Filed 9/24/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B306301
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA058263)
v.
JOSE ALEX MENDEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Cynthia L. Ulfig, Judge. Reversed and
remanded with directions.
Tanya Dellaca, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill and Michael R.
Johnsen, Supervising Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
Jose Alex Mendez appeals the denial of a recommendation
by the secretary of the California Department of Corrections and
Rehabilitation (CDCR) to recall his sentence under Penal Code1
section 1170, subdivision (d)(1). Appellant contends the trial
court abused its discretion by failing to adequately weigh his
postconviction record and affording him no opportunity to be
heard regarding the recommendation by the CDCR to recall his
sentence.
The California Code of Regulations requires the secretary
to provide a copy of the recommendation letter and Cumulative
Case Summary to the inmate (Cal. Code Regs., tit. 15, § 3076.1,
subd. (e)(2)), and in this case, the secretary also provided copies
of the abstract of judgment and minute orders, along with the
recommendation letter and Cumulative Case Summary to the
Los Angeles County District Attorney’s Office and the Los
Angeles County Public Defender’s Office. There is no indication
in the record, however, that the trial court gave the parties notice
or an opportunity to present additional information relevant to
the court’s decision. In view of the substantial liberty interest at
stake when the secretary issues a recommendation to recall an
inmate’s sentence, we reverse and remand the matter to the trial
court to give notice to the parties, to allow the parties the
opportunity to supplement the CDCR’s recommendation with
additional relevant information, and to enable the trial court to
exercise its discretion whether to recall appellant’s sentence in
light of such information as well as any briefing the parties might
choose to submit.
1 Undesignated statutory references are to the Penal Code.
2
PROCEDURAL2 BACKGROUND
Appellant was convicted by a jury in November 2008 of 12
counts of second degree robbery (§ 211) and one count of
attempted second degree robbery (§§ 664/211), with personal
weapon use enhancement findings as to 12 of the 13 counts
(§ 12022.53, subd. (b)). The trial court sentenced appellant to 13
years 8 months on the 13 counts of conviction plus 46 years 8
months on the weapon enhancements, for a total term of 60 years
4 months in prison. This court rejected appellant’s claim on
appeal that the sentence was excessive and affirmed the
judgment in People v. Mendez (Jul. 21, 2010, B214453 [nonpub.
opn.]).
By letter to the Los Angeles County Superior Court dated
August 14, 2019, the secretary of the CDCR recommended a
recall of appellant’s sentence and resentencing in accordance with
section 1170, subdivision (d). The letter was marked “received”
in Department 30 on August 27, “received” in Department L on
October 1, 2019, and filed in the superior court on October 15,
2019.
In the letter, the secretary noted that appellant’s sentence
included numerous weapon enhancements under section
12022.53, subdivision (b), which were mandatory at the time of
appellant’s sentencing. However, pursuant to the amendment to
section 12022.53, subdivision (h), effective January 1, 2018,
“courts are now empowered with discretion to strike or dismiss a
personal use firearm enhancement at sentencing or resentencing
2 Because this appeal raises no issues concerning the facts
of the underlying offenses, we omit a statement of facts. (See
People v. White (1997) 55 Cal.App.4th 914, 916, fn. 2.)
3
pursuant to PC Section 1170, subdivision (d), in the interest of
justice pursuant to PC Section 1385.” Enclosed with the letter
were the abstract of judgment, minute orders, the charging
documents, and a cumulative case summary. Based on the
secretary’s review of those documents, the secretary
“recommend[ed] the inmate’s sentence be recalled and that he be
resentenced.”
In a written order dated October 16, 2019, the trial court
rejected the secretary’s request for recall and resentencing. The
court stated it had reviewed the court file, the documents
enclosed with the letter, and the reasons for the secretary’s
recommendation, including appellant’s record of good conduct
while in prison. The court then summarized appellant’s criminal
history3 and his current offenses. The trial court concluded that
“[b]ased on the facts of the commitment offenses plus his prior
arrest history the defendant is clearly a danger to the
community. The request pursuant to PC 1170(d) therefore is
denied.”
DISCUSSION
A. Governing Law and the Standard of Review
Section 1170, subdivision (d)(1) was enacted in 1976 as part
of California’s Determinate Sentencing Act, which marked the
state’s transition from an indeterminate to a determinate
sentencing system. (People v. McCallum (2020) 55 Cal.App.5th
3 According to the trial court, appellant’s prior criminal
history included an arrest at the age of 18 for assault with a
firearm—prosecution declined, another arrest 18 months later for
attempted murder—case dismissed, and a felony conviction for
which he was placed on formal probation. While on probation he
committed the current offenses.
4
202, 210 (McCallum); Dix v. Superior Court (1991) 53 Cal.3d 442,
455 (Dix).) The subdivision operates as “an exception to the
common law rule that the court loses resentencing jurisdiction
once execution of sentence has begun” (Dix, at p. 455) by
authorizing a court to recall the defendant’s sentence “within 120
days of the date of commitment on its own motion, or at any time
upon the recommendation of the secretary of the Board of Parole
Hearings in the case of state prison inmates, the county
correctional administrator in the case of county jail inmates, or
the district attorney of the county in which the defendant was
sentenced.” (§ 1170, subd. (d)(1); People v. Frazier (2020) 55
Cal.App.5th 858, 863 (Frazier); McCallum, at p. 210.)
“In 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.’ (Dix,
supra, 53 Cal.3d at p. 456.)” (McCallum, supra, 55 Cal.App.5th
at p. 210.) After recalling the sentence, the 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.” (§ 1170, subd. (d)(1).) The
court must also “apply the sentencing rules of the Judicial
Council so as to eliminate disparity of sentences and to promote
uniformity of sentencing” and grant credit for time served.
(§ 1170, subd. (d)(1).)
The Legislature has amended section 1170, subdivision
(d)(1) numerous times. In particular, the 2018 amendments
permit courts to modify judgments and consider postconviction
factors, by adding the following language: “The court
resentencing under this paragraph may reduce a defendant’s
term of imprisonment and modify the judgment, including a
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judgment entered after a plea agreement, if it is in the interest of
justice. The 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.” (Stats. 2018, ch. 36, § 17;
McCallum, supra, 55 Cal.App.5th at p. 210.)
The denial of a CDCR recommendation to recall a sentence
is appealable. (§ 1237, subd. (b) [appeal lies from “any order
made after judgment, affecting the substantial rights of the
party”]; see People v. Loper (2015) 60 Cal.4th 1155, 1158, 1163;
McCallum, supra, 55 Cal.App.5th at pp. 210, 211, fn. 7.) We
review the trial court’s decision not to recall an inmate’s sentence
for abuse of discretion and will not disturb the ruling absent a
showing that “ ‘ “ ‘the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in
a manifest miscarriage of justice.’ ” ’ ” (People v. Miracle (2018) 6
Cal.5th 318, 346–347; McCallum, at p. 211.)
B. Due Process Requires that the Sentencing Court Give
the Parties Notice of the CDCR’s Recommendation for
Recall and Resentencing and an Opportunity to
Submit Briefing and Additional Information Relevant
to the Recommendation Before Ruling on the Sentence
Recall Request
The regulations enacted to implement section 1170,
subdivision (d)(1)’s recall and resentencing authorization require
that the recommendation letter and Cumulative Case Summary
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“be forwarded to the sentencing court and a copy shall be
provided to the inmate.” (Cal. Code Regs., tit. 15, § 3076.1,
subd. (e)(2).) But section 1170, subdivision (d)(1) itself contains
no guidance to the trial court on providing notice of the CDCR’s
recommendation to the parties, and the statute is silent with
regard to the parties’ rights to be heard on the merits of the
recommendation. (People v. Williams (2021) 65 Cal.App.5th 828,
833 (Williams).)
Several courts have considered what, if any, due process
rights are implicated by the issuance of a CDCR recall and
resentencing recommendation. In McCallum, supra, 55
Cal.App.5th 202, after examination of the statutory language of
section 1170, subdivision (d)(1) in the context of section 1170 as a
whole, our colleagues in Division Seven concluded that an inmate
has no due process right to a hearing under section 1170,
subdivision (d)(1) on the issue of whether the trial court should
follow a CDCR recommendation for recall and resentencing. (Id.
at pp. 206, 211–216.) However, in light of an inmate’s
“substantial right to liberty implicated by the secretary’s
recommendation to recall [the] sentence,” Division Seven went on
to conclude that the trial court had abused its discretion by
rejecting the secretary’s recommendation without affording the
parties an opportunity to present briefing and additional
information relevant to the recommendation. (Id. at pp. 206–207,
218–219.)
Shortly after its decision in McCallum Division Seven
concluded that the secretary’s filing of a letter recommending
recall and resentencing triggers neither a right to a hearing nor
any due process right to appointment of counsel. (Frazier, supra,
55 Cal.App.5th at pp. 866, 869.) While recognizing that a
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summary refusal to follow the secretary’s recommendation under
section 1170, subdivision (d)(1) is appealable as a postjudgment
order affecting the inmate’s substantial rights, the court
observed, “[T]he Sixth Amendment right to counsel at critical
stages of a criminal proceeding through sentencing does not
apply to postjudgment collateral challenges [citations], including
statutory petitions seeking a more ameliorative sentence
[citations], at least prior to the actual recall of sentence.” (Id. at
pp. 865–866.) In short, a CDCR recommendation does not trigger
“any right to the recommended relief” (id. at p. 866), and “[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” (id. at p. 867).
Finally, in Williams, supra, 65 Cal.App.5th 828, the People
appealed after the trial court resentenced the defendant pursuant
to section 1170, subdivision (d)(1) without holding a resentencing
hearing. (Id. at p. 832.) Williams vacated the sentence and
remanded to the sentencing court, holding that “before a trial
court exercises its discretion pursuant to section 1170 of the
Penal Code to recall a sentence and enter a reduced term, it
must: (i) give the parties notice and an opportunity to be heard
in accordance with the procedural guidelines we suggest; and
(ii) set forth the reasons for its choice of sentence.” (Id. at p. 831,
fn. omitted.)
Williams declared, “It is axiomatic that due process
requires the sentencing court to give the parties formal notice of
CDCR’s recommendation and the opportunity to be heard if the
court is considering resentencing defendant.” (Williams, supra,
65 Cal.App.5th at p. 833.) But the court observed that the
California Code of Regulations requires only that the CDCR send
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its recommendation to the sentencing court with a copy to the
inmate. (Ibid.; Cal. Code Regs, tit. 15, § 3076.1, subd. (e)(2).)
And even where the CDCR does provide notice to the district
attorney and the public defender, “[r]eliance on CDCR to provide
copies to the parties falls short of ensuring the parties’ rights to
notice and the opportunity to be heard are protected.” (Williams,
at p. 833.) Williams, however, followed McCallum and expressly
limited the inmate’s rights upon issuance of a CDCR
recommendation to notice and an opportunity to be heard,
holding that “[a] defendant is not entitled to a hearing on the
issue whether the court should consider recalling his or her
sentence in response to an equity-based CDCR recommendation.”
(Williams, supra, 65 Cal.App.5th at p. 834.)
In the instant case, the trial court gave the parties no
notice of the secretary’s recommendation, much less the court’s
intent to rule on it, and there is no indication the parties had any
opportunity to supplement the recommendation with additional
information or briefing. We agree with the courts in Williams
and McCallum that, although the trial court was not required to
hold a hearing in considering whether to recall appellant’s
sentence, it was bound to provide notice and consider any
relevant information and/or briefing that the parties might
submit before ruling on the CDCR recommendation.4
4 In addition to the requirements of notice and opportunity
to be heard, Williams imposed an “array of procedural
requirements on the trial courts” (65 Cal.App.5th at p. 836 (conc.
opn. of Menetrez, J.)) in those cases where the court might be
inclined to recall an inmate’s sentence for equitable reasons (id.
at pp. 834–835 (maj. opn. of Ramirez, P. J.)). In such cases, the
9
(McCallum, supra, 55 Cal.App.5th at p. 217, citing People v.
Loper (2015) 60 Cal.4th 1155, 1167, and People v. Carmony
(2004) 33 Cal.4th 367, 375; Williams, supra, 65 Cal.App.5th at
pp. 831, 833.)
trial court “should prepare and serve on counsel for the parties its
tentative response to the recommendation along with copies of all
correspondence with CDCR. [Citation.] The tentative ruling
should state with particularity the reasons for its sentence choice
and provide counsel a window of time within which to object and
request a hearing. [Citations.] If defendant is not represented by
counsel, the court should appoint (or reappoint) the public
defender.” (Id. at p. 834.) But as Justice Menetrez observed in a
concurring opinion, the imposition of these procedural
requirements was unnecessary to dispose of the issues before the
court and exceeded the recommendations of the treatise upon
which the majority exclusively relied. (Williams, at p. 836 (conc.
opn. of Menetrez, J.); see Couzens et al., Sentencing Cal. Crimes
(The Rutter Group 2020) § 28:8, pp. 28-20 to 28-22.)
We do not read section 1170, subdivision (d)(1) to support
the imposition of a whole new set of procedural requirements on a
trial court before it has recalled the defendant’s sentence. We
therefore limit our agreement with Williams to its conclusion
that upon receipt of a recall and resentencing recommendation by
the CDCR, the trial court must provide the parties with notice
and an opportunity to be heard. (See McCallum, supra, 55
Cal.App.5th at p. 215 [“[t]he question before us is not whether
[defendant] has a right to be present at a resentencing hearing if
the trial court determines his sentence should be recalled⎯he
does⎯but whether the court must hold a hearing before
determining whether to recall [his] sentence in the first place”⎯it
does not].)
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DISPOSITION
The order denying the California Department of
Corrections and Rehabilitation’s recommendation to recall
appellant’s sentence is reversed. The matter is remanded to the
trial court with directions to allow the parties to submit
information relevant to the California Department of Corrections
and Rehabilitation’s recommendation and to provide briefing on
whether the court should follow the recommendation. Upon
receipt of this information, the court shall exercise its discretion
whether to recall Mendez’s sentence.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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