People v. Torres CA5

INTRODUCTION

Defendant Elizabeth Fernandez Torres appeals the trial court’s denial of a recommendation made by the Secretary of the Department of Corrections and Rehabilitation (the Secretary) under Penal Code1 former section 1170, subdivision (d)(1) that the trial court consider recalling defendant’s sentence and resentencing her in light of changes made to section 12022.53, subdivision (h), a statute the Secretary erroneously concluded was involved in defendant’s case. Defendant contends that the trial court’s denial of recall and resentencing without permitting her counsel to submit briefing violated her constitutional rights and was reversible error. The People contend that the trial court properly denied the recommendation to recall because the Secretary’s stated reason—changes to section 12022.53 applicable to firearm enhancements—is not applicable to defendant’s sentence because defendant was sentenced for a deadly weapon enhancement pursuant to former section 12022, subdivision (b)(1) and not pursuant to a firearm enhancement. While defendant’s appeal was pending, Assembly Bill No. 1540 (2021–2022 Reg. Sess.) (Assembly Bill 1540) came into effect on January 1, 2022, and…