People v. Martinez CA6

Filed 4/21/21 P. v. Martinez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H048045
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1230681)

v.

CHARLES RAY MARTINEZ,

Defendant and Appellant.

Under Penal Code section 1170, subdivision (d)(1)1 (hereafter section 1170(d)(1)),
the trial court may “at any time upon the recommendation of the secretary or the Board of
Parole Hearings” recall an inmate’s sentence and resentence that individual. Appellant
Charles Ray Martinez was the subject of such a recommendation. The trial court
declined to recall Martinez’s sentence, and Martinez argues the trial court abused its
discretion in so doing. For the reasons explained below, we agree and therefore vacate
the order and remand the matter to the trial court for it to exercise its informed discretion
under the statute.

1
Unspecified statutory references are to the Penal Code.
 I. FACTS AND PROCEDURAL BACKGROUND
The record on appeal contains no information about the facts of Martinez’s
offenses. In June 2013, Martinez was charged by information with assault with a firearm
(§ 245, subd. (a)(2); count 1) with an enhancement for the personal use of a firearm
(§ 12022.5, subd. (a)), shooting at an inhabited dwelling (§ 246; count 2) with an
enhancement for personal use of a dangerous or deadly weapon (§§ 667, 1192.7),
shooting at an occupied motor vehicle (§ 246; count 3) with an enhancement for personal
use of a dangerous or deadly weapon (§§ 667, 1192.7), theft or unauthorized use of a
vehicle (Veh. Code, § 10851, subd. (a); count 4), misdemeanor resisting, delaying, or
obstructing an officer (§ 148, subd. (a)(1); count 5), misdemeanor possession of burglar
tools (§ 466; count 6), misdemeanor possession of controlled substance paraphernalia
(Health & Saf. Code, § 11364.1; count 7), and owning, purchasing, receiving, or
possessing a firearm by a felon (§ 12021, subd. (a)(1); count 8). The information further
alleged Martinez had a prior serious felony conviction (§ 667, subd. (a) (hereafter
§ 667(a)), a prior strike conviction (§§ 667, subds. (b)–(i), 1170.12), two prior prison
terms for a felony conviction (§ 667.5, subd. (b)), and Martinez was on state parole when
he committed the offenses (§ 1203.085, subd. (b)).
On November 22, 2013, the trial court sentenced Martinez to an aggregate term of
12 years in prison, which term included five years for the prior serious felony conviction
enhancement under section 667(a).
On November 22, 2019, the Secretary of the California Department of Corrections
and Rehabilitation (CDCR) wrote a letter to the trial court. The letter described its
purpose as “provid[ing] the court with authority to resentence [Martinez] pursuant to
Penal Code section 1170, subdivision (d).” The letter stated, “Courts were previously
barred from striking prior serious felony convictions [under section 667(a)] for purposes
of enhancement under this section. However, effective September 30, 2018, courts are
now authorized to exercise their discretion to strike prior serious felony convictions for
2
purposes of enhancement under this section, or to strike the punishment for the
enhancement under this section, pursuant to section 1385. [¶] In light of the court’s
newfound authority to not impose a consecutive enhancement pursuant to section
[667(a)] (authority which did not exist at the time of Martinez’s sentencing) I recommend
that inmate Martinez’s sentence be recalled and that he be resentenced in accordance with
section 1170, subdivision (d).” The letter included an attachment that listed the
rehabilitative and educational programs Martinez had completed while in custody and
indicated he had not been the subject of any reports of rules violations.
On January 8, 2020, the trial court issued an order denying the request. The trial
court order reads in relevant part, “[t]he request states one justification for the
recommendation: that Mr. Martinez’[s] sentence includes a 5-year enhancement (Pen.
Code, section 667(a)) and as of January 1, 2018, SB 1393 gave trial courts the authority
to stay or strike the punishment for these enhancements. [¶] SB 1393 applies to any case
not final on appeal when the law went into effect. [Citation.] Mr. Martinez’[s] case,
however, had been final on appeal for several years as of January 1, 2018. This court
declines to extend the reach of SB 1393 to cases final on appeal as of January 1, 2018. If
the [L]egislature wanted SB 1393 to have such a wide reach, it could have included
specific language making the law retroactive to all cases. [¶] As this was the only reason
stated in the recommendation, the court declines the invitation to recall the sentence in
this case. The sentence will remain as originally ordered.”
II. DISCUSSION
Martinez appeals the trial court’s order declining to recall his sentence and
resentence him pursuant to section 1170(d)(1). Martinez contends the trial court erred in
its legal conclusion that it did not have the authority to resentence him. Further, Martinez
argues that, even assuming the trial court understood it had the authority to resentence
him but chose not to exercise that authority, the trial court abused its discretion because it
imposed a “blanket polic[y]” on Martinez instead of making an individualized
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determination. Martinez requests that this court vacate the trial court’s order and remand
the matter for the trial court to exercise its discretion in light of the facts of Martinez’s
case.
The Attorney General agrees the trial court erred and states the trial court
misunderstood the basis for the secretary’s recommendation. The Attorney General
acknowledges that, while “the secretary’s letter could have been clearer in explaining the
basis for his recommendation[,] [r]ather than an attempt to subvert the retroactivity
limitation of SB 1393, the recommendation was the product of a multilevel,
individualized determination that [Martinez] was suitable for resentencing.” The
Attorney General states that, because the trial court did not understand that the secretary
had made an individualized determination as to Martinez’s suitability for resentencing,
remand is appropriate for the court to exercise its informed discretion about whether to
grant or deny recall and resentencing. The Attorney General asserts that “[i]n rendering
its decision, the court must consider appellant’s postconviction conduct in prison as
reflected in the materials forwarded by the secretary.”
In deciding whether the trial court erred, we first consider the applicable statutes
and regulations. Section 1170(d)(1) states in relevant part, “When a defendant . . . has
been sentenced to be imprisoned in the state prison . . . the court may . . . at any time
upon the recommendation of the secretary or the Board of Parole Hearings in the case of
state prison inmates . . . 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 no greater than the initial sentence.”
With respect to factors for the court to consider when resentencing, the provision
directs the trial court to “apply the sentencing rules of the Judicial Council so as to
eliminate disparity of sentences and to promote uniformity of sentencing.”
(§ 1170(d)(1).) In resentencing, the court “may reduce a defendant’s term of
imprisonment and modify the judgment, including a judgment entered after a plea
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agreement, if it is in the interest of justice” and “may consider postconviction factors,
including, but not limited to, the inmate’s disciplinary record and record of rehabilitation
while incarcerated, evidence that reflects whether age, time served, and diminished
physical condition, if any, have reduced the inmate’s risk for future violence, and
evidence that reflects that circumstances have changed since the inmate’s original
sentencing so that the inmate’s continued incarceration is no longer in the interest of
justice.” (§ 1170(d)(1).)
Administrative regulations, in turn, set out the circumstances under which the
secretary may exercise his or her discretion to recommend to the court that an inmate’s
sentence be recalled. (Cal. Code Regs., tit. 15, § 3076.1.) These regulations also detail
the relevant procedures.2 One such circumstance is when there is a change in the
sentencing law. (Id. at § 3076.1(a)(3).) However, individuals may not be considered by
the secretary for recall and resentencing due to a subsequent statutory change if, among
other disqualifying factors, they have not served as least five years or 50 percent of their
current commitment or if they have been found guilty of a serious or violent rules
violation within the previous year. (Id. at § 3076.1(d)(2)). The secretary must elect
whether to recommend an inmate for recall and resentencing by exercising the secretary’s
“broad discretion” and if, so recommending, must forward a recommendation letter and
cumulative case summary to the sentencing court and provide a copy to the inmate. (Id.
at §§ 3076.1(e)(2), 3076.1(e)(4).)

2
The regulation cited herein (Cal. Code Regs., tit. 15, § 3076.1) took effect on
January 1, 2020. The version in effect when the secretary wrote to the trial court in
November 2019, though less detailed, similarly listed factors for the secretary’s
consideration “when recommending recall of commitment consideration for an inmate”
including among others the “inmate’s commitment offense,” “documented institutional
behavior,” and “any other criminal acts, either prior to or during the current period of
incarceration, that indicates he or she would be a danger to the public if released.”
(Former Cal. Code Regs., tit. 15, § 3076.1, eff. Jan. 17, 2013.)
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 We review the trial court’s decision whether to recall an inmate’s sentence under
section 1170(d)(1) for abuse of discretion. (People v. McCallum (2020) 55 Cal.App.5th
202, 211 (McCallum).) “There are two ways to show an abuse of discretion by the trial
court. One way is to show the ruling was whimsical, arbitrary, or capricious, i.e., that the
trial court exceeded the bounds of reason. [Citation.] The other way is to show the trial
court erred in acting on a mistaken view about the scope of its discretion.” (Olsen v.
Harbison (2005) 134 Cal.App.4th 278, 285; see also People v. Zeigler (2012) 211
Cal.App.4th 638, 668 [“An abuse of discretion may be shown where the trial court was
mistaken about the scope of its discretion.”].)
The trial court here correctly concluded that Senate Bill No. 1393 (2017-2018
Reg. Sess.) (Senate Bill 1393)—which allows a trial court to dismiss a serious felony
enhancement under section 667(a) in furtherance of justice and became effective on
January 1, 2019—applies retroactively only to judgments not yet final on appeal. (See
People v. Stamps (2020) 9 Cal.5th 685, 693, 699.) As Martinez’s 2013 conviction was
long final by 2019, Senate Bill 1393 does not of its own force apply to Martinez’s
conviction.
However, due to the secretary’s discretionary decision to recommend that
Martinez’s sentence be recalled for resentencing under section 1170(d)(1), the trial court
gained the authority to vacate Martinez’s sentence and resentence him as if he had never
been previously sentenced. (See Dix v. Superior Court (1991) 53 Cal.3d 442, 456 (Dix).)
As the California Supreme Court has observed, “the resentencing authority conferred by
section 1170(d) is as broad as that possessed by the court when the original sentence was
pronounced” (id. at p. 456) and “by enacting section 1170(d), the Legislature intended to
retain, within the limits of determinate sentencing, the preexisting judicial power to recall
and reconsider a sentence on individual grounds.” (Id. at p. 458.) In other words, the
secretary’s decision gave the trial court jurisdiction to apply to Martinez the law in effect
at the time of the potential recall of the sentence—in this case, 2019.
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 Therefore, the trial court appears to have been mistaken when it referenced
retroactivity principles and the legislative intent behind Senate Bill 1393 when
considering the secretary’s request. The relevant legislative intent is not that applicable
to Senate Bill 1393 but instead that for section 1170(d). With the latter, the legislature
gave trial courts broad powers to recall a sentence and resentence an inmate according to
the law in effect at the time of the recall of the sentence. (Dix, supra, 53 Cal.3d at
p. 456.)
Because it appears that the trial court was mistaken about the scope of its
discretion under section 1170(d)(1), we conclude the trial court abused its discretion in
denying the secretary’s request. We will therefore vacate the trial court’s order and
remand the matter for it to exercise its informed discretion whether to grant the
secretary’s request.
For the benefit of the trial court on remand, we make a few additional
observations. We agree with the Attorney General that the trial court should exercise its
discretion whether to recall Martinez’s sentence and resentence him based on the
particular facts of Martinez’s situation. (See Dix, supra, 53 Cal.3d at p. 458 [referencing
the “individual grounds” underlying the trial court’s decision].) Further, “[i]n deciding
whether to recall a sentence under section 1170, subdivision (d)(1), the trial court may
exercise its authority ‘for any reason rationally related to lawful sentencing.’ ”
(McCallum, supra, 55 Cal.App.5th at p. 210.) While the statute clearly authorizes the
trial court to consider “postconviction factors,” (§ 1170(d)(1)), we disagree with the
Attorney General’s contention that the trial court must do so. The text of the statute
makes clear that this factor is a permissible but not a mandatory consideration.
Finally, the trial court has broad discretion whether to recall and resentence
Martinez. “[T]he Secretary’s recommendation letter is but an invitation to the court to
exercise its equitable jurisdiction,” which “furnishes the court with the jurisdiction it
would not otherwise possess to recall and resentence.” (People v. Frazier (2020) 55
7
Cal.App.5th 858, 866). We express no opinion about how the trial court should exercise
its discretion when deciding whether to recall and resentence Martinez.
III. DISPOSITION
The trial court’s January 8, 2020 order is reversed. The matter is remanded to the
trial court to exercise its discretion under Penal Code section 1170, subdivision (d)(1)
whether to recall and resentence appellant.

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 ______________________________________
Danner, J.

WE CONCUR:

____________________________________
Elia, Acting P.J.

____________________________________
Grover, J.

H048045
People v. Martinez