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REMANDED: Prisoner Wins Appeal on 1170(d)(1)

People v. McMurray Docket: C090767 (Third Appellate District), Opinion Date: March 30, 2022. Defendant Woody McMurray appealed a trial court’s denial of a recommendation made by the Secretary (Secretary) of the California Department of Corrections and Rehabilitation (CDCR) under former Penal Code section 1170(d)(1) that the trial court consider recalling defendant’s sentence and resentencing him in light of changes made to section 12022.53. Defendant contended the trial court’s denial of resentencing without notice or the appointment of counsel violated his constitutional rights and was reversible error. While defendant’s appeal was pending, Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719, sections 1-7) 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. Assembly Bill 1540 also clarified the Legislature’s intent regarding procedural requirements and the provision’s application to “ameliorative laws . . . that reduce sentences or provide for judicial discretion, regardless of the date of the offense of conviction.” In addition, where requests for recall and resentencing are made, Assembly Bill 1540 added a presumption in favor of recall and resentencing. To the change in the law, Defendant argued: (1) Assembly Bill 1540 constituted a clarification of existing law and applied to cases involving the interpretation of former section 1170(d)(1); and (2) Assembly Bill 1540 applies retroactively to his case. The State argued Assembly Bill 1540 was not retroactive, but acknowledged, however, that in the interest of judicial economy, that the Court of Appeal may reverse the trial court’s order and remand for new proceedings under section 1170.03. The Court of Appeal agreed with defendant that Assembly Bill 1540 applied to his case because it is a clarification of former section 1170(d)(1), so it reversed and remanded for further proceedings. #1170(d)(1) #resentencing #ab1540

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