavior, 

including during his present prison incarceration.” 

While defendant’s appeal was pending, Assembly Bill No. 1540 (2021-2022 Reg. 

Sess.) (Stats. 2021, ch. 719, §§ 1-7) (Assembly Bill 1540) came into effect on January 1, 

2022, and moved the recall and resentencing provisions of former section 1170(d)(1) to 

new section 1170.03.
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DISCUSSION

I

Assembly Bill 1540

Defendant argues Assembly Bill 1540 (1) constitutes a clarification of existing law 

and therefore applies to cases involving the interpretation of former section 1170(d)(1),

and (2) applies retroactively to his case pursuant to In re Estrada (1965) 63 Cal.2d 740. 

While the People do not concede the merits of defendant’s arguments, they acknowledge 

that in the interest of judicial economy we may reverse the trial court’s order and remand 

for new proceedings under section 1170.03. We agree with defendant that Assembly 

Bill 1540 applies to his case because it is a clarification of former section 1170(d)(1), and 

we will therefore reverse and remand.

“Former section 1170(d)(1) authorized a trial court, at any time upon the 

recommendation of the Secretary, to ‘recall the sentence and commitment previously 

ordered and resentence the defendant in the same manner as if they had not previously 

been sentenced, provided the new sentence, if any, is no greater than the initial sentence.’ 

This same language is contained in section 1170.03, which is where Assembly Bill 1540 

moved the recall and resentencing provisions of former section 1170(d)(1). (§ 1170.03, 

subd. (a)(1).)

“Former section 1170(d)(1) (and now section 1170.03) authorizes the Secretary of 

the CDCR to recommend to the superior court that the court recall a previously imposed 

sentence and resentence the defendant. [Citation.] 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.’ [Citation.]

“In addition to moving the recall and resentencing provisions of former 

section 1170(d)(1) to section 1170.03, Assembly Bill 1540 also clarifies the required 

procedures including that, when recalling and resentencing, the court ‘shall . . . apply any 
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changes in law that reduce sentences or provide for judicial discretion.’ (§ 1170.03, 

subd. (a)(2).) Where, as here, the CDCR recommends recall and resentencing, the court 

is also now required to hold a hearing (unless the parties otherwise stipulate), state on the 

record its reasons for its decision, provide notice to the defendant, and appoint counsel 

for the defendant. (§ 1170.03, subds. (a)(6)-(8), (b)(1).) In addition, where a 

resentencing request is made, there is now a presumption in favor of 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.’ (§ 1170.03, subd. (b)(2).)” 

(People v. McMurray (2022) 76 Cal.App.5th 1035, 1040.)

Former section 1170(d)(1) additionally provided that the court “may 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.” Construing that 

language, this court concluded: “Trial courts are not bound by a stipulated sentence 

negotiated by the parties when resentencing under [former] section 1170(d)(1).” 

(People v. Pillsbury (2021) 69 Cal.App.5th 776, 788.) Section 1170.03 similarly 

provides that the court “in the interest of justice and regardless of whether the original 

sentence was imposed after a trial or plea agreement” may “reduce a defendant’s term of 

imprisonment by modifying the sentence.” (Id., subd. (a)(3).)

In People v. McMurray, supra, 76 Cal.App.5th 1035, we held: “[T]he Legislature 

repeatedly indicated that Assembly Bill 1540 was intended to ‘make clarifying changes’ 

to former section 1170(d)(1), including specifying the required procedure and guidelines 

when the CDCR recommends recall and resentencing. [Citation.] . . . Under the 

circumstances, the appropriate remedy is to reverse and remand the matter, so that the 

trial court can consider the CDCR’s recommendation to recall and resentence defendant 

under the new and clarified procedure and guidelines of section 1170.03. [Citation.] 

This is especially true here, given that the trial court failed to provide defendant with 

notice of the recommendation from the CDCR, appoint counsel for defendant, hold a 
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hearing, or state its reasons for declining to recall and resentence defendant.” (Id. at 

p. 1041.)

Here, although the trial court stated its reasons for declining to recall and 

resentence defendant, it did not provide the other procedures required under 

section 1170.03. We conclude, therefore, that reconsideration pursuant to the provisions 

of Assembly Bill 1540—including the presumption in favor of recall and resentencing 

(see People v. Garcia (2018) 28 Cal.App.5th 961, 973)—is warranted. Given our 

conclusion, we need not address defendant’s remaining substantive contentions.

II

Reassignment of Judge

Contending the judge in this case was dismissive of the Secretary’s 

recommendations, biased against defendant, and hostile towards the recall and 

resentencing scheme, defendant further requests that we order the action assigned to a 

new judge pursuant to Code of Civil Procedure section 170.1, subdivision (c), which 

provides: “At the request of a party or on its own motion an appellate court shall 

consider whether in the interests of justice it should direct that further proceedings be 

heard before a trial judge other than the judge whose judgment or order was reviewed by 

the appellate court.” 

“[T]he statutory power of appellate courts to disqualify sentencing judges should 

be used sparingly and only where the interests of justice require it,” such as “where the 

[action] of the original judge indicates an animus inconsistent with judicial objectivity” or 

“where the judge’s failure to follow the sentencing rules suggests a whimsical disregard 

of the sentencing scheme that is incompatible with a judicious effort to comply with its 

complex terms.” (People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1562.) “An 

appellate court need not find actual bias in order to invoke Code of Civil Procedure 

section 170.1, subdivision (c).” (People v. LaBlanc (2015) 238 Cal.App.4th 1059, 1079.)
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This is not one of the rare cases warranting reassignment. The judge’s detailed 

reasoning reflects a thorough command of the evidence before him and the law as it was 

broadly understood at the time. He understood the recall and resentencing scheme and 

his discretion to strike defendant’s enhancements for prior strikes. He recognized the 

Secretary’s COVID-19 concerns, observed that defendant had remained discipline free 

for the last three years, and was aware defendant has participated in self-improvement 

programs. The judge found that the availability of the COVID-19 vaccine mitigated the 

health threat, noted defendant would be eligible for release in 13 years pursuant to his 

plea agreement, and implicitly concluded that defendant’s continuous history of 

assaultive behavior tracing back to 1985 outweighed the factors cited by the Secretary. 

The judge’s decision to decline to exercise his discretion was based not on animus or 

whimsical disregard of the recall and resentencing scheme but rather on the arguments 

and evidence before him. The judge’s application of former section 1170(d)(1) was fair 

and objective.

Having properly applied that provision, the judge then questioned whether it 

violated the separation of powers doctrine, citing Way v. Superior Court (1977) 

74 Cal.App.3d 165, for the proposition that the power of commutation is the exclusive 

power of the Governor. (See id. at pp. 173-176; Cal. Const., art. V, § 8, subd. (a).) But

Way further concluded the Legislature did not invade this power in enacting, as part of 

the Uniform Determinate Sentencing Act of 1976 (§ 1170.2), a statute providing for the 

retroactive reduction of existing sentences because the statute aimed to promote 

sentencing uniformity. (Way, at pp. 177-178.) Because the statute “undertook no act of 

mercy, grace, or forgiveness toward past offenders, such as characterizes true 

commutations,” but rather was “incidental to a comprehensive reformation of 

California’s penal system,” the Legislature was not exercising the “complete power 

constitutionally delegated” to the Governor, and thus did not violate separation of powers 

principles. (Ibid.) With this clarification, we are confident the judge will continue to 
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apply the recall and resentencing procedures fairly and objectively, open-minded to the 

possibility the newly clarified procedures may lead him to a different conclusion. As to 

that outcome, we express no opinion.

DISPOSITION

The order declining to recall and resentence defendant is reversed. The matter is 

remanded for reconsideration of the CDCR’s recommendation to recall and resentence 

defendant, in accordance with section 1170.03 as added by Assembly Bill 1540. 

Defendant’s request for assignment to a different judge is denied. 

 

HULL, Acting P. J.

We concur:

 

MAURO, J.

 

RENNER, J.