1

Filed 9/30/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JERED PILLSBURY,

Defendant and Appellant.

C089002

(Super. Ct. No. 12F07593)

APPEAL from a judgment of the Superior Court of Sacramento County, Geoffrey 

A. Goodman, Judge. Reversed with directions.

Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, 

Carlos A. Martinez, Chung Mi Choi, Deputy Attorney General, for Plaintiff and 

Respondent.
2

In this case, we address issues related to the 2018 amendments to Penal Code 

section 1170, subdivision (d)1 and the Department of Corrections and Rehabilitation 

(CDCR) program related to those amendments. We conclude that, upon the 

recommendation of the Secretary of CDCR (the Secretary), trial courts have the authority 

to recall and resentence defendants based on post-judgment changes in the law giving 

courts discretion to strike or dismiss enhancements, even when the judgment in the case 

is long since final and even when the original sentence was the product of a plea 

agreement. We also conclude that, while trial courts have the authority to summarily 

decline to recall and resentence, defendants have due process rights to notice and an 

opportunity to be heard before the court rules, and a statement of the court’s reasons for 

the declination. However, in cases such as this one where the prosecution has not 

weighed in prior to the trial court’s summary declination, we conclude defendants do not 

have a constitutional right to counsel. 

We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The Commitment Offenses

According to the preliminary hearing transcript, an employee of a tire store was 

closing the store when defendant entered. Defendant was wearing a hooded sweatshirt 

with the hood pulled over his head and his face covered either with a shirt or a mask. 

Only his eyes were exposed. Defendant approached the employee and started grabbing 

cash out of the cash drawer. The employee noticed that defendant had a handgun that he 

believed to be a Glock nine-millimeter. Defendant ordered the employee to the ground. 

The employee recognized defendant’s distinct voice and his eyes and eyebrows; 

defendant had been a former employee and had worked with the employee at the tire 

1

 Further undesignated statutory references are to the Penal Code. As a shorthand, we 

shall refer to section 1170, subdivisions (d) and (d)(1) as section 1170(d) and 1170(d)(1).
3

shop for approximately three years. Additionally, the employee knew defendant had a 

Glock nine-millimeter handgun. After the employee got on the ground, defendant 

changed his mind and ordered the employee to go to the back of the store. Defendant 

took the employee to a back room, ordered him to the floor, and took his cell phone. 

Defendant then went into an adjacent room in which there was a safe. After the 

employee heard defendant go to the safe, he heard him return to the cash register and then 

leave. Defendant took $629 in cash from the store. 

Defendant was charged with robbery in the second degree (§§ 211, 212.5) and a 

firearm enhancement under section 12022.53, subdivision (b). 

In a separate case, defendant was charged with two counts of second degree 

commercial burglary of a veterinary hospital. (§ 459.) In each instance, defendant 

entered by breaking a window and stole property and cash, totaling approximately 

$8,000. 

On November 8, 2013, pursuant to a negotiated agreement, defendant entered a 

plea of no contest to one count of robbery in the second degree (§§ 211, 212.5) and 

admitted that, in the course of the robbery, he personally used a firearm (§ 12022.53, 

subd. (b)). He also pleaded no contest to one count of commercial burglary (§ 459) and 

the remaining count was dismissed. 

Consistent with the negotiated agreement, the trial court sentenced defendant to an 

aggregate term of 13 years, calculated as follows: the midterm of three years for robbery 

in the second degree, plus a 10-year term for the section 12022.53, subdivision (b) 

firearm enhancement. He was sentenced to a two-year concurrent term on the 

commercial burglary count.

The Secretary’s Section 1170(d)(1) Letter

In a letter to the trial court dated November 29, 2018, the Secretary recommended 

the recall of defendant’s sentence and resentencing pursuant to section 1170(d). The 

Secretary urged the court to consider the amendment to section 12022.53, subdivision 
4

(h), which authorized courts to strike or dismiss firearm enhancements in the interest of 

justice pursuant to section 1385.

2

 The Secretary stated that, while prior to the 

amendment courts were required to impose firearm enhancements, following its 

enactment, courts are empowered to exercise their discretion to strike or dismiss such 

enhancements in the interest of justice at resentencing pursuant to section 1170(d). The 

Secretary concluded the letter stating: “Having reviewed the enclosed documentation it 

appears that [defendant’s] sentence warrants the attention of the court. Pursuant to . . . 

Section 1170, subdivision (d), as the Secretary, I recommend the inmate’s sentence be 

recalled and that he be resentenced.” (Fns. omitted.)

The “enclosed documentation” referenced in the Secretary’s letter was a 

cumulative case summary prepared after a diagnostic study and evaluation of defendant. 

The summary stated that defendant had not committed any serious rules violations and 

had no pending disciplinary actions. Urine samples taken were negative for controlled 

substances. His programming included vocational computer literacy, service dog 

training, victim impact awareness programs, adult basic education, and voluntary GED. 

He completed the Substance Abuse Program / Inmate Community Services program. He 

served as a kitchen cook and recreational monitor. The summary included laudatory 

reports regarding his participation in this programming. It also noted he had 17 family 

visits from family who resided out of county. 

Without notice to defendant or an opportunity to provide additional information, 

the trial court declined to recall and resentence him. In its written ruling, it stated it had 

reviewed the letter and defendant’s file and “decline[d] to recall the sentence and 

resentence defendant pursuant to the newly amended . . . [section] 1170(d)(1).” No 

explanation for the declination was given.

2

 Senate Bill No. 620 (2017-2018 Reg. Sess.), effective January 1, 2018, amended

section 12022.53, subdivision (h). (Stats. 2017, ch. 682, § 2.)
5

DISCUSSION

I. The Trial Court’s Authority to Recall & Resentence 

Based on a Change in the Law

A. Principles of Statutory Interpretation

“ ‘ “Under settled canons of statutory construction, in construing a statute we 

ascertain the Legislature’s intent in order to effectuate the law’s purpose. [Citation.] We 

must look to the statute’s words and give them their usual and ordinary meaning.

[Citation.] The statute’s plain meaning controls the court’s interpretation unless its words 

are ambiguous.” [Citations.] If the words in the statute do not, by themselves, provide a 

reliable indicator of legislative intent, “[s]tatutory ambiguities often may be resolved by 

examining the context in which the language appears and adopting the construction 

which best serves to harmonize the statute internally and with related statutes. 

[Citation.]” [Citation.] “ ‘Literal construction should not prevail if it is contrary to the 

legislative intent apparent in the statute . . . ; and if a statute is amenable to two 

alternative interpretations, the one that leads to the more reasonable result will be 

followed [citation].’ [Citations.]” [Citation.] If the statute is ambiguous, we may 

consider a variety of extrinsic aids, including legislative history, the statute’s purpose, 

and public policy.’ ” (People v. Lucero (2019) 41 Cal.App.5th 370, 394-395, quoting 

People v. Arias (2008) 45 Cal.4th 169, 177.)

B. Jurisdiction, Section 1170(d)(1), and 

Recall and Resentencing Based on a Change in the Law

“Under the general common law rule, a trial court is deprived of jurisdiction to 

resentence a criminal defendant once execution of the sentence has commenced.” 

(People v. Federico (2020) 50 Cal.App.5th 318, 326, review granted August 26, 2020, 

S263082 (Federico).) However, section 1170(d)(1) is an exception to this rule. In 

pertinent part, it authorizes the Secretary to recommend recall and resentencing “at any 

time” and gives the trial court jurisdiction to do so. 
6

We asked the parties to provide supplemental briefing concerning whether the trial 

court had the authority to recall and resentence defendant based on a change in the law 

given that section 1170(d)(1) does not expressly authorize as much and, normally, a 

defendant is not entitled to an ameliorative benefit of a change in the law after judgment 

is final. The request asked the parties to address Federico, supra, 50 Cal.App.5th 318, 

which suggested courts have no such authority. (Id. at p. 327.) As we shall explain, we

disagree with Federico on this point and conclude the Legislature conferred authority 

upon trial courts under section 1170(d)(1) to resentence defendants whose cases are final

based on an ameliorative change in the law.

Section 1170(d)(1) in effect at the time of the Secretary’s letter in the instant case 

provided: “When a defendant subject to this section or subdivision (b) of Section 1168 

has been sentenced to be imprisoned in the state prison or a county jail pursuant to 

subdivision (h) and has been committed to the custody of the secretary or the county 

correctional administrator, the court may, within 120 days of the date of commitment on 

its own motion, or at any time upon the recommendation of the secretary or the Board of 

Parole Hearings in the case of state prison inmates, the county correctional administrator 

in the case of county jail inmates, . . . 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 court resentencing under this subdivision shall apply the sentencing rules 

of the Judicial Council so as to eliminate disparity of sentences and to promote 

uniformity of sentencing. The court resentencing under this paragraph may reduce a 

defendant’s term of imprisonment and modify the judgment, including a judgment entered 

after a plea agreement, if it is in the interest of justice. The court may consider 

postconviction factors, including, but not limited to, the inmate’s disciplinary record and 

record of rehabilitation while incarcerated, evidence that reflects whether age, time 

served, and diminished physical condition, if any, have reduced the inmate’s risk for 
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future violence, and evidence that reflects that circumstances have changed since the 

inmate’s original sentencing so that the inmate’s continued incarceration is no longer in 

the interest of justice. Credit shall be given for time served.” (Stats. 2018, ch. 36, § 18, 

eff. June 27, 2018, italics added.)

We conclude that once the recommendation was made by the Secretary, it was 

within the authority of the trial court to recall defendant’s sentence and then resentence 

him by exercising its discretion to dismiss or strike the firearm enhancement under 

section 12022.53 subdivision (h) and 1385, subdivision (a), thus providing him the 

benefit of the change in the law. In arriving at this conclusion, we first look to the 

express provisions of the amended statutes. Section 1170(d)(1) authorizes the Secretary 

to make the recommendation “at any time.” It then authorizes the court to “modify the 

judgment” and places no limitations on when this can be done. Thus, a plain reading of 

the statutory language leads to the conclusion that the court can modify the judgement “at 

any time,” even after the judgment has become final.

Additionally, the plain language of the ameliorative change to the firearm 

enhancement statute provides that the authority to strike or dismiss a firearm 

enhancement “applies to any resentencing that may occur pursuant to any other law.”

(§ 12022.53, subd. (h).) A resentencing after a recall under section 1170(d)(1) is a 

resentencing pursuant to law.

Second, we look to the law concerning resentencing generally. In discussing what 

our high court has termed, “the full resentencing rule,” the court in People v. Buycks

(2018) 5 Cal.5th 857 (Buycks) noted that, under the recall provisions of section 1170(d),

trial courts have jurisdiction to modify “every aspect of the defendant’s sentence.” 

(Buycks, at p. 893.) The Buycks court added: “In this situation, we have recognized that 

the resentencing court may consider ‘any pertinent circumstances which have arisen since 

the prior sentence was imposed.’ ” (Ibid.) In our view, a change in the law is a 

“pertinent circumstance[].” 
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Based on Federico, supra, 50 Cal.App.5th 318, the Attorney General asserts that 

the trial court lacked authority to strike defendant’s firearm enhancement pursuant to 

sections 12022.53, subdivision (h), and 1385 because “the judgment was final and the 

trial court did not have the authority to modify the judgment of conviction.” Because the 

Secretary recommended modification here pursuant to section 1170(d)(1), we disagree. 

In Federico, the Secretary sent the trial court a letter recommending resentencing

under section 1170(d) because the court had committed a sentencing error and the 

original sentence was unauthorized. (Federico, supra, 50 Cal.App.5th at p. 321.) The 

defendant filed a motion agreeing that his sentence was unauthorized, and additionally 

requested the court to apply Proposition 573 and transfer jurisdiction to the juvenile court 

because he was 15 years old at the time of the offense. (Ibid.) In resentencing the 

defendant, the trial court declined to apply Proposition 57, in part because the defendant’s 

judgment was long final when Proposition 57 was enacted and Proposition 57 did not 

address retroactivity. (Id. at p. 323.) Our colleagues in the Fourth Appellate District, 

Division Two, affirmed, agreeing that the trial court properly declined to apply 

Proposition 57 at resentencing for the reason that the defendant’s judgment was final 

when Proposition 57 was enacted. (Id. at pp. 327-328.) Specifically, the Federico court 

wrote: “Contrary to defendant’s claim, section 1170, subdivision (d), says nothing about 

‘reopening’ a judgment that has been final for years, in order to apply recently enacted 

laws retroactively. Moreover, remanding the case to the juvenile court for a fitness 

hearing pursuant to Proposition 57 would certainly not comply with the language of 

3

 “Proposition 57 prohibits prosecutors from charging juveniles with crimes directly in 

adult court. Instead, they must commence the action in juvenile court. If the prosecution 

wishes to try the juvenile as an adult, the juvenile court must conduct . . . a ‘transfer 

hearing’ to determine whether the matter should remain in juvenile court or be transferred 

to adult court. Only if the juvenile court transfers the matter to adult court can the 

juvenile be tried and sentenced as an adult.” (People v. Superior Court (Lara) (2018) 4 

Cal.5th 299, 303.)
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section 1170, subdivision (d). The statute specifically provides that the court may 

‘resentence the defendant in the same manner as if he or she had not previously been 

sentenced.’ [Citation.] It simply allows the court to reconsider its sentencing choices in 

the original sentence and resentence the defendant.” (Id. at p. 327, some italics added.) 

Given our plain language reading of the statutory amendments, we disagree with the 

Federico court to the extent its holding can be read to preclude modification of the 

judgment here.

The Attorney General also relies on People v. Nelms (2008) 165 Cal.App.4th 

1465, for the proposition that section 1170(d) recall is “limited to resentencing and did 

not give the court authority to modify the judgment of conviction.” (Nelms, at p. 1472.)

However, as we have noted, the 2018 amendment changed section 1170(d) to expressly 

authorize modification of the judgment and it was that provision that was in effect at the 

time of the Secretary’s recommendation here. Given that language, the 2008 holding in 

Nelms no longer applies.

C. Changing the Plea Agreement

The Attorney General asserts that the trial court here is bound by the plea 

agreement, relying on People v. Blount (2009) 175 Cal.App.4th 992. In Blount, the court 

held section 1170(d) did not provide a trial court authority to deviate from the sentence 

negotiated by the parties. (Blount, at p. 994.) But section 1170(d) has been amended 

over the years since Blount, including the 2018 amendments underlying this litigation. It 

provides, in pertinent part: “The court resentencing under this paragraph may reduce a 

defendant’s term of imprisonment and modify the judgment, including a judgment 

entered after a plea agreement, if it is in the interest of justice.” (Italics added.) This 

language evinces in the clearest language possible the legislative intent to include plea 

agreements within the scope of section 1170(d). As our high court explained in Doe v. 

Harris (2013) 57 Cal.4th 64, “the general rule in California is that the plea agreement 

will be ‘ “deemed to incorporate and contemplate not only the existing law but the 
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reserve power of the state to amend the law or enact additional laws for the public good 

and in pursuance of public policy . . . .” ’ [Citation.] That the parties enter into a plea 

agreement thus does not have the effect of insulating them from changes in the law that 

the Legislature has intended to apply to them.” (Doe, at p. 66, italics added; see also

Harris v. Superior Court (2016) 1 Cal.5th 984, 989-993 [rejecting the Attorney 

General’s argument that Proposition 47 could not be applied to sentences resulting from 

plea agreements because the electorate’s language —“whether by trial or plea”—

indicated the intent to include within the scope of Proposition 47 sentences that were the 

result of negotiated agreements].) Trial courts are not bound by a stipulated sentence 

negotiated by the parties when resentencing under section 1170(d)(1). 

D. Conclusion — Authority to Recall and Resentence

We conclude that when the Secretary recommends recall and resentencing under 

section 1170(d)(1), trial courts have the authority to resentence defendants at any time 

based on an ameliorative change in the law giving courts discretion to strike or dismiss 

enhancements under section 1385, subdivision (a), even after the defendant’s judgment is 

final and even when the original sentence was the product of a plea agreement.

II. Due Process Rights Related to Summary Declination

A. Parties’ Contentions

Defendant asserts that, by summarily declining to adopt the Secretary’s

recommendation to recall his sentence and resentence him without affording him notice

and the opportunity to be heard, as well as a statement of reasons for its declination, the 

trial court denied him due process under the state and federal Constitutions. Defendant 

maintains that, where, as with section 1170(d), a statute requires judicial decision-making 

to determine whether reduced incarceration is appropriate, a liberty interest protected by 

the due process clauses of the Fifth and Fourteenth Amendments is implicated. 
11

The Attorney General responds that defendant did not have any federal or state 

liberty interest attached to the trial court’s recall and resentencing declination and

consequently due process was not violated. 

We conclude defendant does have a liberty interest and that he should be afforded 

the due process protections of notice, opportunity to be heard and a statement of reasons.

B. Due Process Protection

1. General Principles

The right to due process protects individuals from the arbitrary action of 

government. (Kentucky Dept. of Corrections v. Thompson (1989) 490 U.S. 454, 460 [104 

L.Ed.2d 506].) “Due process is a flexible concept that calls for ‘ “such procedural 

protections as the particular situation demands.” ’ ” (People v. Hardacre (2001) 90 

Cal.App.4th 1392, 1399.) Procedural due process questions require a two-step analysis: 

(1) is there a liberty or property interest of which the defendant has been deprived, and 

(2) if so, were the procedures followed by the state constitutionally sufficient? (See 

Thompson, at p. 460; Swarthout v. Cooke (2011) 562 U.S. 216, 219 [178 L.Ed.2d 732, 

737] (Swarthout).) The second step of the inquiry requires we answer the question: what 

process is due?

2. Liberty Interest

In People v. Loper (2015) 60 Cal.4th 1155 (Loper), our high court recognized that 

a different subdivision of section 1170 — subdivision (e) providing criteria for the 

“compassionate release” of fatally ill prisoners — created a sufficient “substantial interest

in personal liberty” to establish a right to appeal a denial for purposes of section 1237,4

even though a defendant does not have a right to initiate such a proceeding. The court 

concluded the defendant’s personal liberty was a substantial interest. (Loper, at p. 1161, 

4

 Section 1237, subdivision (b) affords defendants the right to appeal from “any order 

made after judgment, affecting the substantial rights of the party.”
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fn. 3.) Specifically, as pertinent here, the court stated: “By providing a mechanism for 

releasing eligible prisoners from custody, section 1170(e) implicates a prisoner’s 

substantial interest in personal liberty.” (Ibid.)

We agree with defendant that section 1170(d)(1) involves a similar liberty interest 

to that recognized by our high court in section 1170, subdivision (e) (section 1170(e)). 

Indeed, as we see it, “[f]reedom from bodily restraint has always been at the core of the 

liberty protected by the Due Process Clause from arbitrary governmental action.” 

(Foucha v. Louisiana (1992) 504 U.S. 71, 80 [118 L.Ed.2d 437].) And as the United 

States Supreme Court has recognized, “state statutes may create liberty interests that are 

entitled to the procedural protections of the Due Process Clause of the Fourteenth 

Amendment.” (Vitek v. Jones (1980) 445 U.S. 480, 488 [63 L.Ed.2d 552]; Greenholtz v. 

Inmates of Nebraska Penal and Correctional Complex (1979) 442 U.S. 1, 12 [60 L.Ed.2d 

668] (Greenholtz).) We conclude that the provisions of section 1170(d)(1), like the 

provisions of section 1170(e) addressed by our high court in Loper, “implicates a 

prisoner’s substantial interest in personal liberty” (Loper, supra, 60 Cal.4th at p. 1161, 

fn. 3), and thus gives rise to a liberty interest entitled to due process protection.

3. The Multi-Factor Test for Determining What Process is Due

“ ‘ “Once it is determined that [the guarantee of] due process applies, the question 

remains what process is due.” ’ ” (People v. Allen (2008) 44 Cal.4th 843, 862-863 

(Allen); People v. Otto (2001) 26 Cal.4th 200, 210 (Otto); see also Morrissey v. Brewer

(1972) 408 U.S. 471 [33 L.Ed.2d 484].) In analyzing what process is due under the 

California Constitution, our high court has “ ‘identified four relevant factors: (1) the 

private interest that will be affected by the official action; (2) the risk of an erroneous 

deprivation of such interest through the procedures used, and the probable value, if any, 

of additional or substitute procedural safeguards; (3) the government’s interest, including 

the function involved and the fiscal and administrative burdens that the additional or 

substitute procedural requirement would entail; and (4) the dignitary interest in informing 
13

individuals of the nature, grounds, and consequences of the action and in enabling them 

to present their side of the story before a responsible government official.’ ”

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 (Allen, at 

pp. 862-863; Otto, at p. 210.) As a shorthand, we shall refer to these factors as the 

Allen/Otto factors.

4. Notice and Opportunity to be Heard 

a. The Private Interest

Defendant’s private interest at stake is his liberty. Under the particular 

circumstances of this case, if the trial court were to recall defendant’s sentence, 

resentence him, and strike the firearm enhancement pursuant to sections 12022.53, 

subdivision (h) and 1385, subdivision (a), and decline to resentence him on the 

concurrent sentence for the commercial burglary, defendant would be subject to release 

as he would have served the entirety of his three-year term imposed on count one, 

robbery in the second degree. 

This factor weighs in favor of a conclusion that defendant is entitled to notice and 

an opportunity to be heard.

b. The Risk of an Erroneous Deprivation of the Private Interest

The risk of an erroneous deprivation of defendant’s freedom through a procedure 

that denies a defendant the opportunity to be heard lies in the possibility that the court 

will not be apprised of additional information from defendant it should consider in 

5

 This is the test under the California Constitution. Except for the last factor addressing 

the dignitary interest implicated, the test under the federal constitution is the same. (See 

Mathews v. Eldridge (1976) 424 U.S. 319 [47 L.Ed.2d 18].) Our high court “adopted the 

Mathews balancing test as the default framework for analyzing challenges to the 

sufficiency of proceedings under our own due process clause,” but with the “minor 

modification” of adding to it consideration of the dignitary interest factor when the rights 

of natural persons are at stake. (Today’s Fresh Start, Inc. v. Los Angeles County Office of 

Education (2013) 57 Cal.4th 197, 213 (Today’s Fresh Start).) Thus, our conclusions 

applying the multifactor test are the same whether analyzed under the California 

Constitution or the federal Constitution.
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exercising its discretion under section 1170(d)(1). Here, although there were laudatory 

comments about defendant’s prison programming in the cumulative case summary 

submitted by the Secretary, defendant may have had more to add. For example, he may 

have wanted to submit a personal statement or personal letters from CDCR staff, prison 

program personnel, or other persons familiar with his prison programming and 

rehabilitation. He may have had information about potential employment and/or the 

family and community support that would be available to him upon his release. Also, if

materials submitted by the Secretary were inaccurate, defendant could have pointed this 

out. This is just a partial list of ways defendant might have contributed information 

relevant to the trial court’s decision making process.

Thus, the probable value of notice and an opportunity to be heard is clear. If 

defendant were afforded the opportunity to be heard, it is far more likely that all relevant 

facts, circumstances, and arguments could be considered by the trial court before it 

considered whether to grant a hearing or summarily decline to recall and resentence.

Consequently, this factor weighs in favor of notice and an opportunity to be heard.

c. Government’s Interest

There is a governmental interest in affording courts the opportunity to summarily 

reject frivolous applications to the court. However, given the nature of the application 

here—a recommendation from the Secretary made pursuant to regulations promulgated 

by CDCR—there is less risk that any one application would be completely frivolous.

6

6

 Temporary regulations were in place at the time the Secretary made the 

recommendation in this case. Since then, permanent regulations have been promulgated. 

The current regulation, California Code of Regulations, title 15, section 3076.1 provides,

in pertinent part: “(d) (1) An inmate may be considered for referral . . . if the applicable 

sentencing laws at the time of their sentencing hearing are subsequently changed due to 

new statutory or case law authority with statewide application. [¶] (2) Notwithstanding 

subsection (d)(1), inmates who meet the following criteria shall be excluded from 

consideration under this subsection: [¶] (A) Inmates who have not yet served five 
15

There is also a governmental interest related to the additional fiscal and 

administrative burdens of the reviewing process. The state has a legitimate financial 

interest in, and an interest in preserving, its scarce justice system resources. The advent 

of an enhanced review procedure will tap into these resources. However, the enactment 

of the 2018 amendments to section 1170(d) signals that a legislative determination has 

been made that the use of judicial resources to provide second chances to some 

individuals is warranted. Consequently, we conclude the fiscal and administrative burden 

of providing notice and an opportunity to be heard is not an overriding consideration.

7

continuous years or 50% of their current commitment, whichever comes first; [¶] 1. For 

determinately sentenced inmates, ‘50%’ means 50% of their Earliest Possible Release 

Date, as defined in Section 3371.1(c)(3)(A); [¶] 2. For indeterminately sentenced 

inmates, ‘50%’ means 50% of their Minimum Eligible Parole Date, as defined in Section 

3000. [¶] (B) Inmates who have been found guilty of a serious or violent rules violation 

. . . within the last one year or whose serious or violent rules violation . . . is pending; [¶]

(C) Determinately sentenced inmates who are already scheduled for release within the 

next 18 months; [¶] (D) Determinately sentenced inmates who. . . are eligible for parole 

consideration within the next 18 months or have already been afforded parole 

consideration; or [¶] (E) Indeterminately sentenced inmates who. . . are scheduled for a 

parole hearing within the next 18 months or who have already been afforded a parole 

hearing, regardless of the decision by the Board of Parole Hearings. [¶] (3) Initial 

eligibility for consideration . . . shall be determined by the Classification Services Unit or 

the Correctional Case Records Unit. [¶] . . . [¶] (B) If an inmate is found eligible, the 

Classification Services Unit or the Correctional Case Records Unit shall prepare a 

Cumulative Case Summary . . . and refer the matter to the Secretary. [¶] . . . [¶] (e) (2) 

If the Secretary elects to recommend an inmate for recall and resentencing, a 

recommendation letter and Cumulative Case Summary shall be forwarded to the 

sentencing court and a copy shall be provided to the inmate and another copy placed in 

the inmate’s central file within 10 business days of the decision. [¶] . . . [¶] (4) 

Pursuant to the broad discretion vested in the Secretary by statute, namely subdivision (d) 

of Section 1170 of the Penal Code, the Secretary’s decision is final and not subject to 

administrative review.”

7

 This is not to say that the Legislature need not consider enhanced budget 

appropriations to accommodate new workloads brought about by criminal justice system 

reforms. The effectiveness of these reforms will depend, in substantial part, on the ability 

of courts to handle the increased workload.
16

Indeed, the court here mailed defendant a copy of its summary declination after it ruled. 

Once routinized, we see it as only minimally more burdensome for courts to mail

defendants a notice prior to ruling. True, in providing an opportunity to be heard, judges

must devote time to reviewing whatever materials are submitted by defendant, but this is 

as it should be—judges should be provided all relevant evidence and information before 

summarily declining to recall and resentence.

Thus, on balance, the governmental interest factor weighs in favor requiring notice 

and an opportunity to be heard.

d. Dignitary Interest

The dignitary interest in informing individuals of the nature, grounds, and 

consequences of the action and in enabling them to present their side of the story before a 

responsible government official is a factor related to the due process provision of our 

state Constitution. (See fn. 5, ante.) It is clear that providing notice and an opportunity 

to be heard would inform defendants that the court is considering the Secretary’s 

recommendation and whether to summarily decline recall and resentencing. The notice 

would give defendants the chance to provide input. Without notice and an opportunity to 

be heard, people in defendant’s position are “relegate[d] . . . to the role of a mere 

spectator, with no power to attempt to affect the outcome.” (See Allen, supra, 44 Cal.4th 

at p. 869.) And as our high court has noted: “ ‘For government to dispose of a person’s 

significant interests without offering him [or her] a chance to be heard is to risk treating 

him [or her] as a nonperson, an object, rather than a respected, participating citizen.’ ” 

(Today’s Fresh Start, supra, 57 Cal.4th at p. 213.) This is not to say that people serving 

state prison sentences have all of the same rights as people who are not incarcerated, but 

they are people and they are entitled to respect and to participate in proceedings affecting 

their liberty interests.

The dignity interest factor also weighs in favor of affording defendants notice and 

an opportunity to be heard.
17

e. Williams and McCallum

We note that Division Two of the Fourth District recently concluded that 

defendants for whom the Secretary has written section 1170(d) recommendations are 

entitled to notice and an opportunity to be heard as a matter of due process. (People v. 

Williams (2021) 65 Cal.App.5th 828 (Williams).) The Williams court did not engage in 

an Allen/Otto analysis. Instead, it stated: “It is axiomatic that due process requires the 

sentencing court to give the parties formal notice of CDCR’s recommendation and the 

opportunity to be heard if the court is considering resentencing defendant.” (Id. at 

p. 833.)8 For this proposition, the Williams court cited People v. McCallum (2020) 55 

Cal.App.5th 202 (McCallum), decided by Division Seven of the Second District.

The McCallum court did not decide the issues before it on due process grounds, 

and the circumstances of the trial court’s ruling on the Secretary’s section 1170(d) 

recommendation in McCallum were different than those presented here. In McCallum, 

after receiving notice of the Secretary’s section 1170(d) recommendation, counsel for the 

defendant lodged a notice of appearance and asked the trial court to hold a case 

management conference to discuss the Secretary’s recommendation and, if necessary, set 

a briefing and hearing schedule. (McCallum, supra, 55 Cal.App.5th at pp. 206, 209.) 

Without setting a case management conference or providing either defendant or the 

prosecution the opportunity to provide additional information, the court issued a minute 

order declining to recall the defendant’s sentence. (Id. at pp. 206, 209.) Construing the 

statutory language in section 1170(d), the McCallum court concluded the Legislature did 

not intend to require the trial court to hold a hearing before ruling on the 

8

 In Williams, the trial court followed the recommendation of the Secretary by recalling

defendant’s sentence and striking the five-year sentence for a section 667, subdivision (a)

prior serious felony enhancement. But it did so without giving notice to either party. 

(Williams, supra, 65 Cal.App.5th at p. 832.) The People appealed. (Ibid.) 
18

recommendation.9 (Id. at pp. 206, 211-215.) However, the McCallum court held the trial 

court abused its discretion by rejecting the Secretary’s recommendation without allowing 

the defendant the opportunity to present additional information. (Id. at pp. 216-219.) But 

McCallum did not ground this holding on due process, and it is factually different from 

the instant case because the defendant there had counsel who apparently was ready to

provide additional information. Given this factual backdrop, the McCallum court wrote: 

“Once [the defendant] requested an opportunity to respond to the secretary’s 

recommendation by requesting a case management conference and possible briefing and 

presentation of evidence, the trial court’s decision simply to ignore [his] request to 

provide input on the secretary’s recommendation was an abuse of discretion.” (Id. at 

p. 216.) The court reasoned that the procedural setting in McCallum was analogous to 

the procedural circumstance our high court addressed in People v. Carmony (2004) 33 

Cal.4th 367, 375 (Carmony), regarding a trial court’s discretion to dismiss “Three 

Strikes” law strike convictions under section 1385. (McCallum, at p. 217.) In Carmony, 

our high court held that a defendant is entitled to invite the trial court to consider 

dismissing strike convictions. (Carmony, at p. 375.) The McCallum court stated: “Thus, 

as in Carmony, upon a request by McCallum, the trial court was required to consider 

evidence in support of the secretary’s recommendation.” (McCallum, at p. 217, italics 

added.)10

9

 The McCallum court observed: “It is up to the Legislature to address in the first 

instance whether an inmate should be afforded a hearing in response to a 

recommendation by the Secretary for recall and resentencing.” (McCallum, supra, 55 

Cal.App.5th at p. 206.)

10 The McCallum court pointed to the Loper court’s analogy to Three Strikes invitations 

in Carmony: “ ‘ “ ‘[T]he court must consider evidence offered by the defendant in 

support of his assertion that the dismissal would be in furtherance of justice.’ ” ’ ”

(McCallum, supra, 55 Cal.App.5th at p. 217, quoting Loper, supra, 60 Cal.4th at p. 1167

& Carmony, supra, 33 Cal.4th at p. 375.) As noted, our high court in Loper addressed 
19

But in the instant case, there was no such request from the defense like in 

McCallum to trigger the trial court’s consideration of information provided by the 

defense. And although the Secretary gave defendant here notice of the section 1170(d) 

recommendation, defendant was not in a position to know whether it was received by the 

trial court, for what time frame the court would consider it, or that the court was inclined 

to reject the recommendation. In short, prior to the court’s ruling, defendant had no 

opportunity to invite the court to exercise its discretion under sections 1170(d)(1) and 

1385, subdivision (a), or, more importantly, to provide additional information in 

connection with that invitation, similar to defendants in the Three Strikes context or the 

defendant in McCallum.

f. Balancing and Notice and Opportunity to be Heard

Given the liberty interest at stake, we view the issue before us as a matter of 

constitutional due process. That requires an analysis under Allen/Otto to determine what 

process is due. “The core of due process is the right to notice and a meaningful 

opportunity to be heard.” (Lachance v. Erickson (1998) 522 U.S. 262, 266 [139 L.Ed.2d 

695] (Lachance); see also Allen, supra, 44 Cal.4th at p. 869 [“ ‘The fundamental 

requirement of due process is the opportunity to be heard “at a meaningful time and in a 

meaningful manner” ’ ”].) On balance, the Allen/Otto factors weigh heavily in favor of 

providing defendant notice and an opportunity to be heard.

the question of whether a defendant’s denial of compassionate release under section 

1170(e) was appealable. Specifically, the question the Loper court answered was:

“[a]ssuming that the motion for recall was properly initiated by the Board, does the 

prisoner have the right to appeal from the denial of that motion even though he could not 

have initiated the motion himself?” (Loper, at p. 1163.) In answering this question, our 

high court relied on its decision in Carmony. (Id. at p. 1167.) In Carmony, the court held 

a defendant had the right to appeal a trial court’s refusal to dismiss strike convictions 

under section 1385. (Carmony, at p. 376.) Based on the reasoning in Carmony, the 

Loper court overruled earlier cases upon which the Attorney General relied that had held 

a defendant had no right to appeal a court’s rejection of section 1170(d) relief. (Loper, at 

p. 1167.)
20

Accordingly, we conclude that a defendant for whom the Secretary has written a 

section 1170(d) recommendation based on a change in the law is constitutionally entitled 

to notice and an opportunity to be heard as a matter of due process. Thus, if the trial 

court is considering summary declination of recall and resentencing after reviewing a 

section 1170(d) recommendation from the Secretary based on a change in the law, due 

process requires that: (1) the court to give defendants notice it is considering summary 

declination; (2) the notice should inform defendants they may provide additional 

documentation or evidence to the court before the court rules; (3) the notice should give a 

reasonable and specific time to respond; and (4) the notice should provide defendants 

information stating the precise place to send their response.11

5. Statement of Reasons

In addition to notice and an opportunity to be heard, defendant also asserts that if a 

court summarily declines to follow the Secretary’s recommendation, due process requires 

a statement of reasons. We agree.

We briefly discuss the Allen/Otto factors as to whether a statement of reasons is 

required as a matter of due process here. First, regarding the private interest affected, we 

have already noted the liberty interest implicated by a court’s decision rejecting the 

Secretary’s section 1107(d) recommendation. This factor cuts in favor of requiring a 

statement of reasons. 

Second, when a court has thought out and expressly states its reasons, the risk of 

arbitrary decision-making and erroneous deprivation of the interest at stake is diminished. 

Thus, the second Allen/Otto factor cuts in favor of requiring a statement of reasons. 

11 Of course, the prosecution must be given the same notice and opportunity to be heard. 

(See Williams, supra, 65 Cal.App.5th at pp. 831-832 [stating that the parties should be 

given notice and an opportunity to be heard].)
21

Third, as far as the governmental interests related to fiscal and administrative 

burdens, we again acknowledge that the revamped section 1170(d) procedure will create 

additional work for the courts. Consequently, providing a statement of reasons adds to 

the workload of our courts. But judges are accustomed to providing reasons for their 

sentencing choices as required by statute and the Rules of Court. (§ 1170, subd. (c); Cal. 

Rules of Court, rule 4.406(a).) Here, we envision no greater burden than that required of 

judges when making sentencing choices. The reasons can be stated orally with a 

reporter’s transcript provided to defendant.12 Or if the court chooses, it can put its 

reasons in writing. Apart from the workload burdens on the court, the government

interest includes ensuring that judges get their decisions right and we think the 

consideration given to the decision is enhanced when the court must set forth the reasons 

for its ruling. Moreover, a statement of reasons will facilitate appellate review. Thus, the 

governmental interest weighs in favor of providing a statement of reasons.

Finally, the dignitary interest in informing individuals of the nature and grounds of 

the action weighs in favor of requiring a statement of reasons. Indeed, by providing 

reasons for a declination, a defendant will be informed of deficiencies that he or she 

could address and improve upon. And if the defendant does make improvements to 

address those deficiencies, the Secretary could be impressed enough to make another 

recommendation in the future. Section 1170(d) does not place a limit on how many 

recommendations the Secretary can make as to individual defendants.

Finally, we see the section 1170(d) recommendation as being somewhat analogous 

to parole considerations, in which statements of reasons are also provided. Indeed, the 

United States Supreme Court has held, in the parole consideration context, that there is a 

due process right to an opportunity to be heard and a statement of reasons. (Swarthout, 

12 The parties need not be present.
22

supra, 562 U.S. at p. 220, citing Greenholtz, supra, 442 U.S. at p. 16; see also In re 

Kavanaugh (2021) 61 Cal.App.5th 320, 353, citing In re Sturm (1974) 11 Cal.3d 258, 

268-270 [a prisoner is not entitled to parole, but he or she is entitled to have his 

application duly considered and because of the right to due consideration, “ ‘due process 

requires that the [Board] support its determinations with a statement of its reasons 

therefor’ ”].) As the high court in Greenholtz noted, parole consideration by a parole 

board is much like a judge’s sentencing choice. (Greenholtz, at p. 16.) Additionally, 

when parole is denied, a statement of reasons “informs the inmate in what respects he [or 

she] falls short of qualifying for parole; this affords the process that is due under these 

circumstances.” (Ibid.)

We conclude that due process requires that the trial court provide a statement of 

reasons if it summarily declines to recall and resentence a defendant after receiving a 

section 1170(d) recommendation from the Secretary.

III. Sixth Amendment Right to Counsel

Defendant contends he has a Sixth Amendment right to counsel “during 

resentencing decisions.” (Bold omitted.) Specifically, he asserts that because section 

1170(d) “is now part of the determinate sentencing process, the court should appoint 

counsel to represent [him]” under the authority of the Sixth Amendment because 

resentencing is a “critical stage” in the proceedings. He also contends, “[t]he decision 

[to] recall is a ‘critical stage’ in the proceedings because it involve[s] sentencing.” While 

we agree that defendant is constitutionally entitled to representation by counsel for 

purposes of resentencing, we disagree that a defendant has a constitutional right to 

counsel before a court summarily declines to recall his sentence.

In People v. Frazier (2020) 55 Cal.App.5th 858, Division Seven of the Second 

District held that “the filing of the Secretary’s recommendation letter inviting the court to 

exercise its jurisdiction pursuant to section 1170, subdivision (d)(1), to recall a sentence, 

without more, does not trigger a due process right to counsel.” (Id. at p. 869, italics 
23

added.) While criminal defendants have a Sixth Amendment right to counsel at critical 

stages of a criminal proceeding through sentencing, there is no constitutional right to 

counsel in postjudgment collateral challenges. (Id. at p. 865.)13 We agree with the court 

in Frazier in cases such as this one where the prosecution has not weighed in prior to the 

trial court’s summary declination.

14

13 Recently, our high court reinforced what the Frazier court recognized – “There is no 

unconditional state or federal constitutional right to counsel to pursue collateral relief 

from a judgment of conviction.” (People v. Lewis (2021) 11 Cal.5th 952, 972 [holding 

that a person seeking relief under section 1170.95 is not constitutionally entitled to 

counsel at the outset of the petitioning process; See Frazier, supra, 55 Cal.App.5th at 

pp. 865, 867 [“the Sixth Amendment right to counsel at critical stages of a criminal 

proceeding through sentencing does not apply to postjudgment collateral challenges”;

“There simply is no constitutional right to counsel or a hearing in connection with every 

postjudgment request with the potential to affect a substantial right”].) However, the 

Lewis court noted that “ ‘if a [habeas corpus] petition attacking the validity of a judgment 

states a prima facie case leading to issuance of an order to show cause, the appointment 

of counsel is demanded by due process concerns.” (Lewis, at p. 973.) The court 

explained: “When ‘an indigent petitioner has stated facts sufficient to satisfy the court 

that a hearing is required, his claim can no longer be treated as frivolous and he is entitled 

to have counsel appointed to represent him.’ ” (Ibid.) A section 1170(d) 

recommendation based on a change in the law, however, is not analogous to a habeas 

petition. In habeas corpus proceedings, a defendant seeks relief for some error that took 

place in the criminal proceedings leading to the conviction and thus a prima facie 

showing of an entitlement to relief from the error triggers a due process right to counsel. 

(See Frazier, at p. 866.) That is not the case in a section 1170(d) proceeding based on a 

change in the law, which asks the court to exercise discretion based on equitable 

considerations. (See Couzens, Bigelow, and Prickett, Sentencing California Crimes (The 

Rutter Group 2020) § 28:8, italics added [trial court exercises discretion based on 

equitable considerations].) Thus, despite the fact the Secretary’s recommendation is not a 

frivolous application, it is not analogous to a prima facie showing in a habeas corpus 

petition.

14 While we conclude defendants have no constitutional right to counsel before the trial 

court summarily declines to recall and resentence pursuant to the Secretary’s 

recommendation, it is certainly within the prerogative of the Legislature to create a 

statutory right to counsel by amending section 1170(d). 
24

DISPOSITION

The order declining to recall and resentence defendant is reversed. The matter is 

remanded to the trial court for further proceedings consistent with this opinion.

 /s/

MURRAY, Acting P. J.

We concur:

 /s/

DUARTE, J.

 /s/

RENNER, J.