Filed 2/28/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

YUSEF LAMONT PIERCE,

 Defendant and Appellant.

2d Crim. No. B322890

(Super. Ct. No. F10903822)

(Fresno County)

Yusef Lamont Pierce appeals from an order denying a 

recommendation by the Secretary of the California Department of 

Corrections and Rehabilitation (CDCR) to recall his 2011 

sentence and resentence him pursuant to Penal Code section 

1170, former subdivision (d)(1).1 The People concede that, 

1 Unless otherwise stated, all statutory references are to 

the Penal Code. 

The appeal was originally filed in the Court of Appeal, Fifth 

Appellate District. The Supreme Court transferred the appeal to 

the Second Appellate District.
2

pursuant to section 1172.1, “this Court should reverse the order 

denying the recall and remand for reconsideration of the 

[Secretary’s] request.” We accept the concession, reverse and do 

not reach additional contentions.

Appellant’s Plea Agreement and Sentence

“[A]ppellant . . . was charged in a criminal complaint with 

four counts of second degree robbery involving different victims 

(Pen.Code, § 211, counts 1–4), kidnapping (§ 209, subd. (b)(1), 

count 5), four counts of false imprisonment, again involving 

different victims (§ 236, counts 6–9), being a felon in possession of 

a firearm (§ 12021, subd. (a)(1), count 10), being a felon in 

possession of ammunition (§ 12316, subd. (b)(1), count 11), felony 

evasion of a peace officer while operating a motor vehicle 

(Veh.Code, § 2800.2, subd. (a), count 12), misdemeanor hit and 

run driving (Veh.Code, § 20002, subd. (a), count 13), and 

misdemeanor resisting arrest (§ 148, subd. (a)(1), count 14). 

Counts 1 through 5 alleged that appellant used a firearm within 

the meaning of section 12022.53, subdivision (b). Counts 6 

through 9 alleged a firearm use enhancement (§ 12022.5, subd. 

(a)). Appellant was also charged with a prior prison term 

enhancement (§ 667.5, subd. (b)).” (People v. Pierce (No. F063064, 

July 17, 2012) [nonpub. opn.] 2012 WL 2900484, at *1 (Pierce).)2

“[A]ppellant entered into a plea agreement. Under the 

terms of the plea agreement, appellant would . . . receive a 

stipulated prison term of 19 years 4 months. . . . Appellant pled 

no contest to two counts of second degree robbery and one count 

of felony evasion of a peace officer. Appellant admitted two 

[firearm enhancements pursuant to] section 12022.53, 

2 The kidnapping charge in count 5 is punishable by 

imprisonment for life.
3

subdivision (b) and the prior prison term enhancement. The 

remaining allegations were dismissed by the trial court upon the 

motion of the People.” (Pierce, supra, 2012 WL 2900484, at *1.) 

In accordance with the plea agreement, the trial court 

sentenced appellant to prison for 19 years, four months: the 

upper term of five years for the first robbery plus ten years for 

the firearm enhancement, plus a consecutive term of one year 

(one-third the middle term) for the second robbery plus three 

years four months (one-third the 10-year term) for the firearm 

enhancement as to that robbery. Appellant was sentenced to a 

concurrent three-year upper term for evading a police officer. 

The court stayed the sentence on the prior prison term. 

Appellant was not successful in his appeal to the Fifth 

District Court of Appeal. (Pierce, supra, 2012 WL 2900484, at 

*4.) 

CDCR Secretary’s Recommendation Letter

The CDCR Secretary’s recommendation letter concerned 

the two firearm enhancements imposed pursuant to section 

12022.53, subdivision (b). The Secretary stated: “[P]lease 

consider the amendment to PC Section 12022.53, subdivision (h), 

which became effective January 1, 2018. This section previously 

required a sentencing court to impose enhancements for personal 

use of a firearm in the commission of enumerated felonies. 

However, courts are now empowered with discretion to strike or 

dismiss a personal use firearm enhancement at sentencing or 

resentencing pursuant to PC Section 1170, subdivision (d)(l), in 

the interest of justice pursuant to PC Section 1385. [Appellant] 

received a term of 19 years 4 months and has a current earliest 

possible release date of April 26, 2025. [¶] . . . I recommend 

[appellant’s] sentence be recalled and that he be resentenced.” 
4

The Secretary’s recommendation letter was filed in the 

superior court on July 31, 2020. Section 1170, former subdivision 

(d)(1) then provided that, after a defendant has been sentenced to 

prison, “the court may . . . at any time upon the recommendation 

of the secretary [of CDCR] . . . recall the sentence and 

commitment previously ordered and 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.” “The CDCR recommendation furnishe[d] 

the court with jurisdiction it would not otherwise have to recall 

and resentence and is ‘an invitation to the court to exercise its 

equitable jurisdiction.’” (People v. McMurray (2022) 76 

Cal.App.5th 1035, 1040 (McMurray).)

Trial Court’s Ruling

The trial court explained why it had summarily denied the 

Secretary’s recommendation to recall appellant’s sentence and 

resentence him: “[Appellant] pleaded to extremely violent and 

serious crimes. He victimized three individuals by utilizing a 

loaded firearm, threatening to shoot them while robbing the 

business at which they worked. . . . [H]e attempted to evade 

arrest by driving with a willful disregard for the safety and lives 

of the people of Fresno County at estimated speeds of 100 miles 

per hour . . . . He was only apprehended after crashing his 

vehicle. [¶] . . . [¶] . . . [G]ranting the request would, in effect, 

negate a negotiated plea agreement . . . . Additionally, I don’t 

believe that the interest of justice would . . . be served by 

granting this request and following the recommendations of 

CDCR.” 
5

Amendment of Section 1170, Former Subdivision (d)(1)

and Addition of New Section 1172.1

“Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 

2021, ch. 719, §§ 1-7) (Assembly Bill 1540) came into effect on 

January 1, 2022, and moved the recall and resentencing 

provisions of former section 1170(d)(1) to new section 1170.03.” 

(McMurray, supra, 76 Cal.App.5th at p. 1038.) Effective June 30, 

2022, section 1170.03 was renumbered as section 1172.1 with no 

change in text. (Stats. 2022, ch. 58, § 10.) 

“Assembly Bill 1540 . . . clarifies the required procedures 

including that, when recalling and resentencing, the court 

‘shall . . . apply any changes in law that reduce sentences or 

provide for judicial discretion.’ (§ 117[2.1], subd. (a)(2).) Where, 

as here, the CDCR recommends recall and resentencing, . . . there 

is now a presumption in favor of 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].’ (§ 117[2.1], subd. 

(b)(2).)” (McMurray, supra, 76 Cal.App.5th at p. 1040.) 

Section 1172.1, subdivision (a)(4) provides in part: “In 

recalling and resentencing pursuant to this provision, the 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.”
6

The court “shall consider . . . if the defendant . . . was a 

youth as defined under subdivision (b) of Section 1016.7 [i.e., 

under the age of 26 years,] at the time of the commission of the 

offense, and whether [this] circumstance[] [was] a contributing 

factor in the commission of the offense.” (§ 1172.1, subd. (a)(4).) 

Appellant claims that he qualified as a youth because he was 22 

years old at the time of the offense. 

“Resentencing shall not be denied . . . without a hearing 

where the parties have an opportunity to address the basis for 

the intended denial . . . .” (§ 1172.1, subd. (a)(8).) The court 

“shall . . . appoint counsel to represent the defendant.” (Id., subd. 

(b)(1).)

Conclusion

Appellant’s plea bargain included a stipulated sentence of 

19 years, four months. “‘[A] judge who has accepted a plea 

bargain is bound to impose a sentence within the limits of that 

bargain. [Citation.] “A plea agreement is, in essence, a contract 

between the defendant and the prosecutor to which the court

consents to be bound.” [Citation.] . . . Once the court has 

accepted the terms of the negotiated plea, “[it] lacks jurisdiction 

to alter the terms of a plea bargain so that it becomes more 

favorable to a defendant unless, of course, the parties agree.”. . .’” 

(People v. Segura (2008) 44 Cal.4th 921, 931.) But section 1172.1, 

subdivision (a)(3)(A) provides that, “in the interest of justice and 

regardless of whether the original sentence was imposed after 

a . . . plea agreement,” the resentencing court may “[r]educe a 

defendant’s term of imprisonment by modifying the sentence.”

“Under the circumstances, the appropriate remedy is to 

reverse and remand the matter, so that the trial court can 

consider the CDCR's recommendation to recall and resentence 
7

defendant under the new and clarified procedure and guidelines 

of section 117[2.1].” (McMurray, supra, 76 Cal.App.5th at p. 

1041.) We express no opinion whether appellant’s sentence 

should be recalled or, if it is recalled, whether he should be 

resentenced. (But see conc. opn. of Yegan, J.)

Disposition

The order summarily denying the recommendation for

recall of appellant’s 2011 sentence and to resentence him is 

reversed. The matter is remanded to the trial court for 

reconsideration of the recommendation in accordance with the 

requirements of section 1172.1.

CERTIFIED FOR PUBLICATION.

YEGAN, J.

We concur:

GILBERT, P. J.

BALTODANO, J.
1

YEGAN, J., Concurring:

The People have rights too. The People’s contractual rights 

apparently have been disregarded by the Legislature. The 

purpose of the law of contracts is to protect the reasonable 

expectations of the parties. The defendant reaped the benefits of 

the plea bargain and stipulated sentence bargain. His reasonable 

expectations have been met. What about the People’s 

expectations? Can the Legislature erase the defendant’s 

signature from the negotiated disposition which specified an 

exact term of imprisonment? I am quick to observe that if the 

disposition did not specify the exact term of imprisonment, I 

would have no hesitation about applying the newly enacted 

statute. That is not the case here. And, it must be observed that 

the defendant was originally subject to sentence vulnerability far 

in excess of what he bargained for, i.e., life in prison. 

Factually, this reversal and remand is an exercise in 

futility and an exhalation of form over substance. Given the trial 

court’s articulated views (maj. opn. ante, at p. 4), there is no 

chance that appellate will obtain relief even with aid of counsel

and after an evidentiary hearing. This will undoubtedly spawn 

yet another appeal. 

CERTIFIED FOR PUBLICATION.

YEGAN, J.
Jon Kapetan, Judge

Superior Court County of Fresno

______________________________

Dwyer & Kim and John P. Dwyer, under appointment by 

the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Michael P. Farrell, Senior Assistant 

Attorney General, Darren K. Indermill, Supervising Deputy 

Attorney General, Kari Ricci Mueller, Deputy Attorney General, 

for Plaintiff and Respondent.