People v. Cepeda

Filed 10/18/21
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B307000
Plaintiff and Respondent, Los Angeles County
v. Super. Ct. No. NA090365
JULIO ARTURO CEPEDA,
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard M. Goul, Judge. Reversed and
remanded with instructions.
Sunnie L. Daniels, 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, Deputy Attorneys General, for Plaintiff and
Respondent.
 INTRODUCTION
In 2018, defendant and appellant Julio Arturo Cepeda pled
guilty to carjacking as a second strike, and admitted he sustained
a prior serious felony conviction. The trial court sentenced him to
15 years in state prison, which included a five-year enhancement
for the prior serious felony conviction. At the time of Cepeda’s
plea and sentence, courts were prohibited from striking serious
felony enhancements under Penal Code section 667, subdivision
(a)(1). 1
In 2020, the secretary of the California Department of
Corrections and Rehabilitation (“CDCR”) sent a letter to the trial
court invoking the sentence recall provision of section 1170,
subdivision (d)(1). The secretary’s letter noted Cepeda’s sentence
included a five-year enhancement imposed under section 667,
subdivision (a)(1), and that Senate Bill No. 1393 (“SB 1393”) had
given courts the discretion to strike such enhancements. The trial
court recalled the sentence and held a resentencing hearing
under section 1170, subdivision (d)(1), at which it declined to
strike Cepeda’s enhancement. The court based its decision on (1)
deference to what it thought the original sentencing judge might
have done if given the option to resentence Cepeda under SB
1393; and (2) its own independent assessment of the trial court
file. In making its ruling, the court declined Cepeda’s request
that it consider additional evidence concerning his behavior in
prison after being sentenced.
On appeal, Cepeda argues the trial court abused its
discretion in declining to strike the enhancement. Specifically, he
contends the court erred by relying on what the original

1 All further undesignated statutory references are to the
Penal Code.

2
sentencing judge might have done and by declining to consider
the additional evidence. The Attorney General contends the trial
court was correct in declining to strike the enhancement, but for
a different reason than the ones given by the trial court – that SB
1393 does not apply retroactively to final cases, and Cepeda’s
case was final when SB 1393 took effect. Cepeda counters that
the language of section 1170, subdivision (d)(1) authorized the
trial court, upon receiving the letter from the CDCR, to
resentence Cepeda under current law, which included SB 1393. 2
We agree with Cepeda. Although SB 1393 does not apply
retroactively to final cases in which the defendant directly
petitions the court for relief, section 1170, subdivision (d)(1)
provides the trial court the authority to recall a sentence “at any
time upon the recommendation of the secretary” of the CDCR and
“resentence the defendant in the same manner as if they had not
previously been sentenced . . . .” (Italics added.) Under this broad
language, the CDCR’s letter allowed the trial court to recall
Cepeda’s sentence and resentence him in light of SB 1393.
We note that an issue similar to the one presented in this
case is currently pending before our Supreme Court. In People v.
Arnold, (Aug. 31, 2021, S269172) [nonpub. opn.], the Court will
resolve the following issue: “Did the trial court err when it
declined to accept the recommendation by the California
Department of Corrections and Rehabilitation that defendant’s
sentence be recalled (Pen. Code, § 1170, subd. (d)) in order to

2 The Attorney General concedes that, assuming section
1170, subdivision (d)(1) authorizes the application of SB 1393 to
Cepeda’s case, remand is appropriate because the trial court’s
reasons for declining to strike the enhancement were an abuse of
discretion.

3
address the statutory amendments made by Senate Bill No. 1393
in light of the court’s conclusion that those amendments did not
apply to final judgments?” Also, in People v. Pillsbury (Sept. 30,
2021, C089002) ___ Cal.App.5th ___ (Pillsbury), our colleagues in
the Third Appellate District recently held that, “upon the
recommendation of the Secretary of the CDCR . . . , trial courts
have the authority to recall and resentence defendants based on
post-judgment changes in the law giving courts discretion to
strike or dismiss enhancements, even when the judgment in the
case is long since final and even when the original sentence was
the product of a plea agreement.” (Id. at p. 2.) For reasons
discussed in greater detail below, we agree with Pillsbury and
publish this opinion to augment the analysis in Pillsbury.
In addition to concluding section 1170, subdivision (d)(1)
authorized the trial court to resentence Cepeda, we conclude the
court abused its discretion when it declined to strike Cepeda’s
prior serious felony enhancement for the reasons stated. The case
is therefore remanded for a new section 1170, subdivision (d)(1)
resentencing hearing. At the new hearing, the court is directed to
make its own independent ruling and to consider any additional
evidence Cepeda may present concerning his behavior in prison
after being sentenced.
BACKGROUND 3
On April 11, 2018, before Judge Richard R. Romero, Cepeda
pled guilty to carjacking (§ 215, subd. (a)) as a second strike
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) with a prior serious
felony enhancement (§ 667, subd. (a)(1)). As part of the plea

3 We omit recitation of the facts contained in the probation
report because they are not relevant to the issues presented in
this appeal.

4
agreement, attempted carjacking (§§ 215, subd. (a), 664) and hit-
and-run (Veh. Code, § 20002, subd. (a)) charges were dismissed,
along with a deadly weapon enhancement allegation on the
carjacking charge (§ 12022, subd. (b)(2)). The court sentenced
Cepeda to a term of 15 years in state prison, consisting of a five-
year middle term for the carjacking conviction, doubled for the
prior strike enhancement, plus a five-year prior serious felony
enhancement. Cepeda did not appeal.
At the time of Cepeda’s plea and sentence, courts were
prohibited from striking serious felony enhancements under
section 667, subdivision (a)(1). (People v. Jones (2019) 32
Cal.App.5th 267, 272.) Effective January 1, 2019, however,
Senate Bill No. 1393 (2017-2018 Reg. Sess.) removed that
prohibition, permitting trial courts to dismiss serious felony
enhancements in furtherance of justice. (People v. Stamps (2020)
9 Cal.5th 685, 693 (Stamps); see Stats. 2018, ch. 1013, §§ 1 & 2.)
In 2020, the secretary of the CDCR sent a letter to the trial
court invoking the recall provision of section 1170, subdivision
(d)(1) with respect to Cepeda’s case. The secretary’s letter noted
Cepeda’s sentence included a five-year enhancement under
section 667, subdivision (a)(1), and that SB 1393 had
subsequently given courts the discretion to strike such
enhancements. The letter included several documents relating to
Cepeda’s conviction and incarceration. Those documents showed
that, during Cepeda’s incarceration, he had not been reported for
any rule violations, had received 16.25 hours of credit for
participating in rehabilitative or self-help programs, and had
been assigned to four educational, employment, or rehabilitative
programs. The letter recommended “that inmate Cepeda’s

5
sentence be recalled and that he be resentenced in accordance
with section 1170, subdivision (d).”
The matter was assigned to Judge Richard M. Goul, who
recalled the sentence and held a resentencing hearing. At the
hearing, the court indicated the parties had conferred off the
record about the request but stated: “I will certainly hear
whatever you want to say.” Defense counsel argued the court had
jurisdiction under section 1170, subdivision (d)(1) to apply SB
1393 retroactively based on the CDCR’s letter. The court
responded it would “accept[ ] jurisdiction” over the matter and
consider striking the enhancement.
Defense counsel argued it would be improper for the court,
in making its ruling, to rely on Judge Romero’s prior acceptance
of the plea and sentence, because the original sentencing court
had no opportunity to consider striking the serious felony
enhancement. The prosecution did not offer any argument in
response.
The court indicated it would make a two-part ruling. First,
relying on People v. Davis (2020) 48 Cal.App.5th 543 (Davis), and
out of deference to Judge Romero’s acceptance of the plea and
sentence, the court ruled it would not strike the serious felony
enhancement. 4 Second, the court made the alternative ruling
that, based on its own independent review of the trial court file, it
would not strike the enhancement.
Defense counsel asked if the court would consider
additional evidence concerning Cepeda’s behavior in prison after
being sentenced. The court declined the request, stating it would
rely on the record already before it.
Cepeda timely appealed.

4 Davis is discussed in greater detail below in footnote 12.

6
 DISCUSSION
In his opening brief, Cepeda argues the court abused its
discretion by relying on Judge Romero’s acceptance of the guilty
plea and by declining defense counsel’s request to consider
additional evidence. The Attorney General counters the trial
court’s ruling should be affirmed because SB 1393 did not apply
retroactively to Cepeda’s case, which was already final when SB
1393 took effect. The Attorney General concedes, however, that,
assuming SB 1393 applies to Cepeda’s case, remand would be
appropriate because the trial court abused its discretion by (1)
concluding the plea bargain accepted by Judge Romero precluded
it from exercising its own independent discretion; and (2)
declining defense counsel’s request that it consider additional
evidence concerning Cepeda’s behavior in prison after being
sentenced. In his reply brief, Cepeda contends because
subdivision (d)(1) of section 1170 authorizes the application of
current law when resentencing defendants upon the
recommendation of the secretary of the CDCR, this provision
authorized the court to apply SB 1393 to Cepeda’s case even
though it was final when the new law took effect. For the reasons
discussed below, we agree with Cepeda that subdivision (d)(1)
authorizes the application of current law upon resentencing. We
also agree with the parties that the trial court abused its
discretion at the resentencing hearing.

I. Section 1170, Subdivision (d)(1) Authorizes the
Application of Current Law

We begin our analysis by noting Cepeda’s judgment was
final when SB 1393 took effect. Cepeda entered his guilty plea
and was sentenced on April 11, 2018. Because Cepeda did not
appeal the judgment, it became final in June 2018. (See Cal.

7
Rules of Court, rule 8.308(a) [notice of appeal must be filed
within 60 days after rendition of judgment]; In re Spence (1965)
63 Cal.2d 400, 405 [a judgment becomes final when “courts can
no longer provide a remedy to a defendant on direct review.”].) SB
1393 took effect on January 1, 2019. (Stamps, supra, 9 Cal.5th at
p. 693.)
Our colleagues in Division Six have explained that the
Legislature did not intend SB 1393 to apply when defendants
whose cases are final directly petition the trial court. (People v.
Alexander (2020) 45 Cal.App.5th 341, 345-346 (Alexander).) But
Alexander dealt with a different issue than the one presented
here. It arose from the denial of a motion for resentencing under
SB 1393 brought by the defendant himself. (Alexander, supra, 45
Cal.App.5th at p. 343.) Consequently, section 1170, subdivision
(d)(1) was not implicated. By contrast, Cepeda’s case did not arise
as a result of him filing his own SB 1393 motion in the trial court.
Rather, it arose because the secretary of the CDCR wrote the
trial court a section 1170, subdivision (d)(1) letter authorizing the
court to resentence Cepeda. Thus, the question here is whether
section 1170, subdivision (d)(1) allows the trial court, upon
recommendation by the CDCR, to apply SB 1393 to cases that are
already final. We conclude the answer is yes. We base this
conclusion on the plain language of subdivision (d)(1) as
construed by our Supreme Court in Dix v. Superior Court (1991)
53 Cal.3d 442, 455 (Dix).
Section 1170, subdivision (d)(1) provides that a trial court
“may, . . . at any time upon the recommendation of the secretary”
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

8
sentence, if any, is no greater than the initial sentence . . . .”
(Italics added.) 5 This provision explicitly includes plea
agreements and permits reduction of the defendant’s term of
imprisonment if it is in the interest of justice.

5 The full language of section 1170, subdivision (d)(1)
provides: “When a defendant subject to this section or subdivision
(b) of Section 1168 has been sentenced to be imprisoned in the
state prison or a county jail pursuant to subdivision (h) and has
been committed to the custody of the secretary or the county
correctional administrator, the court may, 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, the county correctional
administrator in the case of county jail inmates, or the district
attorney of the county in which the defendant was sentenced,
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. The court resentencing
under this subdivision shall apply the sentencing rules of the
Judicial Council so as to eliminate disparity of sentences and to
promote uniformity of sentencing. The court resentencing under
this paragraph may reduce a defendant’s term of imprisonment
and modify the judgment, including a 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. Credit shall be given for time
served.”

9
 As our Supreme Court has observed, “[s]ection 1170(d) is
an exception to the common law rule that the court loses
resentencing jurisdiction once execution of sentence has begun.
[Citations.]” (Dix, supra, 53 Cal.3d at p. 455.) “[T]he resentencing
authority conferred by section 1170(d) is as broad as that
possessed by the court when the original sentence was
pronounced,” with the following two limitations: “First, the
resentence may not exceed the original sentence. Second, the
court must award credit for time served on the original sentence.”
(Dix, supra, at p. 456.) 6 Notably, in its list of limitations on
resentencing authority, Dix does not state subdivision (d)(1) bars
the application of current law, nor does the statute itself
contemplate any such limitation. Under the broad authority
conferred in section 1170, subdivision (d)(1), as elucidated by Dix,
the CDCR’s letter gave the trial court jurisdiction to apply to
Cepeda the law in effect at the time of resentencing. (See People
v. Arias (2020) 52 Cal.App.5th 213, 219 [“Postconviction changes
in law or clarifications of the law are permissible grounds by
which a trial court may recall a sentence and resentence to a
lower term ‘in the interest of justice.’ (§ 1170, subd. (d)(1)
[Citation.]”]; Dix, supra, 53 Cal.3d at p. 463 [“[S]ection 1170(d)
permits the sentencing court to recall a sentence for any reason
which could influence sentencing generally, even if the reason
arose after the original commitment.”].) For these reasons, the

6 Although subdivision (d)(1) has been amended since Dix,
none of the changes to the statute has impacted or undermined
Dix’s characterization of the trial court’s resentencing authority.

10
trial court was correct in concluding it had jurisdiction to recall
Cepeda’s sentence and resentence him. 7
As the secretary’s letter suggests, the CDCR’s
administrative regulations are in harmony with our conclusion.
The California Code of Regulations provides the CDCR may
recommend recall and resentencing “[w]hen there is a change in
sentencing law as described in subsection (d)(1)[.]” (Cal. Code
Regs., tit. 15, § 3076.1, subd. (a)(3).) Subdivision (d)(1) of the
regulation provides: “An inmate may be considered for referral
pursuant to subsection (a)(3) if the applicable sentencing laws at
the time of their sentencing hearing are subsequently changed
due to new statutory or case law authority with statewide
application.” (Cal. Code Regs., tit. 15, § 3076.1, subd. (d)(1).) The
CDCR’s regulations are entitled to deference. (See Dix, supra, 53

7 Having concluded the CDCR’s letter and subdivision (d)(1)
gave the trial court jurisdiction to apply SB 1393 to Cepeda’s
case, we need not address Cepeda’s argument, raised in the
alternative, that his case was rendered nonfinal for retroactivity
purposes when the trial court here recalled and resentenced him
under subdivision (d)(1). We note, as do the parties, that two
issues related to Cepeda’s argument are currently pending in the
Supreme Court in People v. Federico (2020) 50 Cal.App.5th 318,
review granted August 26, 2020, S263082 (Federico), and People
v. Padilla (2020) 50 Cal.App.5th 244, review granted August 26,
2020, S263375 (Padilla). The issue presented in Padilla is:
“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?” The issue presented in Federico is: “Did defendant’s
resentencing pursuant to Penal Code section 1170, subdivision
(d)(1) ‘reopen’ the finality of his sentence, such that he was
entitled to the retroactive application of Proposition 57 and
Senate Bill No. 1391 on an otherwise long-final conviction?”

11
Cal.3d at p. 460 [“Unless unreasonable or clearly contrary to the
statutory language or purpose, the consistent construction of a
statute by an agency charged with responsibility for its
implementation is entitled to great deference. [Citation.]”];
Nipper v. California Auto. Assigned Risk Plan (1977) 19 Cal.3d
35, 45 [“We have generally accorded respect to administrative
interpretations of a law and, unless clearly erroneous, have
deemed them significant factors in ascertaining statutory
meaning and purpose. [Citations.]”].)
We reject the Attorney General’s contrary argument that
section 1170, subdivision (d)(1) does not contemplate
resentencing under current law. In support of its position, the
Attorney General notes that section 3 provides “[n]o part of [the
Penal Code] is retroactive, unless expressly so declared[,]” and
section 1170, subdivision (d)(1) makes no express statement that
new laws can be applied to a final judgment upon recall for
resentencing. We find this argument unpersuasive. Section 3
“embodies the general rule of construction, coming to us from the
common law, that when there is nothing to indicate a contrary
intent in a statute it will be presumed that the Legislature
intended the statute to operate prospectively and not
retroactively.” (In re Estrada (1965) 63 Cal.2d 740, 746.) That
rule of construction, however, “should not be followed blindly in
complete disregard of factors that may give a clue to the
legislative intent. It is to be applied only after, considering all
pertinent factors, it is determined that it is impossible to
ascertain the legislative intent.” (Ibid.) Here, the question of
legislative intent is answered by the plain language of section
1170, subdivision (d)(1), which grants the trial court broad
authority to resentence individual inmates, in the interest of

12
justice, “as if they had not previously been sentenced[.]” (§ 1170,
subd. (d)(1).) Prohibiting the court from exercising its discretion
under SB 1393 when the CDCR has recommended doing so would
run contrary to the statute’s plain meaning and purpose, as well
as the interest of justice. (See, e.g., Dix, supra, 53 Cal.3d at p.
460.)
We likewise reject the Attorney General’s contention that
its position is compelled by People v. Johnson (2004) 32 Cal.4th
260 (Johnson). Johnson held that an inmate who is resentenced
under section 1170, subdivision (d)(1) accrues postsentence,
rather than presentence, custody credit for time served between
the original sentencing and resentencing. (Johnson, supra, at p.
263.) The holding in Johnson was based on a comparative
analysis of the statute dealing with presentence credits (§ 2900.5)
and the statute dealing with sentences modified while in progress
(§ 2900.1). (Johnson, supra, at pp. 265-268.) Johnson looked to
these statutes, in part, because section 1170, subdivision (d)(1)
did not explicitly specify whether presentence or postsentence
conduct credits applied upon resentencing. Johnson’s holding is
inapposite to the issue presented here, which, as discussed above,
is resolved by subdivision (d)(1) as construed by Dix.
As noted above, one published opinion has addressed the
issue presented in this case: Pillsbury, supra (Sept. 30, 2021,
C089002) ___ Cal.App.5th ___. In Pillsbury, the secretary of the
CDCR sent the trial court a section 1170, subdivision (d)(1) letter
recommending recall and resentencing in light of Senate Bill No.
620. (Pillsbury, supra, at pp. 3-4.) 8 The trial court issued a

8 Senate Bill No. 620 amended section 12022.53, subdivision
(h) to authorize courts to strike or dismiss firearm enhancements

13
written ruling declining to recall Pillsbury’s sentence without
explaining its reasoning. (Id. at p. 4.) The Court of Appeal asked
the parties to provide supplemental briefing concerning whether
the trial court had the authority to recall Pillsbury’s sentence and
resentence him under the new ameliorative law, even though his
case was final. (Id. at p. 6.) The Pillsbury court held the trial
court had the authority to do so under the plain language of
section 1170, subdivision (d)(1). (Pillsbury, supra, at p. 7.) In
reaching this conclusion, Pillsbury explained: “Section 1170(d)(1)
authorizes the Secretary to make the recommendation ‘at any
time.’ It then authorizes the court to ‘modify the judgment’ and
places no limitations on when this can be done. Thus, a plain
reading of the statutory language leads to the conclusion that the
court can modify the judgement ‘at any time,’ even after the
judgment has become final.” (Pillsbury, supra, at p. 7.) 9 In
addition to relying on the plain meaning of section 1170,
subdivision (d)(1) in reaching its conclusion, Pillsbury noted the
Supreme Court has explained resentencing courts under section
1170, subdivision (d)(1) have jurisdiction to modify “‘every aspect
of the defendant’s sentence[ ]’ [citation]” and “consider ‘any

in the interest of justice pursuant to section 1385. (Stats. 2017,
ch. 682, § 2.)

9 Though not relevant to Cepeda’s case, in reaching its
conclusion, the Pillsbury court also noted “the plain language of
the ameliorative change to the firearm enhancement statute
provides that the authority to strike or dismiss a firearm
enhancement ‘applies to any resentencing that may occur
pursuant to any other law[ ]’ (§ 12022.53, subd. (h)[ ])[,]” and
concluded: “A resentencing after a recall under section 1170(d)(1)
is a resentencing pursuant to law.” (Pillsbury, supra, at p. 7.)

14
pertinent circumstances which have arisen since the prior
sentence was imposed.”’ [Citation.]” (Pillsbury, supra, at p. 7,
citing People v. Buycks (2018) 5 Cal.5th 857, 893.) Pillsbury
concluded “a change in the law is a ‘pertinent circumstance[ ].’”
(Pillsbury, supra, at p. 7.) We agree with this holding of Pillsbury
for the reasons discussed in that opinion as well as the reasons
discussed herein. 10
We have also found two cases that, albeit in a different
context from this case, analyze and disagree over the meaning of
the phrase “the same manner as if he or she had not previously
been sentenced” found in section 1170, subdivision (d)(1):
Federico, supra, 50 Cal.App.5th 318, review granted August 26,
2020, and People v. Lopez (2020) 56 Cal.App.5th 835, review
granted Jan. 27, 2021, S265936 (Lopez). The circumstances under
which Federico and Lopez arose were different from Cepeda’s
case. They mainly deal with whether recall and resentencing
under subdivision (d)(1) renders a sentence nonfinal for purposes
of retroactive application of Proposition 57 relief. (Federico,
supra, at pp. 324-328; Lopez, supra, at pp. 841-850.) Whereas
Federico rejected the argument that resentencing under section
1170, subdivision (d)(1) rendered the defendant’s judgment

10 Pillsbury additionally held: “while trial courts have the
authority to summarily decline to recall and resentence,
defendants have due process rights to notice and an opportunity
to be heard before the court rules, and a statement of the court’s
reasons for the declination. However, in cases such as this one
where the prosecution has not weighed in prior to the trial court’s
summary declination, . . . defendants do not have a constitutional
right to counsel.” (Pillsbury, supra, at p. 2.) We express no
opinion concerning these additional holdings because they are not
relevant to the issues presented in Cepeda’s case.

15
nonfinal for purposes of retroactive Proposition 57 relief, Lopez
reached the opposite conclusion. (Federico, supra, at pp. 324-328;
Lopez, supra, at pp. 841-850.) The Federico court, in reaching its
conclusion, suggested use of the phrase “in the same manner as if
he or she had not previously been sentenced” in section 1170,
subdivision (d)(1) compels a trial court to apply the law in effect
at the time of the original sentence. (Federico, supra, at p. 327
[“Contrary to defendant’s claim, section 1170, subdivision (d),
says nothing about ‘reopening’ a judgment that has been final for
years, in order to apply recently enacted laws retroactively.
Moreover, remanding the case to the juvenile court for a fitness
hearing pursuant to Proposition 57 would certainly not comply
with the language of section 1170, subdivision (d). The statute
specifically provides that the court may ‘resentence the defendant
in the same manner as if he or she had not previously been
sentenced.’ (§ 1170, subd. (d)(1), italics added.) It simply allows
the court to reconsider its sentencing choices in the original
sentence and resentence the defendant. [Citation.]”].)
Lopez disagreed with Federico on this point. It concluded
section 1170, subdivision (d)(1) “does not mean, as Federico
appears to have read it, that the resentencing court may only
‘reconsider its sentencing choices in the original sentence’
without regard to any intervening changes in the law. [Citation.]”
(Lopez, supra, 56 Cal.App.5th at p. 846, citing Federico, supra, 50
Cal.App.5th at p. 327.) “Instead, the use of the phrase ‘as if [the
defendant] had not previously been sentenced’ means that the
resentencing court should not consider itself bound by any aspect
of the previous sentence. This reading is consistent with the rest
of section 1170, subdivision (d)(1), which tells the resentencing
court that it may consider events arising after the original

16
conviction, such as the defendant’s disciplinary history and
record of rehabilitation in prison. (§ 1170(d)(1).) If Federico were
correct that the phrase ‘in the same manner’ signifies that a
resentencing court should only reconsider its original sentencing
choices (Federico, supra, 50 Cal.App.5th at p. 327), the
Legislature would not have allowed the resentencing court to
consider postconviction matters. [Footnote omitted.]” (Lopez,
supra, at p. 846.) Pillsbury, supra, also disagreed with Federico
on this point, concluding, in part, that it was inconsistent with
the plain meaning of section 1170, subdivision (d)(1). (Pillsbury,
supra, at pp. 8-9.) We agree with Lopez and Pillsbury and
respectfully disagree with the approach taken in Federico to the
extent it is inconsistent with our analysis of subdivision (d)(1)
and Dix. 11

11 It also bears noting that we found one recent published
case that arose as a result of the CDCR writing the trial court a
section 1170, subdivision (d)(1) letter in light of SB 1393, though
it appears the parties there did not raise the retroactivity issue
presented in this case. (See People v. Williams (2021) 65
Cal.App.5th 828 (Williams).) Although Williams did not deal
directly with the issue presented here, it noted that the Rutter
Group’s Sentencing California Crimes suggests courts may, upon
recommendation by the CDCR under subdivision (d)(1), recall a
sentence in order to apply an ameliorative law to a defendant
whose judgment is final. (See id. at p. 834.) The Rutter Group, in
turn, provides courts the following suggested procedure for
handling CDCR sentencing requests under section 1170,
subdivision (d)(1): “If the correction is being made for equitable
reasons such as a change in the law after the defendant’s
conviction became final or defendant’s exemplary conduct in
prison, the court should order the recall of the sentence under
section 1170, subdivision (d)(1)[.]” (Couzens et al., Sentencing
Cal. Crimes (The Rutter Group 2021) § 29:8, pp. 26-29.)

17
 In sum, the CDCR’s letter gave the trial court jurisdiction
under section 1170, subdivision (d)(1) to recall Cepeda’s sentence
and resentence him consistent with SB 1393.

II. The Trial Court Abused its Discretion

A trial court, upon receiving a section 1170, subdivision
(d)(1) letter from the CDCR, has broad discretion whether to
recall the existing sentence and resentence the incarcerated
individual. “[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 Cal.App.5th 858, 866.) In this case, because the trial
court has already exercised its discretion to recall Cepeda’s
sentence and resentence him, the remaining question is whether
the court’s reasoning in declining to strike the enhancement was
an abuse of discretion. (See id. at pp. 863-864 [reviewing trial
court’s decision stemming from CDCR’s recommendation under
section 1170, subdivision (d)(1) for abuse of discretion]; People v.
McCallum (2020) 55 Cal.App.5th 202, 211 (McCallum) [same];
People v. Carmony (2004) 33 Cal.4th 367, 374-375 [discretionary
sentencing decisions are reviewed for abuse of discretion].) We
agree with the parties that the court abused its discretion.
As mentioned above, the court’s analysis in declining to
strike the enhancement was twofold. The court’s first basis for
declining to strike the enhancement was deference to Judge
Romero’s acceptance of Cepeda’s plea and sentence. When section
1170, subdivision (d)(1) was amended in 2018, the Legislature
added language specifying that a resentencing court may “modify
the judgment, including a judgment entered after a plea
agreement, if it is in in the interest of justice.” Because

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subdivision (d)(1) explicitly provides that resentencing is not
constrained by the terms of a plea bargain, the trial court erred
by focusing on whether the original sentencing court would have
disapproved striking the enhancement rather than inquiring
whether the interest of justice now warrants departing from the
bargain. The court’s conclusion that it was bound by the original
plea and sentence was therefore an abuse of discretion. (See, e.g.,
People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [“‘Defendants
are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court. [Citations.]’”].) 12
The court’s second basis for declining to strike the
enhancement was its conclusion that resentencing was
unwarranted after reviewing the trial court file. In independently

12 As noted above, the trial court, in deferring to Cepeda’s
original plea, relied on Davis, supra, 48 Cal.App.5th 543. The
court in Davis concluded that, although SB 1393 applied to
Davis’s case, which was not yet final, remand would be futile
because the record did not indicate the trial court would have
disapproved the plea bargain in light of its new discretion under
SB 1393. (Davis, supra, 48 Cal.App.5th at pp. 547-548.) Davis
dealt with the application of SB 1393 to a case on direct appeal
from a plea bargain. (Davis, supra, at pp. 545-546.) Davis was
thus different from Cepeda’s case, which did not arise on direct
appeal, but rather arose from the CDCR’s recommendation that
the trial court recall and resentence Cepeda under section 1170,
subdivision (d)(1). The Supreme Court later granted review in
Davis and transferred the case back to the Court of Appeal for
reconsideration in light of the intervening decision in Stamps,
supra, 9 Cal.5th 685. (People v. Davis, No. S262604.) Stamps, like
Davis, arose on direct appeal from a plea bargain. (Stamps,
supra, at pp. 692-693.) Because Davis and Stamps arose on direct
appeal, and do not implicate subdivision (d)(1), they are not
relevant to the issues presented in this appeal.

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declining to strike the enhancement, however, the court rejected
defense counsel’s request that it consider additional evidence
concerning Cepeda’s behavior in prison after being sentenced.
This too was an abuse of discretion. Section 1170, subdivision
(d)(1) provides: “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.” 13 As our
colleagues in Division Seven recently explained, a trial court
abuses its discretion when it declines to allow an inmate to
present additional relevant evidence bearing on a section 1170,
subdivision (d)(1) recall decision. (McCallum, supra, 55
Cal.App.5th at pp. 216-219.) Although McCallum arose from a
trial court’s decision not to recall a sentence under section 1170,
subdivision (d)(1), we conclude its holding should apply with
equal force where, as here, a trial court declines an inmate’s
request to present additional relevant evidence at the
resentencing phase of section 1170, subdivision (d)(1) proceedings.
On remand, the court is directed to consider any evidence Cepeda
may offer concerning postconviction factors relevant to
resentencing.
Lastly, although the parties focus on whether the trial
court should have exercised its discretion to strike Cepeda’s prior

13 The language authorizing a resentencing court to consider
postconviction factors was added to the statute effective June 27,
2018. (Stats. 2018, ch. 36, § 17.)

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serious felony enhancement, we note that under section 1170,
subdivision (d)(1), once a trial court recalls a sentence, it has
broad discretion to “resentence the defendant in the same
manner as if they had not been sentenced, provided the new
sentence, if any, is no greater than the initial sentence.” (See also
Dix, supra, 53 Cal.3d at p. 456 [“[T]he resentencing authority
conferred by section 1170(d) is as broad as that possessed by the
court when the original sentence was pronounced[,]” provided the
resentence does not “exceed the original sentence” and the court
“award[s] credits for time served on the original sentence.”].)
Accordingly, on remand, the trial court may exercise its
discretion to strike the enhancement, otherwise reduce Cepeda’s
sentence, or reinstate the sentence previously imposed.

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 DISPOSITION
The sentence is vacated. On remand, the court is directed
to hold a resentencing hearing and decide whether it would serve
the interest of justice to strike Cepeda’s enhancement or
otherwise reduce his sentence. (See § 1170, subd. (d)(1).) The
court is also directed to consider any evidence Cepeda may offer
concerning postconviction factors relevant to resentencing.

CURREY, J.

WE CONCUR:

MANELLA, P. J.

WILLHITE, J.

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