People v. Ramirez CA2/1 ( 2022 )

Filed 10/27/22 P. v. Ramirez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B318337
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. MA048641)
v.
JOHNNY RAMIREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Daviann L. Mitchell, Judge. Remanded with
directions.
Mary Jo Strnad, 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.
_____________________
Defendant and appellant Johnny Ramirez challenges the
trial court’s decision not to resentence him under former Penal
Code section 1170, subdivision (d)(1).1 After the court made its
decision, the Legislature amended the law to create new
procedural and substantive requirements the court must apply in
considering whether to resentence a defendant. Ramirez
contends that we must remand his case to allow the court to
reconsider resentencing him under the new version of the law.
The People concede that he is correct, and we agree.
BACKGROUND
This case grows out of events occurring on October 24,
2009, when Ramirez and a companion robbed a Radio Shack,
shoved and moved two victims inside the store, and escaped in a
car belonging to one of the victims. Ramirez was armed with a
semiautomatic handgun.
On March 22, 2010, Ramirez voluntarily walked into the
Palmdale Sheriff’s Office and confessed to the robbery.
In 2011, Ramirez pleaded no contest to one count of
kidnapping in violation of section 207, subdivision (a), two counts
of robbery in violation of section 211, and one count of grand theft
auto in violation of section 487, subdivision (d)(1). As to each
count, Ramirez admitted allegations pursuant to sections
12022.53, subdivision (b), and 12022.5, subdivision (a) that he
personally used a firearm in committing the offenses. He was
sentenced to a total term of imprisonment of 17 years. The
sentence consisted of five years for the kidnapping, eight months
for grand theft auto, and 11 years four months for firearm
1 Subsequent statutory references are to the Penal Code
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enhancements. The court stayed the punishment for the two
counts of robbery and the associated firearm enhancements.
In a letter to the superior court dated November 17, 2020,
the Secretary of the California Department of Corrections and
Rehabilitation (CDCR) recommended pursuant to former section
1170, subdivision (d)(1) that Ramirez’s sentence be recalled and
that he be resentenced. The secretary recommended the court
strike the firearm enhancement “in the interest of justice,” noting
that courts had gained the authority to strike such enhancements
only after Ramirez was sentenced. The secretary stated that she
had reviewed Ramirez’s crimes and his record while incarcerated.
She drew attention to mitigating considerations, including
Ramirez’s voluntary surrender to the Palmdale Sheriff’s Office,
the fact no victim suffered physical injuries, and Ramirez’s lack of
criminal history—Ramirez had a prior juvenile record consisting
of relatively minor offenses, but no prior adult record. He had no
disciplinary record in prison, and his work and education
progress were favorable.
In a brief ruling issued on January 5, 2021, the court stated
it had read the secretary’s letter and supporting documents, but
despite acknowledging the discretion to do so, denied the request
to modify Ramirez’s sentence.
Nine months later, in October 2021, the Governor signed
into law Assembly Bill No. 1540 (Stats. 2021, ch. 719), which
enacted a new section 1170.03 to replace former section 1170,
subdivision (d)(1), and established new guidelines for the trial
court to consider when responding to recommendations for
resentencing from the CDCR. In 2022, the Legislature
renumbered section 1170.03 as section 1172.1 but made no
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further substantive changes. (See Assembly Bill No. 200 (Stats.
2022, ch. 58, § 9).)
On September 13, 2021, Ramirez submitted an untimely
notice of appeal from the denial. This court granted his request
for relief from default, and deemed his notice timely filed.
DISCUSSION
Ramirez’s sole argument on appeal is that, in light of the
recent amendments to section 1172.1, his case should be
remanded for reconsideration of the sentencing recall request of
the CDCR. The People agree, as do we.
At the time the secretary of the CDCR sent her letter,
section 1170, subdivision (d)(1) gave the trial court authority to
recall a defendant’s sentence and resentence him at any time
upon the recommendation of the secretary of the CDCR or certain
other officials. The statute allowed the court to “resentence the
defendant in the same manner as if he or she had not previously
been sentenced, provided the new sentence, if any, is no greater
than the initial sentence.” (Fmr. § 1170, subd. (d)(1).) As the
Supreme Court explained, “under the recall provisions of section
1170, subdivision (d), the resentencing court has jurisdiction to
modify every aspect of the sentence, and not just the portion
subjected to the recall.” (People v. Buycks (2018) 5 Cal.5th 857,
893.) It “may . . . impose any otherwise lawful resentence
suggested by the facts available at the time of resentencing.”
(Dix v. Superior Court (1991) 53 Cal.3d 442, 456.) But the
statute did not establish any procedural requirements that the
court must follow in addressing a recommendation from the
CDCR; indeed, it “apparently [did] not require the court to
respond to the recommendation.” (Id. at p. 459, fn. omitted.)
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The new law, as enacted by Assembly Bill No. 1540,
preserves the procedure by which the secretary of the CDCR and
certain other officials may recommend recalling a defendant’s
sentence, but it changes the manner in which the court responds
to a recommendation. Under the new statute, when an official
submits a resentencing recommendation, the court must “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.” (§ 1172.1, subd. (b)(1).) Before the
court can deny a defendant resentencing, it must provide “a
hearing where the parties have an opportunity to address the
basis for the intended denial or rejection.” (§ 1172.1, subd. (a)(8).)
The court must also “state on the record the reasons for its
decision to grant or deny recall and resentencing.” (§ 1170.03,
subd. (a)(6).)
Under the new law, the court gains the authority to
“[v]acate the defendant’s conviction and impose judgment on any
necessarily included lesser 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,” subject to the concurrence of the defendant and
the local district attorney. (§ 1172.1, subd. (a)(3)(B).) Finally, the
law creates “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).)
In this case, because the trial court denied Ramirez’s
petition before Assembly Bill No. 1540 was enacted, the court did
not appoint counsel to represent Ramirez, nor did it explain its
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reasons for denying recall and resentencing. In addition, the
court did not apply a presumption in favor of recalling and
resentencing Ramirez.
The parties agree that in denying the CDCR secretary’s
request for Ramirez to be resentenced, the trial court did not
meet the requirements of the new law. They urge us to follow the
conclusion reached in People v. McMurray (2022) 76 Cal.App.5th
1035, 1039-1041 that Assembly Bill No. 1540 applies
retroactively to defendants like Ramirez. Regardless of whether
McMurray was correctly decided, it would be a waste of resources
to deny Ramirez’s request to remand for a new hearing. The
CDCR has already decided that Ramirez is a worthy candidate
for recall and resentencing. If we decided that the law does not
apply retroactively to his case, the CDCR could simply file a new
recommendation to recall Ramirez’s sentence under the
standards of section 1172.1. Remanding the case now will avoid
that unnecessary step.
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DISPOSITION
We reverse the January 5, 2021 order denying recall and
remand this case to the trial court and direct it apply the
provisions of section 1172.1.
NOT TO BE PUBLISHED
BENKE, J.*
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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