Filed 5/28/21 P. v. Avalos CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ANGEL R. AVALOS,

Defendant and Appellant.

F079734

(Super. Ct. No. F13900807)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. James A. 

Kelley, Judge.

Nicholas James Seymour, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and John 

Merritt, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOooAngel R. Avalos is currently serving a 25-year prison sentence. Ten years of that 

sentence is due to a firearm enhancement. After the Legislature enacted Senate Bill 

No. 620 (2017-2018 Reg. Sess., stats. 2017, ch. 682) (SB 620), the Secretary of the 
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California Department of Corrections and Rehabilitation (CDCR) recommended the trial 

court recall Avalos’s sentence and resentence him in light of its newly conferred 

discretion to strike firearm enhancements. The trial court declined the recommendation 

and Avalos now appeals that decision. We affirm.

BACKGROUND

Avalos pled no contest to robbery (Pen. Code,1 § 211), active participation in a 

gang (§ 186.22, subd. (a)), and illegal possession of a firearm (§ 29800, subd. (a)). He 

also admitted gang-related crime and firearm enhancements. (§§ 186.22, subd. (b) & 

12022.53, subd. (b)). He was sentenced to serve 25 years in prison. Ten years of that 

sentence was due to the firearm enhancement.

At the time of the plea, trial courts had no discretion to strike firearm 

enhancements. Several years after the plea, the Legislature enacted SB 620 to confer 

upon trial courts discretion to strike firearm enhancements. On this basis, the CDCR 

Secretary recommended the trial court recall Avalos’s sentence.

The Secretary’s recommendation included a “cumulative case summary and 

evaluation report pursuant to the provisions of Penal Code section 1170(d).” The 

summary “present[ed] case factors that are applicable pursuant to the 

recommendation ....” These factors detailed Avalos’s “institutional adjustment,” “self 

help activities,” and “support.” 

The court subsequently declined to recall the sentence. In a letter written to the 

Secretary, the court explained it “read and considered the [recommendation] and the 

attachments thereto. [It found], based on the facts presented regarding both the defendant 

and the offense at the time of sentencing, the court, if it had discretion to strike the 

allegation pursuant to P.C. 12022.53(b), would not have exercised such discretion to 

strike or stay the punishment for the firearm enhancement.” 

1 All statutory references are to the Penal Code.
3.

DISCUSSION

Section 1170, subdivision (d), permits a trial court to “recall the sentence and 

commitment previously ordered and resentence the defendant” “at any time upon the 

recommendation of the secretary ....” “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 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.” (Ibid.)

On appeal, Avalos complains the trial “court erred in limiting the sentencing 

factors to those it would have considered at the time of the original sentencing.” In other 

words, it failed to consider postconviction factors as outlined in section 1170, 

subdivision (d). We disagree.

At the outset, we find the applicable standard of review is abuse of discretion. 

(See People v. Carmony (2004) 33 Cal.4th 367, 374-375 [concluding trial court’s 

decision not to exercise sentencing choice is reviewable for abuse of discretion].) “In 

reviewing for abuse of discretion, we are guided by two fundamental precepts. First, 

‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing 

decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the 

trial court is presumed to have acted to achieve legitimate sentencing objectives, and its 

discretionary determination to impose a particular sentence will not be set aside on 

review.” ’ [Citation.] Second, a ‘ “decision will not be reversed merely because 

reasonable people might disagree. ‘An appellate tribunal is neither authorized nor 

warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citation.] 

Taken together, these precepts establish that a trial court does not abuse its discretion 
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unless its decision is so irrational or arbitrary that no reasonable person could agree with 

it.” (Id. at pp. 376-377.)

Avalos has failed to demonstrate a clear abuse of discretion. In declining to recall 

the sentence, the trial court stated it had considered the “attachments” to the Secretary’s 

recommendation. The only attachment to the recommendation was the case summary 

described above, including its description of Avalos’s postconviction rehabilitative 

efforts. 

The court then stated it considered “the facts presented regarding both the 

defendant and the offense at the time of sentencing ....” Although this statement is 

arguably ambiguous,2it is reasonably interpreted to mean the court considered all facts—

pre- and postconviction—regarding Avalos, and the facts underlying the convictions, 

prior to declining to recall the sentence. For these reasons, we conclude the trial court’s 

decision was not arbitrary or irrational and it did not abuse its discretion.

DISPOSITION

The judgment is affirmed.

SNAUFFER, J.

WE CONCUR:

LEVY, Acting P.J.

POOCHIGIAN, J.

2

In the same sentence, the court concluded the original sentencing court would 

not have exercised its discretion to strike the firearm enhancement. We do not read any 

error into this conclusion because the judge that pronounced judgment is the same judge 

that declined to recall the sentence.