Filed 5/12/23 P. v. Bernal CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD BERNAL,

Defendant and Appellant.

B318591

(Los Angeles County

Super. Ct. No. KA075499)

APPEAL from an order of the Superior Court of Los 

Angeles County. William C. Ryan, Judge. Reversed and 

remanded with directions.

R. Chris Lim, 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, Senior 

Assistant Attorney General, Scott A. Taryle and Stefanie Yee, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________
2

Richard Bernal appeals the denial of a recommendation by

the Secretary of the California Department of Corrections and 

Rehabilitation (CDCR) to recall his sentence under Penal Code1

section 1172.1.

2 The People concede that “the case should be 

remanded for reconsideration in light of recent clarifications to 

the recall-and-resentencing statute.” We accept the People’s 

concession and remand the matter to the superior court for a new 

determination on the CDCR’s recommendation in accordance 

with the procedural requisites, considerations, and presumptions 

specified in section 1172.1.

PROCEDURAL BACKGROUND3

In 2006, appellant pleaded guilty to one count of assault 

with a semiautomatic firearm (§ 245, subd. (b)) and admitted the 

personal use of a firearm allegation (§ 12022.5, subd. (a)). 

Appellant also admitted a 1993 prior strike conviction for first 

degree burglary. (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d).) 

In accordance with the plea, appellant was sentenced to nine 

years in state prison, doubled to 18 years for the prior strike 

conviction, plus three years for the firearm enhancement, for an 

aggregate term of 21 years in state prison.

1 Undesignated statutory references are to the Penal Code.

2 Effective January 1, 2022, Assembly Bill No. 1540 

amended and moved the recall and resentencing provisions of

section 1170, subdivision (d)(1) to new section 1170.03. (Stats. 

2021, ch. 719, § 3.) Subsequently, Assembly Bill No. 200

renumbered section 1170.03 as section 1172.1 with no 

substantive changes. (See Stats. 2022, ch. 58, § 9.)

3 Because this appeal raises no issues concerning the facts 

of the underlying offenses, we omit a statement of facts. (See 

People v. White (1997) 55 Cal.App.4th 914, 916, fn. 2.)
3

In a letter to the superior court dated January 27, 2021, the 

CDCR recommended that the court recall appellant’s sentence

and resentence him pursuant to former section 1170, subdivision 

(d)(1). On February 8, 2021, the court requested a response to 

the CDCR’s recommendation from the Los Angeles County

District Attorney’s Office, but did not appoint counsel for 

appellant. On March 22, 2021, “[a]fter review of the court file, 

the [superior] court decline[d] to exercise its discretion to 

resentence this defendant.” No parties were present, and the 

court stated no reason(s) for its decision.

On October 12, 2021, appellant sought leave to present 

relevant information in support of the CDCR’s recall and 

resentencing recommendation and requested that the superior 

court state its reasons for declining to exercise its discretion to 

resentence appellant.4 On November 1, 2021, the superior court 

denied appellant’s motion on the ground that it had lost 

resentencing jurisdiction when it declined to recall and 

resentence appellant in March 2021.

After we granted relief from default for a late notice of 

appeal from the superior court’s order of March 22, 2021, this 

appeal followed.

4 In the declaration of counsel in support of the request, 

Deputy Public Defender Huey stated the superior court had 

appointed the Office of the Los Angeles County Public Defender 

to represent appellant. However, the record does not indicate 

when the superior court appointed counsel in these proceedings. 

The court’s minute order denying appellant’s request reflects that 

“defendant [was] not present in court, and not represented by 

counsel.”
4

DISCUSSION

1. Relevant law

Prior to January 1, 2022, “[f]ormer section 

1170[, subdivision] (d)(1) authorized a trial court, at any time 

upon the recommendation of the Secretary [of the CDCR], 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 the new sentence, if any, is 

no greater than the initial sentence.’ ” (People v. McMurray

(2022) 76 Cal.App.5th 1035, 1040 (McMurray).) When the 

Legislature enacted Assembly Bill No. 1540 and moved the recall 

and resentencing provisions from section 1170, subdivision (d)(1) 

to section 1170.03, it retained the recall and resentencing 

language and added guidelines and procedures to be followed

when the Secretary of the CDCR or other specified public official 

recommends recall and resentencing. (McMurray, at pp. 1040–

1041.) Assembly Bill No. 200, which took effect June 30, 2022, 

renumbered section 1170.03 as section 1172.1, but made no 

substantive changes to the recall and resentencing provisions. 

(People v. Salgado (2022) 82 Cal.App.5th 376, 378, fn. 2

(Salgado); see Stats. 2022, ch. 58, § 9.)

Assembly Bill No. 1540 added several requirements to the 

superior court’s consideration of a recall and resentencing 

recommendation, including:

(1) In recalling and resentencing under section 1172.1, 

subdivision (a)(1), the court “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 eliminate 

disparity of sentences and to promote uniformity of sentencing.” 

(§ 1172.1, subd. (a)(2).)
5

(2) “[T]he court may consider postconviction factors, 

including, but not limited to, the disciplinary record and record of 

rehabilitation of the defendant while incarcerated, evidence that 

reflects whether age, time served, and diminished physical 

condition, if any, have reduced the defendant’s risk for future 

violence, and evidence that reflects that circumstances have 

changed since the original sentencing so that continued 

incarceration is no longer in the interest of justice.” (§ 1172.1, 

subd. (a)(4).)

(3) The superior court may not deny resentencing without a 

hearing at which the defendant may appear remotely or in person 

(§ 1172.1, subd. (a)(8)), and “[t]he court shall state on the record 

the reasons for its decision to grant or deny recall and 

resentencing.” (Id., subd. (a)(6).)

In addition, where the resentencing recommendation comes 

from the Secretary of the CDCR, section 1172.1, subdivision (b)(1) 

requires the superior court to provide notice and set a status 

conference on the CDCR’s recommendation within 30 days of 

receipt of the request and appoint counsel for the defendant. 

Finally, subdivision (b)(2) calls for “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.”

We review a superior court’s denial of recall and 

resentencing for abuse of discretion. (People v. Mendez (2021) 69 

Cal.App.5th 347, 353; People v. E.M. (2022) 85 Cal.App.5th 1075, 

1082 (E.M.).)

2. Retroactivity

The superior court denied recall in this case prior to the 

effective date of former section 1170.03 (renumbered as section 
6

1172.1), which raises the question of whether section 1172.1’s 

procedures and guidelines apply here at all. Confronted with the 

same question, several courts have determined that because the 

changes made by Assembly Bill No. 1540 were intended as

clarifications of existing law, remand is appropriate for the 

superior court’s reconsideration of the CDCR’s recommendation 

in light of section 1172.1. (McMurray, supra, 76 Cal.App.5th at 

p. 1041; E.M., supra, 85 Cal.App.5th at pp. 1089–1090; Salgado, 

supra, 82 Cal.App.5th at p. 381.)

The legislative history of Assembly Bill No. 1540 clearly 

demonstrates that the bill “was intended to ‘make clarifying 

changes’ to former section 1170[, subdivision] (d)(1), including 

specifying the required procedure and guidelines when the CDCR 

recommends recall and resentencing.” (McMurray, supra, 76 

Cal.App.5th at p. 1041; see, e.g., 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 the significant time, 

thought, and effort that law enforcement agencies put into 

referrals”]; Sen. Com. on Public Safety, Rep. on Assem. Bill 

No. 1540 (2021–2022 Reg. Sess.) as amended June 22, 2021, 

pp. 2–3 [bill “makes clarifying changes,” including requiring 

notice to defendant, appointment of counsel, a hearing, a 

statement of reasons for denying or granting recall and 

resentencing, and a presumption favoring recall and 

resentencing]; Assem. Com. on Public Safety, Analysis of Assem. 

Bill No. 1540 (2021–2022 Reg. Sess.) as amended Apr. 22, 2021, 

Author’s Statement, p. 4 [“The changes contained in [Assembly] 

Bill No.] 1540 strengthen common [procedures] to address equity 
7

and due process concerns in how courts should handle second 

look sentencing requests”].)

As the court in McMurray reasoned, where an amendment 

that effectively construes and clarifies a prior statute is adopted 

soon after controversies over the proper interpretation of the 

statute have arisen, it is logical to consider the amendment as a 

legislative interpretation of the original law. (McMurray, supra, 

76 Cal.App.5th at p. 1039.) Thus, “[w]hen 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.; accord, E.M., 

supra, 85 Cal.App.5th at pp. 1089–1090.)

3. Remand is necessary for reconsideration of the CDCR 

recommendation in compliance with section 1172.1

It appears on the record of this case that the proceedings 

below failed to comport with the procedural requirements of 

section 1172.1. Specifically, the superior court did not provide 

notice or appoint counsel for appellant, it did not give the parties 

an opportunity to address the basis for the court’s intended 

denial, it did not state any reasons for its decision to deny recall 

and resentencing, and it failed to make any finding that 

appellant presents a current unreasonable risk of danger to 

public safety in order to overcome the presumption favoring recall 

and resentencing, as required by section 1172.1.

As the parties agree, under these circumstances, remand to 

the superior court is appropriate for further proceedings in accord 

with the statutory framework for addressing a recommendation 

by the Secretary of the CDCR for recall and resentencing.

DISPOSITION

The order denying the California Department of 
8

Corrections and Rehabilitation Secretary’s recommendation to 

recall appellant’s 2006 sentence and to resentence him is 

reversed. The matter is remanded to the superior court for 

reconsideration of the recommendation in light of Penal Code 

section 1172.1.

NOT TO BE PUBLISHED.

KWAN, J.*

We concur:

ASHMANN-GERST, Acting P. J.

HOFFSTADT, J.

* Judge of the Superior Court of Los Angeles County 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.