Filed 9/16/21 P. v. Godinez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

 Plaintiff and Respondent,

v.

FRANK ADAM LIENDO 

GODINEZ,

 Defendant and Appellant.

2d Crim. No. B308086

(Super. Ct. No. 1353476)

(Santa Barbara County)

The California Department of Corrections and 

Rehabilitation (CDCR) exercised its authority under Penal Code 

section 1170, subdivision (d)(1)1 to request that the superior court 

recall Frank Adam Liendo Godinez’s sentence and resentence

him. Specially, the CDCR recommended the trial court consider 

striking a five-year prior felony conviction enhancement imposed 

under section 667, subbdivision (a)(1). The trial court denied the 

1 All subsequent statutory references are to the Penal Code, 

unless otherwise noted.
2

request, concluding it lacked discretion to recall appellant’s 

sentence because the sentence was part of a plea bargain.

Appellant contends the trial court erred because section 1170, 

subdivision (d)(1) expressly grants authority to recall a pleabargained sentence. Respondent concedes the matter must be 

remanded and requests that we provide the trial court with 

direction concerning which aspects of appellant’s sentence are 

eligible for resentencing. 

FACTS

In 2014, appellant pleaded guilty to voluntary 

manslaughter. (§ 192, subd. (a).) He also admitted several 

enhancement allegations: the crime was committed for the 

benefit of a criminal street gang (§ 186.22, subd (b)(1)), appellant 

personally used a firearm (§ 12022.53, subd (d)), appellant had a 

prior serious felony conviction (§ 667, subd. (a)(1)), and appellant 

had served a prior prison term. (§667.5, subd. (b).) The trial 

court sentenced him to an agreed-upon term of 26 years in state 

prison.

In July 2019, the CDCR wrote to the superior court, 

“to provide the court with authority to resentence [appellant] 

pursuant to Penal Code section 1170, subdivision (d).” The letter 

explained that 2018 amendments to the Penal Code provided 

sentencing courts, for the first time, with discretion under section 

1385 to strike enhancements imposed for prior serious felony 

convictions. 

Appellant filed a brief in support of resentencing. He 

informed the trial court that he had not been subject to 

disciplinary proceedings while incarcerated and had taken 

advantage of work and rehabilitation programs, including college 

classes. Appellant asked the trial court to consider striking his 
3

five-year prior felony conviction enhancement in the interests of 

justice. The prosecution opposed resentencing. Its written 

opposition is not included in the record. Following a hearing, the 

trial court declined to recall appellant’s sentence on the ground 

that it lacked discretion to alter a plea-bargained sentence.

DISCUSSION

Section 1170, subdivision (d)(1) provides that the 

trial court may “at any time upon the recommendation of the 

[CDCR] . . . recall the sentence and commitment previously 

ordered and resentence the defendant in the same manner as if 

they had not previously been sentenced, provided the new 

sentence, if any, is no greater than the initial sentence.” The 

statute further provides, “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.” (Ibid.)

The trial court declined to recall appellant’s sentence

because it concluded it lacked discretion to reduce a sentence that 

was part of a plea bargain. As the parties agree, this was error. 

The statute expressly permits a trial court to reduce a term of 

imprisonment or modify a judgment, “including a judgment 

entered after a plea agreement . . . .” (§ 1170, subd. (d)(1).) 

Because the trial court misunderstood its discretion under section 

1170, the matter must be remanded.

On remand, the trial court may decide to recall 

appellant’s sentence “for any reason rationally related to a lawful 

sentencing. The court may then impose any otherwise lawful 

resentence suggested by the facts available at the time of 

resentencing.” (Dix v. Superior Court (1991) 53 Cal.3d 442, 456

(Dix).) At resentencing, the trial court may also “consider 
4

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

disciplinary record and record of rehabilitation while 

incarcerated . . . .” (§ 1170, subd. (d)(1).)

Respondent urges us to provide the trial court with 

direction concerning which sentence enhancements it has 

discretion to strike, should it decide to resentence appellant. 

Appellant’s sentence became final in 2014. A number of changes 

have been made to the trial court’s sentencing discretion in the 

intervening years. For example, in 2014, the trial court lacked 

discretion to strike the firearm use enhancement (§ 12022.53), 

the five-year prior serious felony conviction enhancement (§ 667),

and the one-year prior prison term enhancement (§ 667.5). By 

January 1, 2020, each of these statutes had been amended to 

grant the trial court discretion to strike the enhancement in the 

interest of justice. (See, e.g., Senate Bill No. 620 (2017-2018 Reg. 

Sess.) (discretion to strike firearm use enhancement); Senate Bill 

No. 1393 (2017-2018 Reg. Sess.) (discretion to strike five-year 

prior serious felony conviction enhancement); Senate Bill No. 136 

(2019-2020 Reg. Sess.) (discretion to strike one year prior prison

term enhancement).)

Our Supreme Court is presently considering which of 

these statutory amendments applies to the resentencing of a

person whose judgment was final before the amendments were 

adopted. (See, e.g., People v. Padilla (Aug. 26, 2020, S263375) 

___ Cal.5th ___ [2020 Cal. LEXIS 5962]; People v. Federico (Aug. 

26, 2020, S263082) ___ Cal.5th ___ [2020 Cal. LEXIS 5958].)2 

2 In Padilla, No. S263375, our Supreme Court granted 

review on the following question: “When a judgment becomes 

final, but is later vacated, altered, or amended and a new 
5

Pending those decisions, we rely on the longstanding general rule 

that changes in the law apply prospectively, unless the 

Legislature expressly provides to the contrary. (§ 3 [“No part of 

[the Penal Code] is retroactive, unless expressly so declared”].) 

The rule in California has long been that “a new 

statute is presumed to operate prospectively absent an express 

declaration of retrospectivity or a clear indication that the 

electorate, or the Legislature, intended otherwise.” (Tapia v. 

Superior Court (1991) 53 Cal.3d 282, 287.) In re Estrada (1965) 

63 Cal.2d 740, established a presumption that, when the 

Legislature lessens the punishment for a crime, “it must have 

intended that the new statute imposing the new lighter penalty 

now deemed to be sufficient should apply to every case to which it 

constitutionally could apply. The amendatory act imposing the 

lighter punishment can be applied constitutionally to acts 

committed before its passage provided the judgment convicting 

the defendant of the act is not final.” (Id. at p. 745.) Estrada

instructs us to presume that, “in the absence of a savings clause 

providing only prospective relief or other clear intention 

concerning any retroactive effect, ‘a legislative body ordinarily 

intends for ameliorative changes to the criminal law to extend as 

broadly as possible, distinguishing only as necessary between 

sentence imposed, is the case no longer final for the purpose of 

applying an intervening ameliorative change in the law?” In 

Federico, No. S263082, our Supreme Court granted review on this 

question: “Did defendant’s resentencing pursuant to Penal Code 

section 1170, subdivision (d)(1) ‘reopen’ the finality of his 

sentence, such that he was entitled to the retroactive application 

of Proposition 57 and Senate Bill No. 1391 on an otherwise longfinal conviction?”
6

sentences that are final and sentences that are not.’” (People v. 

Buycks (2018) 5 Cal.5th 857, 881, quoting People v. Conley (2016) 

63 Cal.4th 646, 657.)

Appellant was originally sentenced in October 2014.

We affirmed the judgment following a review under People v. 

Wende (1979) 25 Cal.3d 436 and our remittitur issued in October 

2015. The judgment was final at that point. (Cal. Rules of Court, 

rule 8.104.) All of the statutory amendments at issue here were 

enacted after appellant’s sentence became final. Unless the new 

statutes expressly operate retroactively, we conclude they do not 

apply to appellant. 

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

sections 12022.5 and 12022.53 to grant the trial court discretion 

to strike a firearm use enhancement. The amended statute now 

expressly states, “The court may, in the interest of justice 

pursuant to Section 1385 and at the time of sentencing, strike or 

dismiss an enhancement otherwise required to be imposed by this 

section. The authority provided by this subdivision applies to any 

resentencing that may occur pursuant to any other law.” 

(§ 12022.53, subd. (h); Stats. 2017, ch. 682, § 2.) Respondent 

correctly concedes the reference to “resentencing . . . pursuant to 

any other law” permits it to be applied retroactively. 

The same cannot be said for recent amendments to 

section 667 (five-year prior serious felony enhancement) and 

section 667.5 (one-year prior prison term enhancement). Senate 

Bill No. 1393 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1013, § 1) 

amended section 667 to remove a phrase that prohibited the trial 

court from striking the enhancement term in the interest of 

justice. Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, 

ch. 590, § 1) amended section 667.5 to specify that the one-year 
7

enhancement term applied only to a prior prison term “for a 

sexually violent offense . . . .” Neither amendment expressly 

authorized its application to a final judgment.

Finally, our Supreme Court has not previously 

construed section 1170, subdivision (d)(1) to authorize the 

retroactive application of new sentencing laws at resentencing. 

In People v. Johnson (2004) 32 Cal.4th 260, a defendant whose 

sentence was recalled to correct an error contended he was 

entitled to presentence custody credits for time served between 

the original sentencing and the resentencing hearing, because the 

recall voided his original sentence. (Id at p. 265.) The Supreme 

Court disagreed. Although section 1170, subdivision (d) permits 

the trial court to resentence a defendant “‘as if he or she had not 

previously been sentenced,’” the recall does not restore a 

defendant to presentence status or remove the defendant from 

the custody of the CDCR. (Johnson, supra, at p. 267.) Instead, 

the “as if” language “allows the trial court to reconsider its 

original sentence and impose any new sentence that would be 

permissible under the Determinate Sentencing Act if the 

resentence were the original sentence so long as the new aggregate 

sentence does not exceed the original sentence.” (Id. at p. 265, 

emphasis in original.) The trial court’s discretion on resentencing 

after a recall is “‘as broad as that possessed by the court when the 

original sentence was pronounced.’” (Id. at p. 266, quoting Dix, 

supra, 53 Cal.3d at p. 456.)

As we have noted, when appellant was originally 

sentenced, the trial court lacked discretion to strike the section 

667 and 667.5 enhancements. Although section 1170, subdivision 

(d)(1) permits the trial court to recall his sentence, it does not 
8

expand the trial court’s sentencing discretion or authorize the 

retroactive application of newly enacted sentencing laws. 

DISPOSITION

The order denying petition for resentencing is 

reversed. The matter is remanded to the trial court with 

instruction to consider whether to recall appellant’s sentence 

pursuant to section 1170, subdivision (d)(1).

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

PERREN, J.
James F. Rigali, Judge

Superior Court County of Santa Barbara

______________________________

Richard B. Lennon, 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, Senior 

Assistant Attorney General, Michael R. Johnsen, Supervising 

Deputy Attorney General, Peggy Z. Huang, Deputy Attorney 

General, for Plaintiff and Respondent.