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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

JAMES CROSS,

Defendant and Appellant.

C095674

(Super. Ct. No. 04F08966)

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.
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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 threeyear 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 

1 The facts are taken from our opinion in defendant’s direct appeal. (People v. Cross

(Mar. 8, 2010, C059882) [nonpub. opn.].) We previously granted the People’s request to 

incorporate by reference the record from the direct appeal.

2 Undesignated statutory references are to the Penal Code.
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trial court issued an ex parte minute order declining to exercise its discretion to recall 

defendant’s sentence.

DISCUSSION

Defendant contends that due to the clarifying provisions made effective through 

Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719, § 3.1) (Assembly

Bill 1540), he is entitled to reconsideration of the Department’s recommendation to recall 

and resentence him. The People dispute whether Assembly Bill 1540 applies 

retroactively, but concede “judicial efficiency counsel[s] in favor of simply applying the 

new statutory terms.” Thus, the parties agree this matter should be remanded for 

reconsideration of the Department’s recommendation. We agree with the parties.

Defendant further argues that given due process protections, the trial court abused 

its discretion in declining to recall defendant’s sentence without providing formal notice 

or an opportunity to present briefing. At the time of the Department’s recommendation, 

former section 1170, subdivision (d)(1) permitted a trial court, at any time upon the 

recommendation of the Department, to “recall the sentence and commitment previously 

ordered and resentence the defendant” provided the new sentence is no greater than the 

initial sentence. (Former § 1170, subd. (d)(1).)

While this appeal was pending, Assembly Bill 1540, effective January 1, 2022, 

made several “ ‘clarifying changes’ ” to the standards and factors a trial court must 

employ when considering the Department’s recommendation. (People v. McMurray

(2022) 76 Cal.App.5th 1035, 1041 (McMurray); see Stats. 2021, ch. 719, § 3.1.)3 As 

relevant here, where the Department makes the recommendation, the court shall provide 

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 Assembly Bill 1540 also moved the recall and resentencing provisions of former 

section 1170, subdivision (d)(1) to new section 1170.03. (Stats. 2021, ch. 719, § 3.1.) 

Effective June 30, 2022, section 1170.03 was renumbered section 1172.1, with no change 

in text. (Stats. 2022, ch. 58, § 10.)
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notice to defendant, set a hearing within 30 days of the court’s receipt of the 

Department’s request, and appoint counsel to represent defendant. (§ 1172.1, subd. 

(b)(1).) Furthermore, the trial court must consider an added “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.” (§ 1172.1, subd. (b)(2), 

added by Stats. 2021, ch. 719, § 3.1, subd. (b)(2).) “A statute that merely clarifies, rather 

than changes, existing law is properly applied to transactions predating its enactment.” 

(Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922.) Because 

Assembly Bill 1540 was passed in part to clarify legislative intent, it is properly 

considered in interpreting former section 1170, subdivision (d). (Carter, at p. 922.) 

Therefore, because the trial court’s denial of the Department’s recommendation predated 

enactment of Assembly Bill 1540, the clarification of the law applies here.

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. (§ 1172.1, subd. 

(b)(2).) Lastly, the court must consider whether the presumption favoring recall has been 

overcome by a finding of unreasonable risk of danger to public safety as defined in the 

statute; that is, that defendant will commit a new violent felony within the meaning of 

section 667, subdivision (e)(2)(C)(iv). (§ 1172.1, subd. (b)(2); see People v. Valencia 

(2017) 3 Cal.5th 347, 351.) Accordingly, the proper remedy is to reverse and remand the 

matter for the trial court to consider the Department’s recommendation under the new 

standards. (McMurray, supra, 76 Cal.App.5th at p. 1041.)

Given our conclusion, we need not address defendant’s further claims. 

Additionally, we need not resolve the question of retroactivity. (McMurray, supra, 

76 Cal.App.5th at p. 1042.)
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DISPOSITION

The trial court’s order declining to recall and resentence defendant is reversed. 

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.

 /s/

BOULWARE EURIE, J.

We concur:

 /s/

DUARTE, Acting P. J.

 /s/

RENNER, J.