People v. Frazier

Filed 10/13/20
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B300612

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA331474)
v.

VIRGINIA FRAZIER,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Douglas Sortino, Judge. Affirmed.
Wayne C. Tobin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, and William N. Frank, Deputy
Attorney General for Plaintiff and Respondent.
_______________________________
 The Secretary of the Department of Corrections and
Rehabilitation (Secretary) recommended the trial court recall
Virginia Frazier’s 23-year prison sentence imposed more than a
decade earlier and resentence her pursuant to Penal Code
1
section 1170, subdivision (d)(1), citing Frazier’s exemplary
postconviction conduct. The court entered an order summarily
declining to recall Frazier’s sentence. On appeal Frazier
contends the court violated due process by making its decision
without appointing counsel for her. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Frazier’s Underlying Conviction and Sentence
In November 2007 Frazier attacked her boyfriend with a
steak knife and slashed his arm, which he had raised defensively
to protect himself during the assault. A jury convicted Frazier of
one count of assault with a deadly weapon and found true the
special allegation that Frazier had personally inflicted great
bodily injury under circumstances involving domestic violence
(§ 12022.7, subd. (e)).
In a bifurcated proceeding on specially alleged prior
conviction allegations, Frazier admitted she had suffered
three prior serious or violent felony convictions within the
meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12)
and three prior serious felony convictions within the meaning of
section 667, subdivision (a)(1). The court dismissed two of
Frazier’s qualifying strike convictions in the interest of justice
and sentenced her to 23 years in prison, eight years for the
aggravated assault (the upper term of four years, doubled under
the three strikes law), plus five years for the great bodily injury

1
Statutory references are to this code.

2
enhancement and five years for each of her two, separately tried,
prior serious felony convictions. (§ 667, subd. (a)(1).)
We affirmed Frazier’s conviction and sentence. (People v.
Frazier (June 29, 2009, B208449) [nonpub. opn.].)
2. The Secretary’s Request for Recall of Sentence and
Resentencing and the Court’s Summary Denial
On May 31, 2019 the Secretary sent a letter and supporting
case summary to the trial court pursuant to section 1170,
subdivision (d)(1), recommending the court recall Frazier’s
sentence and resentence her. The Secretary informed the court
that Frazier, nearly 70 years old, had demonstrated exemplary
behavior while in prison; had completed a 24-week Alcoholics
Anonymous program and multiple educational courses, including
classes addressing conflict resolution and responses to violence;
and had served as a role model for other students in the prison
population. Frazier’s only disciplinary issue during her more
than decade-long incarceration was a refusal to perform an
assigned duty in September 2017.
On July 3, 2019 the trial court issued a minute order
stating, “The court has received and reviewed the letter from the
[Secretary] dated 5/31/19 requesting a review and resentencing of
defendant pursuant to Penal Code section 1170,
subdivision (d)(1). The court declines to exercise its discretion
pursuant to that section. The original sentence is to remain in
2
full force and effect.” Frazier appealed.

2
An order declining to follow the Secretary’s
recommendation pursuant to section 1170, subdivision (d)(1), is
an appealable order. (People v. McCallum (Sept. 30, 2020,
B301267) __ Cal.App.5th __, ___ [2020 Cal.App. Lexis 914 (p. 11,
fn. 7)]; cf. People v. Loper (2015) 60 Cal.4th 1155, 1158 [order

3
 DISCUSSION
1. Governing Law and Standard of Review
Section 1170, subdivision (d)(1), authorizes the court,
“within 120 days of the date of commitment on its own motion, or
at any time upon the recommendation of the secretary or the
Board of Parole Hearings in the case of state prison inmates . . .
[to] recall the sentence and commitment previously ordered and
resentence the defendant in the same manner as if they had not
previously been sentenced, provided the new sentence, if any, is
3
no greater than the initial sentence.” This provision thus creates
“an exception to the common law rule that the court loses
resentencing jurisdiction once execution of sentence has begun.”
(Dix v. Superior Court (1991) 53 Cal.3d 442, 455; accord, People v.
McCallum (Sept. 30, 2020, B301267) __ Cal.App.5th _, __ [p. 9]
[2020 Cal.App. Lexis 914] (McCallum) [“‘[s]ection 1170,
subdivision (d), represents a limited statutory exception to the
general rule that a trial court loses jurisdiction to reconsider a
denial of probation or vacate or modify the sentence when a
defendant is committed and execution of sentence begins’”];
People v. Delson (1984) 161 Cal.App.3d 56, 62 [same].)
We review the court’s order declining to follow the
Secretary’s recommendation for abuse of discretion. (McCallum,
supra, __ Cal.App.5th at p. __ [pp. 10-11 ]; cf. People v. Gibson

summarily declining to exercise discretion to follow the
Secretary’s recommendation for recall and resentencing under
section 1170, subdivision (e), is an appealable order].)
3
The Legislature revised section 1170, subdivision (d)(1),
effective August 6, 2020 to replace “he or she” with “they.” For
ease of reference we quote section 1170, subdivision (d)(1), in its
current form.

4
(2016) 2 Cal.App.5th 315, 324-325 [court’s decision whether to
recall defendant’s sentence under section 1170, subdivision (d)(2),
is reviewed for abuse of discretion].) We review Frazier’s
constitutional claim on undisputed facts de novo. (In re Taylor
(2015) 60 Cal.4th 1019, 1035 [“‘[w]hen the application of law to
fact is predominantly legal, such as when it implicates
constitutional rights and the exercise of judgment about the
values underlying legal principles, [the appellate] court’s review
is de novo’”].)
2. The Secretary’s Filing of a Letter Recommending Recall
of Sentence and Resentencing Did Not Trigger a
Due Process Right To Counsel
Frazier contends the court erred in summarily declining to
recall her sentence without appointing counsel to represent her.
While recognizing that nothing in section 1170, subdivision (d)(1),
authorizes appointment of counsel following the Secretary’s
recommendation for recall and resentencing, Frazier argues
appointment of counsel is required as a matter of due process at
this “critical stage” of a criminal proceeding to marshal necessary
evidence and address at a hearing any reservations the court may
4
have about the Secretary’s recommendation.

4
Observing Frazier’s notice of appeal was signed by counsel,
the People assert Frazier was represented by counsel in
connection with the Secretary’s recommendation. Counsel’s
signature on a notice of appeal filed weeks after entry of the
court’s order, however, does not support the People’s assertion
that Frazier was represented by counsel at the time the court
declined to exercise its discretion to recall her sentence and
resentence her. The People’s observation that Frazier did not
request appointment of counsel is similarly beside the point.
(See People v. Rouse (2016) 245 Cal.App.4th 292, 301 [“‘The right

5
 a. The constitutional right to counsel: a brief overview
The Sixth Amendment right to counsel, binding on states
through the Fourteenth Amendment, affords an indigent
defendant facing incarceration the right to court-appointed
counsel for his or her defense at every “critical stage” of the
criminal process up to and including sentencing and imposition of
judgment. (Marshall v. Rodgers (2013) 569 U.S. 58, 62 [“[i]t is
beyond dispute that ‘[t]he Sixth Amendment safeguards to an
accused who faces incarceration the right to counsel at all critical
stages of the criminal process’” up to and including sentencing];
Gardner v. Appellate Division of Superior Court (2019) 6 Cal.5th
998, 1003 [same].)
The Sixth Amendment provides no right to appeal and thus
no guarantee of counsel on direct appeal. (Martinez v. Court of
Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152, 155.)
However, when the state provides a defendant with a direct
appeal as a matter of right, the right to counsel on appeal is
required as a matter of due process and equal protection under
both the state and federal constitutional guarantees. (Ibid.; In re
Barnett (2003) 31 Cal.4th 466, 472; see Pennsylvania v. Finley
(1987) 481 U.S. 551, 555 [due process and equal protection
clauses of United States Constitution guarantee a right to
counsel on “the first appeal of right, and no further”].)
There is no federal constitutional right to counsel in
connection with a postconviction habeas corpus petition attacking
the validity of a judgment. (Coleman v. Thompson (1991)

to counsel is self-executing; the defendant need make no request
for counsel in order to be entitled to legal representation.
[Citation.] The right to counsel persists unless the defendant
affirmatively waives that right’”].)

6
501 U.S. 722, 752; Murray v. Carrier (1986) 477 U.S. 478, 487.)
However, the California Supreme Court has held, “if a petition
attacking the validity of a judgment states a prima facie case
leading to issuance of an order to show cause, the appointment of
counsel is demanded by due process concerns.” (In re Clark
(1993) 5 Cal.4th 750, 780; People v. Shipman (1965) 62 Cal.2d
226, 232 [same constitutional right to counsel upon prima facie
showing and issuance of order to show cause applicable to habeas
corpus proceedings also applies in coram nobis proceeding];
see Cal. Rules of Court, rule 4.551(c)(1), (2) [following the filing of
a petition for writ of habeas corpus, the superior court must issue
an order to show cause if the petitioner has made a prima facie
showing that he or she is entitled relief; “[o]n issuing an order to
show cause, the court must appoint counsel for any
unrepresented petitioner who desires but cannot afford
counsel”].)
b. The Secretary’s filing of a section 1170,
subdivision (d)(1), recommendation for recall and
resentencing does not trigger a due process right to
counsel for an indigent defendant
Emphasizing the Sixth Amendment guarantees a right to
counsel at all critical stages of a criminal proceeding, Frazier
asserts the Secretary’s recommendation for recall and
resentencing pursuant to section 1170, subdivision (d)(1), is a
“critical stage” that, as this case demonstrates, can mean the
difference between an inmate receiving an ameliorative sentence
(including, perhaps, immediate release based on time served) and
potentially spending the rest of her life in prison. However, as
discussed, the Sixth Amendment right to counsel at critical
stages of a criminal proceeding through sentencing does not
apply to postjudgment collateral challenges (see Coleman v.

7
Thompson, supra, 501 U.S. at p. 752; Pennsylvania v. Finley,
supra, 481 U.S. at p. 555), including statutory petitions seeking a
more ameliorative sentence (see People v. Perez (2018) 4 Cal.5th
1055, 1063-1064 [retroactive application of Proposition 36, the
Three Strikes Reform Act of 2012, is a legislative act of lenity
that does not implicate Sixth Amendment rights]; People v.
Howard (2020) 50 Cal.App.5th 727, 740 [same]), at least prior to
the actual recall of sentence. (See People v. Rouse (2016)
245 Cal.App.4th 292, 298 [once sentence recalled under
Proposition 47, the Safe Neighborhoods and Schools Act
(§ 1170.18), resentencing hearing is critical stage at which
defendant enjoys both Sixth Amendment and due process right to
counsel].)
Implicitly recognizing this Sixth Amendment
jurisprudence, Frazier contends the right to counsel following the
Secretary’s letter recommending recall and resentencing is rooted
in the same due process concerns that afford a habeas corpus
petitioner the right to counsel following the court’s issuance of an
order to show cause. Filed by the Secretary and not the inmate,
the section 1170, subdivision (d)(1), recommendation, she asserts,
is the “functional equivalent of a prima facie showing” for relief.
Or, stated differently, she argues, the recommendation is akin to
“an order to show cause [in that] an impartial governmental
entity has declared that there is legitimate cause for relief.” Both
analogies are flawed.
In a habeas corpus proceeding the right to counsel and a
hearing is triggered only after the petitioner has made a
prima facie factual showing that, if unrebutted, demonstrates
entitlement to relief. (See People v. Duvall (1995) 9 Cal.4th 464,
475 [issuance of an order to show cause in habeas proceeding

8
“signifies the court’s preliminary determination that the
petitioner has pleaded sufficient facts that, if true, would entitle
him to relief”]; In re Clark, supra, 5 Cal.4th at p. 770 [same]; see
also People v. Shipman, supra, 62 Cal.2d at p. 232 [“in the
absence of adequate factual allegations stating a prima facie case,
counsel need not be appointed” to represent a petitioner in the
trial court on petition for writ of error coram nobis].)
The Secretary’s request for recall and resentencing
pursuant to section 1170, subdivision (d)(1), in contrast, provides
no statutory entitlement to relief to the inmate even when the
court credits the postconviction facts identified in the Secretary’s
recommendation materials. (McCallum, supra, __ Cal.App.5th at
pp. __ [pp. 12-14]; see § 1170, subd. (d)(1) [the court “may” recall
the sentence and resentence].) As we recently explained in
McCallum, at pages __ [pp. 14-16], the Secretary’s
recommendation letter is but an invitation to the court to exercise
its equitable jurisdiction. (Id. at p. __ [p. 21].) It furnishes the
court with the jurisdiction it would not otherwise possess to recall
and resentence; it does not trigger a due process right to a
hearing (id. at p. __[p. 16]), let alone any right to the
recommended relief. (Ibid.)
Frazier also contends if, as we have held, a summary
refusal to follow the Secretary’s recommendation under
section 1170, subdivision (d)(1), is appealable pursuant to
section 1237, subdivision (b), as an order after judgment affecting
substantial rights (see McCallum, supra, __ Cal.App.5th at p. __,
fn. 7 [p. 11, fn 7]; cf. People v. Loper (2015) 60 Cal.4th 1155,
1158), it necessarily follows that the due process right to counsel
attaches to protect those substantial rights in the trial court.
(See generally Avitia v. Superior Court (2018) 6 Cal.5th 486, 494

9
[“a right is substantial when denial of the right results in a denial
of due process”].)
Frazier’s argument sweeps too broadly. There simply is no
constitutional right to counsel or a hearing in connection with
every postjudgment request with the potential to affect a
substantial right. An inmate seeking recall and resentencing
under Proposition 36 (the Three Strikes Reform Act of 2012)
5
(§ 1170.126), for example, has a right to appeal from the
summary denial of a petition for recall and resentencing
following a finding the petitioner is ineligible for relief because
that determination is an order after judgment affecting the
petitioner’s substantial rights (Teal v. Superior Court (2014)
60 Cal.4th 595, 601), but there is no due process right to a
hearing in connection with the trial court’s eligibility
determination. (People v. Oehmigen (2014) 232 Cal.App.4th 1,
7-8 [due process does not require a hearing on the defendant’s
eligibility for Proposition 36 relief]; People v. Bradford (2014)
227 Cal.App.4th 1322, 1341 [same].) It is only after the
petitioner’s eligibility has been established and the statutory
mandate for resentencing triggered (see § 1170.126, subd. (f) [if

5
Under Proposition 36 an inmate who has been sentenced as
a third strike offender for a nonserious, nonviolent felony may
petition for resentencing as a second strike offender. (§ 1170.126,
subds. (a), (b).) Upon receiving such a petition the trial court
“shall determine whether the petitioner satisfies the criteria”
identified in the statute. (§ 1170.126, subd. (f).) If the criteria
are met, section 1170.126, subdivision (f), continues, “The
petitioner shall be resentenced . . . unless the court, in its
discretion, determines that resentencing the petitioner would
pose an unreasonable risk of danger to public safety.”
(Accord, People v. Conley (2016) 63 Cal.4th 646, 658.)

10
eligible, “the petitioner shall be resentenced . . . unless the court,
in its discretion, determines that resentencing the petitioner
would pose an unreasonable risk of danger to public safety”]) that
due process protections, including the right to a hearing, attach
to the determination whether the defendant will be awarded the
relief sought. (See People v. Superior Court (Kaulick) (2013)
215 Cal.App.4th 1279, 1297 [due process requires prosecution be
given notice and opportunity to be heard on issue of
Proposition 36 petitioner’s unreasonable risk of dangerousness].)
Similarly misguided is Frazier’s attempt to compare a
petition filed by an inmate pursuant to section 1170.95, following
the Legislature’s amendments to the felony murder rule and the
natural and probable consequences doctrine as it pertains to
murder, with the Secretary’s section 1170, subdivision (d)(1),
recommendation. Again, unlike section 1170, subdivision (d)(1),
section 1170.95 creates an affirmative right to relief—recall of
sentence and resentencing—for eligible inmates convicted of
certain murder offenses who could not be convicted under the
amended statutes. (See § 1170.95, subd. (d)(3) [requiring hearing
“to determine whether the petitioner is entitled to relief”].)
Moreover, section 1170.95, subdivision (c), expressly authorizes
appointment of counsel upon the court’s finding the petitioner
has made a prima facie showing that he or she is entitled to
relief. (See People v. Verdugo (2020) 44 Cal.App.5th 320, review
granted, Mar. 18, 2020, S260493; see also People v. Cooper (2020)
54 Cal.App.5th 106, 118-120 [disagreeing with Verdugo only as to
6
when the legislatively mandated right to counsel attaches].)

6
The Supreme Court in Verdugo, supra, S260493 ordered
briefing deferred pending its disposition of People v. Lewis (2020)
43 Cal.App.5th 1128, review granted March 18, 2020, S260598.

11
Section 1170, subdivision (d)(1), in contrast, contains no statutory
mandate for appointment of counsel.
3. The Record Does Not Demonstrate the Court Abused Its
Discretion
Frazier observes that, without appointing counsel and
affording an inmate the opportunity to be heard, the court can
summarily deny the request for recall and resentencing without
explanation, leaving the court of appeal, as here, without a
developed record and the ability to provide any meaningful
review. That alone, she contends, is an abuse of discretion, for
there is nothing in the record that suggests the denial of the
Secretary’s request was rationally related to lawful sentencing.
(Dix v. Superior Court, supra, 53 Cal.3d at p. 456.)
However, nothing in section 1170, subdivision (d)(1),
requires the court to state its reasoning when declining to
exercise its discretion in response to the Secretary’s
recommendation. It is a fundamental tenet of appellate review
that we presume on a silent record the court properly exercised
its discretion. (See People v. Fuhrman (1997) 16 Cal.4th 930,
944; People v. Lee (2017) 16 Cal.App.5th 861, 867 [“if the record is
silent” on the court’s awareness of its discretionary authority in
sentencing, we must presume the court understood the scope of
its discretion and affirm]; People v. Gutierrez (2009)
174 Cal.App.4th 515, 527 [“in light of the presumption on a silent

The Court limited briefing and argument in People v. Lewis to the
following issues: “(1) May superior courts consider the record of
conviction in determining whether a defendant has made a prima
facie showing of eligibility for relief under Penal Code
section 1170.95? (2) When does the right to appointed counsel
arise under Penal Code section 1170.95, subdivision (c)?”

12
record that the trial court is aware of the applicable law,
including statutory discretion at sentencing, [the reviewing court]
cannot presume error where the record does not establish on its
face that the trial court misunderstood the scope of [its]
discretion”].)
In affirming the court’s order, we do not suggest the court’s
discretion to summarily decline to exercise its discretion under
section 1170, subdivision (d)(1), is unfettered. As we recently
held, an inmate may seek to present information to the court to
supplement or enhance the material submitted by the Secretary.
When that occurs, it is an abuse of discretion for the court to deny
the Secretary’s recommendation without permitting the inmate
to do so. (McCallum, supra, __ Cal.App.5th at p. __ [p. 24].)
In addition, we need not, and do not, decide whether at
some point prior to an actual resentencing hearing a due process
right to counsel may attach under section 1170, subdivision (d)(1)
—for example, if the court elects to conduct an evidentiary
hearing to aid it in exercising its discretion whether to recall the
sentence. We hold only that the filing of the Secretary’s
recommendation letter inviting the court to exercise its
jurisdiction pursuant to section 1170, subdivision (d)(1), to recall
a sentence, without more, does not trigger a due process right to
counsel.

13
 DISPOSITION
The court’s July 3, 2019 order declining to exercise its
discretion for recall and resentencing under section 1170,
subdivision (d)(1), is affirmed.

PERLUSS, P. J
We concur:

SEGAL, J. FEUER, J.

14