People v. Vaesau

Filed 8/4/23
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A165925
v.
JOHN VAESAU, (City and County of San
Francisco Super. Ct. No.
Defendant and Appellant.
SCN 143984)

In 1992, a jury convicted defendant John Vaesau of three counts of
attempted murder and other crimes committed when he was a minor. The
trial court sentenced him to two consecutive life terms, plus 14 years. Thirty
years later, San Francisco’s then-District Attorney, Chesa Boudin, filed a
request to resentence Vaesau under former Penal Code 1 section 1170.03, now
section 1172.1. That statute authorizes a trial court, “at any time upon the
recommendation of . . . the district attorney of the county in which the
defendant was sentenced,” to recall the sentence and resentence a defendant
convicted of a felony. (§ 1172.1, subd. (a)(1).)
Within weeks of filing the resentencing request, Boudin was recalled,
and the new District Attorney, Brooke Jenkins, moved to withdraw the
request without offering a substantive reason for doing so. After briefing and

1 All further statutory references are to the Penal Code unless

otherwise noted.

1
a hearing, the trial court granted the motion, thereby terminating the section
1172.1 proceeding. The court emphasized it was not ruling on the merits of
whether resentencing was appropriate.
On appeal, Vaesau claims the district attorney lacked authority to
rescind the resentencing request and the trial court violated section 1172.1
and his due process rights by failing to reach the merits of resentencing. We
hold that a trial court has discretion, but is not required, to terminate a
section 1172.1 proceeding when a district attorney identifies a legitimate
basis for withdrawing the resentencing request and moves to withdraw
before the court rules on the merits. Because the district attorney here did
not offer any such reason, we vacate the order at issue and remand for
reconsideration.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
The facts giving rise to Vaesau’s convictions are not relevant to the
appeal. Based on events that occurred in March 1991, Vaesau was charged
with three counts of attempted premeditated murder and three counts of
assault with a firearm, all six of which were accompanied by allegations of
personal use of a firearm and personal infliction of great bodily injury. 2
Based on a May 1991 incident, he was also charged with one count of assault

2 These charges were brought under sections 187 and 664 (attempted

murder) and section 245, subdivision (a)(2) (assault with firearm). The
accompanying allegations were made under sections 12022.5, subdivision (a)
(firearm use), and 12022.7 (infliction of great bodily injury).

2
with a deadly weapon, and based on a December 1990 incident, he was
charged with a misdemeanor count of escape from a juvenile facility. 3
Vaesau, who was 16 years old at the time of the crimes, was tried as an
adult. The jury found him guilty of all the charges and enhancements, except
for the great-bodily-injury enhancements alleged in connection with two of
the attempted-murder counts. In December 1992, the trial court sentenced
him to two terms of life with the possibility of parole and a determinate term
of 14 years in prison. He appealed, and this division affirmed the judgment,
except it remanded for resentencing based on the trial court’s failure to state
its reasons for one of its sentencing choices. (People v. Vaesau (A060555,
July 25, 1994) [nonpub. opn.].) On remand, the trial court imposed the same
sentence.
On April 29, 2022, Boudin filed a “motion to resentence” Vaesau under
former section 1170.03, “recommend[ing] that [the trial court] recall the
sentence of life with possibility of parole.” The trial court appointed a public
defender to represent Vaesau, and the matter was set for hearing on July 15.
In June 2022, before the hearing took place, Boudin was recalled by
San Francisco voters, and on July 8, Jenkins was sworn in as the new
District Attorney. 4 (Smith, Brooke Jenkins Sworn In As New DA After Recall
of Chesa Boudin, Bay City News, Inc. (July 8, 2022) available online at
[as of Aug. 4, 2023].) At the July 15

3 These charges were brought under section 245, subdivision (a)(1)

(assault with deadly weapon), and Welfare and Institutions Code section 871
(escape from juvenile facility).
4 On our own motion, we take judicial notice of this election result and

the date Jenkins took office. (Evid. Code, § 452, subd. (h); see Edelstein v.
City and County of San Francisco (2002) 29 Cal.4th 164, 171, fn. 3 [taking
judicial notice of election results].)

3
hearing, the appearing prosecutor sought to withdraw the request for
resentencing, but she did not explain why. 5 The trial court said its “natural
inclination” was that the district attorney could withdraw the request, since
the court had not yet ruled upon it. Nonetheless, the court set another
hearing and allowed Vaesau to brief the issue.
Vaesau submitted briefing in which he maintained that once the
district attorney recommended resentencing, the trial court had jurisdiction
and was required to follow section 1172.1’s procedures, including giving him
a hearing on the merits of resentencing. He argued that failing to provide the
hearing would violate both section 1172.1 and due process.
Vaesau also took the position that the district attorney was not
authorized to withdraw the recommendation, particularly without identifying
“any rational basis” for doing so. He noted that “[t]he prosecution had ample
reason to recommend release,” pointing to the same prosecutor’s arguments
in favor of release at his January 2022 parole hearing. (Boldface omitted.) A
transcript of that hearing shows the prosecutor appeared and argued there
were several mitigating factors supporting release, including Vaesau’s age
and intoxication at the time of the crimes and his lack of family support. She
also noted his personal evolution, remorse for the crimes, and lack of rule
violations since 2016.
At the next hearing on July 21, 2022, it was revealed that the District
Attorney’s office had fired the prosecutor. The hearing was continued until
August 11, at which time a new prosecutor appeared. That prosecutor
reiterated the district attorney’s desire to withdraw the resentencing request.

5 The hearing’s minute order states, “Due to recent changes in the law,

the People move to withdraw the petition.” Although the trial court noted
that the resentencing request involved “a new area of the law,” the prosecutor
never identified any change in the law as a reason to withdraw the request.

4
She provided no substantive reason for the requested withdrawal, saying
only that having “reviewed just the papers,” she believed the request was
“very thin on the record even to provide to the Court.”
The trial court stated it was “convinced that [it was] within the ambit
of [the district attorney’s] discretion to withdraw the petition” for
resentencing. Though acknowledging it was “a novel question,” the court was
not persuaded by Vaesau’s position that “once you start the mechanism
[under section 1172.1], you can’t stop it.”
The trial court also distinguished another recent case in which it was
involved. There, the District Attorney’s office sought resentencing, and the
court recalled the sentence and transferred the matter to juvenile court to
determine whether the defendant was fit for that court’s jurisdiction. The
day before the recall election, the district attorney sought to withdraw the
resentencing request, and the juvenile court refused to allow the district
attorney to do so. Vaesau’s case, in contrast, was “at a much earlier stage” of
the process, and the court decided it was appropriate to allow the district
attorney to withdraw the request. The court emphasized that its ruling had
“nothing to do with the merits of whether the sentence should or shouldn’t be
recalled” and stated it had not “made any decision on that.”
II.
DISCUSSION
A. Recall and Resentencing Under Section 1172.1
Section 1172.1 provides that “[w]hen a defendant, upon conviction of a
felony offense, has been committed to the custody of the Secretary of the
Department of Corrections and Rehabilitation or to the custody of the county
correctional administrator pursuant to subdivision (h) of Section 1170, the
[trial] court may, within 120 days of the date of commitment on its own
motion, at any time upon the recommendation of the secretary or the Board

5
of Parole Hearings in the case of a defendant incarcerated in state prison, the
county correctional administrator in the case of a defendant incarcerated in
county jail, the district attorney of the county in which the defendant was
sentenced, or the Attorney General if the Department of Justice originally
prosecuted the case, recall the sentence and commitment previously ordered
and resentence the defendant in the same manner as if they had not
previously been sentenced, whether or not the defendant is still in custody,
and provided the new sentence, if any, is no greater than the initial
sentence.” (§ 1172.1, subd. (a)(1).)
A similar provision originally appeared in section 1170, former
subdivision (d) (former section 1170(d)). “Former section 1170(d) provided ‘an
exception to the common law rule that the [trial] court loses resentencing
jurisdiction once execution of sentence has begun.’ ” (People v. E.M. (2022)
85 Cal.App.5th 1075, 1082 (E.M.), quoting Dix v. Superior Court (1991)
53 Cal.3d 442, 455 (Dix).) A request for resentencing under former
section 1170(d) functioned as “ ‘ “an invitation to the [trial] court to exercise
its equitable jurisdiction,” which “furnishe[d] the court with the jurisdiction it
would not otherwise possess to recall or resentence.” ’ ” 6 (E.M., at p. 1082.)
On receiving such a request, the court “ ‘ha[d] broad discretion whether to
recall the existing sentence and resentence the incarcerated individual,’ ” and
if it chose to do so, it could perform a full resentencing, except that it could
not impose a greater sentence than the original one. (Ibid.)

6 Former section 1170(d) originally authorized only the Secretary of the

Department of Corrections and Rehabilitation (Secretary) or Board of Parole
Hearings to request resentencing. District attorneys were added as potential
recommending parties in 2019. (Assembly Bill No. 2942 (2017–2018 Reg.
Sess.), Stats. 2018, ch. 1001, § 1.)

6
 Effective January 1, 2022, Assembly Bill No. 1540 (2021–2022 Reg.
Sess.) (Assembly Bill No. 1540) “moved the recall and resentencing provisions
of former section 1170(d)(1) to new section 1170.03.” (People v. McMurray
(2022) 76 Cal.App.5th 1035, 1038; Stats. 2021, ch. 719, § 3.) Section 1170.03
was later recodified without substantive change as section 1172.1. (Stats.
2022, ch. 58, § 9; People v. Braggs (2022) 85 Cal.App.5th 809, 818.) Assembly
Bill No. 1540 “also clarified the Legislature’s intent regarding procedural
requirements” and “added a presumption in favor of recall and resentencing”
when a request for resentencing is submitted. (McMurray, at p. 1038.)
Thus, section 1172.1 now requires a trial court to “state on the record
the reasons for its decision to grant or deny recall and resentencing” and
provides that “[r]esentencing shall not be denied . . . without a hearing
where the parties have an opportunity to address the basis for the intended
denial or rejection.” (§ 1172.1, subd. (a)(6), (8).) In addition, where, as here,
“a resentencing request pursuant to subdivision (a) is from the Secretary . . . ,
the Board of Parole Hearings, a county correctional administrator, a district
attorney, or the Attorney General[ 7], all of the following shall apply: [¶]
(1) The court shall provide notice to the defendant and set a status conference
within 30 days after the date that the court received the request. The court’s
order setting the conference shall also appoint counsel to represent the
defendant. [¶] (2) There shall be a presumption favoring recall and
resentencing of the defendant, which may only be overcome if a court finds

7 The five parties listed are the only parties that can recommend

resentencing under section 1172.1, subdivision (a)(1). In other words,
section 1172.1, subdivision (b), applies when proceedings under the statute
are initiated by an outside recommendation, as opposed to when the trial
court recalls the sentence on its own motion within 120 days of the
commitment.

7
the defendant is an unreasonable risk of danger to public safety, as defined in
subdivision (c) of Section 1170.18.” (§ 1172.1, subd. (b).)
B. The Order Granting the Motion to Withdraw the Resentencing
Request Is Appealable.

Initially, the Attorney General claims the order granting the district
attorney’s motion to withdraw the resentencing request was not appealable
because “in the absence of a resentencing petition, [the trial court] no longer
had jurisdiction” to resentence Vaesau. We are not persuaded.
“The right to appeal is statutory only, and a party may not appeal a
trial court’s judgment, order[,] or ruling unless such is expressly made
appealable by statute.” (People v. Loper (2015) 60 Cal.4th 1155, 1159
(Loper).) Absent an appealable order, an appellate court lacks jurisdiction to
consider an appeal. (People v. Montellano (2019) 39 Cal.App.5th 148, 153.)
The question here is whether the appeal is permissible under section 1237,
subdivision (b), which authorizes a criminal defendant to appeal “[f]rom any
order made after judgment, affecting the substantial rights of the party.” We
review this issue de novo. (Kirk v. Ratner (2022) 74 Cal.App.5th 1052, 1060.)
“ ‘A trial court order denying relief that the court has no jurisdiction to
grant does not affect a defendant’s substantial rights and is therefore not
appealable under section 1237, subdivision (b).’ ” (E.M., supra,
85 Cal.App.5th at p. 1085.) Relying on this principle, the Attorney General
claims that once the trial court allowed the district attorney to withdraw the
resentencing request, the court “had no further jurisdiction to . . . consider on
the merits whether [Vaesau] should be resentenced,” and its order therefore
did not affect Vaesau’s substantial rights. Vaesau, on the other hand, claims
the court “exercised its jurisdiction when it granted the . . . request to
withdraw,” and its “ruling was in essence a denial of an authorized
resentencing petition” that did affect his substantial rights.

8
 We take a somewhat different view than that of either party. To begin
with, we agree with Vaesau that the trial court had jurisdiction to rule on the
district attorney’s motion to withdraw the resentencing request. Upon
receiving a request from a proper party, the court had jurisdiction to
resentence him. (See E.M., supra, 85 Cal.App.5th at p. 1082; § 1172.1,
subd. (a)(1).) Indeed, there is no dispute that, had the district attorney not
withdrawn the resentencing request and the court had thereafter denied
resentencing, that order would be appealable. (See E.M., at pp. 1084–1085
[order denying request for resentencing was appealable even though
Secretary subsequently withdrew request]; see also Loper, supra, 60 Cal.4th
at p. 1158 [orders denying compassionate release under § 1170, former
subd. (e), are appealable even though prisoners lack standing to request such
relief themselves].) Thus, decisions cited by the Attorney General in which
the trial court did not have jurisdiction to consider a defective request for
resentencing are inapposite. (See, e.g., People v. Hernandez (2019)
34 Cal.App.5th 323, 326 [defendant could not appeal from denial of his own
request for resentencing under former § 1170(d) made after judgment was
final]; People v. Chlad (1992) 6 Cal.App.4th 1719, 1725 [same]; see also Loper,
at pp. 1165–1166.)
Although the trial court had jurisdiction to rule on the district
attorney’s motion to withdraw the resentencing request, the question
remains whether granting the motion and thereby terminating the
section 1172.1 proceeding affected Vaesau’s substantial rights. The answer is
yes if the court had the ability to deny the motion and instead proceed with
resentencing. As we explain in more detail below, the court had that ability.
The order is therefore appealable.

9
 C. Trial Courts Have Discretion to Allow a District Attorney to
Withdraw a Section 1172.1 Request Before Reaching the Merits of
Whether Resentencing Is Warranted.
We now turn to the central issue on appeal, the effect of the district
attorney’s withdrawal of the resentencing request. According to the Attorney
General, the district attorney had the inherent power to rescind the request,
at which point the trial court had to terminate the section 1172.1 proceeding.
But according to Vaesau, the court was statutorily and constitutionally
required to determine whether resentencing was appropriate even though the
district attorney no longer supported resentencing. In other words, the
Attorney General claims the court had no choice but to grant the withdrawal
motion, and Vaesau claims the court had no choice but to deny it. The correct
answer lies between these two extremes.
“ ‘ “ ‘ “As in any case involving statutory interpretation, our
fundamental task here is to determine the Legislature’s intent so as to
effectuate the law’s purpose. [Citation.] We begin by examining the statute’s
words, giving them a plain and commonsense meaning.” ’ ” ’ [Citation.]
‘ “[W]e look to ‘the entire substance of the statute . . . in order to determine
the scope and purpose of the provision . . . . [Citation.]’ [Citation.] That is,
we construe the words in question ‘ “in context, keeping in mind the nature
and obvious purpose of the statute.” ’ ” ’ ” (People v. Lewis (2021) 11 Cal.5th
952, 961.) “Where the statutory texts admits of more than one reasonable
interpretation, we may also consider various extrinsic aids—including the
legislative history—to the extent they are helpful in advancing the
Legislature’s purpose.” (People v. Rodriguez (2016) 1 Cal.5th 676, 686.) If
possible, we construe statutes “in a manner that avoids serious constitutional
questions.” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1373.) Finally, “[w]e
must . . . avoid a construction that would produce absurd consequences,

10
which we presume the Legislature did not intend.” (People v. Mendoza (2000)
23 Cal.4th 896, 908.)
1. E.M.
We begin with E.M., in which the Sixth District Court of Appeal
addressed the effect of the Secretary’s withdrawal of a resentencing request.
(E.M., supra, 85 Cal.App.5th at p. 1083.) There, the Secretary originally
recommended resentencing under former section 1170(d), “cit[ing] a recent
legislative change to section 1385 that granted trial courts the discretion to
dismiss a prior serious felony enhancement in furtherance of justice.” (E.M.,
at p. 1080.) The trial court declined to recall the sentence, based on the
erroneous view that the ameliorative legislation did not apply to the
defendant because his sentence was final. (Id. at pp. 1082, 1090.) While the
defendant’s appeal from the order denying resentencing was pending, and
after the parties briefed the merits, the Secretary rescinded the
recommendation. (Id. at p. 1083.)
E.M. held that “the Secretary’s rescission . . . [did] not eliminate the
trial court’s jurisdiction to recall and resentence [the defendant] under
section 1172.1 at this stage in the proceedings,” meaning the appeal was not
moot. (E.M., supra, 85 Cal.App.5th at p. 1087.) After noting that
section 1172.1’s plain language did not address the Secretary’s power to
rescind a recommendation, the Sixth District determined that “the language
of the statute is amenable to more than one reasonable interpretation.”
(E.M., at p. 1083.) But the court found nothing in the legislative history
shedding light on the issue, and it rejected the Attorney General’s arguments
that the Secretary has the “inherent[]” power to rescind a resentencing
recommendation or that “the trial court does not have jurisdiction until it
actually recalls the sentence.” (Id. at pp. 1083–1084.) E.M. emphasized that

11
by enacting former section 1170(d), “ ‘the Legislature intended to retain,
within the limits of determinate sentencing, the preexisting judicial power to
recall and reconsider a sentence on individual grounds.’ ” (E.M., at p. 1084,
quoting Dix, supra, 53 Cal.3d at p. 458.)
Finally, E.M. concluded that public policy and separation-of-powers
concerns did not justify permitting the Secretary to withdraw the
resentencing request at such a late stage. (E.M., supra, 85 Cal.App.5th at
pp. 1085–1086.) The Attorney General asserted that “it would lead to absurd
consequences” if the Secretary could not withdraw “ ‘mistaken[]’ ”
recommendations, but the rescission letter at issue “did not assert any
administrative mistake or improvidence[,] . . . cite any change in the
circumstances of [the defendant’s] incarceration[,] or offer any other objective
explanation for why he would be less deserving of resentencing now.” (Id. at
p. 1085.) Moreover, section 1172.1 “expressly gave trial courts jurisdiction to
resentence prisoners,” and if anything, the separation of powers weighed
against permitting the Secretary to withdraw the request after “the trial
court had expressly ruled on it,” the merits were fully briefed on appeal, and
the appellate court was prepared to grant relief to the defendant. (E.M., at
pp. 1086–1087.) Although on remand the trial court could consider the
rescission “as one factor in [its] analysis,” the Secretary could not unilaterally
halt the proceedings under section 1172.1. (E.M., at p. 1087.)
E.M. left open the question of when, if ever, a resentencing request
under section 1172.1 may be unilaterally withdrawn. The Sixth District
expressly declined to “decide whether the Secretary has the power to rescind
a recommendation soon after issuing it and where the trial court has not yet
acted on it; where a subsequent change in the prisoner’s circumstances may
support rescission; or where the initial recommendation was erroneously

12
issued due to administrative improvidence.” (E.M., supra, 85 Cal.App.5th at
pp. 1085–1086.)
2. A district attorney does not have an inherent power to
withdraw a resentencing request before the trial court
rules on the merits.
As E.M. observed, section 1172.1 does not explicitly address a
recommending party’s ability to withdraw its request for resentencing.
(E.M., supra, 85 Cal.App.5th at p. 1083.) Relying on In re Fain (1976)
65 Cal.App.3d 376, the Attorney General argues that “[t]he power to take an
action includes the inherent power to reconsider that action,” meaning the
district attorney’s power to request resentencing includes the absolute power
to rescind the request. E.M. rejected the same argument, concluding that
“Fain is inapposite” because that case addressed “ ‘purely administrative’ ”
actions, which sentencing is not. (E.M., at p. 1084.) The Attorney General
does not explain why E.M. was incorrect or why we should nonetheless apply
Fain here.
Nor are we persuaded by the Attorney General’s claim that “the district
attorney possesses the ordinary powers of a litigant in other actions,” such as
a civil plaintiff’s right to voluntarily dismiss a case. The analogy fails,
because section 1172.1 proceedings are not adversarial. A resentencing
request does not initiate an action “against” the defendant, and dismissal of
the request does not benefit the defendant. Similarly, a resentencing request
is not akin to a motion, which the moving party is generally entitled to
abandon. Rather, a request functions to renew the trial court’s sentencing
jurisdiction, and permitting the executive branch to unilaterally terminate

13
section 1172.1 proceedings would “intrude” into that jurisdiction, raising
separation-of-powers concerns. 8 (E.M., supra, 85 Cal.App.5th at p. 1085.)
The Attorney General also argues that district attorneys have the
“ ‘right and duty to examine and reexamine facts, existing or newly
discovered,’ which can, at times, result in a discretionary change of position.”
(Quoting Leo v. Superior Court (1986) 179 Cal.App.3d 274, 289.) This may be
true in the exercise of the “prosecutorial function,” such as that at issue in
Leo, where the defendant challenged an order permitting the prosecution “to
revise its initial decision not to seek the death penalty and to instead pursue
the death penalty against [him].” (Id. at pp. 277, 289; see Dix, supra,
53 Cal.3d at p. 451 [noting prosecution’s “sole discretion” to determine what
punishment to seek].) Here, however, the decision to recommend
resentencing is not a core prosecutorial function. To the contrary, it is one
that correctional authorities may exercise as well, and one they were
empowered to exercise well before the statute was amended to include
district attorneys. Indeed, section 1172.1 does not differentiate between
recommending parties in addressing the required procedures. In all cases,
the primary discretionary power exercised under the statute is the trial
court’s, not the recommending party’s.
In short, a district attorney’s ability to request resentencing does not
imply an unfettered authority to withdraw the request. Accordingly, and

8 For his part, Vaesau draws an analogy to criminal proceedings, in

which the district attorney lacks the inherent authority to dismiss charges.
Under sections 1385 and 1386, “ ‘the prosecutor may not unilaterally
abandon a prosecution’ ” and “ ‘ “can only recommend dismissal to the court.
Dismissal is within the latter’s exclusive discretion.” ’ ” (Nazir v. Superior
Court (2022) 79 Cal.App.5th 478, 491.) We need not address whether this
comparison is sound, because we conclude for other reasons that a district
attorney cannot unilaterally withdraw a resentencing request.

14
consistent with E.M., we conclude that termination of a section 1172.1
proceeding is not mandatory if the district attorney no longer supports
resentencing. In other words, the mere fact that the district attorney
withdraws a request does not preclude a trial court from concluding that
recall and resentencing is nonetheless appropriate. Rather, once a request is
made, the court has jurisdiction to resentence the defendant if it chooses to do
so. (See E.M., supra, 85 Cal.App.5th at p. 1082.)
3. A trial court is not required to reach the merits every time
a resentencing request is made.
Having rejected the Attorney General’s position, we turn to Vaesau’s.
Vaesau claims that by permitting the district attorney to withdraw the
resentencing request, the trial court violated two aspects of section 1172.1:
the presumption in favor of resentencing when an outside party requests it,
and the statute’s hearing requirements. According to him, these provisions
require a trial court to reach the merits of resentencing once a request is
made. E.M. did not have occasion to address this issue, since in that case the
Secretary rescinded the request only after the trial court had denied it on the
merits. (See E.M., supra, 85 Cal.App.5th at p. 1081.) We conclude that
courts are not required to reach the merits of every resentencing request.
Vaesau first claims that permitting the district attorney to withdraw
the resentencing request violated the provision that if resentencing is
requested by an outside party, “[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.”
(§ 1172.1, subd. (b)(2).) He argues that this provision establishes “that once
[a] district attorney files a recommendation for recall and resentencing,” the
trial court must resentence the defendant unless it finds that the defendant
poses the requisite risk.

15
 We are not persuaded by this reading of section 1172.1, because it
would preclude a trial court from denying a resentencing request without
prejudice. In its normal legal sense, a presumption is an “inference or
assumption that a fact exists because of the known or proven existence of
some other fact,” and “[m]ost presumptions are rules of evidence calling for a
certain result in a given case unless . . . [they are] overcome[] . . . with other
evidence.” (Black’s Law Dict. (11th ed. 2019) p. 1435.) Section 1172.1’s
presumption functions as such, dictating that if an outside party requests
resentencing, recall and resentencing shall occur unless that result is
overcome by proof that the defendant poses an unreasonable risk of danger to
public safety. (§ 1172.1, subd. (b)(2).) In other words, the presumption
affects the ultimate issue of whether resentencing is appropriate.
But there could be procedural reasons for a trial court to deny or
dismiss a resentencing request before reaching the merits, such as if the
request was submitted for the wrong defendant. In such situations, requiring
a court to nonetheless determine whether the defendant posed an
unreasonable risk of danger to public safety would be a pointless exercise.
Indeed, a risk determination requires significant evidence, such as the
defendant’s prison record, yet a court would have to make the determination
even if it lacked sufficient evidence to do so. The Legislature could not have
intended such a result. (See People v. Mendoza, supra, 23 Cal.4th at p. 908.)
Our conclusion is consistent with other indicators of legislative intent.
In passing Assembly Bill No. 1540, the Legislature found that the “law
enforcement agencies [that can submit resentencing requests] devote
significant time, analysis, and scrutiny to each referral that they make.”
(Stats. 2021, ch. 719, § 1, subd. (g).) The Legislature also expressed its
“intent . . . for judges to recognize the scrutiny that has already been brought

16
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.” (Id., § 1, subd. (h);
see, e.g., Off. Of Sen. Floor Analyses, 3d reading analysis of Assem. Bill
No. 1540, Sept. 3, 2021, p. 3 [bill will “honor the significant time, thought,
and effort that law enforcement agencies put into referrals”]; Assem. Com. on
Public Safety, Rep. on Assem. Bill No. 1540, as amended Apr. 22, 2021, p. 6
[presumption creates “fairly high bar” for denying resentencing because
“these are cases which have already been vetted as being appropriate for
recall and resentencing by . . . law enforcement agencies”].)
Contrary to Vaesau’s claim otherwise, permitting a resentencing
request to be withdrawn before the trial court reaches the merits is not
“antithetical” to the legislative goal of giving the recommendation weight. As
explained above, the statutory presumption affects the merits of
resentencing, and it does not derogate from the recommending party’s
appraisal of the issue to terminate a section 1172.1 proceeding without
prejudice. Indeed, where the resentencing request was erroneously made,
permitting the recommending party to withdraw it respects that party’s most
up-to-date assessment. We tend to agree with the Attorney General that if
resentencing requests were “irrevocable,” it could discourage district
attorneys and others from making such requests in the first place, which
would thwart section 1172.1’s overall purpose of reducing incarceration
levels. (See Stats. 2021, ch. 719, § 1, subds. (a)–(e).)
Vaesau also argues that allowing the district attorney to withdraw the
resentencing request violated section 1172.1’s hearing requirements. Under
subdivision (a)(8) of the statute, “[r]esentencing shall not be denied, nor a

17
stipulation [to resentencing without a hearing] rejected, without a hearing
where the parties have an opportunity to address the basis for the intended
denial or rejection.” In addition, when a resentencing proceeding is initiated
at an outside party’s request, “[t]he [trial] court shall provide notice to the
defendant and set a status conference within 30 days after the date that the
court received the request.” (§ 1172.1, subd. (b)(1).)
We agree with the Attorney General that the trial court did not
contravene these statutory requirements. Assuming the court could even be
said to have “denied” resentencing, the ruling was clearly without prejudice,
and the court held a hearing at which the parties were able to address its
basis for allowing the district attorney to withdraw the resentencing request.
Furthermore, Vaesau received notice of the resentencing proceeding, and the
court proceeded promptly in calendaring the matter. To the extent he
suggests that section 1172.1’s hearing provisions require a hearing on the
merits once a resentencing request is made, we reject the argument for the
reasons we have discussed above.
Vaesau also argues that “[u]nder the rule of casus omissus, a matter
that is not covered by a statute must be treated as not covered.” This canon
of statutory interpretation, also known as the omitted-case canon, provides
that “[n]othing is to be added to what the text states or reasonably implies.”
(Scalia & Garner, Reading Law: The Interpretation of Legal Texts (2012)
p. 93, boldface omitted.) It is based on the principle “that it is not the proper
function of the courts to supply legislative omissions from a statute in an
attempt to make it conform to a presumed intention of the Legislature not
expressed in the statutory language.” (Cemetery Board v. Telophase Society
of America (1978) 87 Cal.App.3d 847, 858.)

18
 The omitted-case canon does not mandate the conclusion that trial
courts lack authority to deny or dismiss resentencing requests without
prejudice. “Trial courts . . . possess a constitutionally conferred, inherent
authority to ‘create new forms of procedure’ in the gaps left unaddressed by
statutes and the rules of court.’ ” (People v. Lujan (2012) 211 Cal.App.4th
1499, 1507; Weiss v. People ex rel. Dept. of Transportation (2020) 9 Cal.5th
840, 857; see Code Civ. Proc., § 187.) Of course, as Vaesau notes,
section 1172.1 does specify procedures to be followed when a trial court
considers a resentencing request. But those procedures are not exhaustive,
and the statute’s failure to spell out every situation in which a court might
validly terminate a proceeding without prejudice hardly suggests that courts
are compelled to decide every single request on the merits.
To be sure, “courts must tread carefully when exercising their inherent
authority to fashion new procedures. We may not sanction procedures of
dubious constitutional validity. [Citation.] Nor may we bless procedural
innovations inconsistent with the will of the Legislature or that usurp the
Legislature’s role by fundamentally altering criminal procedures.” (People v.
Lujan, supra, 211 Cal.App.4th at p. 1507; see Weiss v. People ex rel. Dept. of
Transportation, supra, 9 Cal.5th at p. 857.) These limits do not prevent a
trial court from dismissing a resentencing request without prejudice, but they
do restrict the circumstances under which the court may permit a district
attorney to withdraw such a request.
4. A district attorney must have a legitimate basis for
withdrawing a resentencing request.
To summarize, a trial court may, but is not required to, allow a district
attorney to withdraw a resentencing request before the court reaches the
merits, thereby terminating a section 1172.1 proceeding without prejudice.
Although this is a discretionary choice, it must be guided by section 1172.1’s

19
objectives and the defendant’s due process rights. In particular, the motion
to withdraw the request must be based on a legitimate reason. Here, a
remand for reconsideration is warranted, because it is unclear whether the
trial court appreciated the full scope of its discretion to deny the district
attorney’s motion to withdraw—particularly given the district attorney’s
failure to explain the change in course. 9
The district attorney offered almost no justification for withdrawing the
resentencing request. The only point mentioned, other than the mere desire
to do so, was the new prosecutor’s statement that the resentencing request
was “very thin on the record even to provide to the Court.” It is not clear
whether this statement referred to the request itself, which did not address
why the district attorney recommended resentencing or include any
supporting documentation, or to a general dearth of available information.
But the request appears to have been based on a thorough evaluation of
Vaesau’s suitability for resentencing. As the parole-hearing transcript
demonstrated, the original prosecutor was familiar with Vaesau’s case, and
she identified several reasons supporting his release. Jenkins, the new
District Attorney, was entitled to reconsider the recommendation, but there
is no evidence that any substantive reevaluation occurred. Indeed, she
moved to withdraw the recommendation only a week after taking office.
Vaesau argues that permitting a district attorney “to withdraw its
recommendation on a whim, or due to a change in the political winds, is not
consistent with [Assembly Bill No. 1540’s] purpose.” We agree. The intent
behind the presumption in favor of resentencing, to recognize “the significant

9 As a result of this conclusion, we need not address Vaesau’s argument

that reversal is required because the district attorney violated principles of
prosecutorial ethics.

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time, analysis, and scrutiny” behind resentencing requests (Stats. 2021,
ch. 719, § 1, subd. (g)), is thwarted if a district attorney is allowed to
withdraw a request without justification. This legislative goal does not
require a trial court to reach the merits of every resentencing request, but it
does require a court to consider the basis for a motion to withdraw. As E.M.
suggests, there could be a range of valid reasons to withdraw a request, such
as “administrative mistake or improvidence,” a change in the law, or a
“change in the prisoner’s circumstances” making the prisoner “less deserving
of resentencing.” (E.M., supra, 85 Cal.App.5th at pp. 1085–1086.) But the
legitimacy of the proffered reason must be considered on a case-by-case basis,
and standing alone, it is insufficient that the district attorney no longer backs
resentencing.
Due process concerns also support requiring a district attorney to offer
a valid reason for deciding to withdraw a resentencing request. In People v.
Pillsbury (2021) 69 Cal.App.5th 776, the Third District Court of Appeal held
that defendants recommended for resentencing under former section 1170(d),
like defendants recommended for compassionate release, have a “ ‘substantial
interest in personal liberty’ ” that entitles them to due process in proceedings
under the statute. (Pillsbury, at p. 790, quoting Loper, supra, 60 Cal.4th at
p. 1161, fn. 3.) Although Pillsbury’s holding focused on the attendant
procedural protections, which Assembly Bill No. 1540 later codified, due
process generally “protects individuals from the arbitrary action of
government.” (Pillsbury, at p. 789, citing Kentucky Dept. of Corrections v.
Thompson (1989) 490 U.S. 454, 460.) Moreover, the California Constitution
requires “the appearance of fairness to those involved” in a proceeding.
(People v. Sanchez (2017) 18 Cal.App.5th 727, 756.) Allowing a district
attorney to withdraw a resentencing request without explanation, especially

21
under the political circumstances here, raises the specter of arbitrary action
and does not carry the appearance of fairness.
The trial court correctly determined that it was not necessarily
required to reach the merits of the resentencing request and it correctly made
no determination that the district attorney had an absolute right to withdraw
the request. Nonetheless, the court concluded that it was “within the ambit
of [the district attorney’s] discretion” to do so, even though the district
attorney failed to explain why the motion to withdraw was justified. It may
well be that on remand, the district attorney can offer a legitimate reason for
the change in position, but no such reason is apparent from the record before
us. Thus, we conclude that the court must revisit its discretionary decision to
terminate the section 1172.1 proceeding.
III.
DISPOSITION
The August 11, 2022 order granting the district attorney’s motion to
withdraw the resentencing request is vacated. The matter is remanded for
the trial court to reconsider whether to permit the district attorney to
withdraw the request.

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 _________________________
Humes, P.J.

WE CONCUR:

_________________________
Banke, J.

_________________________
Bowen, J.*

*Judge of the Superior Court of the County of Contra Costa, assigned
by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.

People v. Vaesau A165925

23
Trial Court: City and County of San Francisco Superior Court

Trial Judge: Bruce E. Chan

Counsel:

Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and
Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. Share and
Katie L. Stowe, Deputy Attorneys General, for Plaintiff and Respondent.

People v. Vaesau A165925

24