People v. Ramirez CA6

Filed 9/7/21 P. v. Ramirez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H047929
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. CC120254)

v.

GLEN ALLEN RAMIREZ,

Defendant and Appellant.

In 2002, a jury convicted defendant Glen Allen Ramirez of spousal rape (Pen.
Code, § 262, subd. (a)(1)),1 forcible oral copulation (former § 288a, subd. (c)(2)) and
infliction of corporal injury on a spouse (§ 273.5, subd. (a)). The trial court sentenced
Ramirez to a total term of 80 years to life consecutive to 18 years, which included a
five-year enhancement for a prior serious felony conviction under section 667,
subdivision (a).
In 2020, the secretary of the Department of Corrections and Rehabilitation
(CDCR) wrote a letter to the trial court recommending that Ramirez’s sentence be
recalled under section 1170, subdivision (d)(1). In its letter, the CDCR cited to recent
legislative amendments that now permit a trial court to exercise its discretion to strike
prior serious felony convictions under section 1385. The trial court declined to recall
Ramirez’s sentence “simply to avoid the lack of retroactivity” of Senate Bill No. 1393.

1
Unspecified statutory references are to the Penal Code.
 On appeal, Ramirez argues that the trial court abused its discretion by failing to
recognize the full breadth of its discretion to recall his sentence and by failing to give him
the opportunity to provide information in support of the CDCR’s recommendation.
Ramirez further argues that the CDCR’s filing of a letter recommending recall of his
sentence triggered his Sixth Amendment right to counsel, and the trial court erroneously
found it lacked the authority to strike his prior serious felony conviction. The Attorney
General agrees that remand is appropriate because the trial court did not exercise
informed discretion when it declined to recall Ramirez’s sentence. We reverse and
remand the matter to the trial court to exercise its discretion under section 1170,
subdivision (d)(1).
I. BACKGROUND
A. Ramirez’s Offenses, Conviction, and Sentence2
On March 18, 2002, Ramirez was charged by information with forcible spousal
rape (§ 262, subd. (a)(1); count 1), forcible oral copulation (former § 288a, subd. (c)(2));
count 2), and infliction of corporal injury on a spouse (§ 273.5, subd. (a); count 3). As to
all three counts, it was alleged that Ramirez personally used a deadly or dangerous
weapon (§ 12022.3) and inflicted great bodily injury (§§ 12022.7, 12022.8). It was also
alleged that Ramirez had a prior strike (§§ 667, subd. (b)-(i), 1170.12) and a prior serious
felony conviction (§ 667, subd. (a)).
On April 26, 2002, a jury convicted Ramirez of all the charged counts. The trial
court sentenced Ramirez to 50 years to life on count 1, 30 years to life on count 2, and 18
years for count 3, for an aggregate term of 80 years to life consecutive to 18 years.

2
The underlying facts of Ramirez’s offenses are not relevant to the issues raised
on appeal. A detailed recitation of the factual and procedural background of this case can
be found in this court’s unpublished opinion in Ramirez’s prior appeal (People v.
Ramirez (April 21, 2004, H024432) [nonpub. opn.]). We previously granted Ramirez’s
request for judicial notice of this court’s unpublished opinion.

2
The sentence included a five-year enhancement for Ramirez’s prior serious felony
conviction under section 667, subdivision (a).
B. The CDCR’s Letter
On January 9, 2020, the CDCR wrote a letter to the trial court. The letter stated,
“The purpose of this letter is to provide the court with authority to resentence [Ramirez]
pursuant to Penal Code section 1170, subdivision (d).” The letter went on to state, “This
section provides that, upon recommendation of the [CDCR], the court may recall a
previously ordered sentence and commitment, and resentence the defendant in the same
manner as if he had not previously been sentenced, provided the new sentence is no
greater than the initial sentence.”
The CDCR’s letter then stated: “Inmate Ramirez was sentenced in 2002 following
his conviction for violating section(s) 273. Furthermore, Ramirez’s sentence was
enhanced pursuant to section 667, subdivision (a)(1). That section provides for the
imposition of a consecutive five-year enhancement on any person convicted of a serious
felony for each previous conviction of a serious felony (or other qualifying conviction)
brought and tried separately. [¶] Courts were previously barred from striking prior serious
felony convictions 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 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, subdivision (a)(1) (authority which did not exist at the time of Ramirez’s
sentencing) I recommend that inmate Ramirez’s sentence be recalled and that he be
resentenced in accordance with section 1170, subdivision (d).”
The CDCR attached various supporting documents to its letter, including
documents that showed Ramirez’s completion of self-help programs while incarcerated,

3
his participation in prison work assignments, and his prison disciplinary record, which
showed that he had no disciplinary violations.
C. The Trial Court’s Order
On February 19, 2020, the trial court declined to recall Ramirez’s sentence. In its
written order, the trial court stated: “The [CDCR’s] request states one justification for
the recommendation [to recall Ramirez’s sentence]: that Mr. Ramirez’[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. Ramirez’[s] case, however, had been final on appeal for
many 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 desired that SB 1393 be
retroactive, it could have included specific language in the statute specifying such a
desire. [¶] While this court recognizes that a recommendation from the [CDCR] gives this
court the authority to recall a sentence, the court will decline to use that authority simply
to avoid the lack of retroactivity of SB 1393. [¶] 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
Ramirez argues that remand is required because the trial court’s decision not to
recall his sentence demonstrates that it misunderstood the scope of its discretion under
section 1170, subdivision (d)(1). Ramirez further argues that the trial court erroneously
declined to recall his sentence without giving him an opportunity to respond, and the
filing of the CDCR’s recommendation letter triggered the Sixth Amendment right to
counsel. Lastly, Ramirez argues that Senate Bill No. 1393 is applicable to his case
should the trial court decide to recall his sentence under section 1170, subdivision (d)(1).

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 A. General Legal Principles and Standard of Review
“Section 1170[, subdivision] (d) is 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 (Dix).)
Under section 1170, subdivision (d)(1), the trial court may, “at any time upon the
recommendation of the [CDCR] . . . 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.”
“[T]he [CDCR’s] recommendation letter is but an invitation to the court to exercise its
equitable jurisdiction.” (People v. Frazier (2020) 55 Cal.App.5th 858, 866 (Frazier).)
When resentencing, “[t]he court 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,
subd. (d)(1).)
Administrative regulations describe when the CDCR may recommend that a trial
court recall an inmate’s sentence, which includes “[w]hen there is a change in sentencing
law . . . .” (Cal. Code of Regs., tit. 15, § 3076.1, subd. (a)(3).) The CDCR may
recommend recalling an inmate’s sentence under section 1170, subdivision (d)(1) if “the
applicable sentencing laws at the time of [the inmate’s] sentencing hearing are
subsequently changed due to new statutory or case law authority with statewide
application.” (Cal. Code of Regs., tit. 15, § 3076.1, subd. (d)(1).) However, an inmate
will be excluded from recommendation under certain circumstances even if there is new
statutory or case law authority. (Id., subd. (d)(2).) For example, inmates who have not
yet served five continuous years or 50 percent of their current commitment or inmates
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who have been found guilty of certain serious or violent rules violations are excluded
from consideration under the administrative regulations. (Id., subd. (d)(2)(A) & (B).)
Initial eligibility is determined by the Classifications Services Unit or the Correctional
Case Records Unit, and once an inmate is found eligible, a cumulative case summary is
prepared, and the matter is referred to the CDCR. (Id., subd. (d)(3), (d)(3)(B).) The
CDCR must reach a decision on any referred matters within 10 business days (id.,
subd. (e)(1)) of its receipt, and, pursuant to the CDCR’s “broad discretion,” the CDCR’s
decision is final and not subject to administrative review. (Id., subd. (e)(4).)
The trial court may exercise its authority to recall a sentence under section 1170,
subdivision (d)(1) for “any reason rationally related to lawful sentencing.” (Dix, supra,
53 Cal.3d at p. 456.) We review the trial court’s decision whether to recall a sentence
under section 1170, subdivision (d)(1) for an abuse of discretion. (People v. McCallum
(2020) 55 Cal.App.5th 202, 211 (McCallum).) “An abuse of discretion may be shown
where the trial court was mistaken about the scope of its discretion.” (People v. Zeigler
(2012) 211 Cal.App.4th 638, 668 (Zeigler).)
B. Scope of the Trial Court’s Discretion Under Section 1170, subdivision (d)
Ramirez argues that the CDCR’s recommendation to recall his sentence was not
based solely on his prior serious felony conviction. Ramirez also argues that the trial
court was not confined to resentence him only on the basis recommended by the CDCR.
Thus, Ramirez insists that the trial court erroneously focused on the question of whether
Senate Bill No. 1393 applied to his case and “failed to recognize the full breadth of
discretion conferred upon it by virtue of the [CDCR’s] recommendation.”
The Attorney General agrees with Ramirez and argues that “the trial court did not
exercise informed discretion with respect to the [CDCR’s] recommendation.” The
Attorney General claims that “[i]t is evident that the court misunderstood the [CDCR’s]
letter as an effort to subvert legislative intent by recommending that appellant receive the
retroactive benefit of a change in law that was not otherwise retroactive to final
6
judgments.” The Attorney General notes that the letter could have been clearer in
explaining the basis for the recommendation for recall of Ramirez’s sentence. However,
“[r]ather than an attempt to subvert the retroactivity limitation of SB 1393, the
recommendation was the product of a multilevel, individualized determination that
appellant was suitable for resentencing.” Thus, the Attorney General agrees with
Ramirez that “[b]ecause the trial court apparently did not appreciate the individualized
nature of the [CDCR’s] recommendation, remand is appropriate for the court to exercise
its informed discretion regarding whether to grant or deny recall and resentencing.”
After a careful review of the trial court’s written order declining to recall
Ramirez’s sentence, we agree that remand is appropriate. In its written order, the trial
court correctly concluded that Senate Bill No. 1393 retroactively applies only to those
judgments that are not yet final. (See People v. Stamps (2020) 9 Cal.5th 685, 693, 699.)
The trial court, however, mistakenly believed that the CDCR’s recommendation was an
attempt “to avoid the lack of retroactivity of SB 1393.” Although the impetus for the
CDCR’s recommendation under section 1170, subdivision (d)(1) was the possibility that
an ameliorative change in the law could be applied to Ramirez’s case, the letter reflected
the CDCR’s individualized recommendation, based on an assessment of multiple factors,
that Ramirez’s sentence should be recalled. (Cal. Code of Regs, tit. 15, § 3076.1,
subds. (d), (e)(4).) The individualized nature of this assessment is evidenced by the
documents attached to the recommendation letter that showed Ramirez’s participation in
self-help programs, his participation in work assignments, and his prison disciplinary
record.
The trial court in this case decided not to recall Ramirez’s sentence because it
“decline[d] to extend the reach of SB 1393 to cases final on appeal as of January 1,
2018,” and it “decline[d] to use that authority simply to avoid the lack of retroactivity of
Senate Bill 1393.” Although the trial court may exercise its authority to recall a sentence
under section 1170, subdivision (d) for “any reason rationally related to lawful
7
sentencing” (Dix, supra, 53 Cal.3d at p. 456), it appears that the trial court misunderstood
the nature of the CDCR’s recommendation and instead relied on principles of
retroactivity and its determination that Senate Bill No. 1393 should not apply to final
judgments. The trial court also erroneously appears to have believed that it was confined
to resentencing Ramirez based solely on the ground identified by the CDCR in its letter
and that upon resentencing, it could only exercise its discretion to strike the prior serious
felony conviction. Section 1170, subdivision (d)(1), however, provides for no such
limitation and states that upon recall of a defendant’s sentence, the trial court may
“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.”
Thus, upon recalling a sentence under section 1170, subdivision (d)(1), the trial court is
entitled to reconsider all of its sentencing choices. “[T]he resentencing authority
conferred by section 1170[, subdivision] (d) is as broad as that possessed by the court
when the original sentence was pronounced.” (Dix, supra, 53 Cal.3d at p. 456.)
Accordingly, the trial court appears to have been “mistaken about the scope of its
discretion” to recall Ramirez’s sentence under section 1170, subdivision (d). (Zeigler,
supra, 211 Cal.App.4th at p. 668.) We therefore vacate the trial court’s order and remand
the matter so that the trial court may exercise its informed discretion and decide whether
to recall Ramirez’s sentence. We express no opinion on how the trial court should
exercise its discretion on remand.3

3
We note that the Attorney General argues that when rendering its decision on
remand, the trial court “must consider [Ramirez’s] postconviction conduct in prison.”
Section 1170, subdivision (d)(1), however, provides that the trial court “may consider
postconviction factors” such as prison disciplinary records when making its resentencing
determination. (Italics added.) There is nothing in the statutory scheme that requires the
trial court to consider prison disciplinary records.

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 C. Applicability of Senate Bill No. 1393
Ramirez argues that should the trial court decide to recall his sentence under
section 1170, subdivision (d)(1), the trial court has the authority to decide whether to
strike his prior serious felony conviction under section 1385 given the enactment of
Senate Bill No. 1393. The Attorney General agrees that if Ramirez’s sentence is recalled,
Senate Bill No. 1393 would apply.
The California Supreme Court is presently considering a related issue in the
context of the applicability of Proposition 57 in several cases including People v.
Federico (2020) 50 Cal.App.5th 318, review granted August 26, 2020, S263082 and
People v. Padilla (2020) 50 Cal.App.5th 244, review granted August 26, 2020, S263375.
In granting review of Padilla, the Supreme Court stated: “This case presents the
following issue: When a judgment becomes final, but is later vacated, altered, or
amended and a new sentence imposed, is the case no longer final for the purpose of
applying an intervening ameliorative change in the law?”
We do not reach the issue of the applicability of Senate Bill No. 1393. The trial
court is not required to follow the CDCR’s recommendation to recall Ramirez’s sentence,
and it would be premature for us to decide whether the trial court can exercise its
discretion to strike the prior serious felony enhancement under section 1385. Therefore,
we believe that it is appropriate for the trial court to consider this issue in the first
instance if it decides to recall Ramirez’s sentence under section 1170, subdivision (d)(1).
D. Ability to Present Materials in Support of the CDCR’s Recommendation
Next, Ramirez argues that he must be given the opportunity to submit information
and present supplemental materials in support of the CDCR’s recommendation.4

4
In his opening brief, Ramirez claims that there is nothing in the record that
reflects that the CDCR’s recommendation letter was forwarded to him. We disagree.
The record reflects that the trial court received the CDCR’s letter on January 21, 2020.
(continued)
9
Since we remand the matter back to the trial court, Ramirez will be given the opportunity
present supplemental materials. Moreover, the trial court will be required to consider the
materials, if any, that Ramirez submits. (See McCallum, supra, 55 Cal.App.5th at p. 217
[“upon a request by [the inmate], the trial court was required to consider evidence in
support of the [CDCR’s] recommendation”].)
E. Right to Counsel
Finally, Ramirez argues that the CDCR’s filing of a letter recommending recall of
his sentence triggered his Sixth Amendment right to counsel.
The Second District rejected a nearly identical argument in Frazier, supra, 55
Cal.App.5th 858. In Frazier, the Court of Appeal held that “the Sixth Amendment right
to counsel at critical stages of a criminal proceeding through sentencing does not apply to
postjudgment collateral changes [citations], including statutory petitions seeking a more
ameliorative sentence [citations], at least prior to the actual recall of sentence.” (Id. at
pp. 865-866.) Frazier held that the filing of a recommendation letter under section 1170,
subdivision (d)(1) “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
[citation], let alone any right to the recommended relief.” (Frazier, supra, at p. 866.)
In its decision, Frazier noted that a summary refusal to follow the CDCR’s
recommendation under section 1170, subdivision (d)(1) is an appealable postjudgment

According to the applicable administrative regulations, if the CDCR elects to recommend
an inmate for recall and resentencing, “a recommendation letter and Cumulative Case
Summary shall be forwarded to the sentencing court and a copy shall be provided to the
inmate and another copy placed in the inmate’s central file within 10 business days of the
decision.” (Cal. Code of Regs., tit. 15, § 3076.1, subd. (e)(2).) There is nothing in the
record to reflect that Ramirez did not receive a copy of the letter as required under the
relevant regulations, and in the absence of any contrary indications, we must “presume[]
that official duty has been regularly performed.” (Evid. Code, § 664.) Regardless, since
we remand the matter to the trial court, Ramirez will have the opportunity to submit
materials on his own behalf.

10
order affecting a defendant’s substantial rights. (Frazier, supra, 55 Cal.App.5th at
p. 867; see People v. Loper (2015) 60 Cal.4th 1155, 1168 [denial of recommendation for
compassionate release under § 1170, subd. (e) is appealable postjudgment order affecting
substantial rights].) Frazier, however, concluded that “[t]here simply is no constitutional
right to counsel or a hearing in connection with every postjudgment request with the
potential to affect a substantial right.” (Frazier, supra, at p. 867.) For example, the
summary denial of a petition for recall and resentencing under Proposition 36 is an
appealable postjudgment order affecting a defendant’s substantial rights. (Frazier, supra,
at p. 867; Teal v. Superior Court (2014) 60 Cal.4th 595, 601 [denial of petition for
resentencing under Proposition 36 is appealable].) Due process, however, does not
require a hearing on the trial court’s initial eligibility determination under Proposition 36.
(Frazier, supra, at p. 867; People v. Oehmigen (2014) 232 Cal.App.4th 1, 7-8 [due
process requires no hearing on a defendant’s eligibility for Proposition 36 relief].)
We find Frazier persuasive and conclude that the filing of a “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.” (Frazier, supra, 55 Cal.App.5th at p. 869.) Our conclusion is limited to
Ramirez’s contention that he has a right to counsel based solely on the CDCR’s filing of
a recommendation letter. We are not called upon to consider whether Ramirez would
have a due process right to counsel should the trial court elect to recall his sentence.
III. DISPOSITION
The trial court’s February 19, 2020 order is reversed, and the matter is
remanded to the trial court to exercise its discretion under Penal Code section 1170,
subdivision (d)(1) to recall and resentence defendant.

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 BAMATTRE-MANOUKIAN, J.

WE CONCUR:

ELIA, ACTING P.J.

DANNER, J.

People v. Ramirez
H047929