F iled 11 / 10 / 22 P. v. Lugo CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH LUGO,

Defendant and Appellant. H0 4 9 501 ( Santa Clara County Super. Ct. No

. 189590 )

MEMORANDUM OPINION 1

In 1997

, d efendant Joseph Lugo was convicted of attempted first degree burglary

. (Pen. Code, § § 664, 459, 460, subd. (a) .) 2 The jury also found that he had two strike

prior convictions (§ § 667, subd s . (b)

- (i), 1170.12), two serious felony prior convictions

(§ 667, subd. (a)), and four pris on priors (§ 667.5, subd. (b))

. The trial court imposed a

total term of 38 years to life

.
In January 2020

, the Secretary of the California Department of Corr ections and

Rehabilitation (the Secretary) sent a letter to the trial court recommending that it recall
Lugo’s sentence pursuant to former section 1170, subdivision (d)

. The trial court

declined to consider modifying or reducing Lugo’s sentence on the ground that Senate

1 We resolve this case by memorandum opinion under California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853

- 855.) The facts of the offense are immaterial to this appeal.

2 Subsequent undesignated statutory references are to the Penal Code.2

Bill No. 1393, which amended section 667, subdivision (a) , applied only to cases not

final on appeal when it went into effect on January 1, 2019 . The trial court reasoned that

Senate Bill No. 1393 was not intended to apply retroactively, and was therefore
inapplicable to Lugo’s case , which was final prior to its passage.

Lugo appeals from the trial court’s denial on the ground s that the trial court abused

its discretion under former section 1170, subdivision (d) , by not recalling his sentence as

recommended by the Secretary . Alternatively, Lugo contends that under the newly

enacted section 117 2.1

, 3 the matter should be remanded to the trial court for a hearing in

accordance with its mandates

. The Attorney General concedes that we should reverse
and remand for the trial court to consider the Secretary’s recommendation , given the

change in the law

. The Attorney General’s concession is well

- taken. Section 1172.1 , which took

effect this year, add ed several requirements to the recall and resentencing process,

including notice, appointment of counsel, a hearing, and a statement of reasons for the

ruling on the record. ( § 1172.1, subd s . (a)(6), (7), ( 8 ), & (b)(1) .) Where, as here, the

Secretary initiates a recall and resentencing request
, section 1172.1 imposes “ a
presumption favoring recall and resentencing of the defendant, which may only be

overcome if a court finds the defendant is an unreasonable risk of danger to public safety,
as defined in subdivision (c) of Section 1170.18.” ( § 1172.1 , subd. (b)(2) .) The new

section further requires a court to “apply any changes in law that reduce sentences or
provide for judicial discretion” when resentencing under the recall statute. ( § 1172.1,

subd. (a)(2)

. )

3 N ewly enacted Assembly Bill No. 1540 (2021

- 2022 Reg. Sess.), which took effect on January 1, 2022, moved the recall and rese ntencing provision originally in section 1170 , subdivision (d) to section 1170. 0 3 and revised its terms. ( Assem. Bill No. 1540, Stats. 2021, ch. 719, § 3.1 .) After Lugo filed his opening brief , s ection 1170.03 was renumbered to section 1172.1, without ch ange, effective June 30, 2022. (Assem. Bill No. 200, Stats. 2022, ch. 58, § 9.) For the sake of clarity, we refer to section 1172.1, the current section number, in addressing Lugo’s appeal

.3

We agree with o ur colleagues in the Third District Court of Appeal who observed

that the amendment of section 1170, subdivision (d)(1) “was intended to ‘make clarifying
changes’ ” to address appellate decisions that had incorrectly construed the Legislature’s

statutory in tent

. Declining to decide whether the amended statute should apply

retroactively under In re Estrada (1965) 63 Cal. 2 d 740 ( Estrada ) , the court nonetheless

concluded “ [w] hen a case involving such a clarifying amendment is on appeal, the

appropriate resolution is to reverse and remand the matter for further proceedings in

compliance with the amended legislation

. ” ( People v. McMurray (2022) 76 Cal.App.5th

1035, 1039 , citing Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 253

. )

Further, although the parties here dispute whether Lugo is entitled to retroactive

application of section 1172.1 under Estrada

, supra , 63 Cal. 2 d 740, they agree that

remand in accordance with the new statute is appropriate for reasons of judicial economy.

As the Attorney General rightly observes, whether this court determines there was error

requiring remand under form er section 1 170, subdivision (d)(1), or the Secretary itself

reinitiates its recall recommendation under the new statute, the trial court will be called

upon to apply section 1172.1. Under either circumstance, Lugo is entitled to a hearing

pursuant to the new statute so that the trial court may consider the Secretary’s
recommendation to recall Lugo’s sentence consistent with section 1172.1. R emanding

this matter for hearing at this juncture, rather than requiring the Secretary to reinitiate a

recall recommendation, p romotes judicial efficiency

.
For these reasons , we will reverse the trial court’s order declining to recall Lugo’s

sentence and remand for reconsideration pursuant to section 1172.1

.
D ISPOSITION

The trial court’s September 27, 2021, order declining to recall Lugo’s sentence is

reversed, and the matter is remanded for the trial court to reconsider the recommendation

of t he Secretary of the California Depar tment of Corrections and Rehabilitation pursuant

to section 1172.1

._______________________________ Greenwood, P. J.

WE CONCUR:

______________________________________ Grover, J.

______________________________________ Lie, J.

People v. Lugo H049501