People v. Torres CA5

Filed 9/30/22 P. v. Torres CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F082137
Plaintiff and Respondent,
(Super. Ct. No. BF115300A)
v.

ELIZABETH FERNANDEZ TORRES, OPINION
Defendant and Appellant.

APPEAL from an order of the Superior Court of Kern County. Michael G. Bush,
Judge.
Elizabeth M. Campbell, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Jeffrey D.
Firestone and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
 INTRODUCTION
Defendant Elizabeth Fernandez Torres appeals the trial court’s denial of a
recommendation made by the Secretary of the Department of Corrections and
Rehabilitation (the Secretary) under Penal Code1 former section 1170, subdivision (d)(1)
that the trial court consider recalling defendant’s sentence and resentencing her in light of
changes made to section 12022.53, subdivision (h), a statute the Secretary erroneously
concluded was involved in defendant’s case. Defendant contends that the trial court’s
denial of recall and resentencing without permitting her counsel to submit briefing
violated her constitutional rights and was reversible error.
The People contend that the trial court properly denied the recommendation to
recall because the Secretary’s stated reason—changes to section 12022.53 applicable to
firearm enhancements—is not applicable to defendant’s sentence because defendant was
sentenced for a deadly weapon enhancement pursuant to former section 12022,
subdivision (b)(1) and not pursuant to a firearm enhancement.
While defendant’s appeal was pending, Assembly Bill No. 1540 (2021–2022 Reg.
Sess.) (Assembly Bill 1540) came into effect on January 1, 2022, and moved the recall
and resentencing provisions of former section 1170, subdivision (d)(1) to former
section 1170.03.2 (Stats. 2021, ch. 719, §§ 1–7.) Assembly Bill 1540 also clarified the
Legislature’s intent regarding procedural requirements and added a presumption favoring
recall and resentencing. (Stats. 2021, ch. 719, § 1(i); see former § 1170.03, subd. (b)(2).)
In supplemental briefing, defendant argues that Assembly Bill 1540 constitutes a
clarification of existing law and therefore applies to cases involving the interpretation of
former section 1170, subdivision (d). Defendant further argues Assembly Bill 1540

1 All further references are to the Penal Code unless otherwise noted.
2 Effective June 30, 2022, former section 1170.03 was renumbered section 1172.1 with no
change in text. (Stats. 2022, ch. 58, § 9.)

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applies retroactively to her case pursuant to In re Estrada (1965) 63 Cal.2d 740
(Estrada). The People argue Assembly Bill 1540 is not retroactive, and, in any case,
remand is unnecessary because the relief recommended by the Secretary is not available
to defendant whose sentence was not enhanced pursuant to section 12022.53,
subdivision (h).
We agree with defendant that Assembly Bill 1540 applies to her case because it is
a clarification of former section 1170, subdivision (d)(1), however, we also agree that the
trial court’s deviation from the current procedural requirements of section 1172.1 is
harmless in light of the particular facts of this case. We affirm the trial court’s denial of
the Secretary’s recommendation to recall and resentence.
PROCEDURAL BACKGROUND
The District Attorney of Kern County filed an information on October 16, 2006,
charging defendant with murder (§ 187, subd. (a)) and alleging that she personally used a
deadly or dangerous weapon (a knife) in the commission of the offense (former § 12022,
subd. (b)(1)). The information also alleged one prior “strike” conviction3 within the
meaning of the “Three Strikes” law (currently codified at §§ 667, subds. (b)–(i), 1170.12,
subds. (a)–(d)) and a prior serious felony conviction enhancement (§ 667, subd. (a)). A
jury convicted defendant of second degree murder on January 16, 2007, and found true
the allegation that she personally used a knife in committing the offense. After defendant
waived her right to a jury trial regarding her prior convictions, the trial court found the
allegations to be true. The trial court denied defendant’s motion to strike her prior
serious felony conviction and sentenced her to a term of 30 years to life in prison (§ 667,

3 The information alleged defendant was convicted of assault with a deadly weapon or by
means likely to produce great bodily injury on a peace officer (§ 245, subd. (c)).

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subd. (e)), plus one year (former § 12022, subd. (b)(1)), plus five years (§ 667, subd. (a)),
for a total term of 36 years to life.4
The Secretary submitted a recommendation to the trial court in August 20205 to
recall and resentence defendant “based upon a change in sentencing laws” pursuant to
former section 1170, subdivision (d)(1). The Secretary’s letter further explained:

“[Defendant] was convicted of [section] 187[, subdivision ](A), Murder 2nd
Degree, which was enhanced with [former section] 12022 [,
subdivision ](b)(1), Committing Felony while Armed with Firearm[6 ] and a
prior term enhancement of [section] 667[, subdivision ](a), Prior Felony
Conviction of Serious or Violent Offense. In light of those convictions,
please consider that amendment to PC Section 12022.53, subdivision (h),
which became effective January 1, 2018. This section previously required a
sentencing court to impose enhancements for personal use of a firearm in
the commission of enumerated felonies. However, courts are now
empowered with discretion to strike or dismiss a personal use firearm
enhancement at sentencing or resentencing pursuant to [former]
Section 1170, subdivision (d)(1), in the interest of justice pursuant to PC
Section 1385. [Defendant] received a term of 36 years to life and has a
current earliest possible release date of November 27, 2036.

“Having reviewed the enclosed documentation, it appears that [defendant’s]
sentence warrants the attention of the court. Pursuant to [former] Section
1170, subdivision (d)(1), as the Secretary, I recommend [defendant’s]
sentence be recalled and that she be resentenced.”
The letter included a copy of the information, abstract of judgment, minutes from the
sentencing hearing, and a “Cumulative Case Summary and Evaluation Report” that
included information pertaining to her self-help activities and institutional adjustment
while incarcerated. (Boldface & some capitalization omitted.)

4 The trial court also ordered defendant to pay victim restitution (former § 1202.4,
subd. (f)), a $200 restitution fine (former § 1202.4, subd. (b)), a suspended $200 parole
revocation restitution fine (§ 1202.45), and a $20 court operations assessment (§ 1465.8).
5 The letter was dated August 19, 2020, but filed in the trial court on September 4, 2020.
6 The Secretary incorrectly described defendant’s enhancement, which was using a
dangerous weapon (a knife) and not a firearm.

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 The trial court held a hearing on September 15, 2020. Counsel for both the People
and defendant appeared.7 The court appointed counsel from the public defender’s office
for defendant and continued the hearing for defendant’s counsel to review the Secretary’s
correspondence.
On September 25, 2020, the prosecutor filed an opposition to recall and
resentencing because defendant’s sentence was not enhanced pursuant to
section 12022.53, subdivision (h). The prosecutor further argued that the trial court had
previously denied defendant’s Romero8 motion to strike her prior conviction and, at the
time of sentencing, also had discretion to strike the deadly weapon use enhancement
(former § 12022, subd. (b)) but did not exercise it.
On October 6, 2020, the trial court conducted a hearing on the Secretary’s
recommendation. The trial court indicated that it intended to deny the request because
defendant was sentenced based upon a “knife enhancement” and not a “gun
enhancement.” Defense counsel then requested an opportunity to research the issue. The
trial court responded, “Well, they are asking me to do something that—to resentence her.
[¶] … [¶] And vacate any finding on the gun enhancement, but there is no gun
enhancement. This is discretionary with the Court, so I’m going to deny it. All right.”
Defendant filed this timely appeal on December 4, 2020.
FACTS9
Defendant and her boyfriend, Augustine, lived together in an apartment in
Bakersfield that they shared with Garcia. On July 4, 2006, defendant hosted a party to

7 Defendant did not appear and the trial court minutes provide that defendant’s counsel
waived defendant’s appearance. However, the transcript of the proceedings does not contain this
waiver.
8 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
9 The following facts are drawn from our prior nonpublished opinion (People v. Torres
(Mar. 12, 2008, F052316)) affirming defendant’s judgment.

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celebrate the holiday. Later in the evening, after defendant had been drinking, she fought
with Augustine and became very upset. Augustine took defendant’s daughter to
defendant’s aunt’s house to protect her from the argument and returned to the aunt’s
house later to ask that the aunt call for an ambulance for Garcia.
When officers responded at approximately 1:30 a.m., Augustine directed them to
his apartment where officers found Garcia on the kitchen floor. Garcia was not wearing a
shirt and had a stab wound to his chest and a bite mark. Garcia had blood flowing from
his mouth, was sweating profusely, and had difficulty breathing. The officers
administered aid to Garcia until the ambulance arrived. Garcia died of the stab wound
that pierced his heart.
Defendant had left the apartment and stayed overnight at a friend’s house.
Augustine cooperated with officers, contacted defendant, and arranged to meet her. The
officers arrived with Augustine to defendant’s location and arrested her. Defendant had
bruises on both wrists and her upper right arm and blood on her shirt.
Defendant told detectives that she had argued with Augustine and it became
physical when she pushed him. Garcia told defendant to calm down and grabbed her
wrists but did nothing else to her. She told Garcia to stay out of the argument and that it
was between her and Augustine. Augustine left to take defendant’s daughter from the
apartment so she would not witness the argument. As Augustine left, Garcia grabbed
defendant’s wrists and repeatedly told her to calm down. Defendant repeatedly told
Garcia to let her go, but Garcia continued to hold her. Defendant bit Garcia on the
shoulder, and he pushed her into the kitchen and told her to calm down. When Garcia
released defendant’s wrists, he told her, “[I]f you want to make problems, there’s the
knife[;] if you want to make matters worse, there’s the knife.” Defendant picked up the
knife and stabbed Garcia in the chest. Defendant acknowledged that Garcia never hit her
or touched her inappropriately and he was not holding or touching her when she stabbed
him.

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 When a detective asked defendant to clarify whether she was saying that she
stabbed Garcia because he wanted her to, she explained that if she had really wanted to
stab him, she would have stabbed him more than once. Specifically, she said, “If it was
me who wanted to do it, I would have stabbed him a bunch of times at the same time.
But when I stabbed him I saw he was not okay because I did what he wanted me to do.”
During an interview, defendant agreed that what she had done to Garcia was wrong, but
she stated two or three times that she stabbed him because he told her to do so.
After defendant stabbed Garcia, she dropped the knife and walked outside. When
Augustine returned, defendant told him she had stabbed Garcia. Augustine went into the
apartment, but defendant stayed outside. Augustine came back out and told her he was
going to leave to call an ambulance. After he left, she walked to a nearby store and called
a friend who came and picked her up. At the friend’s house, she went to sleep. Before
she left, she changed her pants.
During the interview, defendant asked a detective whether Garcia had made a
statement. Defendant’s demeanor during the interview was detached and matter-of-fact
and she showed no emotion. About halfway through the interview, defendant asked if
Garcia was okay. At the end of the interview, the detective revealed that Garcia had died.
In response, defendant asked what was going to happen to her and if she would go to jail
for a long time.
DISCUSSION

A. Applicable Law and Standard of Review
1. Amendments to section 1172.1
Former section 1170, subdivision (d)(1) authorized the court, in relevant part, to
“at any time upon the recommendation of the secretary … in the case of state prison
inmates, … [to] recall the sentence and commitment previously ordered and resentence
the defendant in the same manner as if they had not previously been sentenced, provided

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the new sentence, if any, is no greater than the initial sentence.” (Stats. 2020, ch. 29,
§ 14.) This provision thus created “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.) The trial court may recall a sentence on its own
motion within 120 days for any reason rationally related to lawful sentencing. (Id. at
p. 456.)
While this appeal was pending, the Legislature passed Assembly Bill 1540 that,
among other things, moved the recall provisions of former section 1170,
subdivision (d)(1) to former section 1170.03 and clarified the procedural requirements to
be followed when requests to recall are made. (Stats. 2021, ch. 719, § 3.1.) The
provisions became effective January 1, 2022. Effective June 30, 2022, the Legislature
passed Assembly Bill No. 200 (2021–2022 Reg. Sess.) that, among other things,
renumbered former section 1170.03 as section 1172.1 with no change in text.
(Stats. 2022, ch. 58, § 9.)
Newly enacted section 1172.1, subdivision (a)(1) maintains the language of former
section 1170, subdivision (d)(1) and provides that when a defendant, as here, has been
committed to the custody of California’s Department of Corrections and Rehabilitation
(CDCR), the court may “at any time,” upon the recommendation of the Secretary, recall
the sentence and resentence the defendant. (People v. McMurray (2022) 76 Cal.App.5th
1035, 1040 (McMurray); see People v. Cepeda (2021) 70 Cal.App.5th 456, 464.)
Section 1172.1, subdivision (b) also provides that where, as here, a resentencing
recommendation is made by the Secretary, the defendant is entitled to notice, the
appointment of counsel, and a hearing within 30 days (§ 1172.1, subd. (b)(1)) and
“[t]here shall be a presumption favoring recall and resentencing of the defendant, which
may only be overcome if a court finds the defendant is an unreasonable risk of danger to
public safety, as defined in subdivision (c) of Section 1170.18” (id., subd. (b)(2)).

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 Moreover, under the new statutory language, in considering a recall and
resentencing recommendation, the court “shall apply … any changes in law that reduce
sentences or provide for judicial discretion” (§ 1172.1, subd. (a)(2)), may consider
postconviction factors (id., subd. (a)(4)), and may “[r]educe a defendant’s term of
imprisonment by modifying the sentence” (id., subd. (a)(3)(A)). Finally, the “court shall
state on the record the reasons for its decision to grant or deny recall and resentencing.”
(§ 1172.1, subd. (a)(6).)
2. Estrada
“Section 3 of the Penal Code instructs that no part of that code applies
retroactively, which we have taken to mean that new criminal laws do not govern
prosecutions initiated before the law went into effect. (See Estrada, supra, 63 Cal.2d at
pp. 746–748.) But we have recognized an exception to this rule for new laws that
mitigate punishment; in Estrada, we held that such laws are presumed to apply to cases
charged before the law’s enactment but not yet final. (Id. at p. 745.) Absent evidence to
the contrary, we presume that when the Legislature ‘amends a statute so as to lessen the
punishment,’ it ‘must have intended that the new statute imposing the new lighter penalty
now deemed to be sufficient should apply to every case to which it constitutionally could
apply.’ (Ibid.) Because the Legislature has ‘determined that its former penalty was too
severe,’ the only reason to apply that penalty in pending cases would be ‘a desire for
vengeance,’ a motivation we decline to attribute to our lawmakers. (Ibid.) This
presumption applies to ameliorative laws enacted by ballot proposition as well.” (People
v. Padilla (2022) 13 Cal.5th 152, 160.)
Defendant argues that Estrada applies to amended section 1172.1, analogizing it
to an amendment reducing punishment for a crime. The People respond that the Estrada
presumption applies to “to all judgments that are not yet final on the statute’s operative
date,” and defendant’s conviction is final and has not been set aside. In Padilla, our
Supreme Court held that a case is final when “ ‘the criminal proceeding as a whole’ has

9.
ended [citation] and ‘the courts can no longer provide a remedy to a defendant on direct
review.’ ” (People v. Padilla, supra, 13 Cal.5th at p. 161.) However, where a judgment
is vacated, the judgment becomes nonfinal and a defendant regains the right to appeal
whatever new sentence was imposed. (Ibid.)
We note that here, the trial court did not set aside defendant’s sentence and
defendant’s judgment is still final. But we do not need to decide whether section 1172.1
is retroactive pursuant to Estrada because, as we discuss below, the new provisions of
section 1172.1 are applicable because they are intended as clarifying amendments. We
ultimately decide, however, that the remand is not necessary as defendant would not
receive a more favorable result even if the new provisions are applied in this case.
3. McMurray
In supplemental briefing, defendant also argues that the new provisions of
section 1172.1 should apply because the Legislature intended the changes to clarify
existing law, relying upon McMurray, supra, 76 Cal.App.5th 1035. We agree although,
as we later discuss, we find any error to be harmless.
McMurray discussed the retroactivity of Assembly Bill 1540 under circumstances
where the trial court had summarily declined resentencing under former section 1170,
subdivision (d)(1) without explanation. (McMurray, supra, 76 Cal.App.5th at p. 1038.)
McMurray explained: “If an amendment ‘ “ ‘which in effect construes and clarifies a
prior statute’ ” ’ was adopted soon after controversies arose about the proper
interpretation of the statute, ‘ “ ‘it is logical to regard the amendment as a legislative
interpretation of the original act—a formal change—rebutting the presumption of
substantial change.’ ” ’ ” (Id. at p. 1039.) “When a case involving such a clarifying
amendment is on appeal, the appropriate resolution is to reverse and remand the matter
for further proceedings in compliance with the amended legislation.” (Ibid.)
McMurray concluded that Assembly Bill 1540 clarified the required procedures
for former section 1170, subdivision (d)(1), “including that, when recalling and

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resentencing, the court ‘shall … apply any changes in law that reduce sentences or
provide for judicial discretion.’ ” (McMurray, supra, 76 Cal.App.5th at p. 1040, quoting
former § 1170.03, subd. (a)(2).) It also clarified the Legislature’s intent regarding former
section 1170, subdivision (d)(1), “to ‘ensure due process and equitable application in
these types of resentencing cases.’ ” (McMurray, at p. 1040.) McMurray thus concluded
that “[u]nder the circumstances, the appropriate remedy is to reverse and remand the
matter, so that the trial court can consider the CDCR’s recommendation to recall and
resentence defendant under the new and clarified procedure and guidelines of
section [1172.1].” (Id. at p. 1041, citing Western Security Bank v. Superior Court (1997)
15 Cal.4th 232, 253 [applying amendments to specific statutes made during pendency of
appeal where Legislature made changes to explicitly abrogate prior court decisions].)

B. Analysis
The trial court did not have the benefit of the new statutory requirements when it
held its hearing.10 As relevant here, section 1172.1 provides that a defendant has a
statutory right to be present at the recall hearing (§ 1172.1, subd. (a)(8)), clarifies and
expands the factors the trial court may consider in its initial decision to recall a sentence
(id., subd. (a)(4)), and, as indicated above, if a resentencing request is from the Secretary,
creates a presumption favoring recall and resentencing of the defendant, which may only
be overcome if the trial court finds the defendant is an unreasonable risk of danger to
public safety (id., subd. (b)(2)).
The trial court denied the Secretary’s recommendation to recall defendant’s
sentence at a hearing where defendant was not present and without applying the
presumption favoring recall and resentencing to which the Secretary’s recommendation is
now entitled. Because the error is purely one of state law, the harmless error test in

10 We note, however, that the trial court did appoint counsel for defendant and continued the
initial hearing for 30 days to permit defense counsel to review the recommendation.

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People v. Watson (1956) 46 Cal.2d 818, 836 applies. (People v. Epps (2001) 25 Cal.4th
19, 29.) The test is whether, “ ‘after an examination of the entire cause, including the
evidence,’ [the reviewing court] is of the ‘opinion’ that it is reasonably probable that a
result more favorable to the appealing party would have been reached in the absence of
the error.” (Watson, at p. 836; see also Cal. Const., art. VI, § 13.)
The People oppose remand and argue that remand is an idle act because the
Secretary’s recall recommendation was premised on resentencing defendant without the
enhancement for using a firearm and defendant’s sentence had not been increased based
on using a firearm. Defendant responds that the trial court erroneously denied the
recommendation to recall on this basis because the trial court had jurisdiction to recall the
sentence based on circumstances other than those that formed the basis of the Secretary’s
recommendation.
A trial court, upon receiving a section 1172.1, subdivision (a)(1) letter from the
CDCR, has broad discretion whether to recall the existing sentence and resentence the
incarcerated individual.11 “ ‘[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.
Cepeda, supra, 70 Cal.App.5th at p. 469, quoting People v. Frazier (2020)
55 Cal.App.5th 858, 866.) While the Secretary may have relied upon an erroneous basis
for reducing defendant’s sentence, section 1172.1 contains no language limiting the trial
court to the basis cited by the Secretary in the recall recommendation. Section 1172.1,
subdivision (a)(2) expressly provides that “[t]he court, in recalling and resentencing
under this subdivision, shall apply the sentencing rules of the Judicial Council and apply
any changes in law that reduce sentences or provide for judicial discretion so as to

11 We note, however, that section 1172.1, subdivision (b)(2) now limits the trial court’s
discretion in denying the request to recall and resentence to a determination that defendant is a
danger to public safety.

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eliminate disparity of sentences and promote uniformity of sentencing.” (§ 1172.1,
subd. (a)(2), italics added.) Therefore, in making the decision to recall, the trial court has
the discretion to recall defendant’s sentence to revisit any of the earlier sentencing
decisions.
We cannot conclude, based upon this record, that the trial court erred in denying
the Secretary’s recommendation because the trial court did not indicate that it was
unaware of its discretion to consider circumstances other than the weapon enhancement
in deciding not to recall defendant’s sentence. On a silent record, the trial court is
presumed to have been aware of and to have followed the applicable law when exercising
its discretion, including its statutory sentencing discretion. (People v. Gutierrez (2009)
174 Cal.App.4th 515, 527.) We cannot presume error where the record does not establish
on its face that the trial court misunderstood the scope of its discretion. (Ibid.) The trial
court here stated, “This is discretionary with the Court, so I’m going to deny it.”
However, when it denied the Secretary’s request to recall the sentence, the trial
court did not have the benefit of amended section 1172.1, subdivision (b)(2), which now
provides for a presumption favoring recall and resentencing that can only be overcome if
the court finds defendant is an unreasonable risk of danger to the public, as defined in
subdivision (c) of section 1170.18. As explained in McMurray, through Assembly
Bill 1540 the Legislature sought to “indicate that trial courts should accept the CDCR’s
resentencing recommendations.” (McMurray, supra, 76 Cal.App.5th at p. 1040, citing
Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem.
Bill No. 1540 (2021–2022 Reg. Sess.) as amended Sept. 3, 2021, p. 3 [bill clarifies
Legislature’s intent to honor time, thought, and effort law enforcement agencies put into
referrals].) In amending section 1172.1, the Legislature found and declared:

“(g) [The Secretary of the Department of Corrections and
Rehabilitation, a district attorney, and the Board of Parole Hearings] devote
significant time, analysis, and scrutiny to each referral that they make.

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 “(h) It is the intent of the Legislature for judges to recognize the
scrutiny that has already been brought to these referrals by the referring
entity, and to ensure that each referral be granted the court’s consideration
by setting an initial status conference, recalling the sentence, and providing
the opportunity for resentencing for every felony conviction referred by one
of these entities. (Stats. 2021, ch. 719, § 1, subds. (g), (h).)
Nonetheless, we cannot conclude that the trial court’s decision would change even
if it reconsidered the Secretary’s recommendation in light of the presumption. The
presumption favoring recall and resentencing recognizes the scrutiny the Secretary has
given to the recommendation. However, in this case the Secretary erred in
recommending that the trial court resentence defendant without the firearm enhancement
because defendant’s offense did not involve a firearm. The Secretary did not refer to any
other of the trial court’s sentencing decisions in making the recommendation. We cannot
conclude that the Secretary’s recommendation should be granted a presumption favoring
recall and resentencing if based upon both factual and legal error.
Defendant argues that the Secretary’s recommendation should be broadly
construed as a recommendation for resentencing regardless of the Secretary’s stated
basis. However, the error has created an ambiguity as to Secretary’s intent in making the
recommendation. The length of defendant’s sentence is affected by which sentencing
factors the Secretary intended the trial court to revisit. While the trial court is not limited
to the Secretary’s recommendation during resentencing, the trial court is required to
provide a presumption favoring recall and resentencing based upon the Secretary’s
recommendation. Where there is ambiguity in the recommendation due to error, the trial
court should not speculate as to the Secretary’s intent in the absence of such error. Since
section 1172.1 does not require, in this particular case, that the trial court apply a
presumption to grant the Secretary’s recommendation to recall and resentence nor limit
the reason for denying the recommendation only where the trial court determines that
defendant is an unreasonable risk of danger to the public safety as defined in section
1170.18, subdivision (c), we see no basis to conclude that the trial court’s decision to

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deny the recommendation to recall and resentence defendant would be different on
remand.
In so concluding, we note specifically that section 1172.1 contains no limitation on
the number of recommendations that the Secretary can make to the trial court to recall
defendant’s sentence and resentence her. Additionally, the trial court denied the instant
recommendation to recall and resentence without prejudice to any further
recommendations. Given the significance of the Secretary’s recommendation and new
entitlement to a presumption favoring recall and resentencing, and as the Secretary’s
recommendation reflects a significant error that casts doubt on the “analysis” and
“scrutiny” devoted to the referral in this case (Stats. 2021, ch. 719, § 1, subd. (g)), the
trial court was not required to apply the presumption and, therefore, remand would not
result in a more favorable outcome to defendant.
DISPOSITION
The trial court’s October 6, 2020 order declining to recall defendant’s sentence
and resentence her is affirmed.

HILL, P. J.
WE CONCUR:

POOCHIGIAN, J.

PEÑA, J.

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