Filed 2/1/24 P. v. Todd CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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.

GWENDOLYN TODD,

Defendant and 

Appellant.

 B321848

 (Los Angeles County

 Super. Ct. No. NA101096)

APPEAL from an order of the Superior Court of Los 

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

remanded.

Michele A. Douglass, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Idan Ivri, Supervising Deputy 

Attorney General, and Nikhil Cooper, Deputy Attorney General, 

for Plaintiff and Respondent. 

* * * * * *

Gwendolyn Ann Todd (defendant) appeals the trial court’s 

summary denial of her petition for resentencing under Penal 

Code section 1172.1.1 The People concede that a remand is 

necessary. We agree, and reverse the order denying relief and 

remand for a new hearing that complies with the procedural 

steps set forth in a law enacted after the trial court’s ruling.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

In 2015, defendant used lighter fluid to set ablaze a tree 

and a sprinkler control box located on a street corner in Long 

Beach, California. She later explained that she set the tree on 

fire because she did not “like that god damn tree” and set the box 

on fire to “burn” the “asses” of the “roaches” that “come out at 

night.” Defendant was 55 years old at the time.

The People charged defendant with arson of the property of 

another (§ 451, subd. (d)). The People further alleged that 

defendant had six prior convictions that qualified as “strikes” 

under our “Three Strikes” law (§§ 667, subds. (b)-(j), 1170.12, 

subds. (a)-(d)), and four prior serious felony convictions (§ 667, 

subd. (a)(1)).

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

Defendant pled no contest to the arson count, admitted one 

prior strike conviction, and admitted the four prior serious felony 

convictions.

In 2016, the trial court sentenced defendant to a prison 

sentence of 24 years, comprised of four years on the base count (a 

mid-range sentence of two years, doubled due to the prior strike), 

plus 20 years for the four consecutive five-year sentences for the 

four prior serious felony convictions.

II. Procedural Background

In January 2021, the Secretary of the California 

Department of Corrections and Rehabilitation (the Secretary) 

filed a petition recommending that defendant be resentenced 

under section 1170, subdivision (d)(1). The Secretary urged the 

court to consider resentencing defendant to a lower sentence 

because (1) she had no disciplinary infractions during the last 

four years in prison, (2) she was 61 at the time of the petition and 

would not be released until April 2030, (3) she had finished 

serving the four-year base term, and (4) she was susceptible to 

COVID-19 complications.2

The trial court appointed counsel for defendant, and 

obtained further briefs from the People and defendant. Without 

holding a hearing, the court on July 30, 2021 summarily denied 

the petition with an order stating: “After review of the court file 

including the defendant’s history, the court declines to exercise 

its jurisdiction to resentence the defendant.”

Defendant filed this appeal.

2 The Secretary also noted that the trial court now had 

discretion not to impose the four, five-year sentences for her prior 

serious felony convictions, but the court in 2019 had already 

considered and elected not to use its newly granted discretion.
4

DISCUSSION

Five months after the trial court summarily denied 

defendant’s petition, a new statute took effect that renumbered 

and substantially revamped the statute the Secretary had 

invoked in its petition. Enacted as Assembly Bill No. 1540 (2021-

2022 Reg. Sess.), this new statute enacted what is now section 

1172.1 and sets forth a number of procedural steps that must be 

followed whenever the Secretary (or other official listed in section 

1172.1) files a petition asking the trial court to consider 

resentencing a defendant. (§ 1172.1; Stats. 2021, ch. 719, § 3.1; 

Stats. 2022, ch. 58, § 9.) Specifically, when a petition is filed, a 

trial court:

● Must appoint counsel for the defendant (§ 1172.1, 

subd. (b)(1));

● Must set a status conference within 30 days of 

receiving the Secretary’s request (ibid.); 

● Must conduct a hearing (id., subds. (a)(8) & (a)(9));

● Must consider, in deciding whether to recall and 

resentence a defendant, whether the defendant “has experienced 

psychological, physical, or childhood trauma,” whether the 

defendant was “a victim of intimate partner violence or human 

trafficking,” or if the defendant was under 26—and whether any 

of these facts was “a contributing factor” in the commission of the 

offense. (Id., subd. (a)(5).) The court may consider three other 

“postconviction factors”—namely, (1) the defendant’s 

“disciplinary record and record of rehabilitation . . . while 

incarcerated”; (2) “whether age, time served, and diminished 

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

future violence”; and (3) any other “evidence that reflects that 

circumstances have changed since the original sentencing so that 
5

continued incarceration is no longer in the interest of justice.” 

(Ibid.)

● Must apply a presumption in favor of recalling and 

resentencing that is rebutted only if the court “finds the 

defendant currently poses an unreasonable risk of danger to 

public safety” because she poses an “unreasonable risk” of 

“commit[ting] a new” so-called “super strike” offense (such as 

murder, various sex crimes, or possessing weapons of mass 

destruction). (Id., subd. (b)(2); §§ 1170.18, subd. (c), 667, subd. 

(e)(2)(C)(iv).)

● Must “state on the record the reasons for its decision 

to grant or deny recall and resentencing.” (§ 1172.1, subd. 

(a)(7).)

It is undisputed that the trial court in this case did not 

adhere to any of these procedural requirements except the first—

because they did not exist at the time of its July 2021 ruling. 

The sole question that remains is whether defendant is 

entitled to the benefit of these later-enacted procedural 

protections. Both of the parties agree she is, but for different 

reasons. Defendant urges that Assembly Bill No. 1540 applies to 

her retroactively under In re Estrada (1965) 63 Cal.2d 740, while 

the People assert that Estrada does not apply but that defendant 

is nonetheless entitled to take advantage of the new procedural 

requirements because Assembly Bill No. 1540 was meant to 

clarify rather than change the law. Several decisions have opted 

not to address the Estrada question because, in their view, 

Assembly Bill No. 1540 was enacted to clarify the procedures 

applicable to these types of postconviction petitions, as the bill 

was enacted at a time when the appellate courts in California 

were in disarray about which procedures applied. (People v. 
6

Pierce (2023) 88 Cal.App.5th 1074, 1078-1079 [so holding]; People 

v. McMurray (2022) 76 Cal.App.5th 1035, 1038-1042 [same]; 

accord, People v. E.M. (2022) 85 Cal.App.5th 1075, 1089-1090 

[same].) We agree with these decisions.

Accordingly, we reverse the trial court’s order and remand 

for further proceedings consistent with the current version of 

section 1172.1. Nothing in this opinion is meant to suggest what 

outcome is appropriate on remand.

DISPOSITION

The order is reversed and the matter remanded for further 

proceedings consistent with section 1172.1.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

CHAVEZ