Filed 10/18/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JULIO ARTURO CEPEDA,

Defendant and Appellant.

B307000

Los Angeles County

Super. Ct. No. NA090365

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Richard M. Goul, Judge. Reversed and 

remanded with instructions.

Sunnie L. Daniels, 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, Noah P. Hill and Michael R. 

Johnsen, Deputy Attorneys General, for Plaintiff and 

Respondent. 
2

INTRODUCTION

In 2018, defendant and appellant Julio Arturo Cepeda pled 

guilty to carjacking as a second strike, and admitted he sustained 

a prior serious felony conviction. The trial court sentenced him to 

15 years in state prison, which included a five-year enhancement

for the prior serious felony conviction. At the time of Cepeda’s 

plea and sentence, courts were prohibited from striking serious 

felony enhancements under Penal Code section 667, subdivision 

(a)(1).1

In 2020, the secretary of the California Department of 

Corrections and Rehabilitation (“CDCR”) sent a letter to the trial 

court invoking the sentence recall provision of section 1170, 

subdivision (d)(1). The secretary’s letter noted Cepeda’s sentence 

included a five-year enhancement imposed under section 667, 

subdivision (a)(1), and that Senate Bill No. 1393 (“SB 1393”) had 

given courts the discretion to strike such enhancements. The trial 

court recalled the sentence and held a resentencing hearing 

under section 1170, subdivision (d)(1), at which it declined to 

strike Cepeda’s enhancement. The court based its decision on (1)

deference to what it thought the original sentencing judge might 

have done if given the option to resentence Cepeda under SB 

1393; and (2) its own independent assessment of the trial court 

file. In making its ruling, the court declined Cepeda’s request 

that it consider additional evidence concerning his behavior in 

prison after being sentenced. 

On appeal, Cepeda argues the trial court abused its 

discretion in declining to strike the enhancement. Specifically, he

contends the court erred by relying on what the original 

1 All further undesignated statutory references are to the 

Penal Code. 
3

sentencing judge might have done and by declining to consider 

the additional evidence. The Attorney General contends the trial 

court was correct in declining to strike the enhancement, but for 

a different reason than the ones given by the trial court – that SB 

1393 does not apply retroactively to final cases, and Cepeda’s 

case was final when SB 1393 took effect. Cepeda counters that

the language of section 1170, subdivision (d)(1) authorized the 

trial court, upon receiving the letter from the CDCR, to 

resentence Cepeda under current law, which included SB 1393.2

We agree with Cepeda. Although SB 1393 does not apply 

retroactively to final cases in which the defendant directly 

petitions the court for relief, section 1170, subdivision (d)(1) 

provides the trial court the authority to recall a sentence “at any 

time upon the recommendation of the secretary” of the CDCR and 

“resentence the defendant in the same manner as if they had not 

previously been sentenced . . . .” (Italics added.) Under this broad 

language, the CDCR’s letter allowed the trial court to recall 

Cepeda’s sentence and resentence him in light of SB 1393. 

We note that an issue similar to the one presented in this 

case is currently pending before our Supreme Court. In People v. 

Arnold, (Aug. 31, 2021, S269172) [nonpub. opn.], the Court will 

resolve the following issue: “Did the trial court err when it 

declined to accept the recommendation by the California 

Department of Corrections and Rehabilitation that defendant’s 

sentence be recalled (Pen. Code, § 1170, subd. (d)) in order to 

2 The Attorney General concedes that, assuming section 

1170, subdivision (d)(1) authorizes the application of SB 1393 to 

Cepeda’s case, remand is appropriate because the trial court’s 

reasons for declining to strike the enhancement were an abuse of 

discretion. 
4

address the statutory amendments made by Senate Bill No. 1393 

in light of the court’s conclusion that those amendments did not 

apply to final judgments?” Also, in People v. Pillsbury (Sept. 30, 

2021, C089002) ___ Cal.App.5th ___ (Pillsbury), our colleagues in 

the Third Appellate District recently held that, “upon the 

recommendation of the Secretary of the CDCR . . . , 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.” (Id. at p. 2.) For reasons 

discussed in greater detail below, we agree with Pillsbury and 

publish this opinion to augment the analysis in Pillsbury.

In addition to concluding section 1170, subdivision (d)(1) 

authorized the trial court to resentence Cepeda, we conclude the 

court abused its discretion when it declined to strike Cepeda’s 

prior serious felony enhancement for the reasons stated. The case 

is therefore remanded for a new section 1170, subdivision (d)(1)

resentencing hearing. At the new hearing, the court is directed to 

make its own independent ruling and to consider any additional 

evidence Cepeda may present concerning his behavior in prison 

after being sentenced.

BACKGROUND3

On April 11, 2018, before Judge Richard R. Romero, Cepeda 

pled guilty to carjacking (§ 215, subd. (a)) as a second strike 

(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) with a prior serious 

felony enhancement (§ 667, subd. (a)(1)). As part of the plea 

3 We omit recitation of the facts contained in the probation 

report because they are not relevant to the issues presented in 

this appeal.
5

agreement, attempted carjacking (§§ 215, subd. (a), 664) and hitand-run (Veh. Code, § 20002, subd. (a)) charges were dismissed, 

along with a deadly weapon enhancement allegation on the 

carjacking charge (§ 12022, subd. (b)(2)). The court sentenced 

Cepeda to a term of 15 years in state prison, consisting of a fiveyear middle term for the carjacking conviction, doubled for the 

prior strike enhancement, plus a five-year prior serious felony 

enhancement. Cepeda did not appeal. 

At the time of Cepeda’s plea and sentence, courts were 

prohibited from striking serious felony enhancements under 

section 667, subdivision (a)(1). (People v. Jones (2019) 32

Cal.App.5th 267, 272.) Effective January 1, 2019, however, 

Senate Bill No. 1393 (2017-2018 Reg. Sess.) removed that 

prohibition, permitting trial courts to dismiss serious felony 

enhancements in furtherance of justice. (People v. Stamps (2020) 

9 Cal.5th 685, 693 (Stamps); see Stats. 2018, ch. 1013, §§ 1 & 2.)

In 2020, the secretary of the CDCR sent a letter to the trial 

court invoking the recall provision of section 1170, subdivision 

(d)(1) with respect to Cepeda’s case. The secretary’s letter noted 

Cepeda’s sentence included a five-year enhancement under 

section 667, subdivision (a)(1), and that SB 1393 had 

subsequently given courts the discretion to strike such

enhancements. The letter included several documents relating to 

Cepeda’s conviction and incarceration. Those documents showed 

that, during Cepeda’s incarceration, he had not been reported for 

any rule violations, had received 16.25 hours of credit for 

participating in rehabilitative or self-help programs, and had 

been assigned to four educational, employment, or rehabilitative 

programs. The letter recommended “that inmate Cepeda’s 
6

sentence be recalled and that he be resentenced in accordance 

with section 1170, subdivision (d).” 

The matter was assigned to Judge Richard M. Goul, who 

recalled the sentence and held a resentencing hearing. At the

hearing, the court indicated the parties had conferred off the 

record about the request but stated: “I will certainly hear 

whatever you want to say.” Defense counsel argued the court had 

jurisdiction under section 1170, subdivision (d)(1) to apply SB 

1393 retroactively based on the CDCR’s letter. The court 

responded it would “accept[ ] jurisdiction” over the matter and

consider striking the enhancement.

Defense counsel argued it would be improper for the court, 

in making its ruling, to rely on Judge Romero’s prior acceptance 

of the plea and sentence, because the original sentencing court

had no opportunity to consider striking the serious felony 

enhancement. The prosecution did not offer any argument in 

response. 

The court indicated it would make a two-part ruling. First, 

relying on People v. Davis (2020) 48 Cal.App.5th 543 (Davis), and 

out of deference to Judge Romero’s acceptance of the plea and 

sentence, the court ruled it would not strike the serious felony 

enhancement.4 Second, the court made the alternative ruling

that, based on its own independent review of the trial court file, it 

would not strike the enhancement. 

Defense counsel asked if the court would consider 

additional evidence concerning Cepeda’s behavior in prison after 

being sentenced. The court declined the request, stating it would 

rely on the record already before it. 

Cepeda timely appealed. 

4 Davis is discussed in greater detail below in footnote 12.
7

DISCUSSION

In his opening brief, Cepeda argues the court abused its 

discretion by relying on Judge Romero’s acceptance of the guilty 

plea and by declining defense counsel’s request to consider 

additional evidence. The Attorney General counters the trial 

court’s ruling should be affirmed because SB 1393 did not apply 

retroactively to Cepeda’s case, which was already final when SB 

1393 took effect. The Attorney General concedes, however, that, 

assuming SB 1393 applies to Cepeda’s case, remand would be 

appropriate because the trial court abused its discretion by (1) 

concluding the plea bargain accepted by Judge Romero precluded 

it from exercising its own independent discretion; and (2) 

declining defense counsel’s request that it consider additional 

evidence concerning Cepeda’s behavior in prison after being 

sentenced. In his reply brief, Cepeda contends because 

subdivision (d)(1) of section 1170 authorizes the application of 

current law when resentencing defendants upon the 

recommendation of the secretary of the CDCR, this provision 

authorized the court to apply SB 1393 to Cepeda’s case even 

though it was final when the new law took effect. For the reasons

discussed below, we agree with Cepeda that subdivision (d)(1) 

authorizes the application of current law upon resentencing. We 

also agree with the parties that the trial court abused its 

discretion at the resentencing hearing.

I. Section 1170, Subdivision (d)(1) Authorizes the 

Application of Current Law

We begin our analysis by noting Cepeda’s judgment was 

final when SB 1393 took effect. Cepeda entered his guilty plea 

and was sentenced on April 11, 2018. Because Cepeda did not 

appeal the judgment, it became final in June 2018. (See Cal. 
8

Rules of Court, rule 8.308(a) [notice of appeal must be filed 

within 60 days after rendition of judgment]; In re Spence (1965) 

63 Cal.2d 400, 405 [a judgment becomes final when “courts can 

no longer provide a remedy to a defendant on direct review.”].) SB 

1393 took effect on January 1, 2019. (Stamps, supra, 9 Cal.5th at 

p. 693.) 

Our colleagues in Division Six have explained that the 

Legislature did not intend SB 1393 to apply when defendants 

whose cases are final directly petition the trial court. (People v. 

Alexander (2020) 45 Cal.App.5th 341, 345-346 (Alexander).) But 

Alexander dealt with a different issue than the one presented 

here. It arose from the denial of a motion for resentencing under 

SB 1393 brought by the defendant himself. (Alexander, supra, 45 

Cal.App.5th at p. 343.) Consequently, section 1170, subdivision 

(d)(1) was not implicated. By contrast, Cepeda’s case did not arise 

as a result of him filing his own SB 1393 motion in the trial court. 

Rather, it arose because the secretary of the CDCR wrote the 

trial court a section 1170, subdivision (d)(1) letter authorizing the 

court to resentence Cepeda. Thus, the question here is whether 

section 1170, subdivision (d)(1) allows the trial court, upon 

recommendation by the CDCR, to apply SB 1393 to cases that are 

already final. We conclude the answer is yes. We base this

conclusion on the plain language of subdivision (d)(1) as 

construed by our Supreme Court in Dix v. Superior Court (1991) 

53 Cal.3d 442, 455 (Dix).

Section 1170, subdivision (d)(1) provides that a trial court 

“may, . . . at any time upon the recommendation of the secretary” 

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 
9

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

(Italics added.)5 This provision explicitly includes plea 

agreements and permits reduction of the defendant’s term of 

imprisonment if it is in the interest of justice.

5 The full language of section 1170, subdivision (d)(1) 

provides: “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, or the district 

attorney of the county in which the defendant was sentenced, 

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 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 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.”
10

As our Supreme Court has observed, “[s]ection 1170(d) is 

an exception to the common law rule that the court loses 

resentencing jurisdiction once execution of sentence has begun.

[Citations.]” (Dix, supra, 53 Cal.3d at p. 455.) “[T]he resentencing 

authority conferred by section 1170(d) is as broad as that 

possessed by the court when the original sentence was 

pronounced,” with the following two limitations: “First, the 

resentence may not exceed the original sentence. Second, the 

court must award credit for time served on the original sentence.”

(Dix, supra, at p. 456.)6 Notably, in its list of limitations on 

resentencing authority, Dix does not state subdivision (d)(1) bars

the application of current law, nor does the statute itself 

contemplate any such limitation. Under the broad authority 

conferred in section 1170, subdivision (d)(1), as elucidated by Dix, 

the CDCR’s letter gave the trial court jurisdiction to apply to 

Cepeda the law in effect at the time of resentencing. (See People 

v. Arias (2020) 52 Cal.App.5th 213, 219 [“Postconviction changes 

in law or clarifications of the law are permissible grounds by 

which a trial court may recall a sentence and resentence to a 

lower term ‘in the interest of justice.’ (§ 1170, subd. (d)(1)

[Citation.]”]; Dix, supra, 53 Cal.3d at p. 463 [“[S]ection 1170(d) 

permits the sentencing court to recall a sentence for any reason 

which could influence sentencing generally, even if the reason 

arose after the original commitment.”].) For these reasons, the 

6 Although subdivision (d)(1) has been amended since Dix, 

none of the changes to the statute has impacted or undermined 

Dix’s characterization of the trial court’s resentencing authority. 
11

trial court was correct in concluding it had jurisdiction to recall

Cepeda’s sentence and resentence him.7

As the secretary’s letter suggests, the CDCR’s 

administrative regulations are in harmony with our conclusion. 

The California Code of Regulations provides the CDCR may 

recommend recall and resentencing “[w]hen there is a change in 

sentencing law as described in subsection (d)(1)[.]” (Cal. Code 

Regs., tit. 15, § 3076.1, subd. (a)(3).) Subdivision (d)(1) of the 

regulation provides: “An inmate may be considered for referral 

pursuant to subsection (a)(3) 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.” (Cal. Code Regs., tit. 15, § 3076.1, subd. (d)(1).) The

CDCR’s regulations are entitled to deference. (See Dix, supra, 53 

7 Having concluded the CDCR’s letter and subdivision (d)(1) 

gave the trial court jurisdiction to apply SB 1393 to Cepeda’s 

case, we need not address Cepeda’s argument, raised in the 

alternative, that his case was rendered nonfinal for retroactivity 

purposes when the trial court here recalled and resentenced him 

under subdivision (d)(1). We note, as do the parties, that two 

issues related to Cepeda’s argument are currently pending in the 

Supreme Court in People v. Federico (2020) 50 Cal.App.5th 318, 

review granted August 26, 2020, S263082 (Federico), and People 

v. Padilla (2020) 50 Cal.App.5th 244, review granted August 26, 

2020, S263375 (Padilla). The issue presented in Padilla is: 

“When a judgment becomes final, but is later vacated, altered, or 

amended and a new sentence imposed, is the case no longer final 

for the purpose of applying an intervening ameliorative change in 

the law?” The issue presented in Federico is: “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 long-final conviction?” 
12

Cal.3d at p. 460 [“Unless unreasonable or clearly contrary to the 

statutory language or purpose, the consistent construction of a 

statute by an agency charged with responsibility for its 

implementation is entitled to great deference. [Citation.]”]; 

Nipper v. California Auto. Assigned Risk Plan (1977) 19 Cal.3d 

35, 45 [“We have generally accorded respect to administrative 

interpretations of a law and, unless clearly erroneous, have 

deemed them significant factors in ascertaining statutory 

meaning and purpose. [Citations.]”].) 

We reject the Attorney General’s contrary argument that 

section 1170, subdivision (d)(1) does not contemplate 

resentencing under current law. In support of its position, the 

Attorney General notes that section 3 provides “[n]o part of [the 

Penal Code] is retroactive, unless expressly so declared[,]” and 

section 1170, subdivision (d)(1) makes no express statement that 

new laws can be applied to a final judgment upon recall for 

resentencing. We find this argument unpersuasive. Section 3 

“embodies the general rule of construction, coming to us from the 

common law, that when there is nothing to indicate a contrary 

intent in a statute it will be presumed that the Legislature 

intended the statute to operate prospectively and not 

retroactively.” (In re Estrada (1965) 63 Cal.2d 740, 746.) That 

rule of construction, however, “should not be followed blindly in 

complete disregard of factors that may give a clue to the 

legislative intent. It is to be applied only after, considering all 

pertinent factors, it is determined that it is impossible to 

ascertain the legislative intent.” (Ibid.) Here, the question of 

legislative intent is answered by the plain language of section 

1170, subdivision (d)(1), which grants the trial court broad 

authority to resentence individual inmates, in the interest of 
13

justice, “as if they had not previously been sentenced[.]” (§ 1170, 

subd. (d)(1).) Prohibiting the court from exercising its discretion 

under SB 1393 when the CDCR has recommended doing so would 

run contrary to the statute’s plain meaning and purpose, as well 

as the interest of justice. (See, e.g., Dix, supra, 53 Cal.3d at p. 

460.)

We likewise reject the Attorney General’s contention that 

its position is compelled by People v. Johnson (2004) 32 Cal.4th 

260 (Johnson). Johnson held that an inmate who is resentenced 

under section 1170, subdivision (d)(1) accrues postsentence, 

rather than presentence, custody credit for time served between 

the original sentencing and resentencing. (Johnson, supra, at p. 

263.) The holding in Johnson was based on a comparative 

analysis of the statute dealing with presentence credits (§ 2900.5) 

and the statute dealing with sentences modified while in progress 

(§ 2900.1). (Johnson, supra, at pp. 265-268.) Johnson looked to 

these statutes, in part, because section 1170, subdivision (d)(1) 

did not explicitly specify whether presentence or postsentence 

conduct credits applied upon resentencing. Johnson’s holding is 

inapposite to the issue presented here, which, as discussed above, 

is resolved by subdivision (d)(1) as construed by Dix.

As noted above, one published opinion has addressed the 

issue presented in this case: Pillsbury, supra (Sept. 30, 2021, 

C089002) ___ Cal.App.5th ___. In Pillsbury, the secretary of the 

CDCR sent the trial court a section 1170, subdivision (d)(1) letter 

recommending recall and resentencing in light of Senate Bill No. 

620. (Pillsbury, supra, at pp. 3-4.)8 The trial court issued a 

8 Senate Bill No. 620 amended section 12022.53, subdivision 

(h) to authorize courts to strike or dismiss firearm enhancements 
14

written ruling declining to recall Pillsbury’s sentence without 

explaining its reasoning. (Id. at p. 4.) The Court of Appeal asked 

the parties to provide supplemental briefing concerning whether 

the trial court had the authority to recall Pillsbury’s sentence and 

resentence him under the new ameliorative law, even though his 

case was final. (Id. at p. 6.) The Pillsbury court held the trial 

court had the authority to do so under the plain language of 

section 1170, subdivision (d)(1). (Pillsbury, supra, at p. 7.) In 

reaching this conclusion, Pillsbury explained: “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.” (Pillsbury, supra, at p. 7.)9 In 

addition to relying on the plain meaning of section 1170, 

subdivision (d)(1) in reaching its conclusion, Pillsbury noted the 

Supreme Court has explained resentencing courts under section 

1170, subdivision (d)(1) have jurisdiction to modify “‘every aspect 

of the defendant’s sentence[ ]’ [citation]” and “consider ‘any 

in the interest of justice pursuant to section 1385. (Stats. 2017, 

ch. 682, § 2.)

9 Though not relevant to Cepeda’s case, in reaching its 

conclusion, the Pillsbury court also noted “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)[ ])[,]” and 

concluded: “A resentencing after a recall under section 1170(d)(1) 

is a resentencing pursuant to law.” (Pillsbury, supra, at p. 7.)
15

pertinent circumstances which have arisen since the prior 

sentence was imposed.”’ [Citation.]” (Pillsbury, supra, at p. 7, 

citing People v. Buycks (2018) 5 Cal.5th 857, 893.) Pillsbury

concluded “a change in the law is a ‘pertinent circumstance[ ].’” 

(Pillsbury, supra, at p. 7.) We agree with this holding of Pillsbury

for the reasons discussed in that opinion as well as the reasons 

discussed herein.10

We have also found two cases that, albeit in a different 

context from this case, analyze and disagree over the meaning of 

the phrase “the same manner as if he or she had not previously 

been sentenced” found in section 1170, subdivision (d)(1): 

Federico, supra, 50 Cal.App.5th 318, review granted August 26, 

2020, and People v. Lopez (2020) 56 Cal.App.5th 835, review 

granted Jan. 27, 2021, S265936 (Lopez). The circumstances under 

which Federico and Lopez arose were different from Cepeda’s 

case. They mainly deal with whether recall and resentencing 

under subdivision (d)(1) renders a sentence nonfinal for purposes 

of retroactive application of Proposition 57 relief. (Federico, 

supra, at pp. 324-328; Lopez, supra, at pp. 841-850.) Whereas 

Federico rejected the argument that resentencing under section 

1170, subdivision (d)(1) rendered the defendant’s judgment 

10 Pillsbury additionally held: “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, . . . defendants do not have a constitutional 

right to counsel.” (Pillsbury, supra, at p. 2.) We express no 

opinion concerning these additional holdings because they are not 

relevant to the issues presented in Cepeda’s case.
16

nonfinal for purposes of retroactive Proposition 57 relief, Lopez

reached the opposite conclusion. (Federico, supra, at pp. 324-328; 

Lopez, supra, at pp. 841-850.) The Federico court, in reaching its 

conclusion, suggested use of the phrase “in the same manner as if 

he or she had not previously been sentenced” in section 1170, 

subdivision (d)(1) compels a trial court to apply the law in effect 

at the time of the original sentence. (Federico, supra, at p. 327 

[“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 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.’ (§ 1170, subd. (d)(1), italics added.) It simply allows 

the court to reconsider its sentencing choices in the original 

sentence and resentence the defendant. [Citation.]”].) 

Lopez disagreed with Federico on this point. It concluded 

section 1170, subdivision (d)(1) “does not mean, as Federico

appears to have read it, that the resentencing court may only 

‘reconsider its sentencing choices in the original sentence’ 

without regard to any intervening changes in the law. [Citation.]” 

(Lopez, supra, 56 Cal.App.5th at p. 846, citing Federico, supra, 50 

Cal.App.5th at p. 327.) “Instead, the use of the phrase ‘as if [the 

defendant] had not previously been sentenced’ means that the 

resentencing court should not consider itself bound by any aspect 

of the previous sentence. This reading is consistent with the rest 

of section 1170, subdivision (d)(1), which tells the resentencing 

court that it may consider events arising after the original 
17

conviction, such as the defendant’s disciplinary history and 

record of rehabilitation in prison. (§ 1170(d)(1).) If Federico were 

correct that the phrase ‘in the same manner’ signifies that a 

resentencing court should only reconsider its original sentencing 

choices (Federico, supra, 50 Cal.App.5th at p. 327), the 

Legislature would not have allowed the resentencing court to 

consider postconviction matters. [Footnote omitted.]” (Lopez, 

supra, at p. 846.) Pillsbury, supra, also disagreed with Federico

on this point, concluding, in part, that it was inconsistent with 

the plain meaning of section 1170, subdivision (d)(1). (Pillsbury, 

supra, at pp. 8-9.) We agree with Lopez and Pillsbury and 

respectfully disagree with the approach taken in Federico to the 

extent it is inconsistent with our analysis of subdivision (d)(1) 

and Dix.11

11 It also bears noting that we found one recent published 

case that arose as a result of the CDCR writing the trial court a 

section 1170, subdivision (d)(1) letter in light of SB 1393, though 

it appears the parties there did not raise the retroactivity issue

presented in this case. (See People v. Williams (2021) 65 

Cal.App.5th 828 (Williams).) Although Williams did not deal 

directly with the issue presented here, it noted that the Rutter 

Group’s Sentencing California Crimes suggests courts may, upon 

recommendation by the CDCR under subdivision (d)(1), recall a 

sentence in order to apply an ameliorative law to a defendant 

whose judgment is final. (See id. at p. 834.) The Rutter Group, in 

turn, provides courts the following suggested procedure for 

handling CDCR sentencing requests under section 1170, 

subdivision (d)(1): “If the correction is being made for equitable 

reasons such as a change in the law after the defendant’s 

conviction became final or defendant’s exemplary conduct in 

prison, the court should order the recall of the sentence under 

section 1170, subdivision (d)(1)[.]” (Couzens et al., Sentencing 

Cal. Crimes (The Rutter Group 2021) § 29:8, pp. 26-29.) 
18

In sum, the CDCR’s letter gave the trial court jurisdiction 

under section 1170, subdivision (d)(1) to recall Cepeda’s sentence 

and resentence him consistent with SB 1393.

II. The Trial Court Abused its Discretion

A trial court, upon receiving a section 1170, subdivision 

(d)(1) letter from the CDCR, has broad discretion whether to 

recall the existing sentence and resentence the incarcerated 

individual. “[T]he Secretary’s recommendation letter is but an 

invitation to the court to exercise its equitable jurisdiction[,]” 

which “furnishes the court with the jurisdiction it would not 

otherwise possess to recall and resentence[.]” (People v. Frazier

(2020) 55 Cal.App.5th 858, 866.) In this case, because the trial 

court has already exercised its discretion to recall Cepeda’s 

sentence and resentence him, the remaining question is whether 

the court’s reasoning in declining to strike the enhancement was 

an abuse of discretion. (See id. at pp. 863-864 [reviewing trial 

court’s decision stemming from CDCR’s recommendation under 

section 1170, subdivision (d)(1) for abuse of discretion]; People v. 

McCallum (2020) 55 Cal.App.5th 202, 211 (McCallum) [same]; 

People v. Carmony (2004) 33 Cal.4th 367, 374-375 [discretionary 

sentencing decisions are reviewed for abuse of discretion].) We

agree with the parties that the court abused its discretion.

As mentioned above, the court’s analysis in declining to 

strike the enhancement was twofold. The court’s first basis for 

declining to strike the enhancement was deference to Judge 

Romero’s acceptance of Cepeda’s plea and sentence. When section 

1170, subdivision (d)(1) was amended in 2018, the Legislature 

added language specifying that a resentencing court may “modify 

the judgment, including a judgment entered after a plea 

agreement, if it is in in the interest of justice.” Because 
19

subdivision (d)(1) explicitly provides that resentencing is not 

constrained by the terms of a plea bargain, the trial court erred 

by focusing on whether the original sentencing court would have 

disapproved striking the enhancement rather than inquiring 

whether the interest of justice now warrants departing from the 

bargain. The court’s conclusion that it was bound by the original 

plea and sentence was therefore an abuse of discretion. (See, e.g., 

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [“‘Defendants 

are entitled to sentencing decisions made in the exercise of the 

“informed discretion” of the sentencing court. [Citations.]’”].)12

The court’s second basis for declining to strike the 

enhancement was its conclusion that resentencing was 

unwarranted after reviewing the trial court file. In independently 

12 As noted above, the trial court, in deferring to Cepeda’s 

original plea, relied on Davis, supra, 48 Cal.App.5th 543. The 

court in Davis concluded that, although SB 1393 applied to 

Davis’s case, which was not yet final, remand would be futile 

because the record did not indicate the trial court would have 

disapproved the plea bargain in light of its new discretion under 

SB 1393. (Davis, supra, 48 Cal.App.5th at pp. 547-548.) Davis

dealt with the application of SB 1393 to a case on direct appeal 

from a plea bargain. (Davis, supra, at pp. 545-546.) Davis was 

thus different from Cepeda’s case, which did not arise on direct 

appeal, but rather arose from the CDCR’s recommendation that 

the trial court recall and resentence Cepeda under section 1170, 

subdivision (d)(1). The Supreme Court later granted review in 

Davis and transferred the case back to the Court of Appeal for 

reconsideration in light of the intervening decision in Stamps, 

supra, 9 Cal.5th 685. (People v. Davis, No. S262604.) Stamps, like 

Davis, arose on direct appeal from a plea bargain. (Stamps, 

supra, at pp. 692-693.) Because Davis and Stamps arose on direct 

appeal, and do not implicate subdivision (d)(1), they are not 

relevant to the issues presented in this appeal. 
20

declining to strike the enhancement, however, the court rejected 

defense counsel’s request that it consider additional evidence 

concerning Cepeda’s behavior in prison after being sentenced. 

This too was an abuse of discretion. Section 1170, subdivision

(d)(1) provides: “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.”13 As our 

colleagues in Division Seven recently explained, a trial court 

abuses its discretion when it declines to allow an inmate to 

present additional relevant evidence bearing on a section 1170, 

subdivision (d)(1) recall decision. (McCallum, supra, 55 

Cal.App.5th at pp. 216-219.) Although McCallum arose from a 

trial court’s decision not to recall a sentence under section 1170, 

subdivision (d)(1), we conclude its holding should apply with 

equal force where, as here, a trial court declines an inmate’s 

request to present additional relevant evidence at the

resentencing phase of section 1170, subdivision (d)(1) proceedings. 

On remand, the court is directed to consider any evidence Cepeda 

may offer concerning postconviction factors relevant to 

resentencing. 

Lastly, although the parties focus on whether the trial 

court should have exercised its discretion to strike Cepeda’s prior 

13 The language authorizing a resentencing court to consider 

postconviction factors was added to the statute effective June 27, 

2018. (Stats. 2018, ch. 36, § 17.)
21

serious felony enhancement, we note that under section 1170, 

subdivision (d)(1), once a trial court recalls a sentence, it has 

broad discretion to “resentence the defendant in the same 

manner as if they had not been sentenced, provided the new 

sentence, if any, is no greater than the initial sentence.” (See also 

Dix, supra, 53 Cal.3d at p. 456 [“[T]he resentencing authority 

conferred by section 1170(d) is as broad as that possessed by the 

court when the original sentence was pronounced[,]” provided the 

resentence does not “exceed the original sentence” and the court 

“award[s] credits for time served on the original sentence.”].)

Accordingly, on remand, the trial court may exercise its 

discretion to strike the enhancement, otherwise reduce Cepeda’s 

sentence, or reinstate the sentence previously imposed.
22

DISPOSITION

The sentence is vacated. On remand, the court is directed 

to hold a resentencing hearing and decide whether it would serve 

the interest of justice to strike Cepeda’s enhancement or 

otherwise reduce his sentence. (See § 1170, subd. (d)(1).) The 

court is also directed to consider any evidence Cepeda may offer 

concerning postconviction factors relevant to resentencing. 

CURREY, J.

WE CONCUR:

MANELLA, P. J.

WILLHITE, J.