BEWARE: BPH STATES THAT “MEDICAL RECORDS” ARE NOT OFF LIMITS FOR USE AT PAROLE HEARINGS!

There have been many inquiries about legal authority for the Board of Parole Hearings (BPH) to access the medical records of incarcerated people for parole consideration purposes. 

 In short, all those asking if the Board can access medical and mental health treatment records for their parole suitability hearing—the answer is, Yes. Is it legal?…. that can still be debated given that the Parole Hearing transcripts “themselves” are Public Record and thus [in our opinion] indirectly violates the Confidential Medical records laws. 

The main short term take away: if your loved one is seeing a clinical psychologist, psychiatrist or even a Medical Doctor within CDCR (and/or their Mental Health division) then they should know to “be careful” what is disclosed to the Doctor. The Doctor’s NOTE will not be Confidential and will be used at the Parole Hearing against them. These Doctors’ notes usually come in as “quotes” from the medical record during the Comprehensive Risk Assessment (CRA) file review by the BPH psychologist, who then writes their report for the Board (a.k.a. Psychological Report).

  ====================== 

BELOW is a summary of why BPH thinks that they are allowed to violate the inmates right by reviewing the “confidential” private Medical Records. 

BPH’s Chief Counsel’s legal position is that People (inmates) appearing before the board do not have a right to keep their medical records private from the Board, as the Board must review all relevant and reliable evidence when making parole decisions. 

To the extent people appearing before the Board asserts a right to privacy of medical information, the board’s authority to access the medical records of incarcerated people for purposes of parole consideration is permitted by both the Health Information Portability and Accountability Act (HIPAA) and California law. In fact, California law requires that an incarcerated person’s records be made available for the board to decide when a person can be safely allowed to return to society, and this exception obviates the need for a signed disclosure under HIPAA. The board may access medical records to satisfy its regulatory and statutory mandates. California Code of Regulations, title 15, sections 2281 and 2402, require the board to consider all relevant and reliable information for the board to meet its statutory obligations under Penal Code sections 3041, 4801, and 5075.1. 

 Medical records may contain relevant and reliable information about an individual’s suitability for parole. For example, under the elderly parole program ordered by the three-judge panel in Plata/Coleman v. Newsom and the separate elderly parole program in Penal Code section 3055, the board must consider an elderly offender’s diminished physical capacity. The medical records are a critical source for this information. 

 Similarly, when applying the youth offender factors required by Penal Code sections 3051 and 4801, subdivision (c), the board must look for subsequent growth and increased maturity of an individual, evidence of which is often found in the treatment and programming records contained in a medical file. Further, programming information for some people is kept in their medical file, as is evidence of mental state, conditions of treatment or control, and further information that bears on the person’s suitability for release. (Cal. Code Regs., tit. 15, §§ 2281, subd. (b); 2402, subd. (b).) Since disclosure of medical records is required under these legal mandates, HIPAA is satisfied. 

When considering “the purpose for which the information is sought” — which here is to determine whether an incarcerated person would pose an unreasonable risk to public safety in the free community — the scope is not limited in the request because the board must consider all relevant and reliable information when making such a parole decision. 

 If an entity other than the board was to limit its access to records, and thereby make decisions as to what information is relevant to parole suitability, the entity would violate the board’s purpose and authority. No agency other than the board determines what information may be relevant to making parole decisions. 

Mental health treatment records are accessible to the BPH. BPH’s Chief Counsel’s summarized some basic reasons (below) for the board’s access to an inmate’s medical/mental health records: 

 Elderly parole must give special consideration to the diminished physical condition, if any, have reduced the elderly inmate’s risk for future violence (PC 3055),

Programming records for those in mental health treatment programs (where compliance with treatment is often considered programming),

Information relevant to future risk due to illness/impairment,

Information related to mental state, conditions of treatment and control and further information that bears on the person’s institutional behavior and suitability for release,

Information on substance abuse based on the person’s history Information needed to ascertain reasonable accommodations under the Americans with Disabilities Act.  

BOTTOM LINE: BPH’s Chief Counsel’s legal position is that an incarcerated person does not have a reasonable expectation of privacy regarding their medical records when the records are needed for parole consideration purposes. Even if there was some privacy expectation, the board has the explicit authority to utilize an incarcerated person’s medical records for purposes of parole consideration under the Health Information Portability and Accountability Act HIPAA and Confidentiality of Medical Information Act (CMIA).

LSA offers free "live" Seminars for Lifers to prepare for their Parole Hearing; at RJ Donovan August 25, 26, 27: Tell your RJD Loved ones to sign up.

Life Support Alliance (LSA) returning to Prison to give their impactful Lifer Workshop: Get your Loved ones involved. 

Now that Covid19 is subsiding and more institutions are allowing Program providers into the prisons to bring "live" presentations; Life Support Alliance (LSA) is getting invitations to bring their impactful workshops. Tell Your Loved Ones to sign-up for the classes before it fills up.

 IT IS FREE and conducted on the YARDS at the prison.

SAVE THE DATES:

RJ Donovan San Diego; Friday, Saturday, and Sunday starting August 25* to 27 of 2023. 

** Watch for a Special RJD Appearance by Attorney Diane Letarte  at one or more sessions.

The idea is to try to present the class to as many inmates, by visiting as many Yards as possible, in the RJD institution during those 3-days. Some of the workshops include: Unraveling a Parole Hearing, Connecting the Dots, the Amends Project (e.g. how to write apology letters), among others.

LSA travels to the prisons to give their workshops in-person to all Long Term Inmates (i.e. Lifers, Youth Offender, Elderly hearings, DSL, ISL) that are going to a Parole Suitability Hearing. The workshop will help them get prepared for the Parole Hearing. LSA staff will go where they have the most interested people. This month of August 2023; it will be at RJ Donovan institution.

Specifically LSA will normally prioritize the institutions who register the most memberships (i.e. interest)! 

 If you are a Loved Ones in the free community then sign up to be a Free member of the Life Support Alliance (LSA). You will get the Free Newsletter (Lifer*Line) each month in your email inbox. The other way is to text the word “JOIN” to their automated system at 916-702-7344; which will return a link. Use the link to fill out the membership registration, right from the phone. 

The membership “count” will indicate which Prisons should get the in-person workshop first. You can also go to LSA’s website at www.lifesupportalliance.Org. Scroll to the bottom of the page and hit the “JOIN” button to get the same form to fill out. Fill out the form with the inmates’ name and the prison location. 

 LSA can be contacted via their email address info@lifesupportalliance.org and 

LSA PO BOX 277 

Rancho Cordova, 

CA 95711 

 

Thank You to LSA for all of what they do to assist the inmate population get home.

Senate Bill 81 would be a game changer for all Parole Candidates that get Denied AFTER reaching their Minimum Eligible Parole Date (MEPD)

 

Amended  IN  Assembly  June 21, 2023

Amended  IN  Senate  May 23, 2023

Amended  IN  Senate  March 22, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

                                                Senate Bill  No. 81

Introduced by Senators Skinner and Becker

January 12, 2023

An act to amend Section 3041 of, and to add Section 3041.8 to, the Penal Code, relating to parole.

 

Senate Bill 81 (SB 81) is a bill that was introduced in the California State Senate in 2023. The bill would add Section 3041.8 to the Penal Code, relating to parole. Note that this Bill will not be retroactive. Please note that our July summary may still be Amended beyond the posting of our BLOG. As of July 3rd, 2023, below is what SB81 looks like.

If your loved one has gone to the Board and has been denied at least once, then most likely by the next hearing; the Minimum Eligible Parole Date will have been exceeded. It may be a good idea to postpone their 2023 parole hearing until 2024. Make sure to review this with an attorney, before postponing the next hearing. This can be case specific depending on the circumstance of the case. If the Law Office of Diane T. Letarte is retained, we take into account this strategy based on the specific factors of our client's case. 

SB 81 is currently in the California State Assembly. If it is passed by the Assembly and signed by the Governor, it would go into effect on January 1, 2024. 

Here are some of the key provisions of SB 81: 

* Specifically, SB 81 would require the Board of Parole Hearings (BPH) to notify a parole candidate who has been denied parole that they have a right to petition for habeas relief from a court.

* A parole candidate may have the petition heard in either the county of conviction or in the county in which the parole candidate is incarcerated. To be allowed to pick the jurisdiction to file the Writ (WHC) can be very helpful to avoid some very conservative counties!

* SB 81 would also establish that a parole candidate who has reached their minimum eligible parole date has made a fundamental vested interest in being released on parole. This includes any ONE of the minimum parole dates such as MEPD, YPED, and EPED for youth offenders and elderly parole hearings. This means a parole candidate has made a prima facie case for relief and the reviewing court may not summarily deny a petition for writ of habeas corpus filed pursuant to this section.

* SB 81 would require a court reviewing a petition for habeas relief based on a parole denial to uphold the decision to deny parole only if the court finds, by a preponderance of the evidence, that the person presents a current, unreasonable risk of danger to public safety. 

* The Bill would require the court to, upon request, appoint FREE counsel to a parole candidate who has reached their minimum eligible parole date, who petitions the court for habeas relief after being denied parole. 

* The Court may order whatever relief as the case may require, including an Order for a new parole hearing, with or without limitations on what evidence the Board of Parole Hearings may consider.

In re Van Houten (5/30/23): youngest of Manson's devotees found the Court of Appeal on her side: challenging Governor Gavin Newsom’s reversal of her 2020 grant of parole

In re Van Houten Docket: B320098 (Second Appellate District) Opinion 5/30/2023. 

  BACKGROUND INFORMATION ====== 

 A California appeals court overruled Governor Gavin Newsom on Tuesday to find Leslie Van Houten, one of Charles Manson's murderous "family" of followers, entitled to parole after more than 50 years in prison for her part in the cult's 1969 killing spree. Van Houten has spent more than half of her life in prison for her part in the murder (then 19, a Youth Offender) of Rosemary and Leno La Bianca, a supermarket executive. 

 A jury convicted Van Houten in 1971 of two counts of first-degree murder and one count of conspiracy to commit murder. She was sentenced to life in prison with the possibility of parole. 

Van Houten, now 73, the youngest of Manson's devotees, has been recommended for early release by the state parole board on five occasions since 2016, but was denied three times by Newsom and twice by his predecessor, fellow Democrat Jerry Brown. 

This decision appears to marks the first time a court has overruled a governor's denial of parole to a Manson follower. The California appeals court said that Leslie Van Houten, who participated in two killings at the direction of cult leader Charles Manson in 1969, should be released from prison on parole.

 As we remember --> Manson, died in prison in 2017 at age 83, and directed his mostly young and female followers to murder seven people, including actress Sharon Tate, in August 1969 in what prosecutors said was part of a plan to incite a race war. I

  IN COURT ======= 

Petitioner (Leslie Van Houten ) petitioned for a writ of habeas corpus challenging Governor Gavin Newsom’s reversal of her 2020 grant of parole. Petitioner is serving concurrent sentences of seven years to life for the 1969 murders which she committed with other members of a cult led by Charles Manson. This is the fourth time a governor has reversed Petitioner’s parole. 

The Second Appellate District granted Petitioner’s petition. The court held that there is no evidence to support the Governor’s conclusions. The court explained that Petitioner provided an extensive explanation as to the causative factors leading to her involvement with Manson and the commission of the murders, and the record does not support a conclusion that there are hidden factors for which Petitioner has failed to account. 

The court wrote that the Governor’s finding of inconsistencies between Petitioner’s statements now and at the time of the murders fails to account for the decades of therapy, self-help programming, and reflection Petitioner has undergone in the past 50 years. The historical factors identified in the comprehensive risk assessment (CRA) are the sort of immutable circumstances the California Supreme Court (In re Lawrence, 2008) has held cannot support a finding of current dangerousness when there is extensive evidence of rehabilitation and other strong indicators of parole suitability, all of which Petitioner has demonstrated. 

Newsom now has 10 days to request that California Attorney General Rob Bonta petition the California Supreme Court to stop her release. If the state Supreme Court denies it, the appellate court’s decision to parole Van Houten stands and it could be a matter of weeks before she is set free under parole,

People v. Pierce (2/28/23); Court must review CDCR's letter to recall sentence, base on AB 1540 recall Presumption

Case Name: People v. Pierce (2023) 88 Cal.App.5th 1074, Case #: B322890, District: 2 DCA, Division: 6, Opinion Date: 02/28/2023 

The order summarily denying CDCR’s recommendation for recall of defendant’s 2011 stipulated sentence was reversed based on the new recall and resentencing procedures. The defendant entered into a plea agreement under which he received a stipulated term of 19 years 4 months. CDCR asked the trial court to recall and resentence defendant based on the amendment to Penal Code section 12022.53, allowing discretion to strike a gun use enhancement. Recall was denied. Defendant appealed. Held: Reversed. 

AB 1540, effective January 1, 2022, amended and moved the recall and resentencing provisions of former Penal Code section 1170(d)(1) to a new section, which was then renumbered to section 1172.1. Where recommended by CDCR, there is now a presumption in favor of recall and resentencing of a defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety. Resentencing may only be denied after hearing and appointment of counsel. 

Further, section 1172.1, subdivision (a)(3)(A) provides that, regardless of whether the initial sentence was imposed after a plea agreement, the trial court may reduce a term of imprisonment by modifying the sentence. Here, the appropriate remedy was to reverse and remand the matter, so that the trial court can consider CDCR’s recommendation to recall and resentence defendant under the new and clarified procedure and guidelines.

 

Editor's NOTE: A Major thank you (and shout out) for all the Central California Appellate Program (CCAP) work in summarizing major cases for the month. This is a reprint for Education purposes. We review the Summary of cases and re-print the case that is more relevant to our CDCR population.

Full case at: https://www.courts.ca.gov/opinions/documents/B322890.PDF

Per Gov. Newsom's new Prison mission: San Quentin State Prison is to become San Quentin Rehabilitation Center

SAN QUENTIN – 

Last month Governor Gavin Newsom, announced that San Quentin State Prison — the oldest and most notorious prison in California and home to the largest “death row” in the United States — will be transformed from a maximum-security prison into a one-of-a-kind facility focused on improving public safety through rehabilitation and education. The prison, will be renamed “San Quentin Rehabilitation Center,” focused on teaching those incarcerated men who are on the verge of release how to live and succeed in modern society. 

Newsom stated “We take the next step in our pursuit of true rehabilitation, justice and safer communities through this evidence-based investment, creating a new model for safety and justice, and safer communities through this evidenced-backed investment, creating a new model for safety and justice —the California Model—that will lead the nation,” Newsom announced from the grounds of San Quentin. 

In an announcement last month, Newsom outlined with some enthusiasm, how his administration plans to “spin” corrections in California 180 degree by creating a “California model” institution, modeled on the Scandinavian concept of correctional facilities, adapted for the unique qualities of California society. 

 The Governor intends to accomplish this by not only a name change, but by physically modifying San Quentin, remodeling the old, condemned row cells and a currently vacant PIA warehouse " into a center for innovation focused on education, rehabilitation and breaking cycles of crime," Newsom's office said. The goal is the have the new facility re-made and operational by 2025 and comes with an initial price tag of $20 million. 

HISTORIC ASPECT: 

San Quentin State Prison (SQSP) is a maximum security state prison for men run by the California Department of Corrections and Rehabilitation (CDCR). It is located north of San Francisco in the San Quentin, California community, which overlooks the San Francisco Bay. San Quentin State Prison was the first permanent prison in California, making it the state's oldest prison. It was the largest death row facility in the state and conducted all of the state's executions. The historic Face-Lift effort at San Quentin, never pursued at this scale in the United States, it will serve as a nationwide evidence-backed model to advance a more effective justice system that builds safer communities. San Quentin is the state’s oldest penal institution, established in 1852 with a beginning population of 68 inmates. Long the home of death row, over the years the walls have witnessed 422 executions, including 15 women. 

PRIOR NOTORIOUS LIFER INMATES: 

Charles Manson (now deceased: died from cardiac arrest resulting from respiratory failure, brought on by colon cancer) —was the most famous inmate on San Quentin death row; convicted on seven counts of first-degree murder. Sirhan Sirhan—Robert Kennedy's assassin - mow serving a life sentence at the Richard J. Donovan Correctional Facility in San Diego 

INMATE TRANSFERS: 

Those inmates remaining in the death row quarters will be transferred to other facilities, as many condemned inmates have been over the last few years. The facility will become a largely Level II facility, with some individuals with higher points accepted on the basis of behavioral overrides, according to early reports. Initially, officials expect to see about 500 transfers out of San Quentin to other facilities throughout the state. 

While the new programming at San Quentin (SQ) will focus on job training centers, life skills and is envisioned as a ‘last stop’ for those approaching release from prison (2 years pre-release time frames have been mentioned) administration officials have assured Lifers will not be excluded from the new version of SQ. 

 

EDITOR’S NOTE: We can only hope that the real change will be accomplished by both the changes in the physical facility, programs offered, and the dedication of the inmates and the CDCR Staff to make the change really work. Time will Tell….

Life Support Alliance (LSA) returning to Prison to give their impactful Lifer Workshop: Get your Loved ones involved.

 

Now that CoVid is subsiding and more institutions are allowing Program providers in to bring presentations; Life SupportAlliance (LSA) is getting invitations to bring their impactful workshops to more and more prisons (in-person).

 

Some of the workshops include: Unraveling a Parole Hearing,

Connecting the Dots, the Amends Project (e.g. how to write apology letters), among others.

 

LSA travels to the prisons to give their workshops to all Long Term Inmates (i.e. Lifers, Youth Offender, Elderly hearings, DSL, ISL) that are going to a Parole Suitability Hearing, in the future. The workshop will help them get prepared for the Parole Hearing.

 

LSA staff will go where they have the most interested people.

 

Specifically LSA will prioritize the institutions who register the most memberships!

 

If you are a Loved Ones in the free community then sign up to be a Free member of the Life Support Alliance (LSA). You will get the Free Newsletter (Lifer*Line) each month in your email inbox. The other way is to text the word “JOIN” to their automated system at 916-702-7344; which will return a link. Use the link to fill out the membership registration, right from the phone. The membership “count” will indicate which Prisons should get the in-person workshop first.

 

You can also go to LSA’s website at www.lifesupportalliance.Org. Scroll to the bottom of the page and hit the “JOIN” button to get the same form to fill out. Fill out the form with the inmates’ name and the prison location.

 

LSA can be contacted via their email address info@lifesupportalliance.org  and

 

LSA

PO BOX 277

Rancho Cordova, CA 95711

 

Thank You to LSA for all of what they do to assist the inmate population get home.

12/27/22 People v. White (2022) 86 Cal.App.5th 1229: A Franklin hearing does not reopen a final judgment or sentencing.

A Franklin hearing does not reopen a final judgment or sentencing; it is an “evidence preservation process” to gather data for future determination of parole, at a parole suitability hearing.

 ATTORNEY LETARTE NOTE:   Franklin Hearing (FH)  [youth offender documentation] can be very helpful if done correctly. Unfortunately these reports vary in usefulness. Some Social Worker (LCWS) can do a very good job at providing the Psychosocial background of the inmate. They will interview the inmate, family and siblings to write their report. On occasion a psychologist may write the report. If this is the case it is best to provide the FH psychologist a copy of the Comprehensive Risk Assessment (CRA), if possible ahead of the interview, to avoid conflicting facts.  Then, if properly documented it can be provided as a supplemental report to the Board's Comprehensive Risk Assessment (CRA) done by the Board's own psychologist. WARNING: Many times inmates do not disclose the "bad" upbringing to the Board's psychologist but then provide a total different picture [bad upbringing] to the FH psychologist or Social Worker. The conflicts in the social history will be a point of concerns by the Board. Be a step ahead and try to prevent any inconsistent statements between the reports.

================================================

Another big thank you to CCAP for the summary of this 12/27/2022 case. Republish here for Education purpose.

FACTS: 

In 2006, White was convicted of second degree murder and other offenses based on an accident he caused driving while intoxicated. He requested and received a Franklin hearing (People v. Franklin (2016) 63 Cal.4th 261) to place on the record mitigating factors in anticipation of a youthful parole hearing. (See Pen. Code, § 3051.) 

On appeal, he argued the Franklin hearing reopened his case, which would allow application of Assembly Bill No. 518.  Held: Affirmed. 

At the time of White’s sentencing, Penal Code section 654, former subdivision (a) required a trial court to impose the longest possible term when that section applied to two convictions. AB 518, effective January 1, 2022, amended section 654, to allow the trial court to impose sentence on either conviction. Though this amendment applies retroactively to non-final cases, it does not apply to White, because his Franklin hearing was not an extended portion of the original sentencing. Though Franklin hearings follow the procedures in Penal Code section 1204, and California Rules of Court, rule 4.437, which are related to sentencing, they are not the basis for Franklin hearings. Penal Code section 1203.01, under which post judgment Franklin motions are filed, is separate statutory authority for such hearings and not part of the defendant’s sentence. (See In re Cook (2019) 7 Cal.5th 439.) 

A Franklin hearing does not reopen or affect the judgment. AB 518 does not apply retroactively to final convictions. White argued that AB 518 should be applied retroactively to all convictions, whether or not final. Criminal laws generally apply prospectively. An exception to this rule was recognized in In re Estrada (1965) 63 Cal.2d 740, which held that, absent a clear intent to the contrary, new laws that mitigate punishment are presumed to apply to all cases not yet final. Nothing in AB 518 reflects the Legislature intended to alter the Estrada presumption, as it is “silent on the question of retroactivity and provides no mechanism by which youth offenders whose convictions are final can petition for resentencing.” Failure to apply AB 518 to final cases does not deny defendants equal protection of the law. “Because Assembly Bill 518’s differing treatment of defendants whose judgments are not final does not involve a fundamental right, and defendant does not contend the measure discriminates against members of a suspect class, it need only survive rational basis review to be constitutional.” 

Under that standard, equal protection is denied only where there is no rational relationship between the disparity of treatment and some legitimate governmental purpose. That purpose exists where the Legislature or the voters decline to make new laws that reduce criminal sentences fully retroactive in order to assure that penal laws continue to have their intended deterrent effect. 

 Full Opinion Here : https://www.courts.ca.gov/opinions/documents/C095640.PDF

12/6/2022 People v. E.M. Court’s jurisdiction to resentence under PC1172.1 was not eliminated by CDCR’s letter rescinding its request to recall the inmate’s sentence

Case Name: People v. E.M. (2022) 85 Cal.App.5th 1075 , District: 6 DCA , Case #: H049467 Opinion

A big thank you to CCAP for the summary of this 12/6/2022 case. Republish here for Education purpose.

Case Holding: 

Trial court’s jurisdiction to resentence an inmate under Penal Code section 1172.1 was not eliminated by CDCR’s letter rescinding its request to recall the inmate’s sentence, which was sent while the inmate’s appeal was pending. In 2019, CDCR recommended resentencing E.M. under what is now section 1172.1 based on Senate Bill No. 1393, which restored the trial court’s discretion to strike enhancements for prior serious felonies imposed under Penal Code section 667. After appointing counsel, the trial court declined to recall the sentence on the basis that E.M.’s judgment was final before the legislation was enacted (he was convicted in 1984). He appealed. 

The Attorney General initially agreed that E.M. case should be remanded for resentencing. However, after briefing, CDCR issued a new letter to the trial court stating it was rescinding its recommendation of recall and resentencing. The Attorney General withdrew its previous concession and argued the appeal was now moot. Held: Reversed and remanded. 

After a defendant has been committed to prison, the trial court may recall the defendant’s sentence and resentence him at any time based on the recommendation of the secretary of CDCR. After analyzing section 1172.1 and the legislative history, the Court of Appeal concluded CDCR’s rescission letter did not eliminate the trial court’s jurisdiction to recall and resentence E.M. and did not moot the appeal. The language of the statute implies the trial court’s power to recall continues indefinitely once it receives a recommendation from CDCR and there is no language that gives CDCR the power to rescind its recommendation. The trial court acted when it issued the order denying recall, and in doing so, the court exercised jurisdiction over the matter long before CDCR issued its rescission letter. Allowing CDCR to moot the appeal under the circumstances of this case would present separation of power concerns and it is it is unlikely the Legislature intended for CDCR to intrude this far into the courts’ jurisdiction over sentencing matters. 

[CCAP Editor’s Note: The Court of Appeal did not decide whether CDCR has the power to rescind a recommendation soon after issuing it and where the trial court has not yet acted on it; where a subsequent change in the prisoner’s circumstances may support rescission; or where the initial recommendation was erroneously issued due to administrative improvidence.] 

 The trial court erred in denying recall on the ground that a new law did not apply retroactively in a case that was final and remand is required for the trial court to consider recall and resentencing under section 1721.1. E.M. argued the trial court misconstrued the law when it denied recall and erred in several other ways based on the procedural requirements of newly enacted section 1172.1. The Court of Appeal agreed the trial court erred. Effective January 1, 2022, Assembly Bill No. 1540 renumbered the recall and resentencing provisions of former Penal Code section 1170, subdivision (d)(1) and amended the language governing the procedural requirements, which are now set forth in section 1172.1. Section 1172.1 provides in part, “The court, in recalling and resentencing under this subdivision, shall apply the sentencing rules of the Judicial Council and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” (Pen. Code, § 1172.1, subd. (a)(2).) Section 1172.1, subdivision (a)(4) sets forth a list of factors—some permissive and some mandatory—for the court to consider in recalling and resentencing. The statute includes a presumption in favor of recall and resentencing, which may only be overcome if the court finds the defendant is an unreasonable risk of danger to public safety as defined in Penal Code section 1170.18, subdivision (c). (Pen. Code, § 1172.1, subd. (b)(2).) Even before the enactment of AB 1540, Courts of Appeal held that former section 1170, subdivision (d) allowed for recall and resentencing based on recent changes in law that would be ameliorative with respect to cases that were final on appeal. The court reviewed recent decisions addressing the two statutes and concluded the trial court erred by denying recall on the erroneous premise that SB 1393 did not apply to E.M.’s case. On remand, section 1721.1 will apply. 

 [CCAP Editor’s Note: The court declined to decide whether section 1172.1 controlled in this appeal or whether former section 1170, subdivision (d) applied. (Compare People v. McMurray (2022) 76 Cal.App.5th 1035, with People v. Pillsbury (2021) 69 Cal.App.5th 776, 782 and People v. Cepeda (2021) 70 Cal.App.5th 456.) 

 

 The full opinion is available on the court’s website:

 https://www.courts.ca.gov/opinions/documents/H049467.PDF