Filed 9/3/24 P. v. Lopez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL LOPEZ et al.,

Defendants and Appellants.

 B329802

 (Los Angeles County

 Super. Ct. No. BA459259)

APPEAL from an order of the Superior Court of 

Los Angeles County, Shelly B. Torrealba, Judge. Reversed with 

directions. 

Lenore De Vita, under appointment by the Court of Appeal, 

for Defendant and Appellant Daniel Lopez.

Wayne C. Tobin, under appointment by the Court 

of Appeal, for Defendant and Appellant Jesus Arellano.
2

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and David E. Madeo, Deputy 

Attorneys General for Plaintiff and Respondent.

___________________________

Daniel Lopez and Jesus Arellano were convicted by plea 

of certain crimes in 2019. Their prison sentences included a 

one-year enhancement for prior prison terms under Penal Code 

section 667.5, subdivision (b).1 The prior prison terms were not 

for convictions of a sexually violent offense. The Legislature 

thereafter enacted section 1172.75, which declares that such 

enhancements are “legally invalid” and provides a recall and 

resentencing procedure for incarcerated persons whose sentences 

include the invalid enhancements. Lopez and Arellano petitioned 

the superior court to recall their sentences and to be resentenced 

under this statute. The court denied the petitions, and the 

defendants appealed. 

The Attorney General concedes that the defendants’ prior

prison enhancements are invalid, but argues that this court 

should strike the one-year enhancements from the sentences and 

otherwise affirm the judgment. We disagree. Section 1172.75 

mandates the recall of the defendants’ sentences and a full 

resentencing hearing, subject to the guidelines and requirements 

of the statute.

1 Unspecified statutory references are to the Penal Code.
3

FACTUAL AND PROCEDURAL SUMMARY

In September 2019, an information charged Lopez and 

Arellano with one count of willful, deliberate, and premediated 

attempted murder (§§ 187, subd. (a), 664), one count of shooting 

at an occupied vehicle (§ 246), and one count of assault with 

a semiautomatic firearm. (§ 245, subd. (b).) The information 

further alleged certain gang, firearm, and prison prior 

enhancements, and that each defendant had previously served 

at least one prison term for purposes of imposing a one-year 

enhancement under section 667.5, subdivision (b). Lopez’s 

alleged prior conviction is for possession of a controlled 

substance. (Health & Saf. Code, § 11351.) Arellano’s alleged 

prior prison terms are for convictions of being a felon in 

possession of a firearm. (§ 29800.)

Lopez and Arellano entered into plea agreements with 

the district attorney. Lopez pleaded no contest to assault with 

a deadly weapon (§ 245, subd. (b)), and admitted allegations that 

the offense was committed for the benefit of a criminal street 

gang (§ 186.22, subd. (b)) and that he served a prior prison term 

(§ 667.5, subd. (b)). Arellano pleaded no contest to attempted 

murder and admitted allegations that the offense was committed 

for the benefit of a criminal street gang (§ 186.22, subd. (b)) 

and that he had served a prior prison term (§ 667.5, subd. (b)). 

The court accepted the pleas and found the defendants guilty.

On May 20, 2019, the court sentenced Lopez to a total

term of 12 years in prison, comprised of six years for the

conviction of assault with a deadly weapon, five years for

the gang enhancement, and one year for the prior prison 

enhancement. On the same date, the court sentenced Arellano 

to a total term of 16 years in prison, comprised of five years 
4

for the attempted murder conviction, ten years for the gang

enhancement, and one year for the prior prison enhancement. 

Pursuant to the plea agreements, the court dismissed the 

remaining counts.

In 2022, Lopez and Arellano filed motions to be resentenced

pursuant to section 1172.75. They argued that the recent 

enactment of Senate Bill No. 483 (2021-2022 Reg. Sess.) rendered 

the one-year sentence enhancements for their prison priors

legally invalid and required the court to resentence them 

accordingly. The prosecution opposed the motions on the ground 

that reducing their sentences by one year would endanger public 

safety.

After hearing arguments, the court denied the motions. 

The court explained that the defendants continue “to present a 

danger to public safety and a lesser sentence would endanger 

public safety.”

Appellants each filed a timely notice of appeal.

DISCUSSION

In 2019, the Legislature amended section 667.5, 

subdivision (b), effective January 1, 2020, to make the one-year 

prior prison sentence enhancement that would otherwise be 

imposed under that statute applicable only if the prior prison 

term is for a “sexually violent offense.” (Sen. Bill No. 136

(2019-2020 Reg. Sess.) § 1.) 

In 2021, the Legislature enacted the predecessor to 

section 1172.75 (Sen. Bill. No. 483 (2021-2022 Reg. Sess.) § 3), 

which provides that “[a]ny sentence enhancement that was 

imposed prior to January 1, 2020, pursuant to subdivision (b) 

of Section 667.5, except for any enhancement imposed for a 

prior conviction for a sexually violent offense as defined in 
5

subdivision (b) of Section 6600 of the Welfare and Institutions 

Code is legally invalid.” (§ 1172.75, subd. (a).) The statute 

requires the Department of Corrections and Rehabilitation

(CDCR) to identify each person serving a term of imprisonment 

that includes the invalid enhancement and inform the sentencing 

court no later than July 1, 2022. (§ 1172.75, subd. (b).) If the 

sentencing court verifies that the defendant’s judgment includes 

the invalid enhancement, it “shall recall the sentence and 

resentence the defendant.” (§ 1172.75, subd. (c).)2 The statute 

applies to sentences imposed pursuant to a plea agreement. 

(People v. Hernandez (2024) 103 Cal.App.5th 981, petn. for review 

pending, petn. filed Aug. 22, 2024, S286527; People v. Carter

(2023) 97 Cal.App.5th 960, 972.)

Here, there is no dispute that Lopez and Arellano were 

sentenced before January 1, 2020, their sentences included 

the one-year enhancement for a prior prison conviction under 

section 667.5, and the prior prison convictions were not for a 

sexually violent offense. We therefore agree with the defendants 

and the Attorney General that the enhancements are “legally 

invalid.” (§ 1172.75, subd. (a).) The trial court was therefore 

required to “recall the sentence[s] and resentence the 

2 The recall and resentencing process under section 1172.75 

must be initiated by the CDCR, not the defendant. (People v. 

Burgess (2022) 86 Cal.App.5th 375, 383–384; People v. Newell

(2023) 93 Cal.App.5th 265, 268.) Here, counsel for Lopez stated 

in a declaration that the CDCR identified Lopez as a person 

entitled to relief under the statute and so informed the court. 

Our record does not include a similar statement or other evidence 

with respect to Arellano. Nevertheless, there is no dispute that 

the matter was properly before the trial court.
6

defendant[s]” as provided in section 1172.75. (§ 1172.75, 

subd. (c).)

The Attorney General nonetheless contends that a 

further hearing is not required because we can simply direct 

the court to strike the invalid enhancements and reduce the

defendants’ sentences by one year. We disagree. When it 

applies, section 1172.75 requires the court to “recall the sentence 

and resentence the defendant.” (§ 1172.75, subd. (c).) Generally, 

“when a sentence is subject to recall, ‘the resentencing court 

has jurisdiction to modify every aspect of the sentence, and not

just the portion subjected to the recall.’ ” (People v. Coddington

(2023) 96 Cal.App.5th 562, 568, quoting People v. Buycks

(2018) 5 Cal.5th 857, 893.) This “general ‘full sentencing rule’ ”

applies to recalls under section 1172.75, subject to the statute’s 

resentencing guidelines and requirements. (Coddington, supra, 

at p. 568; see People v. Monroe (2022) 85 Cal.App.5th 393, 402

[by “its plain terms, section 1172.75 requires a full resentencing, 

not merely that the trial court strike the newly ‘invalid’ 

enhancements”]; accord, People v. Green (Aug. 21, 2024, D082232) 

___ Cal.App.5th ___ [2024 WL 3883517]; People v. Garcia (2024) 

101 Cal.App.5th 848, 855; People v. Montgomery (2024) 100 

Cal.App.5th 768, 773, review granted May 29, 2024, S284662; 

Carter, supra, 97 Cal.App.5th at p. 968.) The Attorney General 

does not cite any contrary authority. 

In particular, the court, in resentencing the defendants,

shall not impose “a longer sentence than the one originally 

imposed,” and shall impose a lesser sentence “unless the court 

finds by clear and convincing evidence that imposing a lesser 

sentence would endanger public safety.” (§ 1172.75, subd. (d)(1).) 

The court shall also apply the current sentencing rules and 
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“any other changes in law that reduce sentences or provide for 

judicial discretion so as to eliminate disparity of sentences and 

to promote uniformity of sentencing.” (§ 1172.75, subd. (d)(2).) 

The court may also “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.” (§ 1172.75, 

subd. (d)(3).) Lastly, the statute limits the court’s ability to 

impose a sentence “exceeding the middle term.” (§ 1172.75, 

subd. (d)(4).) These are matters the trial court must consider 

in this first instance. Here, the court, having determined that 

the defendants were not eligible to have their sentences recalled, 

never did so. It must do so at a resentencing hearing. 
8

DISPOSITION

The order dated April 11, 2023, denying the defendants’ 

requests for recall of their sentences and to be resentenced

is reversed. The court shall enter a new order recalling the 

defendants’ sentences and resentence defendants as provided 

in section 1172.75.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

WEINGART, J.

KELLEY, J.*

* Judge of the San Luis Obispo Superior Court, assigned 

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

California Constitution.