Filed 8/1/23 P. v. Shorter 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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.

ANTHONY SHORTER,

Defendant and Appellant.

 B320016

 (Los Angeles County

 Super. Ct. No. YA054743)

APPEAL from an order of the Superior Court of 

Los Angeles County. Hector M. Guzman, Judge. Reversed and 

remanded with directions. 

Carol J. Ojo, 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, Wyatt E. Bloomfield and William H. Shin, 

Deputy Attorneys General, for Plaintiff and Respondent.

____________________
2

Defendant and appellant Anthony Shorter challenges the 

trial court’s order summarily denying the recommendation of the 

California Department of Corrections and Rehabilitation (CDCR) 

to recall his sentence. The People concede that the trial court 

erred and that the matter must be remanded for a new hearing 

pursuant to Penal Code section 1172.1.1

We agree with the parties and accordingly reverse and 

remand the trial court’s order with directions to appoint counsel 

for defendant and hold a noticed hearing.

PROCEDURAL BACKGROUND

Original conviction and first appeal

In 2003, defendant was convicted of three counts of first 

degree burglary, three counts of receiving stolen property, and 

one count of theft. Three prior serious felony allegations and 

“strike” allegations were also found true. Defendant’s total 

sentence was 90 years to life. Defendant appealed the judgment, 

and we affirmed. (People v. Shorter (July 7, 2005, B174700) 

[nonpub. opn.].)

First petition for recall and resentencing; appeal; remand

On February 27, 2015, defendant filed a petition for recall 

and resentencing pursuant to section 1170.18, subdivisions (a) 

and (f). The trial court granted his petition in part; his total 

prison sentence remained 90 years to life. Defendant appealed, 

and we affirmed the judgment. (People v. Shorter (Mar. 8, 2016, 

B263972) [nonpub. opn.], at p. 2.)

Defendant filed a petition for review (S233177), which the 

Supreme Court granted, and the matter was transferred back to 

the Court of Appeal. On September 27, 2017, we remanded 

defendant’s case to the trial court. (People v. Shorter (Aug. 25, 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

2020, B301955) [nonpub. opn.], at p. 2.) On February 26, 2018, 

the trial court held a resentencing consideration hearing and 

reduced defendant’s section 484e, subdivision (d), conviction to a 

misdemeanor. (People v. Shorter, supra, B301955, at p. 2.)

Second petition for recall and resentencing and appeal

“‘On September 30, 2018, the Governor signed Senate Bill 

1393 which, effective January 1, 2019, amend[ed] sections 667[, 

subdivision] (a) and 1385[, subdivision] (b) to allow a court to 

exercise its discretion to strike or dismiss a prior serious felony 

conviction for sentencing purposes. [Citation.]’ (People v. Garcia

(2018) 28 Cal.App.5th 961, 971.) The newly amended statutes 

prompted defendant to file a motion to strike or dismiss his prior 

serous felony enhancements pursuant to sections 667, 

subdivision (a)(1), and 1385.” (People v. Shorter, supra, B301955, 

at p. 3.)

“The trial court summarily denied his motion on 

September 19, 2019, with a notation to ‘see previous denials.’” 

(People v. Shorter, supra, B301955, at p. 3.)

Defendant timely filed a notice of appeal, and on August 25, 

2020, we affirmed the trial court order. (People v. Shorter, supra, 

B301955, at p. 4.)

Instant petition for recall and resentencing

In a letter received by the trial court on March 18, 2022, 

the CDCR recommended recalling defendant’s sentence in 

accordance with former section 1170.03, subdivision (a)(1).2 On 

March 28, 2022, without appointing counsel or holding a hearing, 

the trial court declined to recall the sentence: “The court has 

read the CDCR Secretary’s letter filed March 18, 2022. The 

letter is recommending recall and resentencing due to a change in 

2 Effective June 30, 2022, former section 1170.03 was 

renumbered section 1172.1 without change.
4

the law. Effective January 2019, courts were authorized to 

exercise their discretion to strike prior serious felony convictions. 

The defendant was sentenced in 2004, well [before] the change in 

law. The defendant’s case has been final on appeal for some time 

now. [¶] In addition, this court previously denied the same 

request from the inmate on September 30, 2018.[3] The court 

again declines to exercise its discretion.”

This timely appeal ensued.

DISCUSSION

Section 1172.1, subdivision (a)(1), provides, in relevant 

part: “When a defendant, upon conviction for a felony offense, 

has been committed to the custody of the [CDCR] . . . , the court 

may, within 120 days of the date of commitment on its own 

motion, at any time upon the recommendation of the secretary 

. . . , recall the sentence and commitment previously ordered and 

resentence the defendant . . . .” (§ 1172.1, subd. (a)(1).) “In 

enacting this code section, the Legislature amended and 

renumbered former section 1170(d), which had included the 

above-quoted language.” (People v. E.M. (2022) 85 Cal.App.5th 

1075, 1082.)

When a trial court receives a former section 1170, 

subdivision (d)(1), letter from the CDCR, it “has broad discretion 

whether to recall the existing sentence and resentence the 

incarcerated individual. ‘[T]he Secretary’s recommendation 

letter is but an invitation to the court to exercise its equitable 

jurisdiction[,]’ which ‘furnishes the court with the jurisdiction it 

would not otherwise possess to recall and resentence[.]’ 

[Citation.]” (People v. Cepeda (2021) 70 Cal.App.5th 456, 469.)

3 The appellate record does not contain an order dated 

September 30, 2018.
5

However, “[r]esentencing shall not be denied, nor a 

stipulation rejected, without a hearing where the parties have an 

opportunity to address the basis for the intended denial or 

rejection.” (§ 1172.1, subd. (a)(8).) The trial court must provide 

notice to the defendant, set a status hearing within 30 days of 

receiving the Secretary’s recommendation, and appoint counsel to 

represent the defendant. (§ 1172.1, subd. (b)(1).) The statute 

also includes a presumption in favor of recall and resentencing, 

which may only be overcome if the trial court finds that the 

defendant is an unreasonable risk of danger to public safety as 

defined in subdivision (c) of section 1170.18. (§ 1172.1, subd. 

(b)(2).)

Here, there is no indication in the appellate record that the 

trial court provided notice to defendant, set a status hearing date, 

appointed counsel to represent defendant, or otherwise gave 

defendant the opportunity to address the basis for its rejection of 

the recommendation. There is also no indication that the trial

court, in reaching its decision, applied the new standard and 

presumption set forth in section 1172.1. Thus, we must reverse 

the trial court’s order and remand it for further proceedings. (See 

People v. McMurray (2022) 76 Cal.App.5th 1035, 1041.)

That said, we remind the parties that the recall-andresentencing decision remains an equitable and discretionary 

one.4 The trial court is not obligated to recall defendant’s 

sentence even under the new statute, and it may consider 

evidence of defendant’s dangerousness in weighing the public 

safety issue. It is, however, required to apply the new 

presumption in favor of recall and hold a counseled hearing 

4 In light of our determination that a remand is appropriate, 

we do not address defendant’s argument that the trial court’s 

“[r]easons” for declining his petition constituted an abuse of 

discretion.
6

where the parties may make a record. (§ 1172.1, subds. (a)(8), 

(b)(2).)

DISPOSITION

The order denying defendant’s petition for recall is reversed 

and the matter is remanded to the trial court for a new hearing 

in accordance with section 1172.1.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, Acting P. J.

ASHMANN-GERST

We concur:

________________________, J.

CHAVEZ

________________________, J.

HOFFSTADT