People v. McMurray (Cal. Ct. App., Mar. 30, 2022, No. C090767) 2022 WL 949796, at *1–2
Summary: McMurray appealed the 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 11 that the trial court consider recalling defendant’s sentence and resentencing him in light of changes made to section 12022.53 which gave judges discretion to strike enhancements for the personal use of a firearm. The trial court denied resentencing without notice or the appointment of counsel. McMurray claimed that the trial court violated his constitutional rights and committed reversible error.
The People argued that the trial court lacked jurisdiction because was final before the amendments to section 12022.53 became operative. The People also argued that the trial court lacked authority to modify the sentence because defendant admitted the section 12022.53 enhancement as part of a negotiated plea, and the trial court cannot disregard the terms of the plea. The People also asserted that McMurray did not have a right to counsel or a right to provide additional information.