Filed 12/21/23 P. v. Lugo CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B325491
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA102418
v.
ANGEL ARTURO LUGO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Tammy Chung Ryu, Judge. Reversed and
remanded with directions.
Gloria C. Cohen, 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, Assistant
Attorney General, Noah P. Hill and Steven E. Mercer, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________________________
INTRODUCTION
Over 20 years ago, a jury convicted defendant Angel Arturo
Lugo of first degree murder and found he used a knife to commit
the offense. The court sentenced Lugo to 26 years to life in prison.
In early 2021, the Secretary of the California Department
of Corrections and Rehabilitation (Secretary) recommended the
trial court recall Lugo’s sentence and resentence him under
former Penal Code1 section 1170, subdivision (d) (now section
1172.1), citing Lugo’s record of good behavior in prison. In June
2022, before the court ruled on the Secretary’s recommendation,
the Secretary rescinded it, stating she no longer supported
recalling Lugo’s sentence based on her review of “subsequent
information in his file.” The court then terminated Lugo’s recall
proceedings, finding it lacked jurisdiction to recall his sentence
once the Secretary rescinded her recommendation.
On appeal, Lugo contends the court erred in refusing to
rule on the merits of the Secretary’s recall recommendation. The
People argue the Secretary’s withdrawal of her recommendation
extinguished the court’s sentencing jurisdiction, and Lugo’s
appeal should be dismissed for lack of an appealable order. As we
explain, the Secretary’s decision to rescind her recall
recommendation did not, by itself, extinguish the court’s
sentencing jurisdiction. Rather, the court retained its sentencing
jurisdiction and had discretion to act on the Secretary’s
recommendation—either by ruling on its merits or dismissing the
recall proceedings without prejudice. Because the court was
unaware it possessed such discretion, we remand the matter for
reconsideration of the Secretary’s recommendation to recall
Lugo’s sentence under section 1172.1.
1 All undesignated statutory references are to the Penal Code.
2
BACKGROUND
In October 2000, a jury convicted Lugo of one count of first
degree murder (§ 187, subd. (a)). The jury also found Lugo
personally used a deadly and dangerous weapon, a knife, while
committing the murder (§ 12022, subd. (b)(1)). The court
sentenced Lugo to a total term of 26 years to life in prison,
consisting of a term of 25 years to life for the murder plus a
consecutive one-year term for the weapon enhancement.
In April 2021, the Secretary submitted a letter
recommending the court recall Lugo’s sentence and resentence
him pursuant to former section 1170, subdivision (d). The
Secretary cited Lugo’s good behavior and participation in several
vocational and rehabilitative programs while in prison.
In December 2021, the court appointed counsel to
represent Lugo. In February 2022, defense counsel filed a motion
in support of resentencing. Later that month, the court scheduled
a hearing on the Secretary’s recall recommendation for April
2022, which was continued several times.
In late June 2022, the Secretary rescinded her
recommendation. According to the Secretary, she had “since
reviewed subsequent information in [Lugo’s] file and based upon
[that] information, [she] no longer support[ed] the prior
recommendation for a sentencing recall.”
In November 2022, Lugo filed a supplemental motion
asking the court to proceed with his recall proceedings, arguing
the court retained discretion to do so even after the Secretary
rescinded her recommendation.
Following a hearing in mid-November 2022, the court
denied Lugo’s motion. The court explained that once the
Secretary withdrew her recommendation, the court “lost
jurisdiction to consider resentencing Mr. Lugo in this matter.
And unless the court gets something else from [the Secretary] or
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the District Attorney’s office, there’s no statutory basis for the
court to resentence Mr. Lugo.” The court then terminated Lugo’s
recall proceedings.
Lugo appeals.
DISCUSSION
1. Applicable Law and Standard of Review
Under section 1172.1, subdivision (a)(1), the court may, “at
any time upon the recommendation of the [Secretary] … , 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).)
When recalling a defendant’s sentence and resentencing
him under section 1172.1, the court “shall … apply any changes
in law that reduce sentences or provide for judicial discretion.” (§
1172.1, subd. (a)(2).) The court may not grant or deny recall and
resentencing without “stat[ing] on the record the reasons for its
decision,” nor may it deny recall and resentencing “without a
hearing where the parties have an opportunity to address the
basis for the intended denial or rejection.” (Id., subd. (a)(6), (8).)
And where, as here, the Secretary or another correctional
institution or prosecutorial agency recommends recall and
resentencing, the court must appoint counsel to represent the
defendant and “provide notice to the defendant and set a status
conference within 30 days after the date that the court received
the request.” (Id., subd. (b)(1).) In addition, the court must also
apply 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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If the court decides to recall the defendant’s sentence, it
may: (1) “[r]educe a defendant’s term of imprisonment by
modifying the sentence”; or (2) if the defendant and the
prosecutor’s office that originally tried the defendant agree,
“[v]acate the defendant’s conviction and impose judgment on any
necessarily included offense or lesser related offense, whether or
not that offense was charged in the original pleading, and then
resentence the defendant to a reduced term of imprisonment.” (§
1172.1, subd. (a)(3).)
Section 1172.1’s recall and resentencing procedures provide
“ ‘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.) A recall
recommendation functions as an invitation to the court to
exercise its equitable jurisdiction, which “furnishes the court with
the jurisdiction it would not otherwise have to recall and
resentence.” (People v. McMurray (2022) 76 Cal.App.5th 1035,
1040 (McMurray).)2
2 Section 1172.1’s recall and resentencing procedures were originally
found in former section 1170, subdivision (d), which was in effect at the
time the Secretary filed her recall recommendation. (People v. Vaesau
(2023) 94 Cal.App.5th 132, 144 (Vaesau).) By the time the Secretary
withdrew her recommendation, the Legislature had moved those
procedures to section 1170.03. (Vaesau, at p. 144.) In enacting section
1170.03, the Legislature added several provisions that clarify the
procedures and presumptions applicable to proceedings that arise out
of a Secretary’s recommendation to recall a defendant’s sentence, such
as the requirement that the court appoint counsel to represent the
defendant and the presumption favoring recall and resentencing of the
defendant. (McMurray, supra, 76 Cal.App.5th at p. 1040; see also
former § 1170.03.) Before the court terminated Lugo’s recall
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We review a court’s denial of recall and resentencing for
abuse of discretion. (E.M., supra, 85 Cal.App.5th at pp. 1082–
1083.) We independently review issues of statutory
interpretation. (Ibid.)
2. The Secretary’s decision to withdraw her recall
recommendation did not extinguish the court’s
sentencing jurisdiction.
Lugo argues the court erred in terminating his recall
proceedings after the Secretary withdrew her recommendation to
recall his sentence. Specifically, Lugo contends the court
erroneously believed the Secretary’s decision to withdraw her
recommendation extinguished the court’s sentencing jurisdiction.
Since the court did not realize it retained discretion to recall his
sentence and resentence him under section 1172.1, Lugo argues,
the matter must be remanded to allow the court to exercise that
discretion.
The People, on the other hand, argue we should dismiss
Lugo’s appeal for lack of an appealable order because the court
did not rule on the Secretary’s recommendation to recall Lugo’s
sentence after the Secretary rescinded that recommendation.
Alternatively, the People argue, the court lacked jurisdiction to
proceedings, section 1170.03 was recodified as section 1172.1, without
any substantive changes. (Stats. 2022, ch. 58, § 9; Vaesau, at p. 142.)
Lugo contends, and the People don’t dispute, that section 1172.1
applies to this case since it was in effect at the time the court declined
to recall Lugo’s sentence. We agree. (See McMurray, supra, 76
Cal.App.5th at pp. 1039–1042 [because the Legislature enacted former
section 1170.03 to clarify its intent regarding former section 1170,
subdivision (d)(1), defendant was entitled to have the court consider
the Secretary’s recall recommendation, which was filed while former
section 1170, subdivision (d) was still in effect, under the procedures
set forth in section 1170.03].)
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recall Lugo’s sentence once the Secretary rescinded her
recommendation, so to the extent the court issued any “ruling” or
“order” under section 1172.1, it is not appealable.
Two recent opinions—E.M. and Vaesau—both issued after
the court in this case concluded it lacked jurisdiction, have
addressed questions similar to those raised in this appeal and
held the decision of an executive branch actor, such as the
Secretary or a prosecutor, to withdraw a recall recommendation
does not, by itself, extinguish the trial court’s sentencing
jurisdiction under section 1172.1. Considering these cases, we
conclude the court was not required to terminate Lugo’s recall
proceedings as a matter of course once the Secretary withdrew
her support for recalling Lugo’s sentence. Because the court did
not realize it had discretion to either terminate the proceedings
without prejudice or reach the merits of the Secretary’s recall
recommendation, we remand the matter for the court to exercise
that discretion in the first instance.
2.1. E.M.
In E.M., the Secretary recommended the trial court recall
the defendant’s sentence and resentence him under former
section 1170, subdivision (d) in light of “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., supra, 85 Cal.App.5th at p. 1080.) The court
declined to recall the defendant’s sentence because it believed the
ameliorative legislation did not apply to sentences that were
final, like the defendant’s sentence. (Id. at pp. 1082, 1090.) The
defendant appealed, and the People initially agreed that the
matter should be remanded because the court erroneously
believed it lacked discretion to dismiss the defendant’s prior
serious felony enhancements. (Id. at p. 1081.) While the appeal
was pending, and after the parties had fully briefed the merits,
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the Secretary withdrew her recommendation to recall the
defendant’s sentence. (Ibid.) In supplemental briefing, the People
argued the defendant’s appeal should be dismissed as moot
considering the Secretary’s decision to rescind her recall
recommendation. (Id. at p. 1082.)
The Sixth District disagreed, holding the Secretary’s
rescission of her recall recommendation at such a late stage in
the proceedings did “not eliminate the trial court’s jurisdiction to
recall and resentence.” (E.M., supra, 85 Cal.App.5th at p. 1087.)
The defendant’s appeal, therefore, was not moot. (Ibid.)
The appellate court began its analysis with a discussion of
section 1172.1’s language. (E.M., supra, 85 Cal.App.5th at p.
1083.) First, the court found nothing in the statute’s language
“clearly gives the Secretary the power to rescind her
recommendation” to recall a defendant’s sentence. (Ibid.) To the
contrary, section 1172.1, subdivision (a)(1)’s use of the phrase
“ ‘at any time upon the recommendation’ implies the trial court’s
power to recall continues indefinitely once it receives a
recommendation from the Secretary.” (Ibid.) After reviewing
section 1172.1’s legislative history, the court found it did not
address whether the Secretary has the authority to rescind her
recall recommendation and unilaterally extinguish the court’s
jurisdiction to recall a defendant’s sentence. (Id. at pp. 1083–
1084.)
The court then distinguished In re Fain (1976) 65
Cal.App.3d 376 (Fain) and rejected the People’s argument that
the Secretary possesses an inherent power to rescind a recall
recommendation after the trial court has ruled on it. (E.M.,
supra, 85 Cal.App.5th at p. 1084.) Although the Secretary may
rescind decisions that are “ ‘purely administrative in nature,’ ”
such as the Adult Authority’s decision to grant parole and fix a
release date at issue in Fain, a recall recommendation is not a
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purely administrative function. (Ibid.) Rather, it implicates a
court’s power to recall and resentence, which “is primarily a
judicial function.” (Ibid.) Indeed, the court noted, “ ‘[b]y 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.’ ” (Ibid.) According to the court, “it is unlikely the
Legislature intended for [the Secretary’s powers] to intrude this
far into the courts’ jurisdiction over sentencing matters.” (Id. at p.
1085.)
The court also rejected the People’s claims that public
policy and the separation-of-powers doctrine justified permitting
the Secretary to rescind her recall recommendation at such a late
stage in the proceedings. (E.M., supra, 85 Cal.App.5th at pp.
1085–1086.) To the contrary, the court noted, any separation of
powers concerns weighed against allowing the Secretary to
rescind her recommendation after the trial court had already
ruled on it, the parties had fully briefed the merits of the
defendant’s appeal, and the appellate court was prepared to
grant the defendant his requested relief. (Id. at p. 1086.) To hold
otherwise would permit the Secretary to unilaterally
“ ‘undermine the authority and independence’ of [the] court.” (Id.
at p. 1087.) Nevertheless, the court noted, on remand nothing
would prohibit the trial court from giving weight to the
Secretary’s most recent recommendation—i.e., her letter stating
she no longer supported recalling the defendant’s sentence—as a
factor in the court’s analysis under section 1172.1. (E.M., at p.
1087.)
The court in E.M. declined to decide, however, if the
Secretary may rescind a recall recommendation at an earlier
stage in the proceedings, such as “where the trial court has not
yet acted on it; where a subsequent change in the prisoner’s
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circumstances may support rescission; or where the initial
recommendation was erroneously issued due to administrative
improvidence.” (E.M., supra, 85 Cal.App.5th at pp. 1085–1086.)
2.2. Vaesau
In Vaesau, which was decided after E.M., Division One of
the First District addressed whether a district attorney could
withdraw a recall recommendation issued under section 1172.1
before the trial court acted on it. (Vaesau, supra, 94 Cal.App.5th
at p. 138.) There, the district attorney moved the court to recall
the defendant’s sentence. (Id. at p. 140.) The district attorney’s
request “did not address why the district attorney recommended
resentencing or include any supporting documentation.” (Id. at p.
151.) Shortly thereafter, a new district attorney was appointed,
who moved to withdraw her predecessor’s recall recommendation
without citing any reason for the proposed withdrawal. (Id. at pp.
140–141.) The trial court granted the withdrawal motion and
terminated the section 1172.1 recall proceedings. (Vaesau, at p.
141.)
On appeal, the defendant argued the district attorney
lacked the authority to rescind the recall recommendation and
the trial court violated section 1172.1 and his due process rights
by failing to reach the merits of whether to recall his sentence.
(Vaesau, supra, 94 Cal.App.5th at p. 139.) The People argued the
district attorney had the inherent power to rescind the recall
recommendation and divest the court of its sentencing
jurisdiction under section 1172.1. (Vaesau, at pp. 143–145.) Since
the court lacked jurisdiction to recall the defendant’s sentence
once it granted the district attorney’s withdrawal motion, the
People contended there was no appealable order that the
defendant could challenge. (Id. at p. 143.) The appellate court
found the “correct answer lies between these two extremes.” (Id.
at p. 145.)
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The court held a district attorney does not possess the
inherent power to unilaterally terminate proceedings under
section 1172.1 by withdrawing a recall recommendation before
the court rules on its merits. (Vaesau, supra, 94 Cal.App.5th at
pp. 145–146.) Distinguishing Fain, the court explained that
unlike a decision to grant parole, which is a “ ‘ “purely
administrative” ’ ” action, a decision to recommend recall and
resentencing implicates not just the powers of an executive
branch actor—such as a district attorney or the Secretary—but
also the sentencing powers of the court. (Id. at p. 147.) Since a
recall recommendation under section 1172.1 “functions to renew
the trial court’s sentencing jurisdiction,” the court observed,
“permitting the executive branch to unilaterally terminate
section 1172.1 proceedings would ‘intrude’ into that jurisdiction,
raising separation-of-powers concerns.” (Vaesau, at p. 147.)
Nevertheless, the court concluded, trial courts are not
required to reach the merits of every recall recommendation.
(Vaesau, supra, 94 Cal.App.5th at p. 148.) Rather, courts have
discretion to allow a recommendation to be withdrawn when the
recommending agency “identifies a legitimate basis for
withdrawing the [recommendation] and moves to withdraw
before the court rules on the merits.” (Id. at p. 139; see also id. at
pp. 151–153.) The court observed that although section 1172.1
does not establish a procedure for terminating recall proceedings
without prejudice, 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.’ ” (Vaesau, at
p. 150.) Using that authority to terminate section 1172.1
proceedings without prejudice upon a showing of good cause to
rescind a recall recommendation comports with the Legislature’s
intent that courts give weight to an agency’s “most up-to-date
assessment” of a prisoner’s fitness for resentencing. (Vaesau, at p.
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149.) The court also noted 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.”
(Id. at pp. 149–150.)
Addressing the scope of a trial court’s discretion to permit
withdrawal of a recall recommendation, the court explained that
such discretion must be “guided by section 1172.1’s objectives.”
(Vaesau, supra, 94 Cal.App.5th at p. 151.) While there “could be a
range of valid reasons to withdraw a [recall recommendation],
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,’ ” a trial court thwarts
the intent behind section 1172.1’s presumption in favor of
resentencing when it does not consider the basis for a withdrawal
request before terminating recall proceedings. (Vaesau, at p. 152.)
The court also found that “[d]ue process concerns …
support requiring a district attorney to offer a valid reason for
deciding to withdraw a resentencing request.” (Vaesau, supra, 94
Cal.App.5th at p. 152.) Specifically, the court explained, allowing
an agency “to withdraw a resentencing request without
explanation, especially under the political circumstances [at issue
there], raises the specter of arbitrary action and does not carry
the appearance of fairness.” (Ibid.) Because the district attorney
did not provide an explanation for her decision to withdraw her
predecessor’s recall recommendation, the appellate court
remanded the matter for the trial court to reconsider whether to
allow the district attorney to withdraw the recommendation. (Id.
at pp. 152–153.)
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2.3. Conclusion
We conclude the Secretary’s decision to rescind her
recommendation to recall Lugo’s sentence before the court ruled
on it did not, without more, extinguish the court’s sentencing
jurisdiction. Once the Secretary issued her recommendation, the
court had jurisdiction to recall Lugo’s sentence and resentence
him under section 1172.1. (McMurray, supra, 76 Cal.App.5th at
p. 1040.) Nothing in that statute, however, states the Secretary
may unilaterally extinguish the court’s jurisdiction by rescinding
her recall recommendation. (See generally § 1172.1; see also
E.M., supra, 85 Cal.App.5th at p. 1083.) And, as the courts in
E.M. and Vaesau explained, granting the Secretary such
authority would raise separation of powers concerns. (See E.M.,
at p. 1086 [allowing Secretary to unilaterally moot court
proceedings would “ ‘undermine the authority and
independence’ ” of the court]; Vaesau, at p. 147 [permitting
executive branch to unilaterally terminate section 1172.1
proceedings would “ ‘intrude’ ” into court’s sentencing
jurisdiction].)
Certainly, a court is not required to rule on the merits of
every recall recommendation it receives. Nothing in section
1172.1 prohibits a court from terminating recall proceedings
without prejudice after the Secretary withdraws her
recommendation. (See generally § 1172.1; see also Vaesau, supra,
94 Cal.App.5th at pp. 150–151.) Indeed, precluding a court from
allowing a recall recommendation to be withdrawn would
undermine “section 1172.1’s overall purpose of reducing
incarceration levels,” because it could discourage the Secretary
and other agencies from asking a court to recall a defendant’s
sentence. (Vaesau, at pp. 149–150.)
In short, the Secretary’s decision here to rescind her
recommendation did not extinguish the court’s sentencing
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jurisdiction as a matter of course. And where, as here, the record
shows the court acted on the assumption it lacked discretion to
exercise its sentencing jurisdiction, remand is necessary so that
the trial court may have the opportunity to exercise that
discretion in the first instance. (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.’ ”].)
DISPOSITION
The order terminating Lugo’s recall proceedings is vacated.
The matter is remanded for further proceedings consistent with
the views expressed in this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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