Filed 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ordered 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.

 H049501

 (Santa Clara County

 Super. Ct. No. 189590)

MEMORANDUM OPINION1

In 1997, defendant 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, subds. (b)-(i), 1170.12), two serious felony prior convictions 

(§ 667, subd. (a)), and four prison 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 Corrections 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 grounds 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 1172.1,

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, added 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, subds. (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 Newly enacted Assembly Bill No. 1540 (2021-2022 Reg. Sess.), which took 

effect on January 1, 2022, moved the recall and resentencing provision originally in 

section 1170, subdivision (d) to section 1170.03 and revised its terms. (Assem. Bill No. 

1540, Stats. 2021, ch. 719, § 3.1.) After Lugo filed his opening brief, section 1170.03 

was renumbered to section 1172.1, without change, 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 our 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 intent. Declining to decide whether the amended statute should apply 

retroactively under In re Estrada (1965) 63 Cal.2d 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.2d 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 former section 1170, 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. Remanding 

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

recall recommendation, promotes 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. 

DISPOSITION

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 the Secretary of the California Department of Corrections and Rehabilitation pursuant 

to section 1172.1.
_______________________________

Greenwood, P. J.

WE CONCUR:

______________________________________

 Grover, J.

______________________________________

 Lie, J.

People v. Lugo

H049501