People v. Santoyo CA2/6 ( 2022 )

Filed 8/17/22 P. v. Santoyo CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B313334
(Super. Ct. No. 2008012962)
Plaintiff and Respondent, (Ventura County)
v.
MANUEL SANTOYO,
Defendant and Appellant.
Manuel Santoyo appeals the denial of a recommendation by
the Secretary of the California Department of Corrections and
Rehabilitation (CDCR) to recall his sentence under former Penal
Code section 1170, subdivision (d)(1).1 Appellant contends the
trial court abused its discretion by failing to allow him to submit
additional information relevant to the recall decision. The
Attorney General agrees. We reverse and remand with
directions.
1 All further statutory references are to the Penal Code.
Factual and Procedural History
In October 2010, appellant pled guilty to one count of
attempted murder with the personal use of a firearm. (§§
664/187, subd. (a).) He was sentenced to 19 years in state prison.
In December 2020, the Secretary of the CDCR sent a letter
to the trial court recommending it recall and reconsider
appellant’s sentence on the basis that he was at “particularly
high risk” of serious medical complications if he contracted
COVID-19. The letter also stated that appellant’s case
warranted further review because he had served the base term of
his sentence and recent statutory amendments made the firearm
component of his sentence discretionary rather than mandatory.
In a written order dated April 2, 2021, the trial court
rejected the Secretary’s request for recall and resentencing. The
trial court stated it had reviewed the court file, the cumulative
case summary attached to the CDCR letter, the probation and
sentencing report and the written motions filed in the case. The
trial court acknowledged the health risk cited by the CDCR but
explained, “[t]his was an egregious and violent” crime. The
victim had his back to appellant when appellant, without
provocation, pressed a loaded .38 revolver into the victim’s ribs
and threatened to kill him. The victim and appellant struggled
as appellant repeatedly tried to pull the trigger of the gun. The
“only reason the victim was not shot was that [his] finger was
caught between the [hammer] and the gun.”
The trial court concluded it was “not of the opinion that
circumstances of the crime or the postconviction factors outlined
in the Department’s cumulative case summary mitigate the
circumstances to such a degree as to conclude it would be in the
interest of justice to recall and reduce [appellant’s] sentence.”
2
On March 23, 2021, prior to the trial court’s order denying
recall, counsel for appellant filed a notice of appearance and
request for case management conference, which included a
request to submit briefing and additional information relevant to
the Secretary’s recommendation. The trial court did not consider
those filings before it issued the denial of recall order. The trial
court subsequently denied the request for case management
conference.
Appellant’s counsel filed a motion for reconsideration citing
People v. McCallum (2020) 55 Cal.App.5th 202 (McCallum), and
again asked for the opportunity to provide additional information
relevant to the Secretary’s recall and resentencing
recommendation.
In a written order, the trial court denied the motion for
reconsideration. The trial court explained that it did not receive
counsel’s notice of appearance and request for case management
until nearly two months after it had declined to recall appellant’s
sentence and had notified CDCR of its decision. Nonetheless, the
trial court did not believe recall was warranted under McCallum
because McCallum was “fact specific.”
The trial court also reasoned that “great strides” had been
made in preventing further spread of the Covid-19 virus, such as
providing inmates with vaccine priority. Accordingly, there was
no longer an “‘urgent need”” to reduce the prison population as
expressed in the CDCR’s December 2020 recommendation letter.
Discussion
Appellant contends the trial court abused its discretion
when it rejected the Secretary’s recall recommendation without
providing appellant notice or the opportunity to submit
additional information relevant to the recommendation.
3
Former section 1170, subdivision (d)(1) was originally
enacted as “‘an exception to the common law rule that the court
loses resentencing jurisdiction once execution of sentence has
begun.’” (McCallum, supra, 55 Cal.App.5th at p. 210, quoting Dix
v. Superior Court (1991) 53 Cal.3d 442, 455 (Dix).) Among other
things, it was intended to provide a mechanism for recalling a
defendant’s sentence and resentencing him “‘at any time upon the
recommendation of the secretary’” or other specified parties.
(McCallum, at p. 210.)
“In deciding whether to recall a sentence under [former]
section 1170, subdivision (d)(1), the trial court may exercise its
authority ‘for any reason rationally related to lawful sentencing.’”
(McCallum, supra, 55 Cal.App.5th at p. 210, quoting Dix, supra,53 Cal.3d at p. 456.) We review the trial court’s decision not to
recall an inmate’s sentence for abuse of discretion. (McCallum,
at p. 211.)
Former section 1170, subdivision (d)(1) did not impose any
specific procedural requirements and was silent as to whether a
trial court must provide notice or a hearing or appoint counsel
before ruling on a recommendation from the Secretary.
(McCallum, supra, 55 Cal.App.5th at p. 212; Dix, supra, 53
Cal.3d at p. 459.) Numerous recent cases have concluded that a
recommendation by the Secretary of the CDCR does not trigger
“‘any right to the recommended relief’” and there is “‘no
constitutional right to counsel or a hearing . . . .’” (People v.
Mendez (2021) 69 Cal.App.5th 347, 354 (Mendez); McCallum, at
p. 216; People v. Frazier (2020) 55 Cal.App.5th 858.)
However, those cases have also concluded that “in light of
an inmate’s ‘substantial right to liberty implicated by the
secretary’s recommendation to recall [the] sentence,’” a trial court
4
abuses its discretion when it rejects the Secretary’s
recommendation without providing the parties an “opportunity to
present briefing and additional information relevant to the
recommendation.” (Mendez, supra, 69 Cal.App.5th at pp. 352-
355, citing McCallum, supra, 55 Cal.App.5th at p. 206, 218-219;
People v. Williams (2021) 65 Cal.App.5th 828, 833.)
Accordingly, we agree with the parties that reversal is
required here to permit appellant to provide additional
information relevant to the Secretary’s recall recommendation.
We need not resolve appellant’s due process contention that the
Secretary’s recall recommendation required formal notice, a point
which the Attorney General expressly does not concede.
Section 1170.03
During the pendency of this appeal, the Legislature
enacted, and the Governor signed Assembly Bill No. 1540 (2021-
2022 Reg. Sess.) into law, which subsequently became effective on
January 1, 2022. (Stats. 2021, ch. 719, § 3.1.) Assembly Bill No.
1540 created a new section 1170.03 that includes the recall and
resentencing provision of former section 1170, subdivision (d)(1)
and added several requirements to the process.
Most significantly, section 1170.03 provides that, where the
Secretary submits a resentencing request, “[t]he court shall
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 new provision requires that if a
resentencing request is from the Secretary of the CDCR, as in the
instant case, “[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 . . . .” (Id., subd. (b)(2).)
5
On remand, the newly enacted procedural requirements of
section 1170.03 will apply to the trial court’s reconsideration of
the recall request.
DISPOSITION
The order denying the Secretary of the California
Department of Corrections and Rehabilitation’s recommendation
to recall appellant’s sentence is reversed. The matter is
remanded to the trial court with directions to allow the parties to
submit information relevant to the Secretary’s recommendation.
Upon receipt of this information, the trial court shall exercise its
discretion to determine whether to recall and resentence
appellant consistent with the pertinent provisions of section
1170.03.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.*
*Retired Associate Justice of the Court of Appeal, Second Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
6
Patricia M. Murphy, Judge
Superior Court County of Ventura
______________________________
Milena Blake, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Michael R. Johnsen,
Supervising Deputy Attorneys General, for Plaintiff and
Respondent.