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1170(d) Referrals Entitled to Due Process

People v. Pillsbury Court: California Courts of Appeal, Docket: C089002 (Third Appellate District), Opinion Date: September 30, 2021. An employee of a tire store was closing the store when defendant Jered Pillsbury entered wearing a hooded sweatshirt with the hood pulled over his head and his face covered either with a shirt or a mask. Defendant approached the employee and started grabbing cash out of the cash drawer. The employee noticed that defendant had a handgun that he believed to be a Glock nine-millimeter. The employee recognized defendant’s distinct voice and his eyes and eyebrows; defendant had been a former employee and had worked with the employee at the tire shop for approximately three years. Defendant was ultimately charged with second-degree robbery and a firearm enhancement. In a separate case, defendant was charged with two counts of second degree commercial burglary of a veterinary hospital. In each instance, defendant entered by breaking a window and stole property and cash, totaling approximately $8,000. Pursuant to a negotiated agreement, defendant entered a plea of no contest to robbery, and admitted that, in the course of the robbery, he personally used a firearm. He also pleaded no contest to commercial burglary, and the remaining count was dismissed. Consistent with the negotiated agreement, the trial court sentenced defendant to an aggregate term of 13 years. This case presented issues relating to the 2018 amendments to California Penal Code section 1170(d) and the Department of Corrections and Rehabilitation (CDCR) program related to those amendments. The Court of Appeal concluded that, upon the recommendation of the Secretary of CDCR (the Secretary), trial courts have the authority to recall and resentence defendants based on post-judgment changes in the law giving courts discretion to strike or dismiss enhancements, even when the judgment in the case is long since final and even when the original sentence was the product of a plea agreement. The Court also concluded that, while trial courts have the authority to summarily decline to recall and resentence, defendants have due process rights to notice and an opportunity to be heard before the court rules, and a statement of the court’s reasons for the declination. However, in cases such as this one where the prosecution had not weighed in prior to the trial court’s summary declination, defendants do not have a constitutional right to counsel.


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